Criminal Code Amendment Bill (No. 2) 2011
Hon Mia Davies; Hon Sue Ellery; Hon Linda Savage; Hon Giz Watson; Hon Alison Xamon
Second Reading
Resumed from an earlier stage of the sitting.
HON ALISON XAMON (East Metropolitan) [7.37 pm] — in reply: Firstly, I thank the ALP for its support for the Criminal Code Amendment Bill (No. 2) 2011, and I obviously thank my colleagues, who are supporting this bill. I think some very concerning things have been said in the course of this debate. There is certainly still a lot of misunderstanding about the nature of this bill and this issue, and I would like to make some commentary on that. It comes down to one thing—whether we think people who had a significant impairment at the time of committing an offence, in this instance an assault on a public officer, should immediately have to go to jail or be subject to a custody order. It seems to me that on what this bill is trying to achieve, there is a consensus of sorts at least on the policy if not on the mechanisms. It seems there is agreement in this place to not see people with a significant impairment end up in jail for committing these offences. There has been plenty of argument around the alleged safeguards in place to prevent this outcome and very little agreement. The argument here is that it is certainly the view of the people on this side of the chamber that those safeguards as they stand are insufficient. The stark reality is that the government-proposed safeguards for people with mental impairment will, from these provisions, provide very little comfort—particularly to the carers of people with a very severe mental illness. Certainly the intent of this bill is to enshrine the stated policy intent that all members seem to think is important.
I remind members that this is not something that has come only from my mind. A considerable number of organisations have come out in favour of this bill. The Law Society of WA has expressed very clear support and the Chief Justice has also come out in clear support of the Law Society’s position on my bill. In addition, I have also read the paper given by the Chief Justice. Members will note that I was the only member present when the Chief Justice delivered his paper. I heard with my own ears his very clear concerns about mandatory sentencing. I also note that the Australian Lawyers Alliance has been very supportive of this bill, as has the Criminal Lawyers’ Association of Western Australia and the Mental Health Law Centre (WA), which deals at the coalface with the issues surrounding mandatory sentencing legislation. These people are very clear in their stated belief that the current law is a problem and that the safeguards being put forward are inadequate and need to be addressed. I want to remind members that the motivation for this bill came out of a very clear recommendation arising from the last annual report of the Council of Official Visitors. In that report, the council expressed the concerns being raised by carers about the likely impact of mandatory sentencing legislation. The council recommended changes to allow exemptions for people subject to transport orders. When I originally looked at drafting this bill, I took that provision pretty much straight from the Council of Official Visitors’ report. After advice from the drafters, I decided to change the provision because they felt that simply narrowing down the provision to cover people who have been subject to custody orders would not actually achieve the outcome that we were seeking. As a drafting exercise, it was felt that that was going to be too difficult to achieve. However, I also point out the considerable support for this bill from people deeply involved with mental health issues; namely, the Western Australian Association of Mental Health. Arafmi has also been very clear in its support of this bill as has Mental Health Matters 2. I note that today I also received a copy of a letter that I suspect most members, if not all, have received, from the Foundation for Social Inclusion Incorporated—an organisation that deals primarily with people with disabilities.
I want to reply to some of the issues raised by some of the members during the course of the second reading debate. Hon Michael Mischin, speaking on behalf of the Attorney General, raised the issue of prosecutorial guidelines. This is not new and has been raised in previous discussions in this place, most notably when debating my motion about the proposed establishment of a mental health court. On a number of occasions, it has been argued that amendment of mandatory sentencing provisions is unnecessary: the argument being, and I am prepared to take this on face value, that the prosecutorial guidelines, as relayed to me—I want to make sure that I get this right and am happy to take correction by way of interjection—state that charges that could result in mandatory sentencing will not be pursued when the prosecutor identifies that there is a reasonable chance that the accused has a mental impairment. I want to clarify that that is the gist of the prosecutorial guidelines.
Hon Helen Morton: Do you have a copy of them?
Hon ALISON XAMON: I do not have a copy of them. I am actually taking that from the Hansard of the debate on the mental health court. At that time, Hon Michael Mischin quoted the prosecutorial guidelines into Hansard. I am prepared to accept on face value that that is what is in the guidelines and am just seeking to confirm with Hon Michael Mischin that that sounds about right in terms of the intent behind it.
