Criminal Law (Insanity) Bill 2002: Committee Stage.


It is very unsatisfactory for all Members that we do not have the Government amendments before us. Fourteen months have elapsed since Second Stage of this incredibly important Bill which seeks to update legislative provisions in this area by repealing the 122 year old Trial of Lunatics Act 1883.

I am not sure the Senator is entirely in order, but I will allow her to make her point.

We have only just received notice of the grouping of the amendments. If Senators Terry, Tuffy and I find it impossible to deal with the amendments in the groupings set out, can we change them? All of us have naturally put our notes together in such a way as to deal with the amendments consecutively.

If the Senator is requesting some latitude in the groupings as we progress, we can accommodate her.

Will the Minister agree? The problem is that we have only just received notice of the groupings. If we cannot cope with the groupings as ordered, will the Minister agree to address the amendments in order?

There are 139 amendments to this very short Bill. Obviously, there must be some form of grouping. I have no doubt the House is liberal enough to accommodate people with difficulties relating to the exact sequencing of amendments. There is always some latitude on groupings. While I am not a Member of the House with power to order business, I will certainly not be squeamish or rigid on groupings.

I am very grateful to the officials of the House for the work they have put into grouping the 139 amendments. The groupings they have worked out will serve to put some degree of order on the proceedings. Government amendments which are forthcoming will not go without debate and will not be rushed through in a way which is in any way undemocratic, ill-considered or under-considered. There is a sufficient number of amendments before the House for us to make significant progress and I believe the House will not be inhibited in any way by amendments the Government tables at a later stage.

I hope that clears up the matter.

I am sure the Minister would not try to bring forward Government amendments without debate. The only problem is that on Report Stage we can speak only once.

That is noted. We will proceed to deal with these matters as they arise.

I move amendment No. 1:

In page 4, subsection (1), between lines 4 and 5, to insert the following definition:

"‘intoxicated' means under the intoxicating influence of any alcoholic drink, drug, solvent or other substance or a combination of substances and cognate words shall be construed accordingly;".

The definition of mental disorder in the Bill includes the word "intoxication" but there is no definition of "intoxication". I am taking this opportunity to outline the definition in detail. It is important we define the term "intoxication" and ensure that drugs and other substances are covered under it. I ask the Minister to accept this amendment in the interest of clarity.

I agree with the purpose of the amendment in that it is helpful to have definitions but it appears this definition is too broad. The amendment refers to a "substance or a combination of substances". We all know the substances the Senator has in mind but to word it like that is wrong. The Senator needs to be more specific or leave it out altogether. In a Bill of this sort we need to leave enough room for accommodation of emerging substances or conditions we know about. If a form of words could be found that would meet that it would be helpful but I am not sure this particular form of words is the one best suited to it.

I tend to agree with Senator Hayes. The amendment Senator Terry is presenting delimits the meaning of another term when used in the Bill. Any criminal law statute, which this effectively is, has to be interpreted as time goes by and in the context of the facts of any particular case. Where there is ambiguity in a Bill, as a matter of legal construction in a criminal statute the Bill is always construed, where two reasonable interpretations are open, in a manner favourable to the accused. It is not a question of an injustice being done but when it is decided that "intoxication" is to have a clear and precise meaning in a statute, we must go very carefully, as Senator Hayes has just done, through the proffered definition and ask whether that is exactly what is meant.

For instance, the use of the term "substance" in the amendment could mean — I am sure this definition has been taken from some other statute — consumption of food or over-indulgence in, say, coffee, Red Bull or something like that. The term "intoxication" is well understood by the criminal justice process. We know what intoxicating liquor is, and I do not believe it is wise to tie down the definition to the degree of specificity that is in the amendment.

This is a definition of the term "intoxication" where it would qualify the term "mental disorder". The term "mental disorder" includes mental illness, mental handicap, dementia or any disease of the mind but does not include intoxication. We should not at this stage insert a new rigidity into the Bill as to what intoxication might mean in a certain circumstance. A broad brush approach is being taken in this amendment, which refers to "a substance". I realise the term "other substance" probably would be construedeiusdem generis with the preceding substances which are alcoholic drink, drugs or solvents but I am slightly wary of doing something without clearly working out what it would actually mean. It is better to leave the term undefined as commonly understood and wait for case law to emerge and individual cases to arise as to what it means where that becomes relevant, rather than try to tie it down in advance. I would be concerned that somebody who is allergic to food or a combination of foods might be affected by this definition.

I ask the Senator to take it that it is better to leave the term undefined and to leave it to case law and individual decisions of the courts, bearing in mind the overall construction I mentioned, that where two reasonable interpretations of a penal statute are open to a court, and one is more favourable with innocence rather than guilt, a court, having applied the ordinary meaning rubric in terms of interpretation, will normally give the benefit of the doubt to the accused in any particular case. It is better to leave it in this form because we would have to have a second amendment as to what the term "substance" means in those circumstances. If it was a combination of food, stimulants, etc., we could be in a peculiar position. The definition of "substance" is an extension of the term "intoxication" and therefore if we deny somebody the defence that the Act accords by virtue of the fact that they have taken some substance, we would need to know exactly what we were accomplishing by that extension of the term "intoxication". I do not propose to accept the amendment.

I take on board what the Minister said and we will re-consider the matter for Report Stage.

Amendment, by leave, withdrawn.
Progress reported; Committee to sit again.