Ordered that second-reading speech be incorporated into Hansard on motion of Ms TIERNEY (Minister for Training and Skills).
Ms TIERNEY (Minister for Training and Skills) — I move:
That the bill be now read a second time.
Incorporated speech as follows:
The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA) abolished the Governor’s pleasure system, establishing new procedures to deal with people found unfit to stand trial or not guilty because of mental impairment. The act represented the first time such rules had been set out comprehensively, in a single Victorian statute.
The CMIA replaced a system that was considered antiquated and unjust. It brought transparency and legal certainty to people subject to the CMIA regime. After nearly two decades of operation, growth in the number of people supervised under the CMIA, and changes in the types of people and cases affected by its provisions, it was time for it to be reviewed.
Accordingly, in 2012, the previous government asked the Victorian Law Reform Commission (VLRC) to review the operation of the CMIA. Its report was tabled in Parliament on 21 August 2014. I thank the VLRC for its wideranging and comprehensive review. This bill implements a number of recommendations made by the VLRC.
The reforms in this bill will streamline processes, modernise legal tests and make systemic improvements to the CMIA, enhancing the operation of the act for those subject to it, and all users of the act.
The reforms will help ensure that the CMIA operates consistently with its underlying principles, as identified by the VLRC. These include protecting the rights of the accused, such as by ensuring that they are afforded a fair trial, are only punished where they are morally blameworthy, and have their freedom and autonomy restricted only so far as is necessary.
The reforms also recognise the rights of others, including victims and family members, and the need to protect the community from dangerous individuals. Finally, they uphold the therapeutic focus of the CMIA, and encourage the gradual reintroduction of supervised people back into the community when it is safe to do so.
The bill introduces a set of statutory principles to guide decision-making under the CMIA, in accordance with one of the VLRC’s recommendations. The statutory principles will ensure that courts and other decision-makers under the CMIA will always have regard to the needs of victims and family members, consider the safety of the community, avoid unreasonable delay, and modify proceedings in a way that acknowledges all people affected by the proceeding. At the same time, it gives prominence to the ‘principle of least restriction’, which provides that the restrictions imposed on a supervised person must be kept to the minimum consistent with community safety.
The bill also provides for a list of considerations to which the Children’s Court must have regard when making, varying or revoking a supervision order in relation to a child, as recommended by the VLRC. These include the need to strengthen and preserve the child’s relationship with their family, the desirability of not disrupting their living and educational arrangements, and the need to minimise stigma and discrimination against the child.
Clarifying and modernising legal tests
The bill clarifies and modernises a number of legal tests in the CMIA. In accordance with the VLRC recommendation, the bill reframes the test for unfitness to stand trial to clarify the law and focus the fitness criteria on the crucial decisions relevant to participation in a criminal trial. Importantly, the focus of the test is now on whether the accused can receive a fair trial.
The bill also introduces an inclusive definition of ‘mental impairment’, in line with a VLRC recommendation. The definition will make clear that, for the purposes of the CMIA, ‘mental impairment’ includes mental illness and cognitive impairment (such as intellectual disability). Further, it excludes any temporary impairment of an otherwise healthy mind caused by an external event, such as the consumption of a drug. The definition also excludes personality disorders.
As recommended by the VLRC, the bill introduces the concept of ‘unacceptable risk’ to decisions made under the CMIA, replacing the existing ‘serious endangerment’ test. For example, in deciding whether to grant extended leave to a person, the court will be required to consider whether granting leave will result in an unacceptable risk of the supervised person causing serious harm to another person. The new wording will also apply to other categories of leave, and decisions as to the appropriate level of supervision.
This terminology is consistent with other contemporary legislative schemes, such as those relating to bail and serious sex offender supervision. In addition, the bill implements the VLRC recommendation to remove the risk the person poses to themselves as a consideration for decisions where civil orders would be available to manage the risk.
Introducing a test for fitness to plead guilty
The bill creates a test of fitness to plead guilty, implementing a VLRC recommendation. The judge presiding over the fitness investigation will be able to find that a person is capable of pleading guilty, even though they are not capable of undergoing the trial process. In such a case, the person is sentenced as usual under the criminal law.
The bill includes safeguards to ensure that an accused person can only be found fit to plead guilty if they have the capacity to do so. It must be established that the person can understand the offence with which they have been charged and the consequences of pleading guilty before a finding of fitness to plead guilty is made. In addition, the finding can only be made where the person is legally represented, and if it has been requested by the defence. Allowing a person who has sufficient capacity to enter a plea of guilty to do so has the advantage of saving court time, and reducing the burden on the CMIA supervision system.
