Wednesday, 18 March 2020

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2020

Statement of compatibility

Ms HENNESSY (Altona—Attorney-General, Minister for Workplace Safety) (13:23): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2020.

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this Statement of Compatibility with respect to the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2020 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill amends the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the CMIA). The Bill implements reforms recommended by the Victorian Law Reform Commission in its Report on theReview of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the Report). The changes made by the Bill include:

• the introduction of general statutory principles to guide the exercise of functions and powers;

• streamlining procedure and clarifying legal tests;

• creating a new test for fitness to plead guilty and transferring the determination of fitness from the jury to the judge;

• replacing the current review framework with a system of regular progress reviews; and

• transferring the functions of the Forensic Leave Panel to the Mental Health Tribunal.

The current CMIA regime of supervision

The Bill maintains the CMIA’s regime of supervision and management of people found unfit to stand trial or not guilty because of mental impairment.

If a person is declared liable to supervision under the CMIA, the court must make a supervision order with respect to the person. A custodial supervision order commits the person to custody in an appropriate place or, as a last resort, in a prison. An appropriate place is defined as a designated mental health service, a residential treatment facility or a residential institution. A non-custodial supervision order involves release of the person on conditions decided by the court.

The framework provided by the CMIA, the Mental Health Act 2014 and the Disability Act 2006 allows for the compulsory treatment of people subject to custodial supervision orders. A person released on a non-custodial supervision order on conditions decided by the court may be required to undergo treatment or receive services.

General statutory principles for adults

Clause 5 of the Bill introduces the following general statutory principles that guide the exercise of functions and powers in the CMIA with respect to adults:

• restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community;

• in conducting any proceeding, making any decision or taking any action, the safety of the community should be considered;

• unreasonable delay should be avoided, particularly in matters involving the question whether an accused is fit to stand trial or where the defence of mental impairment is raised or where the accused is a child;

• consideration should be given to the needs of everyone affected by the offence including the accused, family members of the accused and the victim or victims of the offence; and

• any court proceeding should be conducted and, where appropriate and consistent with the rights of the accused, modified in a manner that acknowledges the need to involve and provide support to all the people affected by the conduct proceeding, including the victims of the offence, the accused and family members of the accused.

These principles are relevant to a number of rights in the Charter and in particular promote:

• the right to liberty and security of person—section 21 of the Charter.

• the right of all persons deprived of liberty to be treated with humanity and with respect for the inherent dignity of the human person—section 22 of the Charter.

• the right to be tried without unreasonable delay—section 25(2)(c) of the Charter.

Statutory principles for children

The Bill inserts a statutory principle which applies specifically to proceedings in the Children’s Court. In deciding whether to make, vary or revoke a supervision order the court must have regard to the need to strengthen and preserve the relationship between the child and the child’s family, the desirability of allowing the living arrangements, education, training or employment of the child to continue without disturbance and the need to minimise the stigma and discrimination to the child from a court determination.

These principles enhance the protection of families and children under section 17 of the Charter and the right of a child charged with a criminal offence to a procedure that takes into account the age of the child and the desirability of promoting the child’s rehabilitation under 25(3) of the Charter.

The Bill also introduces a statutory principle that unreasonable delay should be avoided where the accused is a child or was a child at the time of the alleged offence. This principle is relevant to, and enhances, the right to be tried without unreasonable delay in section 25(2)(c) of the Charter.

Reframing the test for unfitness

The Bill amends the statutory test for fitness to stand trial. The test has been amended to focus on the fairness of the trial and so enhances the right to a fair hearing under section 24 of the Charter.

The Bill will also require the court, when determining whether a person is unfit to stand trial, to consider the extent to which certain modifications can be made to facilitate the person’s effective participation in the trial, including whether more appropriate communication methods can be used in court. This is consistent with rights in criminal proceedings under section 25 of the Charter and, specifically, the right to have the assistance of specialised communication tools and technology if the person has communication or speech difficulties under section 25(2)(j).

Expansion of appeal rights

The Bill expands appeal rights in fitness proceedings by allowing for an appeal against a finding that a person is fit to stand trial and a finding that they are not fit to plead guilty. The Director of Public Prosecutions is granted corresponding appeal rights. This reform promotes rights in criminal proceedings under section 25(4) of the Charter by ensuring a person has the right to have the finding reviewed by a higher court. This is also consistent with the right to a fair hearing under section 24 of the Charter.

