BackTuesday, 15 November 2016
Criminal Law Consolidation (Mental Impairment) Amendment Bill
The Hon. K.L. VINCENT: Dignity for Disability supports this bill progressing to the committee stage but with some concerns about the mental impairment provisions in the bill. If the government could provide us with some more information to convince us that they are necessary, we will then decide whether or not we will support this bill further.
We particularly support, though, the introduction of new provisions for the cooperative interstate transfer of people under supervision orders. These provisions should benefit people experiencing mental impairment who are under relevant supervision orders and who wish to move to or from South Australia. They will now be able to move to the jurisdiction in which better employment opportunities, family connections and other supports are available.
Dignity for Disability supports the overall aim of the bill as it is largely in line, we understand, with the recommendations of the Sentencing Advisory Council and as this body comprises representatives of the Director of Public Prosecutions, Parole Board, Legal Services Commission, SA Bar Association, Commissioner for Victims’ Rights, Law Society of South Australia, the Attorney-General’s Department, Commissioner for Aboriginal Engagement and SA Police, as well as other community representatives.
While the bill reflects most of the Sentencing Advisory Council’s recommendations in its report ‘Mental impairment and the law’ on the operation of part 8A of the Criminal Law Consolidation Act 1935, there are major exceptions. These are provisions dealing with mental incompetence or mental impairment due, or partly due, to intoxication. The bill proposes to insert section 269C(2) to the effect that if a person is to be found mentally incompetent to commit an offence, and that the mental impairment was caused either completely or in part by self-induced intoxication, the person may not be dealt with under part 8A but may be dealt with under section 8 of the act, which deals specifically with intoxication.
To turn to some of our concerns in that area, I know that recommendation 11 of the Sentencing Advisory Council’s report specifically argues that, ‘The existing provisions on intoxication and mental impairment in the Criminal Law Consolidation Act 1935 should be retained without change.’ Two other recommendations in the report deal similarly with particular aspects of mental impairment caused or partly caused by intoxication by drugs or alcohol.
The Law Society of South Australia has also expressed its opposition to the aspects of this bill dealing with intoxication. In his letter to the Attorney-General about the bill, dated 30 May 2016, the Law Society’s president, David Caruso, writes:
The most fundamental reason that the society is opposed to this amendment [introducing section 269C(2)] is because ‘Drug Induced Psychotic Disorder’ is a recognised mental condition pursuant to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).
Mr Caruso goes on to say:
A further reason why a restriction on self-induced intoxication ought to be avoided is because the medical evidence suggests that it is often difficult for a psychiatrist to be certain of a diagnosis because methamphetamine and cannabis use can induce psychosis that can present in a very similar way to schizophrenia.
The minister’s office has advised my office that an election promise—entitled, I think, ‘Raising the bar for the mental incompetence defence’—was the origin of the bill’s provisions aimed at stopping offenders with mental impairment caused by self-induced intoxication using the defence of mental incompetence. In other words, the picture presented by the second reading speech that this bill is the end result of the Sentencing Advisory Council’s work is somewhat misleading.
There may well be good arguments for such a policy on intoxication and mental incompetence, but it is curious that the government has chosen not to present them, or even to highlight the policy, in speaking about this otherwise laudable piece of legislation. If the government could provide some explanation as to why they are going ahead with those —
The Hon. S.G. Wade interjecting:
The Hon. K.L. VINCENT: Why they are being tricky, as the Hon. Mr Wade—very helpfully, as always—interjects, why they feel the need to implement this change, particularly when both the Law Society and their own Sentencing Advisory Council seem convinced that it is not necessary.
Of course, Dignity for Disability is not suggesting that people who are under the influence of drugs or alcohol should be able to do whatever they like and face no consequence but, given that drug-induced psychosis is recognised as a genuine health condition under the DSM-5, we would hate to see people who may be doing things without the intent suffer the unnecessary consequence. If the government could explain the mental incompetence provisions and the need for the change in the intoxication provisions we will consider that information, and give consideration as to whether we will support the bill at a further stage.
