Northern Territory Second Reading Speeches

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CRIMINAL CODE AMENDMENT BILL (NO. 4) 2003

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Bill presented and read a first time.

Dr TOYNE (Justice and Attorney-General): Mr Acting Speaker, I move that the bill be now read a second time.

The purpose of this bill is to make amendments to Part 2A of the Criminal Code, which deals with the defence of mental impairment and unfitness to stand trial. As members would be aware, the Criminal Code Amendment (Mental Impairment and Unfitness To Be Tried) Act 2002 introducing Part 2A to the Criminal Code was passed in this House on 23 May 2002, and commenced operation on 15 June 2002.

Part 2A introduced new procedures for dealing with persons being tried by the Supreme Court in respect of whom there was some question as to their fitness to stand trial or whose mental competence in relation to responsibility for commission of a crime is in question.

The provisions replaced Administrator’s pleasure, detention, and ensured that where such a person presented a danger to the community, they could be appropriately detained and, where possible, be treated for their condition. It provided for independent review by the court of the terms and conditions of detention and the need for continued detention.

We have had an opportunity to review the operation of the legislation so far, as cases have now been dealt with by the Supreme Court. These cases have highlighted a need to make some changes to Part 2A. Under Part 2A where a court has declared an accused person to be liable to supervision, the court must then make either a custodial or non-custodial supervision order.

In accordance with the objectives of the legislation, supervision orders are subject to various reviews, either on application by interested parties or at specific events set out in the legislation. A review of the supervision order may be made to determine whether the supervised person may be released from the supervision order, whether the order may be altered from a custodial to a non-custodial order, or indeed from a non-custodial to a custodial order if the circumstances of the person warrant that action.

Part 2A provides for procedures that apply when the court makes, varies, revokes or reviews a supervision order. One of these requirements is that reasonable notice of the proceedings must be given to the victim, the next of kin of the deceased victim, the next of kin of the supervised person, and, if the supervised person is a member of an Aboriginal community, that Aboriginal community. The aim of this provision is to ensure that persons who have some interest in the outcome of the proceedings are aware that they afoot.

At present the court also has the discretion to request and receive reports from the victim, the next of kin of the deceased victim, and the next of kin of the supervised person, and if the supervised person is a member of an Aboriginal community, that Aboriginal community, before it makes, varies, revokes or reviews a supervision order.

Section 43ZL deals with the content of reports, and refers to a victim or next of kin of the deceased victim, making a report setting out their views as to the conduct of the supervised person. The intent of these provisions was to both provide an opportunity for victims and near relatives of victims to fully express to the court the effect that the offending conduct had had on their lives, and to appraise the court of their views as to the effect on them of the potential release of the supervised person. Unfortunately, it would appear that this intent was not clearly expressed in the current provision. The court, in a recent review, taking a more narrow interpretation of the provision and disallowing a report that dealt with the impact of the offending conduct on the victim’s family rather than just their view of the conduct.
Not unnaturally, it is precisely the impact of the conduct that many family members will wish to convey to the court. They will want the court to understand their loss and how that has affected their own lives. That was what was intended and what the proposed amendment now aims to achieve. In addition, to make clear the importance of allowing the victim’s family to express their views, the act will be amended to ensure that when a victim or next of kin of a victim prepares and submits a report, the court must receive and give consideration to it. This ensures that the views of the victim or next of kin of the victim will be heard by the court and ensures that such persons are not marginalised in the process.

An amendment will also be made to the notification provisions, establishing a mechanism which will allow the victim, or the next of kin of the victim, to give notice to the court that they do not wish to be notified when a supervision order is to be made, or when a review of the supervision order is to be conducted. Because there can be potentially many occasions over a lengthy period when some consideration may be given to the status of a supervision order, there may be persons who do not wish to be notified on each occasion because of the obvious significant emotional distress that may occur. This mechanism will allow a victim, or next of kin of the victim, the choice not to be notified or involved in these processes.

In addition, an amendment is to be made to section 43ZG of the code. This provision requires that when the court sets a supervision order it must also set a term for the purpose of conducting a major review of a supervision order. Supervision orders are for an indefinite term. The major review of a supervision order is to determine whether the person’s detention or further restriction under a supervision order continues to be justified by public safety considerations. The term that is set for a review under section 43ZG is the term that a court would have set as a sentence had the person actually been found guilty of the crime. At present, the provisions are dealt with under the heading ‘Limiting of Term of Supervision Orders’. That terminology is not strictly correct because the supervision order is not limited by the terms set under section 43ZG. A supervision order can only be altered by an order of the court following a review or other application, and such alteration is subject to the restrictions on community safety and safety of the supervised person as I have mentioned.

The effect of setting a term under section 43ZG is to trigger a major review. The heading to section 43ZG and subsection (1) of that provision will be altered to make clear that the section deals with major reviews, not the setting of a term that has the effect of limiting or terminating a supervision order. In addition, section 43ZG currently provides for a review term of 15 years for crimes that carry mandatory life imprisonment, or where the court would have set life as the sentence had the person been found guilty of the offence. Clearly, some term is required to be set for a review to be conducted, it being obviously pointless for a review to occur at the end of a life sentence.

This provision will now be amended to reflect the alteration to the Sentencing Act to be introduced in the Sentencing Offence of Murder and Parole Reform Bill that will be introduced in this sittings. The court will now set as a term for the major review, the term that it would otherwise have set as a non-parole period for the person convicted of the crime of murder, or for a sentence for which life imprisonment might be imposed.

It is important that we continually review the operation of legislation and, where necessary, refine the provisions to ensure that the objectives are able to be achieved. We will continue to closely monitor this important legislation to ensure its effective operation. Mr Acting Speaker, I commend the bill to honourable members.

Debate adjourned.

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