Fitness to plead guilty

The Bill inserts a statutory test for fitness to plead guilty on the basis that while a person may be unfit for trial, they may have sufficient capacity to make an informed decision to plead guilty. The insertion of a statutory test for fitness to plead guilty will allow a person who is fit to plead guilty to access the normal criminal process, and is based on the rationale that where an accused has the capacity to make a particular decision that decision should be given effect as far as possible. The test for fitness to plead guilty incorporates several safeguards to protect the right of an accused not to be compelled to confess guilt and so complies with section 25(2)(k) of the Charter.

Reconsidering a finding of fitness

The Bill enables the court (not including the Children’s Court), at any time before a supervision order is made, to set aside a finding of unfitness and make a finding of fitness. Although this provision does not strictly engage the right not to be tried or punished more than once in section 26 of the Charter, this provision is unconventional in Victorian legislation because it disturbs the finality of a court’s finding of fact. It is justified by the need to protect the integrity of the CMIA process and to provide a process for the rare cases in which a court is satisfied that new evidence not considered as part of the initial investigation demonstrates a high degree of probability the person was feigning unfitness.

The defence of mental impairment

The Bill introduces a statutory definition of mental impairment. The definition is non-exhaustive, but makes clear that a cognitive impairment, such as an intellectual disability, is capable of qualifying as a mental impairment for the purposes of the CMIA, while a temporary condition such as a drug-induced psychosis cannot qualify. This is consistent with the current position at common law. The definition also excludes personality disorders.

Excluding personality disorders and temporary disorders arising from an external cause (such as the consumption of drugs or alcohol) from the definition of mental impairment engages the right to a fair hearing, as it prevents people with these disorders from accessing the defence of mental impairment.

However, the right is not limited because in practice people with personality disorders generally cannot establish that they did not know the nature and quality of their conduct or that it was wrong, and therefore are unlikely to be able to establish the defence of mental impairment in any event. Similarly, it is inappropriate for a person who does not have a mental impairment that exists independently of an external cause to be subject to a supervision order. Excluding such persons from CMIA processes is consistent with the purpose of the defence.

Making fitness to stand trial a question for the judge not the jury

The Bill amends the CMIA so that a judge, rather than a jury, determines the question of a person’s fitness to stand trial. This amendment aims to expedite fitness investigations and increase the efficiency of court processes.

This amendment is relevant to, and enhances, the right to be tried without unreasonable delay under section 25(2)(c) of the Charter. As the jury will still make the ultimate determination of criminal responsibility this amendment is consistent with the right to a fair hearing under section 24 of the Charter.

Only directing on relevant findings at special hearings

The Bill will change the way jury directions are given in CMIA matters, to bring them into line with contemporary practices for directing juries. The Bill will provide that at special hearings judges need only direct the jury on findings that are reasonably available on the evidence. The Bill will also make clear that the Jury Directions Act 2015 applies to special hearings.

These amendments aim to eliminate inefficient practices, reduce uncertainty about what is required and decrease appeals. They are therefore relevant to, and enhance, the right to a fair hearing under section 24 of the Charter and the right to be tried without unreasonable delay in section 25(2)(c) of the Charter.

Power to remand following a finding that the accused is unfit to stand trial and is not likely to become fit within 12 months

This power limits the right to liberty and freedom of movement. The purpose of the limitation is to allow the accused to receive treatment and services between the outcome of a fitness investigation and a special hearing, while also detaining the accused pending the outcome of the special hearing for community safety reasons. The requirement that a person will only be remanded in custody in a prison if the judge is satisfied that there is no practicable alternative in the circumstances ensures that prison is a last resort and the least restrictive means reasonably available to achieve the limitation’s purpose. This limitation is therefore reasonable and proportionate with reference to the purpose of the limitation.

Attendance at special hearings and review hearings

The Bill allows an accused to ‘attend’ a special hearing by audio visual link, with the consent of both parties. This amendment engages the right contained in section 25(d) of the Charter for a person to be tried in person, as a special hearing is conducted before a jury after the accused has been found unfit to stand trial. The accused still participates in their hearing ‘in person’ even if they attend by audio visual link. The accused is not being tried in absentia.

