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JUSTICE (AMENDMENT OF CUSTODY LEGISLATION) BILL 2002 (No. 70)

Second Reading

Mrs JACKSON (Denison - Attorney-General - 2R) - Mr Deputy Speaker, I move -

That the bill be now read the second time.

Mr Deputy Speaker, as it stands, Tasmanian legislation does not make provision for the apprehension and return of forensic patients should they escape from their place of detention in Tasmania and travel interstate. There is also no provision in the Mental Health Act to enable the apprehension and return of involuntary mental health patients who abscond interstate. The purpose of this bill is to legislate to provide for three options for the apprehension and return of absconding patients. These are:

to amend the Criminal Code Act 1924 to make it an offence for a forensic patient on a restriction order or a continuing care order to escape;
to amend the Criminal Justice (Mental Impairment) Act 1999 and Sentencing Act 1997 so that a warrant may be issued for the apprehension and return to the place of detention of a forensic patient who absconds or is absent without proper authority and has left the State. This option will achieve the same result as the Code amendment, but the person will not be charged with a further offence; and
to amend the Mental Health Act 1996 so that an absconding involuntary patient subject to a continuing care order may be apprehended interstate and returned to an approved hospital by way of intergovernmental agreement.

The first two options for amendments will enable the State to utilise the provisions of the Commonwealth Service and Execution of Process Act 1992 for the apprehension of the persons interstate. It will be a discretionary matter as to which of these options is used. All options will enable Tasmanian absconders to be returned from interstate and the third option will also enable Tasmanian authorities to apprehend and return interstate absconding patients found in Tasmania to their home States.

As background, there is no legal definition of a 'forensic patient', but the term is used to describe persons who are subject to a restriction order or a continuing care order made under either the Criminal Justice (Mental Impairment) Act or the Sentencing Act - that is, they enter the mental health system as a result of committing a criminal offence. There are also persons who are involuntary patients under the Mental Health Act who are subject to continuing care orders. These persons are to be distinguished from the 'forensic patients' and the amendments in this bill to the Criminal Justice (Mental Impairment) Act and the Sentencing Act do not apply to them.

While the forensic patients are under treatment for a mental illness, their detention relates to a criminal offence and the restriction and continuing care orders are orders of a court. It is in the public interest that if such a person escapes and travels interstate, the person can be apprehended and returned. There is also a public interest in ensuring that the persons continue to receive appropriate medical treatment in accordance with their orders.

The impetus for these amendments arose from an agreement between States and Territories earlier this year following a case in late 2001 in which a person in Queensland who was found not guilty of a murder charge by reason of insanity, and was placed on a mental health order, travelled to Victoria and then went overseas. There was no legislative provision for his apprehension and return to Queensland from Victoria or to stop him from leaving the country. The case demonstrated the deficiencies in the respective States' legislation.

As a separate matter, there is also a need for a mechanism by way of intergovernmental agreement for the apprehension and return of involuntary patients under the Mental Health Act who are absent without leave from an approved hospital and who are at large interstate to ensure that these persons are safe and are receiving appropriate medical treatment. All States and Territories have agreed in principle to enter into intergovernmental agreements subject to their legislative capacity to do so.

I should also mention that whilst these amendments were being prepared, it was realised that the existing escape provision in the Criminal Justice (Mental Impairment) Act at section 41(1) did not apply to persons who were the subject of restriction orders made under the Sentencing Act, even though the person would be detained in the special facility at Risdon Prison. Section 41(1) has therefore been amended to rectify this omission. Similarly, there was no power to apprehend and return to court for sentencing persons who escaped whilst undergoing a short-term assessment order under section 72 of the Sentencing Act. The new section 79A of the Sentencing Act rectifies that omission.

Although the number of forensic patients in Tasmania is very small, the recent incident involving Queensland and Victorian authorities has highlighted the need to ensure that Tasmania has the legislative capacity to apprehend and return absconding forensic patients and to have the capacity to enter into intergovernmental agreements to facilitate the return of absconding involuntary patients. I commend the bill to the House.

