Terms of reference
1.1 On 17 August 2012, the Attorney-General, the Honourable Robert Clark, MP asked the Victorian Law Reform Commission to review and report on the desirability of changes to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’) to ensure it operates justly, effectively and consistently with the principles that underlie it. The terms of reference set out on page xiii ask the Commission to give particular consideration to a number of legal and process aspects that largely relate to adults in the criminal justice system.
1.2 On 18 September 2013, the Attorney-General made to the Commission supplementary terms of reference that asked it to consider a number of further matters regarding the operation of the CMIA for young people in the Children’s Court. The supplementary terms of reference set out on page xiv ask the Commission to consider whether the application of the CMIA should be further extended to the Children’s Court and to consider a number of specific matters.
1.3 The supplementary terms of reference revised the reporting date of the reference from 31 March 2014 to 30 June 2014.
1.4 In conducting the review, the Commission is required to have regard to:
• the cost implications of recommendations, including the costs of supervision and treatment services
• any recommendations 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 published in March 2013.
1.5 This report relates to both the terms of reference and supplementary terms of reference.
1.6 The CMIA governs a specific area of the criminal law where a person comes into contact with the criminal justice system and:
• at the time the person appears in court on a charge for a criminal offence, their mental processes are so disordered or impaired, they are ‘unfit to stand trial’, and/or
• at the time an alleged offence occurred the person was suffering from a mental impairment which negates criminal responsibility for their actions.
1.7 When either of these circumstances exists there is a legitimate basis for exempting a person charged with a criminal offence from the usual criminal process and diverting them to special criminal processes. These exemptions are based on long-established criminal law principles and are given expression through the provisions of the CMIA.
1.8 Although the CMIA has its foundation in the criminal law, it intersects with a number of other areas of the law, including mental health, disability and human rights law. Its operation is based largely in the criminal justice system but it draws on areas of forensic clinical practice, including psychiatry, psychology, neuropsychology and neurology.
1.9 The CMIA was introduced in 1997 and commenced full operation on 18 April 1998. The CMIA replaced the previous system, known as the ‘Governor’s pleasure’ regime. Under that system, people charged with criminal offences who were found either ‘unfit to plead’ to criminal charges or not guilty of criminal charges on the ground of ‘insanity’ were ordered to be kept in strict custody until the Governor’s pleasure was known (meaning when the executive, specifically ministers in the Victorian Government, approved the release of the person).
1.10 The CMIA’s enactment was precipitated by a number of reviews that had examined the operation of the Governor’s pleasure regime. These reviews, along with much academic commentary, had cumulatively identified problems with the regime. The CMIA abolished the Governor’s pleasure regime and established new procedures for determining unfitness to stand trial. The CMIA abrogated the common law defence of insanity and established the statutory defence of mental impairment and a new process for determining the criminal responsibility of people who are unfit to stand trial. It also created a new regime for imposing and reviewing supervision orders in relation to people made subject to findings under the CMIA.
1.11 The current reference is the first comprehensive review of the CMIA’s operation. While specific aspects of the CMIA have been reviewed, there has been no systemic review of the CMIA since it commenced operation in 1998.
The Commission’s process
1.12 The Commission’s review was guided by a Division chaired by the Hon. Philip Cummins AM, the Chair of the Commission. The other Division members were the Hon. Frank Vincent AO QC, Saul Holt SC and Bruce Gardner PSM, who are part-time members of the Commission.
1.13 The Commission formed an advisory committee of experts (see Appendix A) to provide insights into how the CMIA and surrounding systems work in practice and to discuss issues and options for reform. The members of the advisory committee were asked to bring their expertise to the issues discussed and not necessarily represent the views of any organisation with which they work or are affiliated. The advisory committee met twice.
1.14 In June 2013, the Commission published Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: consultation paper (‘the consultation paper’). The consultation paper addressed the issues raised by the terms of reference and sought written submissions on the issues and suggestions for reforms. Submissions were due by 23 August 2013.
1.15 Following receipt of the supplementary terms of reference, the Commission published Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and the Children’s Court of Victoria: supplementary consultation paper (‘the supplementary consultation paper’). The supplementary consultation paper addressed the new issues raised and sought written submissions by 18 December 2013.
1.16 Submissions were accepted by the Commission after both submission deadline dates. The Commission received 34 submissions to the terms of reference and supplementary terms of reference. Most of the submissions are public and can be viewed on the Commission’s website. They are listed at Appendix B.
1.17 Throughout the reference the Commission consulted widely with members of the community and professionals experienced with and/or affected by the CMIA. After release of the consultation papers, 55 consultations were conducted across regional and metropolitan Victoria. Meetings were held in regional locations, including Geelong, Morwell, Shepparton, Euroa and Traralgon, and many locations in metropolitan Melbourne, including Clifton Hill, Dandenong, Fairfield, Parkville, Box Hill, Preston and Richmond, as well as in central Melbourne.