Ancillary Orders

The Bill will make ancillary orders and consequences available following a CMIA finding. Where the court considers it appropriate to do so, orders may be made under the Sentencing Act 1991, the Confiscation Act 1997 and the Road Safety Act 1986.

It is intended that ancillary orders imposed following a CMIA finding will not be punitive in nature. Orders will only be available under the Confiscation Act in relation to proceeds of crime, and under the Sentencing Act for the purposes of preserving property to satisfy potential restitution and compensation orders. Where orders are mandatory, such as under the Road Safety Act, it is proposed to provide the court with discretion, so orders are only made in appropriate circumstances.

These amendments engage the right contained in section 20 of the Charter, which provides that a person must not be deprived of his or her property other than in accordance with law. Although this right is relevant, it is not limited, because a person subject to these provisions will not be deprived of property other than in accordance with procedures established by law.

Reviews of supervision orders

The Bill will maintain the indefinite nature of supervision orders and the current system of nominal terms but will provide for a system of mandatory, regular progress reviews. These progress reviews will occur at intervals of five years or less, acting as a safeguard against arbitrary detention. The frequency of reviews is not linked to criminal penalty but reflective of the CMIA principles of least restriction and gradual integration. The frequency of reviews under the progress review system promotes the right of a person not to be subject to arbitrary detention in section 21(2) of the Charter. As the onus eventually shifts from the applicant to the State to justify that continued detention is appropriate, this will also act as a safeguard against arbitrary detention.

A new test of unacceptable risk

The Bill replaces the legislative tests that refer to whether the supervised person is likely to seriously endanger themselves or other people with a modernised unacceptable risk test. The new unacceptable risk test will be used by decision makers when reviewing and varying existing supervision orders and deciding whether to grant short-term or extended leave from a person’s place of custody.

Decision-makers will be required to consider whether the person subject to a custodial supervision order poses an unacceptable risk of ‘serious harm’ when deciding whether to:

• vary custodial supervision orders at progress review and on application;

• grant or suspend a special leave of absence;

• grant or suspend on-ground or limited off-ground leave;

• grant, suspend or revoke extended leave;

• apprehend a person subject to a non-custodial supervision order;

• increase the level of supervision of a person transferred to Victoria from interstate or overseas.

Decision-makers will be required to consider whether the person subject to a custodial supervision order poses an unacceptable risk of ‘harm’ when deciding whether to:

• revoke non-custodial supervision orders at progress review and on application.

The unacceptable risk test, in its various forms, balances the principle of least restriction with community safety, and is therefore relevant to the right to liberty and the right to security of the person in section 21 of the Charter. Decision makers must be satisfied that the applicant does not pose a risk of ‘serious harm’ before granting various forms of leave and before varying a custodial supervision order to a non-custodial supervision order. This ensures that people are only kept on the highest level of supervision—in custody—if they pose a risk of serious harm to the community.

This is balanced by requiring a court to be satisfied that a person does not pose a risk of ‘harm’ to the community before finally discharging a person from a non-custodial supervision order. This approach balances the principle of least restriction with the need to protect the community by subjecting a person to the least restrictive order while there is still a risk of harm to the community.

Supervision of people with a cognitive impairment or disability

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.

The Bill creates a requirement that the authorised program officer must prepare a treatment plan for all persons with a disability subject to a custodial supervision order in a residential treatment facility. A person has the right to have the treatment plan reviewed by the Victorian Civil and Administrative Tribunal.

These measures promote the right of all persons who are deprived of liberty to be treated with humanity and with respect for the inherent dignity of the human person under section 22 of the Charter.

For the reasons outlined above, the amendments contained in this Bill are compatible with human rights set out in the Charter

The Hon Jill Hennessy MP

Attorney-General

Minister for Workplace Safety

Second reading

Ms HENNESSY (Altona—Attorney-General, Minister for Workplace Safety) (13:24): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

This Bill will implement reforms to modernise and strengthen the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA), to improve the supervision and management of people found unfit to stand trial or not guilty because of mental impairment.

The CMIA was introduced in 1997 and commenced full operation on 18 April 1998. It abolished the ‘Governor’s pleasure’ system, and established new procedures to deal with people whose mental impairment means they are either unfit to stand trial, or have been found not guilty because of mental impairment.