Mr MICHAEL HODGMAN (Denison) - Mr Deputy Speaker, the Opposition does not oppose the bill but we must place on record our concern that this is yet another piece of legislation brought in by the Bacon Labor Government to clarify the law or in this case to cover a legal situation which almost inexplicably had not been covered.

Let me put it in blunt terms. If the late Rory Jack Thompson had got on a plane and travelled to the State of Victoria, Tasmania would not have been able to bring him back.

Mrs Jackson - That's right.

Mr MICHAEL HODGMAN - And that is exactly what should have set some alarm bells ringing because, as you know, he was apprehended at the airport having stopped at a hole-in-the-wall bank, accessed money and was shortly to board the plane.

In the Queensland case, the person there to whom the Attorney-General has referred got to the State of Victoria where, as I recall it, he threatened other persons and then when it became clear there was some chance that he was going to be picked up, he went to New Zealand and then went to Italy. Again, there was no power to apprehend him or bring him back. I will concede because, as Her Majesty's shadow attorney-general for the State of Tasmania, I believe I have an obligation to be frank and open with the Parliament and I would trust that Her Majesty's Attorney-General for the State of Tasmania would take precisely the same view as the principal law officer of this State that there are not a large number of cases where this situation would apply. Extraordinarily, forensic patients, as the Attorney has told us, have not been defined. 'Involuntary mental patients' is fairly clear of understanding, but those others which have been picked up pursuant to a review of section 41 of the Sentencing Act are what I would frankly call 'oddities'.

At the end of the day, the legislation brought before the Parliament follows an agreement by the ministerial council in January this year whereby effectively the Commonwealth and the State ministers agreed to bring in what could be fairly described as uniform legislation. It does give this State the benefit of having access therefore not only to State legislation but to the time-honoured Commonwealth Service and Execution of Process Act which has been used in relation to Commonwealth matters for many years.

It has been a tough week for the Attorney and she has certainly had to earn her money in that I think she - or one of her colleagues, in addition to her - had to bring to the Parliament no fewer than five bills to either validate things that had been done by the Bacon Labor Government or, in this case, to clarify the law and to fill in a gap.

I want to add just one or two comments in closing. Since my appointment as Her Majesty's shadow attorney-general for the State of Tasmania in August last year, I repeatedly questioned her predecessor, Dr Peter Patmore PhD, as to whether or not sufficient resources were made available to the Office of Parliamentary Counsel because I do have a high professional regard for Mr Peter Conway and his hard-working staff. But I would be less than honest if I did not say that I was less than rapt with the answers I received from this Attorney's predecessor when I pressed him on these matters, both directly -

Mrs Jackson - It's the responsibility of the Premier's Department, DPAC; it is not under my portfolio.

Mr MICHAEL HODGMAN - Yes, it is.

Mrs Jackson - No, it's not.

Mr MICHAEL HODGMAN - Have a look at your own budget documents where in fact, in the appropriation for your department, reference is made. Bluntly, Attorney, you are the principal law officer of the State of Tasmania.

Mrs Jackson - Yes, but the parliamentary draftsman is under Premier and Cabinet.

Mr MICHAEL HODGMAN - I know it comes under Premier and Cabinet, I am well aware of that, but you, ma'am, are the principal law officer for the State of Tasmania and you have a responsibility in this area.

Let me again return to what I was about to say. I have a high regard for Mr Peter Conway of the Office of Parliamentary Counsel and his staff, but I have felt for some time they have been overworked, under-resourced, underfunded and understaffed. I was puzzled that I had not heard comments emanating from sources who are usually fairly good sources of information to me as to why there was not some move for increased staff in the Office of Parliamentary Counsel.

Mrs Jackson - Is this relevant to this bill?