1.18 Consultations were conducted with people who had personal experience of the CMIA, including family members of victims in CMIA matters, people subject to supervision orders and family members and carers of people subject to supervision orders. A wide range of professional stakeholders were consulted, including judges and magistrates, legal practitioners (defence and prosecution), representatives of Victoria Police, service providers who provide supervision under the CMIA (including area mental health services and other non-government organisations), staff of government departments involved in the CMIA (including the Victorian Institute of Forensic Mental Health (Forensicare), the Department of Health, the Department of Human Services and the Department of Justice) and forensic clinicians from a range of disciplines.
1.19 The Commission held four roundtable consultations.
1.20 On the terms of reference, the Commission held roundtables on:
• the operation of the CMIA in the higher courts—attended by legal practitioners (defence and prosecution), staff of advocacy groups, forensic clinicians and academics
• the operation of the CMIA in the Magistrates’ Court—attended by legal practitioners (defence and prosecution), police prosecutors, staff of non-government service providers and a staff member of the Melbourne Magistrates’ Court.
1.21 On the supplementary terms of reference, the Commission held roundtables on the operation of the CMIA in the Children’s Court with:
• legal practitioners—attended by barristers, private practitioners, practitioners from Victoria Legal Aid and the Office of Public Prosecutions, and Victoria Police prosecutors
• clinicians experienced in working with young people in forensic settings—attended by psychiatrists, psychologists, neurologists and neuropsychologists.
1.22 The consultations held after the consultation papers were published are listed at Appendix C.
1.23 As some of the law reform options drew on Queensland legislation and practice, the Chair of the Commission held discussions in Brisbane with members and staff of the Queensland Mental Health Court and the Queensland Mental Health Review Tribunal, and representatives of Queensland Health and the Department of Communities, Child Safety and Disability Services.
1.24 The Commission held discussions with other organisations conducting law reform work or reviews in the area covered by the CMIA review.
1.25 Discussions were held in Sydney with the New South Wales Law Reform Commission (NSWLRC) early in the review, as there was significant overlap in the issues being considered as part of the NSWLRC’s review of ‘People with cognitive and mental health impairments in the criminal justice system’. The Commission met with Graeme Innes AM, Australian Disability Discrimination Commissioner, and staff of the Australian Human Rights Commission in August 2013 when it was conducting its inquiry into ‘Access to justice in the criminal justice system by people with disability’. Cooperative discussions were held with Donald Cant Watts Corke (DCWC) during its review, commissioned by the Department of Health and Department of Justice, of adult forensic mental health services in Victoria. Discussions were held in March 2014 with the Australian Law Reform Commission during its review of ‘Legal Barriers for People with an Intellectual Disability’ to examine equal recognition before the law and legal capacity for people with a disability.
1.26 In addition, the Commission received many comments and further information informally from interested members of the public as well as from individuals with specialist knowledge and expertise.
1.27 The Commission records its thanks for the substantial contribution made to its work by the people and entities stated above and in particular to the members of its advisory committee.
The Commission’s approach
1.28 In considering the issues arising from the terms of reference and supplementary terms of reference for the review, the Commission has been guided by its principal framework—to consider whether changes are needed to ensure the CMIA operates ‘justly, effectively and consistently with the principles that underlie it’.
1.29 In reviewing the CMIA, the Commission focussed on how the existing laws and procedures under the CMIA function in practice, not whether they should exist at all. The Commission has sought to identify the areas where the CMIA is not operating in accordance with the objectives stated in the principal framework. The Commission has made recommendations where it considers them to be necessary to ensure that the CMIA operates justly, effectively and consistently with the principles that underlie it.
Principles underlying the CMIA
1.30 As part of this framework for the review, the Commission has identified that the principles underlying the CMIA, broadly speaking, seek to strike a balance between the protection of the community and the rights and clinical needs of accused who are subject to the laws and processes under the CMIA. The underlying principles have been identified by the Commission as:
• community protection
• fairness to an accused and the right to a fair trial
• legitimate punishment
• least restrictive alternative
• rights of victims and their families and family members of people subject to the CMIA
• gradual reintegration
• therapeutic focus
• transparency and accountability.
1.31 These provisions are either explicitly stated or reflected in the CMIA provisions. The CMIA also sits within a broader human rights framework as encapsulated in the Charter of Human Rights and Responsibilities Act 2006 (Vic) and the Victims’ Charter Act 2006 (Vic). Also relevant are the principles and provisions in Victorian legislation that operate to protect the rights of people with a mental illness or intellectual disability, including the Mental Health Act 2014 (Vic) and the Disability Act 2006 (Vic).