Transferring assessment of fitness from the jury to the judge
The bill removes the jury as the decision-maker for fitness to stand trial, making this a decision for the judge. This reflects contemporary practice by acknowledging that the question of fitness is more in the nature of a pre-trial determination, appropriately handled by a judge and not a jury. This implements a VLRC recommendation that juries no longer be involved in the determination of fitness, because they deliver few benefits, while increasing cost and stress to the accused.
Optimising fitness investigations
The bill will improve the conduct of fitness investigations by enabling courts to consider any treatment, services or education that have been provided to the accused or that could be provided to them to assist them to understand a trial.
The bill also expands appeal rights in fitness proceedings and allows for an appeal against a finding that a person is fit to stand trial.
Power to reconsider a finding of unfitness
Under the CMIA as currently in force, if the court has found a person unfit and then evidence emerges prior to a supervision order being made that the accused feigned symptoms of unfitness, the court can only make a supervision order or unconditionally release the person. The bill will give courts the power to vacate a finding of unfitness if there is a high probability the person was feigning unfitness, to avoid this situation arising.
Introduction of ‘progress reviews’
At present, a person subject to a supervision order is only entitled to a review of their supervision order shortly before the end of their ‘nominal term’. The length of the nominal term is set by reference to the person’s principal offence and can be up to 25 years. Under this system, some supervised people go for a very long time before being reviewed. While reviews can be ordered by the court when the order is imposed, this is not mandatory.
Under the bill, all persons subject to CMIA supervision orders will be entitled to regular ‘progress reviews’ which will occur at intervals of five years or less. There will continue to be a ‘major’ progress review at the end of the nominal term. People already subject to CMIA supervision orders will transition to this new system of review, and so will also be entitled to regular progress reviews.
The bill provides for presumptions for and against the reduction of supervision that depend on how far the person has progressed through the review pathway. These presumptions are designed to encourage the gradual reduction of supervision over time, where this is consistent with community safety. Regular reviews ensure that people subject to CMIA orders are not detained longer than is necessary, and that their treatment and support needs are continually evaluated.
The bill will allow courts to decline to make a further supervision order in respect of a person already subject to one, consistently with a VLRC recommendation. As supervision orders for adults are indefinite, a subsequent supervision order is unlikely to change the intensity or length of supervision, and has the potential to create inefficiencies and confusion. In such circumstances, the court will be able to make a ‘record of subsequent offending order’, ensuring that the person’s conduct is acknowledged and relevant victims are included in future court processes.
In accordance with the VLRC’s recommendation, the bill will require courts to have regard to available civil orders, under the Mental Health Act 2014 or the Disability Act 2006, when considering whether a less restrictive order would be more appropriate. This will help to ensure that a person is subject to the CMIA regime only when necessary.
The bill implements a number of VLRC recommendations to improve the process of review of supervision orders, including:
enabling attendance at hearings via audiovisual link;
allowing reviews to be held ‘on the papers’ where an order is expected to be unchanged; and
reducing the current three-year restriction on a person reapplying for variation of a custodial supervision order after refusal to 18 months. The change will allow the point at which a supervised person’s restrictions can safely be reduced to be identified as promptly as possible.
The VLRC recommended that a review be undertaken of the consequences that can follow from a finding under the CMIA, with a view to addressing uncertainty and inconsistencies in the law as it stands. It recommended that any changes not be punitive in intention or effect, so far as possible, and only made where necessary for the safety of the community.
Applying these principles, the bill allows for certain orders to be made following the imposition of a supervision order under the CMIA. These include:
allowing a court to make orders under part 4 of the Sentencing Act 1991, such as for restitution and compensation, where it is appropriate to do so;
allowing for orders under the Confiscation Act 1997 relating to the proceeds and benefits of crime; and
permitting a court to cancel, suspend or vary a driver licence under the Road Safety Act 1986, where such an order is necessary to reduce risk to other road users.
Transfer of functions from the Forensic Leave Panel to the Mental Health Tribunal
Applications for short-term leave by people on CMIA supervision orders are currently determined by the Forensic Leave Panel. Under the bill, the Forensic Leave Panel will cease to operate and this role will be transferred to the Mental Health Tribunal.
