Tuesday, 11 April 2017
Criminal Law Consolidation (Mental Impairment) Amendment Bill
The Hon. K.L. VINCENT: I move:
Amendment No 1 [Vincent–1]—
As members would be aware, for some time the Dignity Party has held concerns about this particular aspect of the bill. While we understand the intent of it—and I do not want to go into this in any great detail, as I think we have had this discussion a number of times in this place—and while we understand the government’s intent is to make sure people cannot use the fact that they were intoxicated, either by alcohol or other drugs, as a defence to a crime, we are also concerned that this could adversely affect people with existing mental health conditions.
For example, let us say someone has pre-existing schizophrenia—without wanting to demonise any particular condition, just hypothetically—and they are under distress and lose control of their actions temporarily because they experience an active episode, so to speak, of their schizophrenia and they commit an offence.
If that person had had some alcohol or had even a small amount of drug in their system at that point in time, it is my understanding that they would lose, completely, the ability to say that they were not in complete control of their own actions at that time because of the fact that they were partially intoxicated, whether or not that alcohol or that drug was actually the cause of that offence. Our concern is that this could adversely affect people who may have real, legitimate existing mental health conditions. They need to have the opportunity to use that as a defence if that is the primary reason for them not being in control of their actions at that point in time.
I make it very clear that this is not about just anyone being able to say, ‘I was drunk or intoxicated or under the influence, therefore I can’t be proven guilty.’ We are simply concerned about the people who have an existing condition, where the alcohol or the drug is not the primary cause for their action or their committing the offence, and therefore we would like to see this particular part of the bill removed.
We understand where the numbers lie at this point in time, and we understand that the Hon. Mr McLachlan, on behalf of the Liberal opposition, has moved a compromise amendment to say that a defence should only exist if they can say that the person was substantially impacted by the alcohol or drug. We will support that in the event that striking the defence out altogether does not eventuate. However, we urge members to see reason and see that while we understand the intent, we certainly do not want to see any people being able to use alcohol and intoxication as an excuse for a crime. I understand that there are people who could be adversely and unfairly affected by this move because of their legitimate and pre-existing mental health conditions.
While we can see where the numbers lie, and we are happy to accept something of a compromise with the Hon. Mr McLachlan’s amendment, we would encourage members to consider this very important issue and how this move could impact those people with existing mental health conditions. Also, of course, it is hard to know whether the mental illness—for example, schizophrenia, as I just talked about—has led the person to consuming an intoxicating substance.
For example, if you are already experiencing an active manifestation of your schizophrenia—I feel like I am picking on schizophrenia, but I am just using that as a hypothetical example—and you are already perhaps not as in control of your actions as you would be, there is an argument to say that you could be more likely to consume alcohol and other drugs than you might otherwise be.
This is a very nuanced issue, and I think we need to consider very carefully how the different nuances could impact adversely and unwittingly and very significantly on people with mental health issues in this state. With those few words—or not so few, as it turned out—I move the amendment standing in my name.
The Hon. A.L. McLACHLAN: I thought I might just set out the Liberal Party’s position, which has been correctly articulated by the Hon. Kelly Vincent. We will not be supporting this amendment. We have great sympathy with the reasons behind the moving of the amendment, and we thank the Hon. Kelly Vincent for her contribution in the previous part of the committee stage, which drew to the attention of the Liberal Party the manifest unfairness that can arise from the application of this government initiative.
We have sought to, as described by the Hon. Kelly Vincent, put forward a compromise version, whilst taking into account the government’s views and the reasons the government has put forward these amendments. I will speak more on those in a minute, but I certainly do not push back on the reasoning. Where we differ is in the outcome and the execution of attempting to address situations which—while the government might dispute this—I think are unintended consequences which result in manifest unfairness and go beyond what should be an appropriate response by the state in any circumstances to self intoxication.
The Hon. P. MALINAUSKAS: The government opposes this amendment. This amendment and amendment No. 2 delete provisions designed to implement the government’s commitment to stop offenders who are impaired by illegal substances or alcohol from using it as an excuse for their actions. For this reason, amendment Nos 1 and 2 are opposed.
As explained in the second reading speech, statistics collected from a case file review indicated that almost a quarter of offenders who successfully used the mental incompetence defence were suffering from an impairment caused by drug-induced psychosis or from some substance abuse and dependence. The bill therefore includes new provisions to stop offenders whose mental impairment was caused by self-induced intoxication from utilising the defence of mental incompetence in part 8A.