Hon Michael Mischin: I do not have them in front of me so I am not prepared to comment.
Hon ALISON XAMON: Okay. Well, that is what has been said in this place in the past—on the parliamentary record—and I have no reason to believe that that would not be the case. I understand that that is what is intended in the prosecutorial guidelines. However, my response is that guidelines are, of course, only guidelines. They cannot be challenged in a court of law and are not part of the judicial defence process, but are something that the prosecutor has the discretion to decide whether somebody may or may not fall into the category of. In any event, the full extent of someone’s mental impairment may not become apparent until after the court hearing has begun, or until after someone has been charged under provisions that attract a mandatory penalty. I take very little comfort in being told that there are prosecutorial guidelines. Once again, I say that if the intent is to not proceed with mandatory sentencing against people with a mental impairment, the obvious solution is to enshrine that in the legislation in the first place and not simply to rely on guidelines.
I want also to refer to the talk about decreases in the number of police assaults. I will say that I have at no point challenged those figures, and will not attempt to challenge them now. I am quite happy to take on face value the government’s claim that there has been a decrease in the overall number of assaults, particularly on police officers, as I have been told. I do not know how it pertains to other public officers who come under this legislation. As I said by way of interjection, and as I will say again, it has no relevance to this debate. And as I said in my second reading speech, the issue of decreasing numbers of assaults only applies when talking about people who are able to be deterred by the prospect of a mandatory sentence. The whole point of this debate has been to identify that those are not the people we are talking about. We are talking about people who, quite literally, are out of their mind at the point at which an offence is committed and are therefore not criminally culpable. During the course of this debate, Hon Philip Gardiner and Hon Mia Davies raised the review of the act towards the end of next year. However, there are no clear guidelines in the act about the extent of that review or whether there will be opportunities for public input; that is, whether people will be able to put forward their views about the impact of the legislation. Certainly, it has been suggested that the nature of the review will be to look at those people who have been charged under these provisions and to look at the circumstances surrounding their cases and thereby determine whether the legislation has been effective.
What it is not going to do, then, is capture the concerns that have been raised time and again by people within the community about the potential impact of this legislation. I am really wondering, considering the vehemence of the response from government, whether there actually will be a commitment to seriously look at the policy implications and the social implications of this legislation, not simply the mechanics in terms of the people who have already gone through. I would like to say also that in relation to the 13 people who have been charged and sent to prison as a result of these provisions, it has been suggested to me by the mother of one woman, who ended up doing six months in Bandyup Women’s Prison, that her daughter is probably the first example of someone who has fallen through the cracks. The mother was deeply distressed and has asked that I not mention her name. She said that her daughter is a diagnosed schizophrenic but prefers to identify as a drug addict, and that in the circumstances surrounding her arrest and charge and subsequent imprisonment, it became apparent during the course of the trial that in fact she did have a history of mental illness. I would like to have spoken about her case a lot more, but the point is that this family is at a point of trying to recover from their experiences. If it turns out that what this woman has said is actually the case, I am very concerned about that.
Like the government, I do not have any evidence of custody orders having been issued under these provisions as yet, but it is still fairly early days in how this legislation is going to roll out in practice. The issue that has come up during the course of this debate has been the suggestion that this legislation is not required because the Criminal Code currently contains the section 27 defence, which is, of course, the insanity plea. I want to speak about this. I spoke to an extremely senior lawyer again during the break—a QC actually—and again I said, “This is what the government is suggesting. It is suggesting that section 27 is the be all and end all; that they are the provisions under which someone with a significant impairment will be able to avoid mandatory sentencing if they happen to be charged under these provisions.” He was very clear. He said, “Section 27 is only ever going to capture the most serious people.” He said that people who are subject to a section 27 defence really need to be subject to some sort of custody arrangement. He said that it is not intended to capture people who have a momentary mental impairment—who have a momentary psychosis.
