In August 2012 the Commission was asked to review the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA) to ensure that to ensure it operates justly, effectively and consistently with the principles that underlie it.
The CMIA deals with cases where a person has been charged with a criminal offence and they have a mental condition, such as a mental illness, intellectual disability or other cognitive impairment to such an extent that they cannot participate in a criminal trial or be held criminally responsible. This is covered by the legal concepts of being ‘unfit to stand trial’ and being ‘not guilty because of mental impairment’.
On 18 September 2013, the Attorney-General provided supplementary terms of reference that asked the Commission to consider the operation of the CMIA in the Children’s Court.
The Commission’s report was tabled in Parliament on 21 August 2014.
The Commission made 107 recommendations for legislative reform, including:
• revising and clarifying the legal tests for unfitness to stand trial and the defence of mental impairment, including adding a definition of mental impairment to the law
• extending the application of the law in the Magistrates’ Court and Children’s Court
• extending the role of juries in determining the defence of mental impairment and reducing complexity in the content of jury directions under the law
• improving how community interests are represented in court hearings
• improving the level of support provided to, and acknowledgment of, victims and family members in cases under the law
• strengthening the decision making framework for review, leave and release of people subject to indefinite supervision orders
• establishing a new youth forensic facility for treating and supervising young people and a new medium-secure forensic mental health hospital
• ensuring there is equal treatment of people with an intellectual disability or other cognitive impairment under the supervision regime.
The report and consultation papers can be downloaded from the links below.
The Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2017, which passed the lower house in February 2017, implements several key recommendations of the Commission’s 2014 review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Among a number of reforms, the Bill would introduce a new definition of mental impairment, and enable judges and magistrates, not juries, to determine whether a person is unfit to stand trial.