Being unfit to stand trial means, essentially, that mental impairment makes the accused incapable of understanding and participating in a trial. The CMIA established a procedure for dealing with unfit accused persons called a special hearing, which is similar to a criminal trial but takes account of the accused limited ability to participate.

Being found not guilty because of mental impairment means an accused’s mental impairment affected their capacity to understand the nature of their conduct or that it was wrong—and the trial verdict reflects this finding. It’s important to clarify that ‘not guilty because of mental impairment’ is not the same as acquittal—on the contrary, the conduct has been proved; but rather than being held criminally responsible and subjected to criminal sanctions designed (among other purposes) to denounce and deter similar offending, the accused may instead be subject to supervision imposed both to protect the community from the risks they pose and address or manage their impairment.

While supervision orders under the CMIA operate outside the criminal justice system, and are not a sentence, they may nevertheless be custodial, involving detention in a mental health facility or disability service; or they may be non-custodial, involving supervision and treatment in the community. It’s also important to note that supervision orders are of indefinite duration, and can only come to an end when a court is satisfied the person’s risk is appropriately reduced.

The CMIA scheme applies to the Supreme and County Courts and, since 2014, the Children’s Court.

The Act represented the first time rules relating to mental impairment and fitness to stand trial had been set out comprehensively, in a single Victorian statute. It replaced the common law defence of insanity with a statutory defence of mental impairment. It also implemented a new regime for imposing and reviewing supervision orders for people subject to CMIA orders.

In 2012, after nearly fifteen years of operation, the previous government asked the VLRC to review the CMIA to ensure that the legislation “operates justly, effectively and consistently with the principles that underlie it.”. The VLRC’s report was tabled in Parliament on 21 August 2014, and responded comprehensively to its detailed Terms of Reference. I thank the VLRC for its thorough and considered review.

The reforms in this Bill will help ensure that the CMIA operates consistently with its underlying principles, as identified by the VLRC. The underlying principles of the CMIA seek to strike a balance between the protection of the community from an individual whose impairment means they presently pose a risk of harm, and the longer-term interest—shared both by the supervised person and the wider community—that the impairment ought to be treated, where possible, or managed effectively so the person ceases to pose a risk to the community.

The CMIA works to balance the shared interest in effective treatment and management of mental impairment by recognising the rights and clinical needs of an accused. This is achieved by ensuring that mentally impaired persons are afforded a fair trial, are only punished where they are morally blameworthy, have their therapeutic needs addressed whilst subject to supervision, and have their freedom restricted only so far as is necessary.

The reforms in the Bill also recognise the rights of others, including victims and family members, and the need to protect the community from dangerous individuals.

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 makes important reforms to acknowledge these interests, including through recognition of victim impact at hearings, and through improved notification processes. I acknowledge the tireless and inspiring advocacy of victim representatives and family members in ensuring these issues have been recognised, and addressed.

I will return in more detail to those elements of the reforms.

While the VLRC report underpinning this Bill may have been delivered in 2014, I also note that the reforms are particularly timely in light of the Royal Commission into Victoria’s Mental Health System, which is currently considering how to improve mental health outcomes for people in contact with the forensic mental health system and justice system.

Statutory principles

In accordance with the VLRC’s recommendation, the Bill will insert a set of statutory principles into the CMIA to guide courts, decision makers and agencies when dealing with persons subject to the CMIA. These principles recognise the particular needs of mentally impaired accused people by ensuring that they receive a fair trial, as well as the needs of those affected by the offending and the need to protect the community.

Separate, specific principles will apply for children which mirror the considerations in the Children, Youth and Families Act 2005. The Bill provides a list of matters that the Children’s Court must consider when making, varying or revoking a supervision order in relation to a child. These include the need to strengthen and preserve the child’s relationship with their family, the desirability of not disrupting the child’s living and educational arrangements, and the need to minimise stigma and discrimination against the child. The considerations extend to appeals in the County Court and Supreme Court from findings and supervision orders made in the Children’s Court.

Clarifying and modernising legal tests

The Bill will clarify and modernise a number of legal tests in the CMIA.

The fundamental right of an accused to have a fair hearing underpins the concept of unfitness to stand trial. That’s because if an accused is unable to understand or properly participate in a trial, they are likely unable to challenge allegations or evidence to defend themselves, or give evidence that may legitimately explain or mitigate their conduct—which in turn risks inaccurate verdicts.