I would also like to remind members that I went back again to the debate on my motion calling for the establishment of a mental health court. I will quote from Hansard. Hon Michael Mischin, when referring to the issue of section 27 on Wednesday, 25 May 2011, said —
What Hon Alison Xamon said was —
I will say that unless one really is insane, it is not a defence that I would ever recommend, and that is something that all lawyers have instilled in them in no uncertain terms.
And he is right; I did say that. His response to that was —
I entirely agree. Unless an accused is strictly insane, one would not want to advocate that the accused take up that defence.
For once I agree with Hon Michael Mischin and the comment he made during the course of that debate. We are talking about very serious implications for people who need to undertake a section 27 defence. Firstly, the hurdle of being eligible for a section 27 defence is extremely high. Then we need to talk about the implications should someone be successful in a section 27 defence. I want to make it clear that we are not talking about people who are unfit to plead, because if someone is subject to a section 27 defence because they are unfit to plead, they will be subject to a custodial—I do not want to say it—“sentence”.
Hon Helen Morton: Custodial order.
Hon ALISON XAMON: Thank you. They will be subject to a custodial order. Clearly, if someone is still unfit at that point, that is what happens within our system. The people I am talking about here are people who actually have a moment of psychosis, who have gone off the medications, or the nature of their illness is such that they have gone into a temporary deterioration. At the time of facing the courts, they are able to plead; they have got to that point at which they have maybe spent some time in Graylands, they have got back on their medications, they have got the treatment that they need, but at that point they are able to plead. Certainly, it has been made very clear to me that getting a section 27 defence at that point is going to be an extremely difficult hurdle to jump over. Even if they are successful in that, the options that magistrates or judges then have available to them are actually alarmingly limited. This is the issue the Chief Justice made very clear—the lack of options available for people who would be subject to a custody order. I am concerned that there seems to be quite a serious lack of understanding about the nature of psychotic episodes. I will also agree that the review of the Criminal Law (Mentally Impaired Accused) Act is absolutely essential. There was a suggestion—it was not a particularly helpful interjection—that if I did not like the way the custody orders operated, I could put up a private member’s bill. Clearly, I do not have the resources of government. We are talking about the revision of an entire act, so I am just going to take that as being a pretty unhelpful comment. I agree that a review of custody orders is long overdue. I am looking forward to the revised Criminal Law (Mentally Impaired Accused) Act, because my understanding is that we are looking at a review at the moment. It is something that I have raised in this place in the form of questions, and I have been told repeatedly that it is actually on the agenda and it is occurring. But I have to deal with the legislation that is in front of us now. I cannot deal with legislation that may or may not come on in the future. I do not know what is going to be involved in that. I do not even know whether that review will even address the issue of custody orders. I have to deal with this now because we are dealing with the issue of mandatory sentencing now.
In relation to the effects of custody orders, I want to talk a little more about that. We have seen in this state people being subject to custody orders who are just not getting out. We have got that now with the case of Marlon Noble who is still sitting in Greenough Regional Prison right now even though the Director of Public Prosecutions has made the decision not to proceed with any charges against Mr Noble. Yet he is still there. It is a serious issue to be subject to a custody order. The idea of indefinite detention is not one to ever be taken lightly. The suggestion that we just start throwing out section 27 defences for these sorts of provisions I think is quite irresponsible in how we best protect these people. It really is intended to only ever be for those people who really do need to be subject to a custody order, and who, for their own safety and for the safety of the community, need to be subject to detention even when there are problems with the way that custody orders are operating in this state. There are certainly huge issues with the lack of appeal option and the lack of representation that is available to people once they are subject to a custody order. Let us not take this lightly. Let us not pretend this is some great panacea, because it really is not.
Hon Michael Mischin also talked about the definitions in the act. It almost felt like he was talking at crosspurposes to his own premise, because he asked, “What does it mean? What if it is partly drugs? What if it is partly alcohol? What if it is a head injury?” That is the argument for judicial discretion. That is why we should enable a judge or magistrate to determine the circumstances of the case and the circumstances affecting the accused. These issues are complex and we need the opportunity to have them unpicked. It is for a judge or magistrate to decide the arguments on drinking and drugs and to what extent someone’s behaviour is a result of drinking or a result of mental illness. Cases need to be heard in that way. I am very clear that someone should not be able to get off a charge of assaulting a public officer, or anyone for that matter, simply because they decide to get drunk or take drugs. As a citizen, I would expect people to be held accountable for that sort of conduct; I think we would all agree on that. However, I want a judge to decide the degree to which mental impairment may have caused the assault to occur. It should not be up to the police prosecutors to make that decision.