Operation of the CMIA for vulnerable groups in the criminal justice system
1.32 The Commission has paid particular regard to how the CMIA operates for vulnerable groups in the criminal justice system.
People with a cognitive impairment
1.33 In considering how the CMIA operates for people with a cognitive impairment, the Commission has had regard to the recommendations 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, as well as the other significant recent work that has been conducted in relation to people with disabilities in the criminal justice system.
1.34 In considering how the CMIA operates for young people and making recommendations for change, the Commission has been mindful of the high rates of disadvantage among young people who appear in the criminal justice system and the significant challenges they experience due to their level of maturity and development. The Commission has thus adopted a specialised approach in the Children’s Court that recognises the multiple layers of vulnerability faced by young people with mental conditions in the criminal justice system.
Victims and their families and family members of people subject to the CMIA
1.35 In considering how the CMIA operates for victims and their families, the Commission has had regard to recent work and advances to acknowledge and support the participation of victims in the criminal justice process. The complexity of court processes and the different nature of findings and consequences can be additional factors that victims and their families must deal with in cases heard and determined under the CMIA.
1.36 In considering how the CMIA operates for family members of people subject to the CMIA, the Commission has also had regard to their support needs as carers, and their rights of involvement in CMIA proceedings.
1.37 The Commission has also paid particular attention, in considering the issues, to the difficult nature of CMIA cases in the way that they affect victims of crime, their families and the family members of people who are involved in cases on the CMIA pathway. Such cases require an understanding of the effects that a mental illness, intellectual disability or other cognitive impairment can have on behaviour, as well as an acknowledgment of the trauma caused to victims, victims’ families and family members of the accused who are very often all within the same family.
1.38 In making recommendations, the Commission has been mindful of and had regard to their cost implications, without these being determinative of the Commission’s views and decisions. The Commission engaged the services of consultants at the Melbourne School of Population and Global Health, University of Melbourne to undertake a feasibility study and then conduct an analysis of the cost implications of a number of specific aspects of its recommendations for the further extension of the application of the CMIA in the Magistrates’ Court and Children’s Court. The results of these analyses are largely documented in Chapters 5 and 6, which contain the Commission’s recommendations in relation to these two courts.
1.39 Although not specified in the terms of reference for the review, the Commission also considered equivalent regimes interstate and overseas, particularly in New South Wales, New Zealand and the United Kingdom, where reviews are being or have recently been conducted.
Structure of this report
1.40 The structure of this report generally follows the pathway that is established under the CMIA and it is divided into parts that mark four key aspects of the CMIA’s operation. In doing so, the report considers issues that are raised under both the terms of reference and supplementary terms of reference.
1.41 This introductory chapter and Chapter 2 form Part I of the report—’Introduction and systemic improvements to the CMIA’. Chapter 2 maps out the current operation of the CMIA, using information available to the Commission, and identifies the areas where the CMIA is operating well and the areas where change is required. It presents the Commission’s findings on these and contains recommendations on a number of threshold issues designed to achieve systemic change in the operation of the CMIA.
1.42 Part II—’Legal concepts and criteria’—considers the test for unfitness to stand trial and the defence of mental impairment in relation to both adults and young people who are subject to CMIA processes. Chapter 3 focuses on unfitness to stand trial and includes the Commission’s recommendations to modify the test for determining unfitness to stand trial and how the test is to be applied by the courts and experts who conduct assessments. It also considers a number of special considerations in the application of the test, including those to optimise the fitness of accused and how the test is to be applied in relation to young people. Chapter 4 focuses on clarifying the law on the defence of mental impairment. This includes the issue specified in the terms of reference as to whether the CMIA should define ‘mental impairment’, and if so, how it should be defined.
1.43 Part III—’Application of the CMIA in Victorian courts’—deals with the operation of the CMIA across the courts in Victoria.
1.44 Chapters 5–7 present the Commission’s recommendations specific to the application of the CMIA in particular jurisdictions. Chapter 5 details the approach to the extension of the Magistrates’ Court’s jurisdiction over CMIA matters and the Commission’s recommendations on the issues raised in the terms of reference in this area. Chapter 6 details the Commission’s specialised approach in extending the application of the CMIA to the Children’s Court of Victoria and deals with the bulk of the matters specified in the supplementary terms of reference. Chapter 7 considers issues regarding the application of the CMIA in the higher courts, in particular the involvement of juries in the determination of unfitness and the determination of criminal responsibility in the higher courts. It also examines the approach to jury directions in CMIA matters, including whether legislative clarification is required in the approach to directing a jury on the elements of an offence where the defence of mental impairment is in issue.
