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Legislation Review Committee

Published on: July 2020

Record: HANSARD-1323879322-111423

Legislation Review Committee

Report: Legislation Review Digest No. 16/57

Debate resumed from 17 June 2020.

Ms FELICITY WILSON (North Shore) (12:43:15):Legislation Review Digest No.

I recommence my contribution to debate on the 16. I have already reviewed a number of the bills in the previous digest, so I will move onto the Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 that was examined by the committee. I have spoken about the bill briefly. The bill establishes a new defence of mental health impairment or cognitive impairment, which replaces the current defence of mental illness. This change provides that a person is not criminally responsible for an act if, at the time it was carried out, he or she had a mental health or cognitive impairment and, as a result of this, did not know the nature or quality of the act, or did not know the act was wrong.

When a defence of mental health impairment or cognitive impairment has been established, a jury will have to return a special verdict of "act proven but not criminally responsible". Currently, if a successful defence of mental illness is raised, the jury returns a special verdict of "not guilty by reason of mental illness".

The amended special verdict responds to concerns that the phrase "not guilty" in the current special verdict causes pain and trauma to victims. This is because "not guilty" may suggest the defendant had not done the relevant act. The revised special verdict seeks to acknowledge that the act causing the offence was proven while maintaining that the person who committed the act was not criminally responsible. However, the committee noted that the new special verdict may impact on the rights of defendants with mental health and cognitive impairments to be presumed innocent.

The presumption of innocence requires that no guilt can be presumed before the prosecution has proven a charge beyond reasonable doubt. Additionally, mens rea or the mental element is an integral factor in establishing liability for a crime. The revised special verdict appears to draw more focus to the act itself and removes the words "not guilty" from the verdict. This may result in the stigma of a criminal act being attached to a person for whom the mental element of the crime has not been proven. The committee therefore referred this matter to Parliament for consideration.

Turning to one of the private member's bills considered by the committee, the Rural Fires Amendment (NSW RFS and Brigades Donations Fund) Bill 2020 seeks to amend the Rural Fires Act 1997 to retrospectively allow certain money in the Rural Fire Service and Brigades Donations Fund to be applied for purposes relating to emergency relief. Without this amendment, it can only be applied for the narrower purposes directly related to the NSW Rural Fire Service's brigades. This is due to the limitations in the terms of the relevant trust. The committee noted retrospectivity and that a person who donated at the time, knowing the terms of the trust, would have no recourse if their money were now applied for purposes not covered by those terms.

Further, as regards precedent, there are potential consequences for other trusts should Parliament legislate retrospectively to change the terms of the NSW Rural Fire Service donations trust. Accordingly the committee referred these matters to Parliament for consideration. That concludes my remarks on the sixteenth digest for this Parliament. I thank once again, as always, the other members of the committee and in particular the committee secretariat staff for the work they do, particularly during this challenging pandemic time. I commend the digest to the House.

Mr DAVID MEHAN (The Entrance) (12:46):

:44 I make a contribution to debate on the sixteenth digest of this Parliament, dated 16 June 2020. In this digest the committee considered 11 bills and commented on eight of these. The committee also considered one regulation, the Industrial Relations (Public Sector Conditions of Employment) Amendment (Temporary Wages Policy) Regulation 2020, but declined to comment on that regulation because it had been disallowed in the other place before the committee had met. However, I encourage members to refer to this digest, especially appendix two.

Appendix two on page 56 records letters received from Ministers and members responding to the committee's comments for the period 15 November 2019 to 10 June 2020. If we combine this digest with digest No. 9, dated 19 November 2019, we have a record of the responses received to comments made by the committee on bills and regulations. When we tally these, we see the committee has commented on bills and regulations 74 times over the life of the current Parliament. However, only 27 formal responses were received by the committee, as recorded in the two digests I have referred to: the sixteenth and the ninth digests.

When we consider that the review of the Legislation Review Act conducted by the committee in the last Parliament recommended that a mechanism should be introduced and put into effect to ensure all comments of the committee were addressed in some way, this record makes clear that we could be doing a whole lot better. The committee does important work. The Legislation Review Act is an important piece of legislation. It enables the Parliament to be made aware through an independent process of infringements on the rights and liberties of the citizens of New South Wales. Small though they may be, they accumulate over time.

The committee has made a number of comments over the life of this Parliament on infringements on the rights and liberties of citizens of this State that have not been addressed by either informal comment to the committee or by and large in debate before this place. We can do better. I put that out there for members to absorb. I look forward to the Parliament doing a better job of addressing comments made by the committee in the future. Once again I commend the digest to the House. I thank my fellow committee members for their work and the secretariat that supports the committee.

Report noted.