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. The overall focus of the test is now whether the accused’s ability to understand or participate in certain aspects of a trial will affect whether the accused can receive a fair trial, rather than just whether they can understand and participate or not.

The Bill introduces a statutory definition of ‘mental impairment’ in line with a VLRC recommendation. The definition will make it clear that, for the purposes of the CMIA, ‘mental impairment’ includes mental illness and cognitive impairment (such as intellectual disability)—but excludes any temporary impairment of an otherwise healthy mind caused by an external event, such as the consumption of a drug.

This means the definition in the Bill reflects the common law and maintains the current position under the CMIA in respect of intoxication. It provides that a person who offended while suffering a mental impairment due to an external cause (such as drugs, a blow to the head or shock) cannot be found not guilty because of mental impairment unless that external cause has triggered an underlying, ongoing mental condition.

To disqualify the person from accessing the defence of mental impairment, the court must only be satisfied that the external event (such as drug use) caused the disorder. That means that under this definition, for a person to establish a defence of mental impairment for an act committed while intoxicated, they would need to establish both that they did not know what they were doing, or did not know that it was wrong; and also that this was due to an underlying mental impairment and not their intoxication.

That is an appropriately high bar that should be met before a court finds that the accused is not criminally responsibility for the act, and should be dealt with under the provisions of the CMIA. If the person’s mental impairment does not meet this threshold, it may nevertheless have a bearing under the common law on moral culpability, or therapeutic considerations at sentencing, under the normal criminal process—outside the framework of the CMIA.

When making or varying orders under the CMIA, courts and other decision makers are currently required to consider the risk of the supervised person ‘seriously endangering’ themselves or members of the community as a result of the order. As recommended by the VLRC, the Bill will replace this with a new test of ‘unacceptable risk’. 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 themselves or any other person. The new wording will also apply to other categories of leave, and decisions about 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

Some changes made by the Bill will result in fewer people accessing the CMIA scheme. For example, the Bill creates a new 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. This recognises that a person who is not sufficiently fit to undergo a trial process may still have the ability to understand less complex decisions associated with plea and sentence. In such a case, the person will be 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 holding the accused to account in a way that is consistent with their responsibility for the offence, while saving court time and reducing the burden on the CMIA supervision system.

Introduction of ‘progress reviews’

Under the existing CMIA scheme, a person on 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. While a supervised person can apply for review, some supervised people do not obtain review of their order by the court for many years. The court can set reviews when the original order is imposed, however this is not mandatory and practice varies between courts and individual judges.

Under the Bill, all people who are 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. Regular reviews will ensure that people subject to CMIA orders have their treatment and support needs continually evaluated, consistent with the public interest in reducing or managing their long-term risk, and are not detained longer than is necessary.

The Bill also provides that the onus to provide evidence supporting consideration of a reduction of supervision shifts depending on how far the person has progressed through the review pathway. While each and every decision is fundamentally, and appropriately, a risk assessment made on the basis of evidence, these presumptions are designed to ensure a community safety focus, while also safeguarding against unjustified indefinite detention.

Transferring assessment of fitness from the jury to the judge

The Bill removes the requirement that a jury decide whether the accused is fit to stand trial and makes 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 change also implements the VLRC recommendation that juries should no longer be involved in the determination of fitness, for reasons including the time and cost implications associated with a jury (for example, the fees paid to jurors and the time taken to empanel and give directions to a jury).

Optimising fitness investigations

The Bill will make amendments aimed at optimising an accused person’s fitness to stand trial. When determining fitness, the court will be required to consider modifications that can be made to assist the accused to become fit. For example, modifications may include whether a support service is available to assist the person’s understanding of the trial.

Appeal rights

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 and a finding that they are not fit to plead guilty. The Bill provides the Director of Public Prosecutions (DPP) with corresponding appeal rights.

Power to reconsider a finding of unfitness

Under the CMIA currently, if the court has found a person unfit and then evidence emerges prior to a supervision order being made that the accused’s symptoms of unfitness were not genuine, 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. In those circumstances the person’s case would return to the normal criminal process.

Supervision orders

The Bill will enable courts to decline to impose a further supervision order in respect of a person already subject to one, consistent 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. The Bill will enable the court to make a ‘record of subsequent offending order’, which will instead ensure that the person’s conduct is acknowledged and relevant victims are included in future court processes. Of course, if the subsequent offending means that a more restrictive supervision order or longer nominal term is appropriate, the court still has the power to vary or make such orders as it considers appropriate.