Mr MICHAEL HODGMAN - It is very relevant and if you will listen, please, you will understand what I am about to say to you. I discovered the reason why the Office of Parliamentary Counsel cannot be expanded whilst it remains in its present location. There is simply not enough room. That has raised with me this thought: why not give consideration to placing the Office of Parliamentary Counsel in an alternative precinct such as this very building, and the annex in Murray Street, where they have access to the Parliament and the Parliament has access to them, where I am informed accommodation is available and where shortness of space would not be an excuse for the Bacon Labor Government to say, 'We can't expand their numbers'.

Attorney, in conclusion, you are not known as a mean or tight-fisted person. When the need has been there on behalf of Government you have been prepared to spend up and spend up big - and I just commend to you and your recollection your trip overseas when you purchased the original Spirit of Tasmania .

Mrs Jackson - No, I didn't buy that.

Mr MICHAEL HODGMAN - You were sent by your Government and you were given your purse to buy and you bought and bought well.

Mrs Jackson - No, Harry Holgate had already bought it.

Mr MICHAEL HODGMAN - Oh, I do not think so. You were the one who went there and cast your final eye over itand took possession.

Mrs Jackson - No, you're wrong.

Mr MICHAEL HODGMAN - Yes, you did.

Mrs Jackson - You're wrong.

Mr MICHAEL HODGMAN - I have always said about the original Spirit of Tasmania that we should not have let the Honourable Judith Louise go shopping on her own, but I said that in jest and in a friendly way, not in any way having a shot at you because it was a big spend.

Mrs Jackson - I wish I had bought it, but I didn't.

Mr MICHAEL HODGMAN - I would like to see you spend a little bit, if I could put it to you bluntly.

In a very frank interview which I read, an excellent interview, you set out in pretty full detail in the Examiner newspaper your plans as Attorney-General, and you said in the House last week, which I was very impressed to hear, that the Premier had virtually said to you, 'Whatever you want, go for it and I'll back you'. Here is a chance for you to put in a bid so that the Office of Parliamentary Counsel can be expanded and we do not have this sort of problem arising.

Mr Deputy Speaker, I want to conclude by putting it this way. How would you feel if you were asleep in your house in Oatlands and a person came into your backyard, who in fact had been detained in the prison hospital at Her Majesty's prison at Risdon, having been placed there after being found not guilty of murder of four people on the grounds of insanity? The Rory Jack Thompson situation: the person has not been convicted. But the person goes for a wander and suddenly you see this person in your backyard and you say, 'Heavens above, I think that's X, I will ring the police'. You ring the hard-working police at Oatlands and they say, 'Look, had it not been for this legislation brought into the Parliament we couldn't even apprehend him as a trespasser'.

Mrs Jackson - No, you're wrong - in Tasmania you can. This is only for interstate.

Mr MICHAEL HODGMAN - Excuse me please, Attorney.

Mrs Jackson - I'm sorry, you don't know the law.

Mr MICHAEL HODGMAN - I beg your pardon, Attorney, I have done more cases than you have. In fact, I want to say to you, what about a first for both of us? I have never appeared against you in court.

Mrs Jackson - Oh God, Michael!

Mr MICHAEL HODGMAN - I have appeared against and beaten just about every other Attorney-General and I would love to see you in court.

This person is a trespasser, he can be removed from the property. But if the person had come from Queensland -

Mrs Jackson - You said he was from Risdon!

Mr MICHAEL HODGMAN - Just hang on a minute.

Mrs Jackson - You said he came from Risdon!

Mr MICHAEL HODGMAN - Excuse me, let me tell you something because you do not know the law. A Queensland person can be transferred to either serve a sentence or to be detained under a mental health order in this State, are you not aware of that? I tell you what, check with your department and you will find that the Queensland people are very happy to have their murderers and others sent out of the State, but you try to get them to take one of theirs back. I do not know if things have changed since the Beattie Government has been in power but I do know that in the past it was very hard to get reciprocity.

