Today Abigail, and colleague David Shoebridge, spoke against a Mandatory Disease Testing Bill, and voted against amendments which fail to protect vulnerable members of our community. 

Mr DAVID SHOEBRIDGE (22:19) said: 

The definition of "vulnerable person" in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which is obviously the issue at play in Government amendment No. 1, The Greens believe is important and should be required to be in the bill regardless of some ability of the Government to commence the legislation by proclamation at a later date. The Government has said this is just technical, not to worry about it, it is a non‑substantive amendment. But when we are dealing with vulnerable people, as the bill proposes, and potentially ordering the taking of blood from vulnerable people without their consent, we should be sure that the definition of "vulnerable people" is the most robust that we can have. Therefore, the definition contained in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 needs to be in the bill and cannot be vulnerable to the Government playing ducks and drakes by way of proclamation.

The bill creates a low trust environment. The suggestion is that we should be comfortable with the Minister and/or the Cabinet having this kind of power about proclamation. In a low trust environment we will not agree to amendments like this on the fly that are put forward with so little credible support and valid argument from the Parliamentary Secretary. I could not hear the basis upon which the Opposition supported it. It seemed to be that it just simply accepted the very flimsy arguments put forward by the Government. But The Greens do not accept them. As I said, it is a low trust environment. Because we believe that the definitions in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 should and must be ingrained into this otherwise deeply offensive piece of legislation, we oppose the amendment.

Ms ABIGAIL BOYD (22:36) said: 

I will make a brief contribution to debate on the proposed Government amendment. I thank Mr David Shoebridge for his contribution to debate on the last amendment and for pointing out the inadequacies of the drafting not only in the original clause but also in the proposed amendment. It is worth looking at exactly what the amendment would do. At the moment schedule 2.2 to the bill talks about the definition of "vulnerable third party" and also about the "mental health impairment or cognitive impairment, within the meaning of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020". In a moment I will speak about the inadequacies of the drafting of the bill in relation to cross-referencing and the uncertainties around proclamations, but first I will go to the definitions in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 because they are worth putting on record. The definition of "mental health impairment" can be found at section 4 of the Act, which, as the Parliamentary Secretary pointed out, was assented to in June last year but was not proclaimed until earlier this year. The definition states:

1. For the purposes of this Act, a person has a mental health impairment if—
   (a)the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
   (b)the disturbance would be regarded as significant for clinical diagnostic purposes, and
   (c)the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.
2. A mental health impairment may arise from any of the following disorders but may also arise for other reasons—
   (a)an anxiety disorder,
   (b)an affective disorder, including clinical depression and bipolar disorder,
   (c)a psychotic disorder,
   (d)a substance induced mental disorder that is not temporary.
3. A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by—(a)the temporary effect of ingesting a substance, or
   (b)a substance use disorder. That definition was approximately 18 lines and it is effectively incorporated in whole into new schedule 2.2 that members are now being asked to consider.

I turn now to the definition of cognitive impairment in section 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which states:

1. For the purposes of this Act, a person has a cognitive impairment if—
   (a)the person has an ongoing impairment in adaptive functioning, and
   (b)the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
   (c)the impairments result from damage to or dysfunction, developmental delay or deterioration of the person's brain or mind that may arise from a condition set out in subsection (2) or for other reasons.
2. A cognitive impairment may arise from any of the following conditions but may also arise for other reasons—
   (a)intellectual disability,
   (b)borderline intellectual functioning,
   (c)dementia,
   (d)an acquired brain injury,
   (e)drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
   (f)autism spectrum disorder.

This is another really lengthy definition, which effectively is being embedded by reference within schedule 2.2. I would argue that that is not particularly tidy drafting. But to make matters worse, the definition in section 3 (2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 states:

Words and expressions used in this Act have the same meanings as in the Mental Health Act 2007.

Not only are we incorporating this definition into the bill we are considering tonight, but also the provisions we are incorporating include some interpretation from another Act. It is quite extraordinary that schedule 2.2 is attached to the bill at all because it is so reliant on what is happening in other legislation. At the time this was an Act that had not even been proclaimed and had not commenced. What we have in this bill is layer upon layer of uncertainty. The only certain thing we know now is that the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 has commenced, yet that is the provision that the Parliamentary Secretary is seeking to remove tonight.

I thank Mr David Shoebridge for bringing this to our attention. I remember when I was at law school being given examples of what bad legislation and bad drafting looked like. Basically, two of the main drafting errors are, first, uncertainty—and here we have uncertainty in relation to the proclamation because we do not know when it will actually be proclaimed—and, secondly, uncertainty caused by cross-referencing and the necessity of reading multiple layers of legislation to understand what is happening here. So the complexity in schedule 2.2 is quite disturbing for something that is so important and really will take away the liberties of very vulnerable people. That is all I will say about the amendment right now but I may come back for another stab when I hear other members' contributions to this very, very important debate. 

The full transcript of the debate can be found on Hansard here.