Terms of reference - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and the Children's Court of Victoria

Primary terms of reference

The Victorian Law Reform Commission is asked to review and report on the desirability of changes to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA) to improve its operation.

The review should examine the operation of the CMIA and consider whether changes are needed to ensure that the CMIA operates justly, effectively and consistently with the principles that underlie it.

In particular, the Commission should consider whether:

  • the CMIA should define ‘mental impairment’ and, if so, how it should be defined;
  • the process of determining fitness to stand trial can be improved;
  • the application of the CMIA should be further extended to the Magistrates’ Court, for example:

    whether the process for determining fitness to stand trial should be adapted for use in the Magistrates’ Court;

    whether the CMIA should permit the Magistrates’ Court to make supervision orders or other orders appropriate to the jurisdiction, rather than being required to discharge the accused if the accused is found not guilty because of a mental impairment; and

    if the Magistrates’ Court is permitted to make additional orders, whether this should be limited to indictable offences that are heard and determined summarily or extended to also include certain summary offences;

  • legislative clarification is required as to how the law should provide for the jury to approach the elements of an offence and, any defences or exceptions, when the defence of mental impairment is in issue; and
  • changes should be made to the provisions governing supervision and review, including the frequency, form and conduct of reviews and the arrangements for consideration and representation of the various interests involved, including the interests of the community.

In undertaking this reference, the Commission should have regard to the cost implications of recommendations, including the costs of supervision and of treatment services.

The Commission should also have regard to any recommendations that may be made by the Victorian Parliament Law Reform Committee in its Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers.

The Commission is to report by 31 March 2014.

Supplementary terms of reference

The Victorian Law Reform Commission is also asked to consider whether the application of the CMIA should be further extended to the Children’s Court. In particular, the Commission should consider:

  • the Court of Appeal decision in CL, A Minor (by his Litigation Guardian) v Director of Public Prosecutions (DPP) (obh Lee) [2011] VSCA 227;
  • whether the process for determining fitness to stand trial in the Crimes (Mental Impairment and Unfitness to be Tried Act) 1997should be adapted for application in the Children’s Court;
  • in relation to fitness and the defence of mental impairment, whether a different process for determination should apply in the Children’s Court than any that may be proposed by the Commission with regards to the Magistrates’ Court;
  • what orders should be available in the Children’s Court following a finding of unfitness or not guilty because of mental impairment;
  • whether the current jurisdiction of the Children’s Court should apply, so that the Court could hear and determine any matter before it if fitness or mental impairment should arise, apart from those currently required to be committed to the Supreme Court.

The Commission is granted an extension of time to report on this reference to 30 June 2014.

Publication Status: 
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Date Published: 
Thursday, November 28, 2013 - 10:15

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