Madam Attorney-General, tackle the problem please. Let us ensure that we do not have any more of these validating, clarifying, filling-in-the-gap legislation forays into the Parliament meaning the Parliament has to do it all again at great cost to the taxpayer. The Bacon Labor Government is unfortunately building up a little bit of a role for legal incompetence and I do not criticise somebody who has gone but I do say that at least I know you will be a full-time Attorney-General. You are not planning to do any postgraduate degree at the university during the term of this Government, I would hope, so I would ask you to take these matters up and to pursue them and, if you do so, Her Majesty's shadow attorney-general and Her Majesty's loyal Opposition will be very grateful to you, as will be the people of Tasmania.

Mr McKIM (Franklin) - Mr Deputy Speaker, the Greens support this bill. I will be very brief, but I would not necessarily disagree with the final comments from the member for Denison. I think the Bacon Labor Government is actually starting to get a bit of a reputation for it and I do note that the Attorney-General did not respond when you asked her if she was planning to do her PhD or not -

Mr Michael Hodgman - Ah! Dr Jackson!

Mr McKIM - so I wonder whether there will be a couple of Dr Jacksons around.

Mr Michael Hodgman - Doctor the Honourable Judith Louise.

Mr McKIM - And she is still not responding, so perhaps -

Mrs Jackson - For heaven's sake, grow up! If you ask a sensible question you'll get an answer.

Mr McKIM - I reckon that is a pretty sensible question and it is a very interesting answer.

The Greens do support this bill, Mr Deputy Speaker.

[4.56 p.m.]

Mr WILL HODGMAN (Franklin - Deputy Leader of the Opposition ) - Mr Deputy Speaker, I rise to confirm that we support this bill. I would like to thank the minister for the comprehensive briefing notes as well which certainly assisted me.

This legislation importantly appears to rectify an obvious omission and provides the State with the power to apprehend so-called forensic patients who abscond and also those classed as involuntary mental health patients. It also deals importantly with the appropriate handling of individuals who are suffering from some form of mental illness or some sort of condition. It is important to note that we support also of course the concept of improved interstate agreements and I have often pondered how, in a supposedly fluid Federal system, we do, on occasions, tend to have barriers to working coefficiently as a nation.

From legal experience, it can be difficult on occasions and, indeed, within the parameters of the Service and Execution of Process Act, to undertake processes in between the States. This legislation seeks to remedy problems in that regard insofar as very serious matters involving persons with a fragile state of mind who may pose a potential risk, not only to themselves but also to the public, are concerned. I believe it is imperative that we have a more effective system in place for apprehending or returning so-called forensic patients to our State where they abscond and this legislation seeks obviously to provide that framework.

I did mention and I think it is important to note the importance of properly providing for persons who fall within the ambit of this legislation and, more generally, under the mental health provisions. I am not sure precisely how many individuals there are in this State who fall within this category and I would be interested to hear at some stage the precise number and also precisely where they are housed. It is, as I say, important to provide them with protection but also to provide protection for the public who deservedly should be protected from possible incidents that could well be avoided if the process is working properly, and this bill does, of course, include a capacity to arrest, detain and return those who have absconded.

Of course, ideally in the first place they would not be in that position and I would hope that the Government has learnt from recent experiences in recent years that the revolving door has in fact been removed and that detainees, whether under a mental health order or otherwise, are not able to simply walk out of lawful custody to catch buses, wander through town or even to get on a plane.

As a relatively young legal practitioner, I used to have cause to visit Risdon Prison to see clients and obtain instructions and, on many occasions, I was surprised to find Rory Jack Thompson in fact at the gates of the prison, which in itself is probably not unusual, but the fact that he was on the same side of the fence as me, outside the prison, did cause me some concern and I suppose it was no surprise to me that he actually did decide to wander off. Obviously, as I say, this sort of legislation seeks to provide for a situation where individuals of this kind do disappear. It is our intention and our wish to support the bill because it is an appropriate and important rectification of a serious omission.

