The criminal justice system is frequently called on to respond to people charged with offences who have a mental condition, such as mental illness or disordered or impaired cognitive functioning. The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’) deals with a small but significant number of cases involving people whose capacity or behaviour are so significantly affected by their mental condition that they require a specialised response from the law. The CMIA affects some of the most vulnerable members of our society and seeks to provide a humane and appropriate response in process and outcome. More broadly, it exists to ensure the safety of our community and to protect the rights of those people within it who are directly affected, in particular victims of crime and their families, and the family members of people subject to the CMIA.
The CMIA enshrines long-standing legal principles, fundamental to Victorian law, that all people are entitled to a fair hearing and that people should only be punished for behaviour for which they are criminally responsible. The CMIA sets out the law and process for determining whether a person is mentally unfit to stand trial for a criminal charge and whether a person, because of a mental impairment, is not criminally responsible for offending. It also sets out a system for managing people who have been found unfit to stand trial or not criminally responsible because of mental impairment.
Introduced in 1997, the CMIA abolished the system that previously existed, known as the ‘Governor’s pleasure’ regime. The Bill that introduced the CMIA received bipartisan support and was heralded as groundbreaking and progressive. It was landmark legislation that changed how Victorian law responded to people whose mental functioning was impaired to such a degree that they required a different standard of participation in the criminal justice system or for being held to account for criminal conduct. The CMIA abrogated the common law defence of insanity and established the statutory defence of mental impairment.
Three fundamental issues with the Governor’s pleasure regime were addressed by the introduction of the CMIA.
It introduced fairness by ensuring a process for determining the criminal responsibility of people unfit to stand trial. Previously, unfit people were detained in custody without any testing of the case against them. It introduced flexibility in the orders for supervision that could be made by a court and a comprehensive system of review of supervision orders that balanced community protection and therapeutic aims. It introduced transparency and accountability by establishing an independent and rigorous framework for release decisions to be made by the judiciary, removing the executive arm of government from such decision making.
There has been no complete review of the CMIA since it was introduced in 1997, 17 years ago. While discrete aspects of the CMIA have been examined, the Commission’s reference is the first full-scale review of the operation of this important legislation.
The terms of reference require that the Commission have regard to the recommendations made in 2013 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. This the Commission has done. The Commission acknowledges the valuable work of that Committee.
The Commission was asked to review the operation of the CMIA and to consider whether changes were needed to ensure that it operates justly, effectively and consistently with its underlying principles. The Commission was asked to consider issues in the terms of reference that comprehended the operation of the CMIA in the Supreme Court and County Court, as well as the possibility of extending its operation in the Magistrates’ Court. The supplementary terms of reference, received after the Commission was well advanced in the reference, necessitated examination of the possible expansion of the CMIA’s operation in the Children’s Court. The terms of reference also sought review of the provisions governing the supervision order regime and how community and other interests are represented under the CMIA. This prompted an examination of its effect with regard to government and non-government organisations in the fields of criminal justice, health and disability that have a role under the CMIA, as well as individuals directly affected by these laws.
The Commission was also asked to have regard to the cost implications of its recommendations. In this, the Commission was greatly assisted by work it commissioned from the Melbourne School of Population and Global Health, University of Melbourne, to model particular aspects of proposed reforms.
Much has changed since the CMIA’s introduction in 1997. The jurisdiction of the Magistrates’ Court has expanded significantly in terms of the range of indictable offences that are triable at the summary level. Research on children and young people who have contact with the criminal justice system has identified the multiple layers of vulnerability and disadvantage of this population. There has been recognition at both a state and federal level of the disadvantage experienced by people with an intellectual disability under the law, and the need for reform in this area. There also continue to be developments in understanding of the complexities of the mental conditions captured by the legal criteria in the CMIA; for example, identification of the complex relationship between mental illness and substance use, co-morbidity of mental conditions and recognition of the spectrum of decision-making capacity by people who have impaired cognitive functioning.
It is important that legislation is reviewed to ensure that such advances and changes are reflected in our law. The Commission is therefore pleased to have had the opportunity to conduct this review and to make recommendations that build on the significant reform to this area signalled by the commencement of the CMIA in 1997. I am confident that the Commission’s recommendations, if implemented, will ensure that the CMIA operates in a manner that is just, effective and consistent with the principles that underlie it.
A recent development is the commencement of the Mental Health Act 2014 (Vic) on 1 July 2014 that governs the provision of compulsory mental health treatment under the CMIA and repeals the Mental Health Act 1986 (Vic). The 2014 Act received Royal Assent on 8 April 2014 and comes into operation on 1 July 2014, the day after this report is due to be delivered to the Attorney-General. In the circumstance this report refers to the provisions of the Mental Health Act 2014 (Vic) as existing law.
I wish to thank the many people who gave their time and expertise to assist the Commission during the reference. I extend particular thanks to the Victorian Institute of Forensic Mental Health (Forensicare), the Department of Human Services, the Office of Public Prosecutions and Victoria Legal Aid which provided significant support during the reference by providing data and extensive input in formal consultations. I would also like to thank the Sentencing Advisory Council, which provided the Commission with data on CMIA cases from its higher courts sentencing database, which the Commission has, with the permission of the courts, used throughout the report.
The Juries Commissioner, Paul Dore provided valuable data for the reference. I particularly acknowledge the substantial contribution of the judiciary made in consultations. I also acknowledge the contribution made by people with personal experience of the CMIA and thank them for sharing their experiences and views with the Commission. I warmly thank members of the advisory committee: Isabell Collins, Dr Ian Freckelton QC, Phil Grano OAM, Tim Marsh, Professor James Ogloff, Gavin Silbert QC and Dr Danny Sullivan.
I would like to thank my fellow Commissioners who comprised the Division which I chaired. They were the Hon. Frank Vincent AO QC, Saul Holt SC and Bruce Gardner PSM. Their contribution and expertise were invaluable to this review.
Finally, I acknowledge and thank the CMIA team for their hard work on the CMIA reference, led by Nina Hudson and supported by policy and research officers Catriona MacIvor and Jacinth Pathmanathan. The CMIA team was assisted on this substantial reference by the contribution of a number of current and former Commission staff: Dr Nicole Schlesinger, Martin Wimpole, Michael Adams, Julie Bransden, Natalie Lilford, Tess McCarthy, Myra White and Shea Wilding (intern). I thank them for their contributions.
Cases that proceed under the CMIA are complex. They require an understanding of how mental illness, intellectual disability and other cognitive impairment can dramatically affect a person’s behaviour. They require acknowledgment of the harm that has been caused to victims and their families, who are very often known to the accused. Victims and their families and family members of the accused also need support to maximise their understanding of and participation in this different and procedurally complex area of the law. Community safety is always of central importance. Cases under the CMIA require consideration of how best to ensure the safety of the community and also to provide treatment and support to a person in the least restrictive way appropriate. A successful therapeutic pathway—that ensures the person’s recovery or improvement in functioning so that they may return as a well and functioning member of society—also serves to protect the community.
The Commission’s proposals for reform seek to ensure that this area of the law, through the CMIA, can respond to these complexities in a manner that is humane, compassionate and responsible, to the benefit of individuals and the entire Victorian community.
I commend the report to you.
The Hon. Philip Cummins AM
Chair, Victorian Law Reform Commission