1.45 Chapters 8 and 9 consider issues relating to the application of the CMIA in all courts. Chapter 8 examines the arrangements for the consideration and representation of interests under the CMIA, including the interests of victims of crime in CMIA cases, family members of people subject to the CMIA, people subject to supervision orders and the community. Chapter 9 considers a number of aspects relating to the processes and findings under the CMIA relevant to all courts. It includes recommendations for general improvements to the process for determining unfitness to stand trial. It also recommends changes to the findings available under the CMIA and considers a range of issues regarding the consequences that can follow a CMIA finding in all courts.
1.46 Part IV—’Management, supervision and release under the CMIA’—contains two chapters that focus on changes to the system that governs the management of people who have been placed on supervision orders under the CMIA. Chapter 10 sets out improvements to decision making in the supervision, review and leave framework that applies to people on supervision orders in the higher courts. Chapter 11 focuses on the system for the management of people on supervision orders. It details a range of operational issues that have been identified as affecting the management of supervised people under the CMIA and identifies those that the Commission considers can be addressed through legislative change. Chapter 11 also identifies the need for a new approach to how supervision and management under the CMIA operate for people with an intellectual disability or other cognitive impairment. It sets out the Commission’s recommendations on what this should be.
1.47 Part V concludes the report and the body of recommendations that have been made by the Commission.
The term ‘young people’ is used as a general term in this report to refer to individuals who qualify to be dealt with in the Children’s Court or under special provisions that apply to ‘children’ (aged under 18 years) and ‘young offenders’ (aged 19–20 years) in the Children, Youth and Families Act 2005 (Vic) and the Sentencing Act 1991 (Vic). When referring to specific provisions or legislation, the particular term will be used to describe individuals as appropriate.
Victorian Parliament Law Reform Committee, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers (2013).
The CMIA replaced the expression ‘unfit to plead’ with ‘unfit to stand trial’ to reflect that a person must be fit at any stage of the proceedings: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) pt 2.
The CMIA abolished the defence of ‘insanity’ and introduced the defence of ‘mental impairment’: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) pt 4.
The executive is the administrative arm of government and comprises government employees who work in government departments and agencies. Ministers, who are members of the legislature, also are part of the executive.
In practice, the decision was made in the form of an initial recommendation by the Adult Parole Board, which if the Attorney-General agreed, was referred to Cabinet for approval. If approved by Cabinet, the Premier made a recommendation to release the person, which was then signed by the Governor.
These include: the Model Criminal Code Officers’ Committee’s model legislation, the Model Mental Impairment and Unfitness to be Tried (Criminal Proceedings) Bill 1995; Victorian Parliament Community Development Committee, Inquiry into Persons Detained at the Governor’s Pleasure (1995); Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility, Report No 34 (1990); Victorian Sentencing Committee, Sentencing – Report of the Victorian Sentencing Committee, Volume 2 (1998).
These include: Review Panel Appointed to Consider the Leave Arrangements for Patients at the Victorian Institute of Forensic Mental Health, Report (2001) (‘Vincent Review’); Victorian Law Reform Commission, People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care, Report No 4 (2003); Victorian Law Reform Commission, Defences to Homicide, Final Report No 6 (2004); Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012); Victorian Parliament Law Reform Committee, above n 2.
Victorian Law Reform Commission, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (16 May 2014) <http://www.lawreform.vic.gov.au/all-projects/crimes-mental-impairment>.
The New South Wales Law Reform Commission has published a number of reports as part of its review, including New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Diversion, Report No 135 (2012) and New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report No 138 (2013).
The Australian Human Rights Commission published its report on its inquiry in February 2014: Australian Human Rights Commission, Equal Before the Law – Towards Disability Justice Strategies (2014).
The Australian Law Reform Commission has published an issues paper and a discussion paper as part of its review: Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Issues Paper No 44 (2013); Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Discussion Paper No 81 (2014).
For a more detailed discussion of these principles, see Chapter 2 at [2.101] and Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Consultation Paper No 17 (2013) 18–26.
The Mental Health Act 1986 (Vic) was in operation for the period of the CMIA reference. The Mental Health Bill 2014 was introduced into Victorian Parliament on 18 February 2014 and received Royal Assent and was proclaimed as the Mental Health Act 2014 (Vic) on 8 April 2014. The Mental Health Act 2014 (Vic) replaced the Mental Health Act 1986 (Vic) on 1 July 2014.
See Chapter 11 at [11.45]–[11.50].
Professor Philip Clarke, Centre for Health Policy, Programs and Economics, Associate Professor Stuart Kinner, Principal Research Fellow, Justice Health, Centre for Mental Health and Centre for Health Policy and Alex Avery, Research Assistant, Centre for Health Policy.