Mrs NAPIER (Bass) - I had indicated that I would briefly make a comment on this issue because whilst I am very pleased to see this particular piece of legislation coming forward to overcome a problem that otherwise existed, I am very conscious that that famous escapee, Rory Jack Thompson, might well have succeeded in escaping the State had he not been pulled up on the plane. It is my understanding that if he had managed to land in Melbourne and had got off the plane and kept moving, then we had no power by which we could actually cause him to return. Whilst I am delighted that a passenger or a staff person at the airport actually detected that it was in fact Mr Thompson, it was only because someone managed to pick his identity when he was actually on the plane and ready to go.

Here we have a person who had walked out of prison, as was quite a regular practice, as much as they were walking out of Ashley. Not only that but he had been able to use his credit card to obtain some cash so that he was ready to go, and it just seemed to me that this was a very easy exit principle. At least in Ray Groom's time they had to break down the back of the van to get out - they did not think of undoing the door to let them out. I have to say that whilst we now support the rebuilding of the prison and we look forward to the Government meeting its targets in relation to that particular construction, we also look forward to the Government taking much better action in terms of remedial and even support programs that might be provided for prisoners when they are in prison. I think that although there is some work done, it seems to me that we have a long way to go in this State, particularly when you look at the recidivism factor that occurs within Tasmania.

So I just thought it was appropriate, given that we are discussing an important amendment, that we note that it is not just Queensland where the problem emerged, there was actually a case right here in our own backyard that really ought to have alerted the Government then and there to the danger. I guess I just ask why has it taken two to three years for us to identify the fact because I must admit, until I read about the Queensland case, I was not aware that we could not have had the power to bring Mr Thompson back to this State. I always assumed that we would be able to and my question was, because he was a very intelligent man, once he got into Melbourne how might we have been able to find him. So when I read about the Queensland example, I thought, 'This happened in Tasmania three years ago. Why has this Government not done something about it?'

Mrs Jackson - Sit down and I'll tell you.

Mrs NAPIER - I commend the minister, as the new minister and Attorney-General in this House, for bringing in this legislation. I know this is the portfolio that she coveted for a long time, and it is probably justly earned, I think, after having the most difficult portfolio that there is - even though you did not want it - of Health.

A Member - Four years of it.

Mrs NAPIER - And four years of it, that is absolutely right; not just the two and a half that John White had.

But I do really question why there has been this delay and it probably just shows, as I heard a little bit of comment on the squawk box, that Dr Peter Patmore was much more focused on retirement, much more focused on getting his PhD, in effect, at public expense. So far as I know, the public would not have contributed to the cost of his having to do the study directly, but here we had a minister who was quietly working on a PhD. I have to say, I have tackled a PhD about three times and there is always something that drags my attention away from it, usually politics or something else like that. I never did get to do that PhD, but I will one day. It is just one of those life's objectives that you have. I will probably get it as a granny, I think. I hope it will be as a granny. That would be nice, but there is nothing in sight, I have to say, absolutely nothing. But I do think it is quite damning of the former minister who has now left this House, Dr Peter Patmore, that this kind of issue was not picked up as it should have been at the very time of the Thompson issue. We would look forward to this minister acting quickly and appropriately to meet any such further issue that might be identified into the future.

Mrs JACKSON (Denison - Attorney-General) - I thank the Opposition for its support of this legislation. Just for the record, Rory Jack would have been picked up, as you said, because he was committed under the old Mental Health Act and a warrant could have been issued for his arrest interstate, so he would have been covered. Where this came to light was with the case in Queensland, and when I was health minister this was discussed at the Health Ministers' Conference several months ago and it became obvious then that there was not this provision between the States. I believe it sort of fell out of the legislation with the introduction of the new Mental Health Act here in Tasmania in 1999; the 1996 act was proclaimed, and also with the Criminal Justice (Mental Impairment) Act. So Rory Jack would have been covered.

