Questions

You can make a submission in response to these questions by email, by mail, or through the online submission form

  1. 1How are the principles of the CMIA currently applied in the higher courts to young people who are subject to the CMIA?

  2. 2Are the current CMIA principles appropriate for young people?

  3. 3Are there areas of the current process that conflict with human rights principles? If so, which areas?

  4. 4What principles should govern the application of the CMIA to young people in the Children’s Court and adult courts?

  5. 5Do the issues raised in the Magistrates’ Court also have a particular impact in the Children’s Court? If so:

    1. (a)What issues arise from the lack of jurisdiction to determine unfitness and the requirement to discharge a young person found not guilty because of mental impairment in the Children’s Court?
    2. (b)What practices, if any, take place in the Children’s Court to address issues arising under the CMIA and reach a satisfactory outcome for the young person? In what situations?
  6. 6What other issues arise in the Children’s Court due to the limited jurisdiction regarding issues arising under the CMIA?

  7. 7If the CMIA is further extended in the Children’s Court, should there be any differences in approach to any further extension in the Magistrates’ Court?

  8. 8How do delays affect young people and victims involved in CMIA matters?

  9. 9Should the Children’s Court be given the jurisdiction to deal with unfitness when it is raised in matters in the Children’s Court? If so:

    1. (a)How should this jurisdiction be provided (ie by an express power to investigate, determine and make a finding of unfitness or by an existing power in the Children’s Court)?
    2. (b)On what evidence should any unfitness determination be made?
  10. 10Do issues currently exist in the Children’s Court regarding the provision of expert reports? If so, what are they?

  11. 11Can the current unfitness test be appropriately applied to young people?

  12. 12Should any changes be made to the current test for determining unfitness to make the criteria more appropriate for young people?

  13. 13If changes were made to the Presser criteria to include consideration of decision-making capacity or effective participation, what implications could this have for the application of the test for young people?

  14. 14In considering criminal responsibility of a young person, how are issues relating to the inquiry of doli incapax separated from inquiries about establishing the defence of mental impairment?

  15. 15Should mental impairment be defined as it relates to young people? If so, how should it be defined?

  16. 16What specific mental conditions affecting young people should the Commission have regard to in considering the application of the CMIA?

  17. 17Are there specific mental conditions that more commonly affect young people in contact with the criminal justice system?

  18. 18Can the defence of mental impairment be appropriately applied to young people?

  19. 19Do the operational elements of the defence of mental impairment require modification for application with young people?

  20. 20Does the requirement that a person be able to ‘reason with a moderate degree of sense and composure’ need reformulating if applied to young people?

  21. 21If special hearings were to apply in the Children’s Court, would procedural modifications be required to make it appropriate for young people?

  22. 22Should a program be introduced in the Children’s Court to divert young people who raise unfitness to stand trial or the defence of mental impairment? If so:

  23. (a)What eligibility factors or criteria should be considered?
  24. (b)How should such a program interact with any other powers that may be recommended in the Children’s Court for dealing with unfitness or the mental impairment defence?
  25. 23Should the Children’s Court be given the power to make orders following findings in relation to unfitness and the defence of mental impairment, other than a discharge?

  26. 24If orders were available in the Children’s Court in relation to unfitness and the defence of mental impairment, which of the following should be considered as options for reform:

    1. (a)limited supervision orders under the CMIA
    2. (b)orders available in the criminal jurisdiction of the Children’s Court
    3. (c)orders available in the civil mental health and disability systems for young people
    4. (d)other orders?
  27. 25If the CMIA were to be further extended in the Children’s Court:

    1. (a)Should all indictable and summary offences (excluding death offences and exceptional circumstances) be dealt with in the Children’s Court when unfitness or mental impairment is raised?
    2. (b)What factors should be considered in deciding whether a matter should be uplifted to the higher courts when unfitness or the defence of mental impairment is raised?
  28. 26What issues currently arise from having matters uplifted to the higher courts, where unfitness or the defence of mental impairment is raised?

  29. 27How should committal proceedings in the Children’s Court be conducted where unfitness or the defence of mental impairment is raised?

  30. 28How appropriate are the current processes under the CMIA for young people who are transferred or uplifted to adult courts?

  31. 29What are the factors that influence the making of orders in relation to young people under the CMIA in the higher courts?

  32. 30Should young people be subject to indefinite orders?

  33. 31What issues are raised in making young people subject to indefinite orders?

  34. 32Should there be an expansion of the range of orders available to young people subject to the CMIA in the higher courts equivalent to any expansion that may be contemplated in the Children’s Court?

  35. 33Should a treatment pathway for young people differ to that for adults under the CMIA? If so, what differences should there be?

  36. 34When a young person is found not guilty because of mental impairment or to have committed the offence in a special hearing:

    1. (a)Are there appropriate custodial facilities available?
    2. (b)What are the options for supervising young people in the community?
  37. 35Should there be an equivalent to the ‘dual track’ system that applies to the transition between child/adolescent and adult systems for young persons subject to the CMIA? If so, what factors should guide the development of such an equivalent system?

Publication Status: 
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Date Published: 
Thursday, November 28, 2013 - 10:45

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