Strengthening The Crimes Mental Impairment Act

06 December 2016

The Andrews Labor Government is strengthening supervision orders for people who are found unfit to be tried or not guilty because of mental impairment.

The Crimes (Mental Impairment and Unfitness to be Tried) Bill 2016, introduced today, delivers on 45 of the 107 recommendations made by the Victorian Law Reform Commission in its 2014 report Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

The changes will make the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA) fairer for all parties involved, save court time, and better protect victims and the community.

The courts will need to apply a new ‘unacceptable risk’ test when deciding whether a person on a supervision order under the CMIA should be released into the wider community.

As part of the test, courts must consider if the release or leave would present an unacceptable risk of the person causing serious harm to others. The test replaces the existing ‘serious endangerment’ test, and brings legislation into line with current laws for bail and serious sex offender supervision orders.

Decision makers will also be required to consider the rights and needs of those affected by the offence, including victims and family members.

Victim and family member statements will be permitted to be read aloud in court in the same way victim impact statements are currently read out during sentencing hearings.

A ‘fitness to plead guilty’ test will be introduced to allow judges to find that a person is capable of pleading guilty but is not able to undergo a trial. The test will require the person to understand the charges against them and the consequences of pleading guilty.

The person will then be sentenced as usual under the criminal law, reducing trauma for victims and ensuring courts operate more efficiently.

Judges will also decide whether a person is fit to stand trial. Currently, those decisions are made by juries.

The definition of mental impairment will be clarified to ensure it includes mental illness and cognitive impairment, such as an intellectual disability. Temporary impairment such as drug taking will be excluded, as will personality disorders.

The Bill will give the Director of Public Prosecutions the role of representing the interests of the community at certain CMIA hearings. This role currently rests with the Attorney-General.

Quotes attributable to Attorney-General Martin Pakula

“We’re clarifying and strengthening the CMIA to ensure it protects victims and the community, while recognising the needs of people with mental impairment issues.”

“This will deliver on key recommendations made by the Victorian Law Reform Commission and it will introduce a range of checks and balances for the courts when it comes to making decisions about leave or release.”

Reviewed 19 August 2020

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