The Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 (the Bill) was introduced into the Victorian Legislative Council on 23 February 2017 after having passed all stages in the lower house. The Bill proposes to amend Victoria’s Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA), Sentencing Act 1991, Confiscation Act 1997, Road Safety Act 1986, Criminal Procedure Act 2009, Disability Act 2006, Mental Health Act 2014 and Public Prosecutions Act 1994. The Bill aims to implement the recommendations arising out of the Victorian Law Reform Commission’s review into the CMIA. The key alterations proposed by the Bill are to define “mental impairment” in the CMIA and include new unacceptable risk and fitness to plead guilty tests into the Act.
Definition of “Mental Impairment”: The Bill introduces a new section 3A into CMIA to provide a non-exhaustive definition of “mental impairment”, which is currently not defined in that Act. Under the new section, mental impairment includes a mental illness and cognitive disability, but specifically does not include “a temporary disorder or disturbance of an otherwise healthy mind caused by an external event”, such as non-permanent psychosis caused by intoxication. Additionally, a person does not have a mental impairment merely because they have been diagnosed with a personality disorder.
Unacceptable Risk Test: The Bill replaces the current “serious endangerment” test with respect to decisions made under the CMIA with an “unacceptable risk” test. For a court or decision maker to find there is an unacceptable risk of a person causing harm, there must be “sufficient likelihood” of the person doing so when all relevant factors, including the nature and seriousness of the harm, are considered. The Bill provides that it is possible to find there is an unacceptable risk of a person causing harm “even if the likelihood of the person doing so is less than the likelihood of more likely than not”. According to the Second Reading Speech in the Legislative Assembly, this was one of the Victorian Law Reform Commission’s recommendations and would place the CMIA in line with other legislative schemes, including the serious sex offender supervision scheme.
Fitness to Plead Guilty Test: The Bill replaces CMIA section 6, which outlines when a person is fit to stand trial, and inserts a new section 6A to include a new “fitness to plead guilty” test to be determined by the judge, not the jury. According to the Second Reading Speech, this test aims to ensure that a person only pleads guilty when they have the capacity to do so.
Decision-Making Principles: New principles to guide decision-making under the CMIA are outlined in the Bill. Decision-makers are required to consider, where relevant:
Additional considerations for the Children’s Court to take into account are set out in the Bill.
The Bill also provides, among other things:
The Bill faced significant opposition in the Legislative Assembly, and it is unclear whether it will pass the Legislative Council, either in its current or in an amended form.
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Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 and supporting explanatory material as reported in the TimeBase LawOne
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