We need to allow the degree to which the behaviour is caused by substance abuse, as opposed to an underlying condition, to be fully explored. Again, it just means that regular charges would apply. If someone is claiming that they have a mental impairment but, in actual fact, they were just being drunk and violent, and they had subsequently been charged under regular provisions for assault or grievous bodily harm, Parliament has already made it quite clear that it expects that assaults on public officers will be treated with the utmost seriousness. Therefore, a magistrate or a judge is likely to take that into account in assessing the nature of that assault. I do not feel convinced that ultimately someone will get off lightly. As I and others in this place have said over and again, someone in that situation may find themselves subject to an even greater penalty and even greater jail term than they would have if they had been subject to the mandatory sentencing provisions.
People would be aware that I often talk about the alternatives. I talk about the establishment of a mental health court. I talk about the need to finally establish a declared place. I talk about the many different ways in which we can minimise people’s adverse interactions with the police. It has already come up, for example, that work is being done to change the way in which transport orders are done in this state. That is good, but long overdue. I have to deal with the circumstances that we are confronted with now. We do not have a mental health court or intervention program. I am looking forward to those being established and seeing what ultimately comes out. We do not have a declared place. The majority of people subject to custody orders usually have to go to jail, especially if they have a mental disability. One of the grounds on which people go into a mental health facility is that they have a condition that can be cured. If someone simply has a mental disability, they will have to go to prison. That is the only option available to people until we have a declared place. We do not have a separate unit to undertake transport orders. Again, let us deal with the situation as it is now. Let us not talk about how we hope things will be in the future. I certainly applaud any measures that will improve the situation in the future, but they do not exist yet. These things take time and money to put into place; they are not happening now, yet these laws are in place now.
I also want to respond to the issues raised by Hon Michael Mischin and Hon Helen Morton about carers’ groups and Hon Helen Morton’s implication that I am somehow engaging in some kind of fear campaign. What an insulting thing to say to these people and what an insulting thing to say to me. I have already pointed out that the reason the idea for this private member’s bill even came to my attention was that I read the report by the Council of Official Visitors. This report was already out there. I went and spoke to carers’ groups and in no uncertain terms clearly heard their concerns. I have spoken to people about their concerns. If any members were listening to the radio this morning, they would have heard the responses from people. They were really clear that they know their own minds. These people have been living the reality of dealing with the interactions between the police and their loved ones, in some instances, for decades. Hon Sue Ellery was absolutely right when she talked about the level of disrespect that has been levelled at these people. They are very angry about what has been said about them and the suggestions that they are uneducated, that they do not know what they are doing and that they have it wrong. It has been made clear to me that these people have at least some understanding of the contempt in which they feel the government holds them.
If anyone wants to talk about education programs, let us talk about an education program for the government on how these people feel and why they feel that way. For all the government’s talk on the decriminalisation of mental illness, these people do not feel remotely assured that there is any reality of that occurring. It seems to me that when the pressure is on and we have to start talking about these really complex areas of mental health, this government’s real position on people with mental illness starts to come to the fore.
It is easy to advocate for people with mental illness who suffer from depression, perhaps feel suicidal or deal with mental illness in the many arrays in which it comes. Bearing in mind that an estimated 50 per cent of the community may experience mental illness in their life, the majority of people who experience mental illness will never experience adverse relations with our judiciary or police as a result of their mental illness. That is the reality. However, for a small minority of the community of people with profound mental illness, it is a reality; they are occasionally, sometimes often, finding themselves adversely dealing with the judicial system and the police. Today I am here to advocate for those people. To simply dismiss what they are saying and to dismiss the carers of these people is absolutely appalling. These people are some of the most vulnerable people in our community. They more often than not can live peacefully and safely within the community, but sometimes they cannot. We need to offer them a hand and assistance. We need to offer their carers a hand and assistance. They deserve to be supported and protected.
