Bills

Criminal Law Consolidation (Mental Impairment) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. P. MALINAUSKAS: I would like to thank the honourable members who have contributed to the second reading debate on this bill. On behalf of the government, I would like to respond to some of the various questions that were asked during the debate. I now take this opportunity to address some of the concerns raised by honourable members.

The Hon. Mr McLachlan raised concerns about the administrative detention provisions and in particular asked for examples of what evidence will be required for a determination to be made and how this is established. The provisions will only be utilised if the licensee has contravened, or is about to contravene, a licence condition or is a danger to themselves or others. This might include failing to report as directed, failing to take their prescribed medication or producing positive urine tests for illicit drugs, just to name a few.

In addressing the honourable member's concerns about the administrative detention provisions, I also take this opportunity to advise the council that it is the government's intention, as the legislation states, that the clinical director of forensic mental health will have the powers to order the administrative detention of a licence. The government agrees with the Hon. Mr Hood that this discretion should only be exercised under circumstances where legitimate risks to community safety exist.

I take this opportunity to remind members that the provisions are not new powers and that prior to a decision of the Supreme Court in 2008, the clinical director of forensic mental health had the power to detain a licensee at James Nash House for up to 14 days without court interference. When this power was previously in operation, there was never any argument made that this power was ever exercised arbitrarily or oppressively or in any way inappropriately.

The Hon. Mr McLachlan has sought clarification about whether licensees detained under an administrative decision order will be detained at an appropriate mental health facility. The government would expect that given this provision is about stabilising a licensee's mental condition, all efforts would be made for the person to be detained at an appropriate mental health facility. However, standard provisions have been incorporated into the legislation, which provide that if there is no practical alternative, the minister may direct that the licensee is detained in custody in a prison.

Both the Hon. Mr McLachlan and the Hon. Ms Vincent sought clarification from the government as to why the government has not followed the advice of the Sentencing Advisory Council in relation to the intoxication provision. As advised when this bill was introduced in this place, the bill implements the government's policy, reflected in an election commitment, to stop offenders whose mental impairment was caused by self-induced intoxication from utilising the defence of mental incompetence.

This issue was explored by the Sentencing Advisory Council, and indeed the council in both their discussion paper and final recommendation report proposed four possible options for reform. It is clear from the recommendation report that this issue was very significant and that not all council members shared the same view. The government understands the concerns raised; however, the government has formed the view that if a defendant is found mentally incompetent to commit an offence, and if a trial judge is satisfied on the balance of probabilities that the impairment was caused either wholly or in part by self-induced intoxication, whether at the time of the conduct or at any other time before the conduct, then the defendant may not be dealt with under part 8A.

This is a policy decision, and as the Hon. Mr Hood pointed out, this policy emphasises the need for people to take responsibility for their own actions. The government also takes this opportunity to address concerns raised by some honourable members and the Law Society that the amendments of the intoxication provisions are contrary to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). The proposed amendments to section 269C will mean that it is now irrelevant whether the mental illness or the self-induced intoxication occurs first.

It is now irrelevant whether a person's self-induced intoxication results in a drug-induced psychosis or whether a person's mental illness is exacerbated due to the recreational use of drugs or alcohol. It is also irrelevant whether intoxication results from the combined effects of the therapeutic consumption of a drug and the recreational use of the same or another drug. In each case, the fact is that people will no longer be able to use their own self-induced intoxication as a defence—as an excuse—for their criminal behaviour. I thank members for their interest in this bill and their support of this bill, for their questions and for their contributions to this debate.

The Hon. S.G. WADE: I am interested in the minister's answer to the question posed by the Hon. Mr McLachlan. I just want to understand the impact of the legislation. I understand, from what the minister just explained, that if a person has a mental illness and has consumed an intoxicating substance, then the trial judge will be asked whether the impairment is due in whole or in part—they cannot rely on the defence of mental impairment if their impairment is due in whole or in part to intoxication.

My understanding is that intoxicating substances have an effect from the first glass. Fundamentally, you could be a person suffering from a serious psychiatric condition, but if you have consumed one glass, at least part of your impairment relates to the alcohol. So, where is the causation?

The Hon. P. MALINAUSKAS: I have been advised that your analysis is correct. If a person who is mentally impaired consumes drugs or alcohol, then at that point they assume the responsibility for their actions in consuming drugs or alcohol.

The Hon. S.G. WADE: With all due respect, minister, they do not assume responsibility for their impairment; their impairment may be one glass which may have no impact on their behaviour. If they did not have a psychiatric condition, it may well not have, in any way, influenced their conduct. What I would ask the council to consider is whether in fact the effect of this would be to put a ban on anybody with a psychiatric condition from consuming any level of drugs and alcohol, because the impact would be that they would lose any legal rights they might otherwise have in relation to their psychiatric condition.

The Hon. P. MALINAUSKAS: My advice is that if the court finds that the impairment is caused by drugs or alcohol, then they will be held accountable accordingly. If, however, the court finds that their impairment was not affected by drugs or alcohol, then they are in a different boat. Maybe if I just read the sentence again. I understand the line of questioning from the Hon. Mr Wade. I might just read the particular sentence I refer to again, which will hopefully provide more clarity:

The government understands the concerns raised, however the government has formed the view that if a defendant is found mentally incompetent to commit an offence, and if a trial judge is satisfied, on the balance of probabilities, that the impairment was caused (either wholly or in part) by self-induced intoxication (whether at the time of the conduct or at any time before the conduct), then the defendant may not be dealt with under Part 8A.

The Hon. S.G. WADE: I understand the government's point and I look forward to considering it further. I wonder about the impact of this on people who might have alcohol-induced brain injury. My reading of that clause is whether the intoxication occurred at that time or any other time. I might have behaved very badly in my youth and had alcohol-induced brain injury. My reading of that clause would be that that intoxication, in the past, has contributed to that behaviour. Do I lose the right to have my mental impairment considered?

