Alexander Marc: Criminal Justice Amendment Bill (No 7) — Consideration of Report of Health Committee Procedure In Committee 
Alexander Marc: Criminal Justice Amendment Bill (No 7) — Consideration of Report of Health Committee Procedure In Committee 
[Volume:612;Page:9518] 
MARC ALEXANDER (United Future) 
: 
 I rise on behalf of United Future to support the consideration of the report on the Criminal Justice Amendment Bill (No 7). I would like to confine my comments during this debate to some of the main points in the bill and some of the changes recommended by the Health Committee before taking a call in the debate on the third reading to talk about the general issues that the bill raises in relation to the criminal justice and health systems. 
As noted by previous speakers the legislation augments the procedural safeguards for the treatment of intellectually disabled persons who appear before the court charged with an offence. Perhaps the most important thing to bear in mind when considering this bill is the requirement to find a balance between the need to detain offenders for the sake of public safety and the need to ensure that mentally impaired offenders are treated appropriately. 
Under the Criminal Justice Act if a court is satisfied that a defendant is mentally disordered it may determine that that person is unfit to stand trial or acquit him or her on the grounds of insanity. The difficulty arises in the definition of “mentally disordered” in that it does not include those whose impairment is solely caused by an intellectual disability. The distinction is an important one as those who have an intellectual disability are not considered to be treatable which has some fairly obvious consequences for the way in which those offenders are dealt with. It also means that intellectually disabled offenders could be made to stand trial even when because they cannot construct a defence or instruct counsel to do it for them they are not fit to do so. The bill gets round this by changing the term “mentally disordered” to “mentally impaired” as recommended by the Law Commission in its 1994 report on mental health and criminal justice issues. 
An important change made by the committee was to ensure that those who know the defendant’s personal history and condition the best such as caregivers and family are consulted when a health assessment is being made for the court. If a defendant is found to be unfit to stand trial he or she will be made subject to either an order for compulsory care if intellectually disabled as provided for in the accompanying Intellectual Disability (Compulsory Care) Bill or compulsory treatment in the case of those with mental illnesses as provided for under the Mental Health (Compulsory Assessment and Treatment) Act. But in order to balance that desire to ensure appropriateness of care and attention the threshold for determining whether the accused is physically guilty of the crime is somewhat lower than normal. It is based on the balance of probabilities rather than on the absence of reasonable doubt. In light of the incapacity of the defendant to undergo trial this is a practical change that keeps the need for community safety uppermost. There is an appeal process available to defendants on the basis that there may be insufficient evidence to convict or that the defendant is unfit to stand trial. 
On the other hand to ensure that being found to be unfit to stand trial is not a softer option the maximum period of imprisonment is being increased from 7 to 10 years. Once again to balance out the need for public safety the bill extends the period in which a person may be remanded to a hospital or secure facility from 7 days to 30 days which allows the court sufficient time to assess the most appropriate method of dealing with a defendant. 
Under the Intellectual Disability (Compulsory Care) Bill the court will have an extended range of options made available to it. The bill also allows offenders to receive treatment at the same time as being subject to a prison sentence. One of the difficulties with the current system is that the courts cannot ensure that the offender is both punished and treated leading to a backlog of people in prisons awaiting transferral to a hospital. 
It is important to acknowledge that when we talk about offences committed by the genuinely intellectually impaired we are actually talking about a small number of cases. At times such as this the tragedy is not limited to the victims—although I firmly believe that their needs should be paramount—but also extends to the fact that those crimes would not have occurred if the offenders had been receiving appropriate care. Ron Mark raised a few points and—although without quite so much exuberance as he exhibited—I have to say that there are some people for whom community care is simply not feasible. It is inefficient. It may be that institutional care is the only appropriate means by which to keep them. 
We commend this bill.