Instead, the person would be dealt with intoxication under provisions contained in part 8 of the Criminal Law Consolidation Act. The Hon. Ms Vincent is seeking to remove these new provisions and to retain the current position, so that offenders who are impaired by illegal substances or alcohol can continue to use it as an excuse for their actions. These amendments, in the government’s view, are opposed for good reason.
The Hon. J.A. DARLEY: For the record, I will be opposing this amendment.
Amendment negatived; clause passed.
The ACTING CHAIR ( Hon. T.T. Ngo ): The Hon. Kelly Vincent, are you still going ahead with your amendment No. 2 to clause 6?
The Hon. K.L. VINCENT: I am happy to see all my amendments as consequential.
The Hon. A.L. McLACHLAN: I move:
Amendment No 1 [McLachlan–2]—
Page 5, line 37 [clause 6(3), inserted subsection (2)]—
Delete ’caused (either wholly or in part)’ and substitute ‘ substantially caused ‘
As I indicated, the Liberal Party is seeking to accommodate the government’s agenda in this matter but at the same time seeking to blunt the more unintended consequences which have been teased out in the early part of the debate. We did originally intend to insert the word ‘substantially’, but we have taken counsel that substantially is a word—
The Hon. M.C. Parnell: ‘Significantly’.
The Hon. A.L. McLACHLAN: Sorry, we had ‘significantly’—the Hon. Mr Parnell is confusing me and messing with my mind—and we are now putting ‘substantially’ in because that is the word, we understand, that is more commonly used throughout the criminal law. That is the reason why we have filed a second set.
The circumstances have been well articulated in committee. It is our view that there has to be some nexus between the consumption of a drug or alcohol and then the prevention from using mental impairment as impacting the mens rea in a subsequent trial in response to charges on a particular criminal offence.
The Hon. P. MALINAUSKAS: The government is opposed to this amendment. The amendment is 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 government has consistently stated that this position is supported by the findings of the case file review conducted by the Sentencing Advisory Council, and it is for this reason that the amendment is opposed.
The Hon. M.C. PARNELL: The words in the bill as drafted I think potentially could have led to some very unjust outcomes. The words were that ‘the mental impairment at the time of the conduct alleged to give rise to the offence was caused either wholly or in part’. Those words are pretty unforgiving, especially the words ‘in part’. It means that only a small part of the mental intent needed to have been impacted by substance use for the defence of mental incompetence to be unavailable.
The Liberal amendment, on the other hand, uses the words ‘substantially caused’, so the mental impairment was substantially caused by self-induced intoxication. We similarly would have liked the word ‘significantly’, but if ‘substantially’ is a word that has more jurisprudence attached to it, then I think that works better, but it does soften the provision to make sure that those caught by it are those we want to be caught by it.
The people at whom this bill is really aimed are those who deliberately get themselves intoxicated and then try to rely on it to get out of their criminal responsibility. I think there is uniform agreement that we do not want that to happen, but there are areas of grey, and this is an area that I think has been improved by the honourable member’s amendment, so the Greens will support it.
The Hon. K.L. VINCENT: Without wanting to repeat myself too much (but then I say that and proceed to repeat myself) the Dignity Party does support the Hon. Mr McLachlan’s amendment. I think it does capture the intent of what we were trying to achieve with our amendment, and that is to make sure, as the Hon. Mr Parnell was saying, that we capture those people who deliberately go out, become intoxicated, do the wrong thing and try to use that deliberate intoxication as a defence to that offence.
We do not want to see people who are not substantially impacted by the substance they have imbibed, but might be affected by a pre-existing condition, not able to use that condition as a defence and therefore get the mental health support surrounding that that they might require. Certainly, as has been said, the wording of ‘in part’ or ‘wholly’ affected by intoxication is problematic, because you do not want to see a situation where someone might have a very minimal amount of some substance or another in their system, yet that is an insufficient amount to account for the offence, yet they lose the ability to claim any defence to that action.
I think the words ‘substantially affected’ or ‘substantially intoxicated’ do achieve that and therefore we are happy to support the amendment. Ultimately, to my mind, it does not matter whose name is on the amendment that passes this place; what matters is that we achieve the best outcome in terms of putting forward the best legislation for the people of this state.
I respectfully put it to the minister that this parliament is not here to legislate the government’s election promises: the parliament is here to achieve the best it can for our community and not unfairly impact certain sectors in our community in trying to do so. With all due respect to the minister, we are not here to legislate the government’s election promises. Perhaps if the government’s election promises were a bit more thought through, we would not be having this discussion. With those words, on behalf of the Dignity Party, I support the Hon. Mr McLachlan’s amendment.