Several members interjected.
The DEPUTY PRESIDENT: Order!
Hon ALISON XAMON: We need to make sure that the laws passed through this place protect them and recognise that they have particular needs. I am maintaining that this government has completely abandoned these people in the way that it has chosen to speak to them. This is the really tough part —
Hon Helen Morton: You’re being ridiculous!
The DEPUTY PRESIDENT (Hon Col Holt): Order, members!
Hon ALISON XAMON: This is the really tough part of advocating for people with a mental illness. It is not sexy. It is not popular. There is nothing glamorous about it. But these people are worthy of our support, and these people deserve to be protected. It is not good enough to just dismiss what they are saying and to ignore their very real stories. They are the ones who are telling the government how their lives are. They are the ones who are telling the government their experiences. I think it is extraordinary that people are not prepared to listen to these people, and I think it is extraordinary that people are prepared to patronise them and to dismiss them. I think that is absolutely shameful.
Hon Robyn McSweeney: Do you know how ridiculous you sounded on the radio this morning?
Hon ALISON XAMON: Interestingly, the people who chose to ring in afterwards did not seem to think so. But I do note that they did feel particularly let down and abandoned by this government, and I do not think that is something that it is in the interests of the people who are choosing to interject on this speech to continue to propagate. I think that the government, and people in the government, and certainly the Minister for Mental Health, should start listening to what these people have to say, and be prepared to start advocating for them, and not just dismiss what they are saying.
Hon Nick Goiran: She has done more work in mental health than you have ever done in your whole life!
Hon Helen Morton: Than you have ever dreamt of!
Hon ALISON XAMON: I am not in government! But I have done as much as I can from —
The DEPUTY PRESIDENT: Order, members! There have been a lot of interjections. Please allow Hon Alison Xamon to continue.
Hon ALISON XAMON: Thank you, Mr Deputy President. I would like to point out that I am not in government. I have always acknowledged that there are some good plans in place, which, hopefully, are being progressed. I have made reference to some of them in terms of the mental health court/intervention program, the move towards a declared place, and the move to change transport orders. But my point is that it is not enough for the government to just hang its laurels on that. The government has to listen to what people are saying —
Hon Michael Mischin: Have you listened to us?
Hon ALISON XAMON: I have heard nothing else!
Hon Michael Mischin: Then why don’t you go along with what we are saying?
Hon ALISON XAMON: The government has to listen to what people are saying about how the laws that have been passed in this place—not by the Greens—are impacting on these people.
The comments that I am making apply also to the allegation made by the Minister for Mental Health that somehow this bill will set back the cause of reform.
Hon Helen Morton: That is what tough advocacy is about.
Hon ALISON XAMON: What I am sure the Minister for Mental Health would acknowledge is that I am very passionate about the issue of mental illness. I have dealt with the stigmatisation of mental illness, and what that means, since I was 11 years old. It is something that is very, very close to my heart. I have always acknowledged, and will continue to acknowledge, that the majority of people who have a mental illness are able to successfully live and work within our community, as they should. It could be me; it could be members opposite; it could be people we love. But that is not the people I am talking about. The people I am talking about are the minority of people who have an extreme mental illness—the people who ordinarily can manage well and can live successfully, but who, for whatever reason, are unable at certain points to control their actions.
I have already made reference to a lot of the comments that have been made by Hon Helen Morton and Hon Michael Mischin. One of the things that I want to respond to as well is Hon Helen Morton’s objection to the use of the word “insanity” when we are talking about a section 27 defence. I have some sympathy for that; I really do. When we are talking about stigmatisation, I suspect that the minister and I would both be in agreement that words like “insanity” are really unhelpful.
Hon Helen Morton: I agree.