The Hon. P. MALINAUSKAS: We appreciate the Hon. Mr Wade's question, and we are happy to seek further advice in the coming days regarding that specific question.

The Hon. K.L. VINCENT: Members would be aware by now that the Dignity Party does have some amendments seeking to address the particular concern the Hon. Mr Wade raised in terms of 'wholly or in part' caused by self-induced intoxication. We do not intend to proceed with those amendments today because there is ongoing discussion happening, so we thank the committee for its indulgence in that regard. I think it is really important that we draw down on this issue and maybe slightly rephrase the Hon. Mr Wade's previous question about the 'in part'. I think it is the 'in part' caused by self-induced intoxication that is concerning, because I think one could quite easily argue that that is very arbitrary.

So, if I have a pre-existing mental health condition that might be exacerbated or manifesting in a particular way that might mean that I am more likely to commit a particular offence because of what I am experiencing mentally at that time but I have consumed one glass or even half a glass of wine or perhaps one joint, which might not otherwise have a severe impact on me, that is in part, is it not, influencing my decisions at that point, even though the impact of that drug might not be so severe as to cause that; it is actually majority caused by the mental health state that I find myself in at that point. I guess the question we face is: is 'in part' not overly arbitrary?

The Hon. P. MALINAUSKAS: I think the tenor of the Hon. Miss Vincent's question is consistent with that of the Hon. Mr Wade's. The government understands the question. What we would say is that the government's position is consistent with our election promise, which is that if you consume drugs or alcohol that will not be, and should not be, a defence for criminal behaviour.

The Hon. M.C. PARNELL: At the risk of flogging a dead horse, because I think the minister has said he will go away and have a think about some of these aspects, I still think it is useful if, before we come back, the minister considers that he probably has fairly universal acceptance for the idea that in the absence of any other mental illness people who go and get themselves drunk or affected by drugs should not be able to benefit from that as a defence, so that they say, 'Look, I'm not guilty. I didn't know what I was doing. I was so drunk.'

I do not think there is a great deal of argument on that, from what I have heard so far. What we are hearing from the Royal Australian and New Zealand College of Psychiatrists and others is that, where you get that interplay between people whose overwhelming condition is one of mental illness but, as the Hon. Stephen Wade and the Hon. Kelly Vincent have said, may have had a small quantity of drugs or alcohol, their conduct may have been, in part, the consequence of that self-induced intoxication.

The Royal Australian and New Zealand College of Psychiatrists' letter to us from several months ago suggests the replacement of 'wholly or in part' with the word 'primarily' or 'predominantly', so that it makes it clear that, in cases where mental illness is involved, people do still have the advantage of some sort of defence, unless the alcohol was primarily the cause of their conduct.

I do not know whether the minister will take from the different comments that have been made and the numbers of votes in this place represented by those comments, but it is something that the minister has to take away and deal with. My fear would be that, if he comes back maintaining the same sort of hard line, the bill might not survive in its current form. I put on the record that the Greens are interested in what the Royal Australian and New Zealand College of Psychiatrists have said.

The minister said he will take away with him the question regarding the new issue the Hon. Steven Wade has raised that the intoxication does not have to be current intoxication. It may well be that the conduct today is influenced or informed by the intoxication of some period ago and the minister will come back with that. I would urge the minister to consider again whether we can actually achieve the vast bulk of what we want, which is for those cases where people hide behind their intoxication and drunkenness. If the minister could consider the mental health issues as, perhaps, a special case, I think we might see this bill passing through.

The Hon. S.G. WADE: Just as a footnote to my earlier question, I also assume that the reference to 'self-induced' refers to the person who is the subject of the charge? The minister can read the Hansard later, but the question will be there anyway. I assume, therefore, that people suffering the effects of foetal alcohol syndrome will not be affected because of the reference to 'self-induced intoxication'? I just want reassurance on that point.

The Hon. P. MALINAUSKAS: I thank the Hon. Mr Wade for his question, it is a good one. I think it falls into a similar category as your earlier question and I am more than happy to come back on that. Regarding the Hon. Mr Parnell's comments, we appreciate and understand exactly where he is coming from. I think the appropriate course of action, in light of the representations made, is for them to be considered in due course and they can be addressed when we come back.

That being said, the government remains committed and unwavering in its desire to honour its election commitment in this particular area. Notwithstanding that, there are a few points there that should be taken on notice and a discussion had with the responsible minister, being the Attorney-General, and we will come back in due course.

The Hon. K.L. VINCENT: I do not want to labour the point too much as the Hon. Mr Parnell has put it quite well, but no-one is seeking to say that anyone should holus-bolus be able to say, 'I was intoxicated, therefore it's not my fault.' We are aiming to capture those people. I want to add to the Hon. Mr Wade's comments about people with foetal alcohol syndrome because I did have the same question myself. Without wanting to labour the point too much but, because I think it is very important that we are very clear, could I also ask that the minister seek advice as to whether this would or would not cover people who might have had their drink spiked, for example, or otherwise have drugs administered to their system that they did not voluntarily ingest.

The Hon. P. MALINAUSKAS: My advice is that it has to be self-induced and therefore, clearly, drink spiking does not fit into that category.

Clause passed.

Clause 2.

The Hon. A.L. McLACHLAN: I flag that I will move to report progress unless any member wants to revisit some of those issues with the minister. I thank the minister for his responses to my questions at the second reading. There was no opportunity at the close of parliament to articulate those in the summing up of the second reading debate. So, unless any member wants to tease out any points for consideration next week, I will move that motion.

Progress reported; committee to sit again.