The tribunal has well-established systems of scheduling and conducting hearings, generating determinations and statements of reasons, and already conducts hearings at Thomas Embling Hospital. There is considerable overlap in the membership of panel and the tribunal and this change will result in a more efficient system.
The bill implements the VLRC recommendation that both the court and the Mental Health Tribunal be required to have regard to any on-ground or off-ground leave the person has been granted, and their compliance with leave conditions, when deciding whether to grant further leave. This will promote continuity in decision-making.
The bill also requires courts and the Mental Health Tribunal to consider a supervised person’s recovery and progress when exercising decision-making powers under the CMIA, consistent with the therapeutic focus of the CMIA.
Finally, the bill implements the VLRC’s recommendation that a person be able to apply for short-term leave during a period of suspension of extended leave. This will allow people subject to suspension to continue to undertake safe activities, enabling them to demonstrate progression and treatment compliance.
Improving the treatment of people with cognitive impairment under the CMIA
The CMIA applies to people with mental illness and people with a cognitive impairment. The significant consideration is the person’s ability to understand and participate in the criminal justice process so that the trial process is fair, rather than the type of illness or disability the person has. However, a theme in the VLRC’s report was the need to differentiate between people in each category when considering their treatment and supervision needs after a CMIA order is made. The VLRC found that the model of supervision for people with a disability could be improved. Accordingly, it made a number of recommendations designed to provide a clearer treatment pathway, more safeguards and better clinical oversight of persons with cognitive impairment.
The bill will, in accordance with a VLRC recommendation, require courts to consider whether there are adequate facilities or services available in the community for the care or treatment of the person, as the case requires. It also implements recommendations relating to the inclusion of treatment plans in relevant reports for people with cognitive impairment. In preparing annual reports for the court to consider a person’s progress under a supervision order, in addition to reporting on the person’s treatment the supervisor must also report on the person’s progress towards attaining independence and physical, mental, social and vocational ability. This recognises that the progress milestones for a person with disability may be measured against broader criteria than just response to treatment.
Finally, the bill amends the Disability Act 2006 to expand the functions and powers of the senior practitioner, disability. The senior practitioner will be responsible for ensuring that the rights of individuals with an intellectual disability on CMIA supervision orders are protected, and appropriate standards applied to their treatment. This change is in keeping with the VLRC’s recommendation.
Transfer of functions to the Director of Public Prosecutions
Consistently with a VLRC recommendation, the bill transfers the function of appearing at supervision orders reviews and extended leave hearings from the Attorney-General to the Director of Public Prosecutions. The director is well placed to take on this role, being independent from government and having expertise in dealing with victims.
In addition to these changes, the bill also makes a range of procedural improvements to the CMIA, intended to streamline its operation. These affect reports prepared under the CMIA, jury directions, applications to vary supervision orders and leave from a supervision order. Many provisions have also been rewritten to improve the clarity and accessibility of the CMIA.
Interests of victims and family members
Although people who are subject to CMIA supervision are not ‘convicted’ of their offences in the usual way, there are still victims of their conduct, whose rights and concerns must be considered and respected. In addition, family members of people subject to CMIA orders are often affected by decisions to vary the supervision order or to grant leave to the supervised person.
The bill will improve consideration of the rights of victims and family members. In addition to the statutory principles mentioned earlier, it will allow victim and family member reports to be read aloud at the relevant court hearing, as currently allowed for victim impact statements in sentencing hearings. It will also modernise processes for notifying victims and family members of upcoming hearing dates.
In addition, the bill will improve consideration of victims by requiring the Mental Health Tribunal to have regard to the circumstances of victims and family members, where they are known to the tribunal, in setting conditions of short-term leave granted to people on CMIA supervision orders. For example, if known to it, the tribunal would be able to take into account the home and work addresses of a victim when setting the conditions of the supervised person’s short-term leave.
This bill will ensure that the CMIA continues to achieve its underlying objectives, while being responsive to changes in those supervised under the CMIA. It reflects a continuing evolution in our understanding of mental impairment and responds to the detailed and valuable work of the VLRC. At the same time, the bill strikes a balance between the need to protect the rights of those charged with crimes but suffering a mental impairment, against the need to protect community safety and uphold the rights of victims.
I commend the bill to the house.
Debate adjourned for Mr O’DONOHUE (Eastern Victoria) on motion of Mr Ondarchie.
Debate adjourned until Thursday, 2 March.