Hon ALISON XAMON: That word attracts the worst of the worst in terms of how it is perceived. There has been a suggestion, not in the chamber, by Hon Helen Morton that perhaps it is time to review the use of that word. I would agree with that. I think it is a really outdated and unhelpful term. This bill is not the place to do that—it is beyond the scope of this bill—but it is something that would be quite useful, because language is really important. But I wanted to pick up on that, because in terms of a section 27 defence, if we want to talk about not stigmatising people, the obvious thing is to not make them have to plead insanity. That seems to me to be the ultimate stigmatisation. It means that people will be left with not only a criminal record, but a criminal record that says they were insane. There is something pretty stigmatising about that. That is why this bill, which will remove the very, very limited options in terms of a section 27 defence, is quite important, because it is about decriminalising mental illness. It is about not making people go through those sorts of criminal defences simply because they can then be subject to judicial discretion and, hopefully, they will then be subject to different options.
Hon Helen Morton: Do they have a criminal record if they are found not guilty?
Hon ALISON XAMON: It is going to appear, even if a person is acquitted. If we speak to Sandra Boulter from the Mental Health Law Centre, as I am sure the minister has —
Hon Helen Morton: Many times.
Hon ALISON XAMON: — she will tell us about how people resile from the option of pleading a section 27 defence, because they do not want to think of themselves as being insane. It is an offensive word. So that is actually quite important.
Hon Helen Morton: But they would be happy to be called mentally impaired?
Hon ALISON XAMON: I also want to say that the Minister for Mental Health has said that there is a suggestion in the bill that if people say they heard voices, they will be let off. There is nothing in the bill that says that. People have to demonstrate, firstly, that they have a significant impairment. That means that it is not enough to say, “I heard voices”. As the Minister for Mental Health rightly identified, most people who hear voices do not engage in criminal conduct, and their voices are not even necessarily telling them to engage in criminal conduct. What it means is that for the absolute minority of people who may hear voices that are telling them to engage in criminal conduct, and who then act on that, they will be subject to the provisions in this bill. But, in any event, people could still be charged under the regular provisions for assault causing grievous bodily harm. Therefore, magistrates would be able to use their judicial discretion appropriately.
I understand that members opposite do not seem to have the same negative view about custody orders that I do, that carers do, and that people who have been charged and who do not consider themselves to be insane do. However, as I already said, these are not provisions to ever be taken lightly. In response to Hon Sue Ellery’s comments, she indicated that if this bill were to go to the committee stage she would move an amendment to change the provisions so that they read “manifestly unjust”. I put on the record that the Greens would be prepared to support that suggested amendment. The reason I did not put up that amendment in the first instance, although I think it is sound, was that we had already debated it and it had not succeeded. Therefore, I felt that in order to pick up on the issues that have become specifically apparent since the introduction of this legislation, I would narrow the provisions to deal only with people who had a significant impairment. However, I recognise that the term “manifestly unjust” is probably a better choice of words. If I thought there were any chance that that would have got up, I would have put it forward, but I wanted to at least ensure that we captured the sorts of people we have been talking about today.
I have decided that I will read in a letter that came from the Foundation for Social Inclusion, as Hon Linda Savage read in the letter from Arafmi, and I think it was good that that was done. When I read this letter today, I thought that it was very pertinent and worthy to be put on the record. I will read in the letter now and I am happy to table it, if members feel that is needed; although, as I understand it, everybody in this place has already received it. The letter states —
TO: HONOURABLE MEMBERS OF THE LEGISLATIVE COUNCIL OF W.A.
Re: Mental Health Private Members’ Bill
The Foundation for Social Inclusion supports the Private Members’ Bill put forward on Thursday last week by The Hon Alison Xamon MLC which seeks amendment to mandatory sentencing legislation for people with mental impairment as follows:
“To amend The Criminal Code so that mandatory sentencing provisions for doing grievous bodily harm to or assaulting certain officers do not apply to persons whose judgment or behaviour at the time of the offence was impaired to a significant extent by mental impairment.”
We urge you, our elected officials, to support this important bill which acknowledges the vulnerability of people with mental illness, which we might add, should also include people with intellectual disabilities. It is our view that mandatory sentencing in this regard, disrespects human rights and flies in the face of this nation’s commitment to the ‘United Nations Convention on the Rights of Persons with Disabilities’, a treaty which has been in place for only a short time.
When a perceived criminal action is taken by a person in a state of impaired mind, it is seen of no value to society to treat such a vulnerable person in a punitive manner. Rather such requires action which goes the distance in assisting him/her towards wellness and contributing citizenship.
