Launch of the Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

Group at the launch of the Crimes (Mental Impairment) report

Above: Dr Danny Sullivan, Phil Grano, the Hon. Frank Vincent, Nina Hudson, the Hon. Philip Cummins with the report


Speech by the Hon. Philip Cummins AM, Melbourne, 9 October 2014


Your Honours and distinguished persons every one:

I warmly welcome you all to the launch of the Commission’s Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

We acknowledge, as we should always do, the traditional custodians of the land on which we meet, the Wurundjeri people of the Kulin nations. We acknowledge, with profound affection and respect, their Elders past and present, and look forward to the benefit of their Elders long into the future. And likewise, we acknowledge all other Elders who are present. 

I commend our Commissioners, all of whom worked assiduously on this Reference, including the Honourable Frank Vincent AO QC, Bruce Gardner PSM, and Saul Holt SC who with me constituted the Division considering the Reference; our CEO Merrin Mason and staff; Cynthia Marwood CEO of the Sentencing Advisory Council and who was Acting CEO of the Commission during a critical developmental period of the Reference; especially and most warmly our Team Leader Nina Hudson  who lived, slept and ate the CMIA for two years, and team members Jacinth Pathmanathan, now undertaking a Master of Laws at Columbia University in New York and Catriona MacIvor, now working with the Prison Reform Trust in London; and our distinguished Advisory Committee whose members gave us invaluable insight and guidance. Finally, I warmly welcome our new Commissioner, Helen Fatouros, Director Criminal Law Services Victoria Legal Aid, who was appointed a Commissioner this month.


In August 2012 the Victorian Attorney-General, pursuant to s 5(1)(a) Victorian Law Reform Commission Act 2000, referred to the Commission for its review and report the desirability of changes to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA) to improve its operation.

I became Chair of the Commission the next month. The outgoing Acting Chair, His Honour David Jones AM, who remains one of our treasured Commissioners, in a beguiling and homely phrase, passed the Review on to me with the words: “The Attorney has asked us to run the ruler over the Act.” Two years and 107 recommendations later and by a two-kilogram Report we have completed this apparently innocuous exercise. It is a strong operational principle of the Commission that we do not ask for extensions of time and that we submit Reports on time. Although the review was both vast in scope and technical in detail, we maintained that operational principle. The Report was delivered to the Attorney-General by its due date of 30 June 2014, tabled in Parliament on 21 August 2014, and today we have pleasure in formally launching the Report, appropriately in Mental Health Week.

The original Terms of Reference did not comprehend further extension of the CMIA to the Children’s Court. In an appropriate development, in September 2013 the Attorney-General provided supplementary terms of reference to the Commission doing so. The Report thus comprehends the significant work in this area of the Children’s Court. The Children’s Court and the Magistrates’ Court are mature courts well capable of fulfilling the increased jurisdiction recommended by the Commission.


Introduced in 1997, the CMIA abolished the Governor’s pleasure regime and established a fairer, more transparent and balanced regime determining:

• whether at the time a person appears in court, the person’s mental processes are so disordered or impaired that the person is unfit to stand trial;
• whether at the time of the offence charged, the person was suffering from a mental impairment to the necessary standard for the person to be found not guilty because of mental impairment.
• what should happen to persons who have been found unfit to stand trial, or not criminally responsible because of mental impairment.

The 1997 Act largely operated in the Supreme and County Courts. Over a 12-year period, there were 159 cases dealt with under the CMIA in those courts, 94 per cent of which resulted in the imposition of indefinite supervision orders.

In June 2013, there were 154 people with a mental illness supervised by the Victorian Institute of Forensic Mental Health (Forensicare) and 30 people with an intellectual disability supervised by the Department of Human Services. The regime for supervision and management is now provided by the CMIA, the Mental Health Act 2014 (Vic), which came into operation on 1 July this year, and the Disability Act 2006 (Vic). The Report, as is necessary with reports, stated the law as at two months prior to its publication. However we stated, I think correctly and certainly helpfully, the Mental Health Act 2014 provisions as in operation, although formally that occurred the day after delivery of our report.

The Commission received 34 submissions and held 55 consultation meetings across Victoria. I acknowledge and warmly thank each person who so contributed to the Review.

In its Report the Commission makes 107 recommendations. The recommendations are informed by four key principles: protection of the community; respect for victims, accused and their families; due process; and, importantly, therapeutic outcome.

