Mental Impairment Court Intervention Program - Amendment to Motion
Date:Wednesday, June 22, 2011
Hon Ljiljanna Ravlich; Hon Michael Mischin; Hon Alison Xamon
Amendment to Motion
Resumed from 25 May on the following motion moved by Hon Alison Xamon —
That this house calls upon the Attorney General to urgently adopt recommendation 23 of the Law Reform Commission report “Court Intervention Programs: Final Report: Project No. 96” of June 2009, and establish a mental impairment court intervention program in Western Australia.
to which the following amendment was moved by Hon Michael Mischin (Parliamentary Secretary) —
(1) To delete the words “call upon” and insert —
notes the action so far taken by
(2) To delete “urgently”.
HON ALISON XAMON (East Metropolitan) [2.15 pm] — in reply: I thank the members who have stood up in this chamber and indicated their support for the motion. It is heartening to note the consensus amongst all parties on the importance of intervention courts and programs within our justice system. It is an important way for us to move forward in the judicial process and I hope this will be the way of the future.
I wish to respond to a few points that were made during the course of debate. Firstly, I want to thank the Minister for Mental Health for responding to the parliamentary secretary’s lack of understanding of what it means to criminalise mental health. I note that the minister made many of the comments that I would have made, referring particularly to concerns that those who talk about the criminalisation of mental health are somehow ill-informed. I suggest to the parliamentary secretary that in future such comments be checked by a colleague before they are made in this place because, as the Minister for Mental Health has rightly pointed out, this is about ensuring that behaviours that arise as a result of mental illness are not treated with the same level of culpability as behaviours that are criminal in their intent. That is what it means to talk about criminalising behaviours. I am sorry that the parliamentary secretary did not seem to understand that basic premise. In response to a comment by the Minister for Mental Health, I would like to assure the minister that this lack of understanding is not uniform amongst legal practitioners and that many lawyers have a comprehensive understanding of not only black letter law, but also the theory of criminology. An understanding of the law and an understanding of the nature of mental health
issues need not necessarily be mutually exclusive.
Now that we have confirmed that we need such a court, the next step is to ensure we make it happen. I have been assured in this place that preliminary work has begun on potential models and costing, and I am very pleased to hear that. However, it is not enough and we still need to do more. I note that the budget papers appear to contain little to progress a mental health court. In the process of the estimates hearings, I have asked about the financial commitment that is available within the Mental Health Commission to progress this work. I was disappointed to hear that no specific funding has been put aside, although there is certainly the will to progress it. I understand that the majority of moneys would need to be made available through the Attorney General’s office. I have had a preliminary look at the Attorney General’s budget and there does not appear to be anything there for that, but that is something I will progress to get to the detail. I hope that I am proven wrong and there are significant funds in this year’s budget to progress a pilot program. If it is a serious initiative and not just an attempt, for the purposes of this motion and to reassure the public and people in the mental health sector that it is happening, then I would expect at least to see some clearly identified initial outlay of funding.
As I said, this is a priority. This is urgent, and that appears to be agreed through the parliamentary secretary’s withdrawal of the second part of the motion. It is heartening to know that a unanimous position has been taken by this place that it is urgent. We know that from a medium to long-term fiscal perspective it is designed to save the state costs, but we also need to focus on the human cost. Once moneys have been secured and made available to progress the pilot program, we need to ensure appropriate levels of consultation on how the court should work and how it would look. There is not one right model. There are a number of ways that we can progress with this.
I know that a number of stakeholders have a keen interest in this. I know this because they have been contacting me saying how keen they are to see something like this occur. I know that our existing judges and magistrates have a keen interest to see this progressed, and that practitioners in other intervention courts and programs are also keen. I know that the Law Society would be keen to see this move. I imagine that the Director of Public Prosecutions would be interested in being consulted, and would need to be consulted; and, of course, we have mental health organisations and advocates who are very much at the forefront in dealing with the day-to-day reality of assisting people, loved ones and themselves where mental health issues and our judicial system clash.
I would prefer that we had not only moneys but also a strategy for consultation. I hope that one is in the process of being developed and that various models could be proposed and circulated for comment, along with the costings associated with those models. As I also said in my speech when I moved this motion, I would like to see the urgent expansion of existing programs such as the intellectual disability diversion program because, even though I think it is a wise idea to look at a pilot program from a mental health court before we launch into the real thing, we want to make sure we get it right. We know that existing programs are already well placed to extend their services and they want to be able to do that now. As I also said, and as was echoed by Hon Linda Savage, the existing situation in our Children’s Courts for offenders with mental issues is appalling. It urgently needs to be addressed. Even if we cannot look at expansion of a pilot program for a mental health court to the Children’s Court at this point, we should certainly be putting in place interim measures to alleviate the situation. I am, of course, aware that we will need to make sure these courts and programs are readily available to our regional communities.
I will make a further point and that is that mental health courts, of course, will be only as useful as we allow our laws to be. For example, if there are mandatory sentencing provisions, it will not matter whether we have 100 mental health courts, because the whole purpose of a mental health court is to ensure that magistrates can impose an appropriate sentence and, where necessary, mandate treatment orders and programs. If people are appearing in front of these courts and magistrates are being denied the opportunity to determine an appropriate sentence, whether it is because mandatory sentencing has been imposed for particular offences or because of something like the three-strikes rule, which means that, again, discretion has been removed, the entire purpose will be defeated. If we truly want to move towards the necessary goal of decriminalising mental illness, that must also extend to the criminal laws we create and to the level of discretion we allow our judiciary.
This has been a mostly positive debate and I think also a very informative debate. I note that this is just the beginning, and I think it is a very positive first step. The real test will be where we go from here and how quickly. Thank you.
Question put and passed.