A demonstration of inclusive practice; respect for human rights and humanitarian values and principles would be best represented with clear helpful intent on the part of our elected officials and formal services. Assisting people towards and in their wellness through implementing strategies designed to achieve goals of overall societal benefit rather than punitive action, we have no doubt, is what our elected officials would determine as just and dignified. It goes without saying a punitive approach would only display a disregard for human dignity and justice.
The ramifications of mandatory sentencing can, in addition to hurting people with mental illness and intellectual disability, have serious ramifications on the mental, physical and emotional health in their families and extended personal networks (who are already under a great deal of pressure) this will over time manifest with increased pressure on the system with the breakdown of family structures and supports.
We respectfully urge you to support this amendment proposed by the Hon. Alison Xamon in the spirit of bi-partisan agreement. This issue is about human rights, values; dignity and justice and we believe it requires the setting aside of any party political positioning and instead collectively demonstrating commitment to humanitarian treatment of all people and particularly those who are vulnerable in our society.
We are aware that some support for the amendment has been demonstrated and we congratulate those members who have taken this important position. We are hopeful that others will also have the good grace and judgement to join them in supporting the amendment.
That was signed by Jane Browne Eacott from the Foundation for Social Inclusion Inc.
Finally, I really want to acknowledge the courage, integrity, honesty and wisdom of the carers who look after people with profound mental illness who find themselves either frequently or infrequently coming up against the police and the judicial system. I very much have the view that there but for the grace of God go I. I have three young kids, and when I hear these stories I hope and pray that I never have to have a life with the challenges that those carers need to deal with. I note also the good grace and good humour those carers bring to their lives and to the lives of the people they care for. I think it is really, really important that we do not forget that these people need to be heard. They talk about feeling as though, with the overall mental health issue, they have never been heard, so I am not pointing the finger just at this government.
Hon Donna Faragher: That’s not what you were saying before.
Hon ALISON XAMON: These people have felt their whole lives as though they have been dealing with these issues. They feel as though they are constantly put to the side, that they are constantly not being heard and that their stories are not being heard. What I am saying is that in response to this debate, they are actually feeling that more. I ask that members opposite do not simply dismiss what these people are saying. I also suggest that, in the same way that I am simply reflecting these people’s concerns, I am not magically able to turn round to them and pat them on the head and tell them that it is all going to be okay. These people live their own lives. These people know what is going on for them; they know their situation. It is not up to any of us in this place, who do not have to walk in their shoes, to tell them that they are wrong and to unilaterally dismiss them. I cannot do that and I do not think anyone opposite should do that either. We are beholden, as representatives, to listen to what these people are saying, to hear their stories and to be prepared to work with them to ensure that any laws we put through this place will not cause these people any further distress. The reality is that these people no longer feel confident calling the police. They have been told about the prosecutorial guidelines. They have been told that there are options for defence. They have been told that the police are being retrained. They have been told that all these provisions are coming, but it has not assuaged their fears one jot. Therefore, I think that rather than shoot the messenger, which is what they feel happens, members should make a point of perhaps acknowledging that maybe they really do not have the whole picture and that maybe they actually need to listen to what these people are saying.
I do not personally believe that a section 27 defence is a viable defence. I think it is still too high a hurdle for most people who are captured by these provisions to successfully escape a mandatory sentence. I believe that the custody order situation as it currently exists within the law—which is all that we should ever talk about, as we cannot talk about what will happen in the future because there is nothing on the table yet—is wholly unsatisfactory. There are serious problems with the way we use custody orders in this state. It is a problem that we have never had a declared place, which means that for many of these people, prison would be the only option. I believe that a section 27 defence will serve to stigmatise these people, which is the opposite of what we should be doing in this place—namely, moving towards the decriminalisation of mental illness. That is an appalling outcome, and it is completely contrary to all the rhetoric we hear about needing to protect and value people who are mentally ill. I understand that the review is coming up. We still do not know the extent of that review or the degree to which there will be public consultation or people will be able to put their very serious concerns on the record. I urge members to vote for the bill.
Question put and a division taken with the following result — Ayes (12), Noes (17)
Question thus negatived.
Bill defeated.