We found that the CMIA was a very substantial improvement on the previous regime and has achieved many of its objectives. The Report identifies areas for system-wide change, including statutory principles for decision makers to avoid unreasonable delay, and training for professionals who work under the CMIA.

We recommend revising the current criteria for determining unfitness to stand trial to ensure that the accused is only subject to the trial processes where the accused is able to make the crucial decisions relevant to the trial or plea.

We recommend that a definition of mental impairment be introduced into the CMIA to clarify the uncertainty surrounding the common law definition “disease of the mind”. We recommend that the CMIA define mental impairment as a condition that “includes, but is not limited to, mental illness, intellectual disability and cognitive impairment”.

The Report identifies that the lack of power of the Magistrates’ and Children’s Courts is a gap in the operation of the CMIA. This forces committal of matters to a higher court, and can result in artificial decision making, delay, unfairness to victims, the accused and persons affected, and a lack of outcome. We recommend the jurisdiction of these courts be extended under the CMIA by a package of recommendations to establish a legislative framework for its operation, including support services.

We recommend that a youth forensic facility be established to address the lack of secure services for remand, treatment and supervision of children and young people with mental conditions. We also recommend the establishment of a medium-secure mental health facility for persons with mental illness subject to the CMIA, to assist in relieving the pressure on beds at the Thomas Embling Hospital and to improve the process for managing such persons’ progressive reintegration into the community.

We propose changes to the involvement of juries in determining unfitness to stand trial and the defence of mental impairment. We recommend that the current provision allowing a judge to determine the defence of mental impairment be abolished and that a jury determine criminal responsibility in all cases, to reflect the substantial value in public examination of these issues by a jury. On the other hand, we consider that unfitness to stand trial is a pre-trial issue and recommend that a judge or magistrate determine all investigations of unfitness to stand trial.

We make recommendations to simplify jury directions, including a legislated approach to directing the jury when the defence of mental impairment is raised.

The Report considers whether the supervision framework operates consistently with the key principles of community protection and least restriction. The current nominal term framework is confusing and raises inaccurate expectations in the community. We consider that the nominal term system is an inappropriate way of setting review periods with respect to the seriousness of the offence. It rarely reflects the actual period of supervision, which varies vastly. We recommend the retention of indefinite supervision orders in the higher courts and the replacement of the current nominal term system with five-year progress reviews, and revision of the tests for endangerment consistently with modern risk assessment principles.

I warmly thank the Courts, the legal and medical professions, the Department of Justice, the Department of Health, the Department of Human Services, Victoria Legal Aid, Forensicare and the many persons and entities who generously gave their time and knowledge to the advancement of this Review.

I especially acknowledge the contribution, at times under considerable personal difficulty, of victims, families and persons affected by and subject to the CMIA.

This is a substantial and I think lasting report. I commend it to you and I now formally launch the Report.


I would like to turn to our two expert Commentators. First, Dr Danny Sullivan, Assistant Clinical Director, Forensicare. You all know of Dr Sullivan’s work. I wish to say something personal of him and of Forensicare.

For many years I conducted jury trials in the Supreme Court. I would sit long hours with juries, on the premise that we would end the week at 12.30pm on Fridays. Learned counsel and solicitors never objected to this practice, and left the court promptly at that time. At 2pm on Fridays, I would list mental impairment cases. I did not always accede to the recommendations of Forensicare in those cases, but universally I found the submissions of Forensicare to be thoughtful, evidence-based, and responsible. Dr Sullivan frequently appeared before me. He was a witness of insight and integrity. It is a happy cadence that five years after my judicial retirement, and on a formal occasion in Mental Health Week, I am able publicly to acknowledge the excellent work of Dr Sullivan and of Forensicare.

Dr Sullivan.

[Dr. Sullivan speaks]

I now invite Colleen Pearce, Public Advocate to address us.

You all know of Colleen’s work as the Public Advocate, and before that as Director of the Victims Support Agency of the Department of Justice, with which I now work actively, and who has led a professional and admirable lifetime helping society’s most disadvantaged people, advocating for their rights, and helping to ensure that they are treated with dignity and respect. I am pleased to invite Colleen to give us the undoubted benefit of her insights.


[Ms. Pearce speaks]


Finally, I have pleasure in inviting our CEO Merrin Mason to conclude our formal proceedings.

[Ms. Mason concludes proceedings]

The Hon. P.D. Cummins AM



The Hon. P.D. Cummins AM


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