Referral to the Commission
1.1 In August 2012, the Attorney-General, the Honourable Robert Clark, MP asked the Commission, under section 5(1)(a) of the Victorian Law Reform Commission Act 2000 (Vic), to review and report on the desirability of changes to the CMIA to improve its operation. Essentially, the terms of reference ask the Commission to consider whether changes are needed to ensure that the CMIA operates justly, effectively and consistently with the principles that underlie it. The Commission is asked to give consideration to a number of particular issues covering both legal and process aspects of the CMIA, set out in the terms of reference.
1.2 The Commission has also been asked, in undertaking this reference, to have regard to:
• the cost implications of any recommendations it may make, including the costs of supervision and treatment services, and
• any recommendations that may be made by the Victorian Parliament Law Reform Committee (referred to in this paper as the 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.
1.3 The full terms of reference are set out on page vi.
The Commission’s approach
Framework for reviewing the operation of the CMIA
1.4 In this review, the Commission has been asked to review the operation of the CMIA. Therefore, the Commission is focused on how the existing laws and procedures in the CMIA function in practice, not whether they should exist at all.
1.5 The terms of reference ask the Commission to review whether changes are needed to ensure the CMIA operates ‘justly, effectively and consistently with its underlying principles’. This forms the principal framework within which the Commission will assess the operation of the CMIA, and will examine whether changes are needed.
1.6 Broadly speaking, the principles underlying the CMIA seek to strike a balance between the protection of the community and the rights and clinical needs of accused people adjudged unfit to stand trial or not guilty because of mental impairment. They include:
• fairness to an accused person and the right to a fair trial—a person should not enter a plea to an offence or be tried for an offence unless they are mentally fit to stand trial
• legitimate punishment—a person should not be held criminally responsible and punished for an offence if they are not morally blameworthy for the behaviour
• least restrictive alternative—when a person is subject to the CMIA, restrictions on the person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community
• community protection—when a person is subject to the CMIA, the need to protect the community or the person from any likely danger because of their mental condition
• rights of victims and family members—victims and family members of people subject to the CMIA have a right to be heard and to be informed
• gradual reintegration—the treatment and reintegration of a person subject to the CMIA is considered on a gradual basis via a staggered system of management and supervision
• therapeutic focus—the CMIA aims to promote an increased understanding of mental conditions among the community and processes to assist in the recovery of all people affected by an offence (including victims, the person subject to the CMIA and their family members)
• transparency and accountability—the CMIA encourages procedural fairness, open and transparent decision making and rights of appeal.
1.7 These principles are either explicitly stated or reflected in the provisions of the CMIA. The CMIA also sits within a broader human rights framework as encapsulated in the Charter of Human Rights and Responsibilities Act 2006 (Vic). Also relevant are the principles in the Mental Health Act 1986 (Vic) and Disability Act 2006 (Vic).
1.8 The Commission will consider the operation of the CMIA and make recommendations to ensure it operates in a way that is just, effective and consistent with these principles.
1.9 The Commission will also have regard to the cost implications of its recommendations, including the cost of supervision and treatment services, and the recommendations of the 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.
1.10 Although not specified in the terms of reference, the Commission will consider equivalent regimes interstate and overseas, particularly New South Wales, New Zealand and the United Kingdom, where reviews are being or have recently been conducted.
Scope of the review
1.11 The CMIA governs a specific area of the law where a person with a mental condition comes into contact with the criminal justice system and the condition is such that it warrants a deviation from the criminal law and procedure that normally applies. This can occur when:
• at the time the accused person appears in court on a charge for a criminal offence they are mentally unfit to be tried for the offence, and/or
• at the time the offence was alleged to have been committed the accused person was suffering from a mental impairment which negated criminal responsibility for their actions.
1.12 The CMIA focuses on a specific intersection between criminal law, psychology and psychiatry. However, the CMIA’s operation touches on a number of broader areas within the criminal justice system including:
• diversion processes
• usual criminal and sentencing law and procedure
• mental health and disability systems, including the laws that govern services and treatment for people with a mental illness, intellectual disability or cognitive impairment.
1.13 The Commission’s terms of reference are concerned with the operation of the CMIA. However, where relevant, the review may also include consideration of areas that operate alongside or as alternatives to the CMIA.
1.14 The Commission will refer to diversion and sentencing dispositions available in Victoria and where relevant, other jurisdictions, for people in the criminal justice system who have a mental illness, intellectual disability or cognitive impairment.
1.15 The Commission does not intend to examine the law on the relevance of mental illness, intellectual disability or cognitive impairment in sentencing. The issues involved in relation to sentencing are quite separate from the operation of the CMIA, are complex, and cannot properly be considered in the scope of a reference on the operation of the CMIA.
1.16 In examining the criminal responsibility of people with a mental illness, intellectual disability or cognitive impairment in the context of the CMIA, the Commission will not review other defences or exceptions to criminal responsibility available under the criminal law. A general examination of defences or exceptions to criminal responsibility is beyond the scope of the operation of the CMIA, as many defences are applicable to people who do not have a mental illness, intellectual disability or cognitive impairment. As such, it would not be appropriate to consider these matters within the context of this reference. In 2004, the Commission published a substantial report which addressed the matter of defences to homicide. However, the Commission may give consideration to other mental state related defences available in Victoria as part of the context of the defence of mental impairment.
