Criminal Law Consolidation (Mental Impairment) Amendment Bill

Final Stages

Consideration in committee of Message No. 220 from the House of Assembly.

Amendments Nos 1 and 2:

The Hon. K.J. MAHER: I move:

That the council do not insist on its amendments Nos 1 and 2.

The House of Assembly has agreed to amendments Nos 3 to 10. However, the house has asked that the Legislative Council reconsider amendments Nos 1 and 2, which the government continues to oppose.

Both amendments moved by the Hon. Mr McLachlan and previously passed in this place are inconsistent with the government's election commitment to prohibit anyone whose mental impairment was caused by self-induced intoxication from utilising the defence of mental incompetence. The Hon. Mr McLachlan's first amendment opens up the availability of that defence to persons whose mental impairment was substantially caused by self-induced intoxication.

The government further submits that the Hon. Mr McLachlan's second amendment goes a lot further than addressing the supposed mischief in the bill that it appears to be addressing. If a person's self-induced intoxication is found to be a substantial cause of their offending, the Hon. Mr McLachlan's second amendment will result in the judiciary unnecessarily turning their mind to and considering whether or not all the criteria in proposed section 269C(3) apply, with the very nature of the three categories themselves being subjective. It is foreseeable that the provisions will not be applied consistently. I therefore request that amendments Nos 1 and 2 not be insisted upon.

The Hon. A.L. McLACHLAN: I ask the chamber to stand alongside me and insist on amendments Nos 1 and 2 which were moved in my name. The reasoning of the government was rejected by this chamber first time round. The council was not convinced by the reasoning of the government last time. I ask the chamber to insist on these amendments.

The Hon. K.L. VINCENT: Dignity Party will of course continue to insist on those amendments. We were one of the major voices that raised concerns about this particular aspect of the bill in the first place. We were very concerned that people who may commit an offence due to a pre-existing mental illness but who also have some substance in their system, such as drugs or alcohol, would therefore lose the ability to have their mental state taken into consideration when that offence was discussed in court, even though the underlying reason may be a very substantial pre-existing mental health issue.

We do not think that is an acceptable situation. I will not go into any more detail given that we have discussed this at some length for some time now. As I see it, we have taken a long time to reach the wording 'substantially caused by the consumption of drugs and alcohol'. We think that that is a suitable wording and we intend to stick by it.

The Hon. D.G.E. HOOD: I do not intend to rehash the arguments. We did that at length during the first attempt at this. Australian Conservatives did not support the amendments when they were initially put, and for that reason we will not be insisting on them.

The Hon. M.C. PARNELL: Just to assist the council in understanding where the numbers lie, the Greens supported the amendments the first time round and we see no reason to change our mind. The arguments for and against have not changed. We think they are sensible amendments. They improve the bill, and so the Greens will be insisting that we retain these amendments.

Motion negatived.