This paper argues that Australia should develop national civil commitment laws (1) for the mentally ill, or, as a second preference, develop a model Australian legal approach that could be adopted by individual Australian jurisdictions. The main reasons for that view are as follows: the fundamental importance of such laws to the Australian community both from a human rights perspective and the perspective of community protection; the interrelatedness of the Australian mental health system including its legal, policy and service areas; the importance of international principles and treaties; greater accessibility of the legislation; improved data collection and monitoring; a more cost effective option on a systemic level; reducing cross border issues where two sets of State and/or Territory laws interrelate; and the significant problems with the present State and Territory approaches.
Currently there are no national mental health laws or national standards for such laws. Instead, the states and territories have their own laws, processes and institutions that deal with civil commitment. State and territory jurisdictions provide broadly similar legal approaches to civil commitment. (2) Each has a form of civil commitment on the basis of a mental illness that involves risks to the community and/or to the individual. Each jurisdiction has broadly similar legislation and decision-making systems for mental health and civil commitment including the use of specialist mental health review tribunals. Each contains objectives that attempt to identify and balance the protection of the individual consumer's rights and autonomy with the need for appropriate care and treatment, if necessary on an involuntary basis, and the right to protect the community from risk.
However, as discussed below, there are also significant differences between jurisdictions in the content and process of these laws, significant gaps in service provision, and there is a lack of a coordinated and consistent approach to the civil commitment of the mentally ill across Australia. A properly planned and resourced national set of laws with accompanying policy support would significantly reduce these problems.
The paper then argues that the best way to develop national laws would be through the establishment of a national, public inquiry into Australia's civil commitment laws for the mentally ill. The paper discusses the reasons for the need for such a national, public inquiry which include: the importance of the topic; the controversies that surround it; the number of complex issues and possible reforms involved; the need for broad consultation for major law reform; and the specific defects and concerns with current approaches by state and territory jurisdictions. Thus far, such an inquiry has not occurred and there has never been in Australia a national, State or Territory inquiry that has focused on civil commitment.
The paper then assesses the institution which would best carry out this inquiry. Finally, the paper explores the feasibility of achieving national laws.
II WHY THERE IS A NEED FOR NATIONAL LAWS
A Civil Commitment is of Significant National Importance
This part of the paper refutes perhaps a general argument against national laws that they are not justified because civil commitment is not important enough to warrant the effort of introducing such laws. Instead this part demonstrates the national importance of the issue.
The mental health of all Australians should be of paramount importance. Large numbers of Australians, apparently at an increasing rate, are directly affected by mental illness. For example, about one in five Australians experience a mental illness episode during their lives while about one in ten report a long-term mental illness or behavioural issues at any point in time. (3) Estimates from the second National Survey of Psychosis conducted in March 2010 suggest almost 64,000 people have a psychotic illness and are in contact with public specialised mental health services each year. …