1.17 While the Commission will consider whether the CMIA should be extended to the Magistrates’ Court, the Commission will not consider whether the CMIA should be extended to the Children’s Court. The Department of Justice is examining this issue separately.
1.18 The Commission has established an advisory committee comprising individuals with expertise in matters relevant to this reference. The role of the advisory committee is to meet as a group of individuals who have expertise and experience in the field and provide ongoing advice to the Commission on issues raised by the terms of reference. The advisory committee consists of:
• Professor James Ogloff, Director of Psychological Services, Forensicare and Director, Centre for Forensic Behavioural Science, Monash University
• Dr Danny Sullivan, Assistant Clinical Director Community Operations, Forensicare, Adjunct Senior Lecturer, Monash University and Honorary Fellow, University of Melbourne
• Dr Ian Freckelton SC, Deputy Director, Centre for the Advancement of Law and Mental Health and barrister
• Gavin Silbert SC, Chief Crown Prosecutor, Office of Public Prosecutions
• Tim Marsh, Senior Public Defender, Victoria Legal Aid
• Isabell Collins, Director, Victorian Mental Illness Awareness Council
• Phil Grano, Principal Legal Officer, Office of the Public Advocate.
1.19 The advisory committee met for the first time in April 2013 and will meet again after the close of submissions and the completion of formal consultations.
1.20 Any examination of the operation of the CMIA requires an understanding from both a criminal and health perspective and raises both legal and treatment issues.
1.21 As part of preliminary research on the reference, the Commission conducted a series of preliminary meetings with representatives from some of the key stakeholders in the criminal law sector and forensic mental health and disability sectors. The purpose of these meetings was for the Commission to gain a preliminary understanding of how the CMIA currently operates, to start the discussion on the issues identified in the terms of reference and identify other issues that may require examination.
1.22 The preliminary meetings do not form part of the Commission’s formal consultations for this reference. Formal consultations will be conducted in conjunction with the publication of this consultation paper, along with a call for public submissions.
1.23 The preliminary consultations along with discussions with the advisory committee and other research undertaken by the Commission form the basis of this consultation paper.
1.24 The purpose of the consultation paper is to assist the Commission to understand how the CMIA has been operating since its introduction. The Commission seeks input from people who have experience with, or are affected by, the CMIA or who have an interest in the issues raised by the CMIA.
1.25 The paper provides information on the current law and procedure under the CMIA and the principles on which it is based. The paper raises and discusses the operational issues that have already been identified in the terms of reference and the Commission’s preliminary research. The paper also asks for input on whether there are additional issues that ought to be considered by the Commission. The Commission may consider these issues if they are within the scope of the reference.
1.26 The Commission puts forward some broad questions about the operation of the CMIA and also asks specific questions to prompt discussion on the issues and the options for addressing them.
1.27 The Commission wants to hear your views and experiences of the operation of the CMIA. It seeks your comments on the questions asked in this consultation paper or any other issues you may have with the operation of the CMIA. Your responses to these questions will assist the Commission to better understand the nature of the issues and to determine the most appropriate response in its recommendations.
1.28 Information about how to provide the Commission with a submission is on page x. To allow the Commission time to consider your views before deciding on final recommendations, submissions are due by 23 August 2013.
Formal consultation process
1.29 The next stage of the reference will involve consulting widely with interested organisations and people to gather information and comments on the operation of the CMIA, identify additional issues and develop and test any options for reform.
1.30 The Commission intends to consult with representatives in both the criminal law sector and forensic mental health and disability sector, including the judiciary, the courts, legal practitioners, forensic mental health and disability clinicians, mental health and disability treatment services and support service providers (government and non-government).
1.31 The CMIA also has the potential to affect a wide range of people in the general community. This includes people who may be subject to orders under the CMIA, family members or carers of people subject to the CMIA, and victims or family members of victims in CMIA matters. It could also include individuals or groups interested in issues relating to mental illness, intellectual disability or cognitive impairment and the criminal justice system. The Commission is also interested in hearing the views of individuals and groups interested in community safety.
1.32 As part of the consultation process, the Commission will be seeking to include analysis of quantitative data to assist in its understanding of how the CMIA operates and the issues that have been identified. The Commission encourages people making a submission to include any quantitative or qualitative data (for example, in the form of case examples) that may be available or collected. Quantitative data will be particularly useful in relation to the Commission’s consideration of the issues regarding the further expansion of the CMIA to the Magistrates’ Court and the possible cost implications of the Commission’s recommendations, including the cost of supervision and treatment services.
1.33 The feedback and information that the Commission receives from submissions and formal consultations, combined with additional research, will inform its final recommendations to the Attorney-General. A report setting out the Commission’s recommendations will be provided to the Attorney-General by the reporting date of 31 March 2014. The Attorney-General must table the report in the Victorian Parliament. The Victorian Government then decides whether to implement the Commission’s recommendations.