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 also implements VLRC recommendations to improve the process of review of supervision orders, including:

• enabling attendance at hearings via audio-visual 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 re-applying 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–which also serves the public interest in ensuring forensic mental health resources are made available to support other high-risk or high-need individuals.

The VLRC recommended that when making a non-custodial supervision order a court appoint responsibility for a person’s supervision. As acknowledged by the VLRC, this will ensure supervisors take an active role and ensure people are provided with appropriate services or treatment.

Ancillary orders

The VLRC recommended that a review be undertaken of the ancillary orders 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

The Forensic Leave Panel currently determines applications for short-term leave by people on CMIA supervision orders. Under the reforms included in the Bill, the Forensic Leave Panel will cease to operate and the role will be transferred to the Mental Health Tribunal. This change will result in efficiencies, as the Mental Health 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 also considerable overlap in the membership of the Panel and Tribunal.

Transfer of functions to the Director of Public Prosecutions

Consistent with a VLRC recommendation, the Bill transfers the function of appearing at supervision order reviews and extended leave hearings from the Attorney-General to the DPP. The Director is well placed to take on this role, being independent from government and having expertise in dealing with victims; as well as, in most cases, having familiarity with the facts and circumstances of each supervised person’s case through involvement in the prosecution. The Director is also empowered to delegate her appearance function to a legal practitioner other than a Crown Prosecutor.

Leave applications

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 response to treatment and progress towards attaining independence and physical, mental, social and vocational ability when making decisions under the CMIA. This is 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 cognitive impairments, including intellectual disability. The VLRC’s report acknowledged the need to differentiate between disability and mental illness when considering their treatment and supervision needs after a CMIA order is made. Accordingly, a number of recommendations were designed to provide a clearer treatment pathway, more safeguards and better clinical oversight of persons with cognitive impairment.

As recommended by the VLRC, the Bill will 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. 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.

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.

The Bill will also amend the Disability Act to ensure that persons subject to a custodial supervision order under the CMIA who are detained in a residential treatment facility are provided with a treatment plan under the Disability Act. Currently, such persons are excluded from these provisions of the Disability Act. This amendment will ensure consistency in the treatment of persons detained under the CMIA with those detained under the Disability Act.

Interests of victims and family members

As I have noted, although people who are subject to the CMIA may not be considered criminally responsible for their actions in the usual way, the impact on their victims, victims’ families, and their own family members is no lesser for that finding.

The Bill will improve consideration of the rights of victims and family members. In addition to the statutory principles mentioned earlier, the Bill will allow victim and family member reports to be read aloud at the relevant court hearing, as is currently allowed for victim impact statements in sentencing hearings. It will also modernise processes for notifying victims and family members of upcoming hearing dates.

The Bill will also improve the consideration of victims by requiring the Mental Health Tribunal to have regard to the circumstances of victims and family members in setting conditions of short-term leave granted to people on CMIA supervision orders. For example, if known to the Tribunal, the suburb in which a victim works will be taken into account when setting the conditions of the supervised person’s short-term leave.

There have been instances where victims have encountered a person on short-term leave in the community in circumstances where the victim was not aware the person had commenced leave, leading to further trauma for victims. To address this, the Bill will establish a system to allow victims to be notified when a supervised person is granted off-ground leave which would significantly reduce the supervision to which the person is subject, for example if a person is granted unescorted leave for the first time. This system will provide victims with relevant information to assist in their ongoing recovery. Victims will be asked if they wish to receive notifications under the new system and notifications will be provided by victim support specialists. This ensures that CMIA victims are afforded rights similar to victims of sentenced offenders. In the case of sentenced prisoners, victims can register to be notified when the person is to be released on parole.

Conclusion

This Bill reflects the continuing evolution of our understanding of mental impairment and responds to the detailed and valuable work of the VLRC. These changes will ensure that the CMIA continues to achieve its underlying objectives, striking a balance between the need to protect the rights of those charged with crimes but suffering a mental impairment, and the need to protect community safety and uphold the rights of victims.

I commend the Bill to the house.

Mr SOUTHWICK (Caulfield) (13:24): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday, 1 April.