The fact is that these are fairly rare incidents, thank goodness, but when they do happen they are rather embarrassing, I suppose, for a government, and therefore if this does happen in the future there will be legislation in place to correct it. I believe other States are also in the process of introducing this legislation. All States have had to do this, so we are not the only one. All States were in the same situation as we were, so we are all correcting that anomaly.

I would also like to put on the record that I suppose one of the reasons that in the past this has not been such an issue, and something that we need to be aware of, I think, is that there is a different situation now. We do not have the Royal Derwents that we had in the past with lock-ups and so forth. People with mental illness now, if it is considered to be an important part of their rehabilitation, are allowed out into the community, usually supervised and only, of course, if it is assessed that it is safe to do so. But it is a part of rehabilitation that people with mental illness are part of the community.

What occurred in Queensland was that this person was out on a day release and he left and went to Victoria, so these things can happen. I would never support that we go back to the bad old days where everyone was locked down and locked up, because those people never got better, and hopefully this can help rehabilitate some people with mental illness.

The other thing is that I have been advised that there is only one person in Tasmania on one of these orders now, because obviously Rory Jack has since committed suicide, so it is a fairly rare instance. But of course when it does happen, as it did happen about this time last year, it was very embarrassing for the Queensland Government and they are still processing that case through the courts. I was reading the other day where the mother is being charged, and it is a very sad situation. The young man - it is very sad what he did, but it is also very sad for him - committed an offence in Queensland and the order was there. He was found not guilty because of insanity, but he did make many requests to go into an institution in Victoria and there was not, again, the provision to do that. Now there is that provision. It was believed - and he certainly believed - it would be much better for his mental health if he was near his parents. His parents agreed; they used to go to Queensland every couple of weeks to visit him because they were concerned. It is just one of those human situations that would have been much better -

Mr Michael Hodgman - If you ask your senior advisor, now present in the Chamber, he will confirm that Queensland is happy to get rid of him but not quite as keen to take him from Tasmania.

Mrs JACKSON - if he had been allowed to return to Victoria which, hopefully, he will when this is sorted out.

Just quickly, I would like to say something about the parliamentary draftsman's office. I acknowledge they are very hard-working people; they are very good people. We are very lucky here in Tasmania to have the quality of people we have. People who are parliamentary draftspeople are very sought after around Australia. They are very hard to get; they can often command a lot more money than they receive here in Tasmania. I accept that but, as I say, we are lucky to have the ones we do. Every State in the Commonwealth has the same problem as far as recruitment goes. It is a very specialised field; it takes many years of training on the job to qualify as a parliamentary draftsman on top of the law degree. I am aware, as in fact the Government is, that they are very hard-working people. Peter Conway and his staff are excellent but it is not that easy just to put on more people. They are not available; even if we did have extra money, they are not that easy to get. So therefore in some ways I suppose we all have to be understanding. I know as a government we have to wait sometimes. We might like things instantaneously but it is not always possible. A little bit of understanding from everybody would not hurt because after all it is important but we usually wait that little extra time if necessary.

But this has absolutely nothing to do with them because this is nothing to do with validating legislation or anything else, or even a gap in the legislation because the situation just did not exist before, that this legislation was necessary until the last six months or so. I accepted some of those others but that has happened. I have been in this House 16 years now and I can tell you it happened just as many times under the Liberals. If someone could be bothered, they could go and count it up and it would be no more or no less. It is one of those things, it is human nature. People are dealing with this legislation. As I say, it can be fixed.

Mrs Napier - Yes, but you have to be accountable for it when it does happen.

Mrs JACKSON - Yes, I accept that, but it is not the first time this has ever happened in here, Mrs Napier. It used to happen under the Liberals. Let us not get too dramatic about it. As I say, it should not happen but human nature being what it is, all human beings can make mistakes; we are not machines. It is not the first time and I am sure it will not be the last time, but we will do the very best we can to minimise the number of times that we have to do this sort of validating legislation - which this is not.

Bill read the second time and taken through the remaining stages.