March 2, 2017  |  second reading speech

Crimes (Mental Impairment and Unfitness To Be Tried) Amendment Bill 2016

Mr CARROLL (Niddrie) — It is my pleasure to rise and speak on the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016. The Premier, the Attorney‑General and all members of the cabinet, and indeed all my caucus colleagues, take very seriously the central premise that the vulnerable need to be protected, but there is also the other premise that community safety needs to be at the forefront of all our judicial decisions and the working of our judicial system. We are strengthening the supervision orders for people who are found unfit to be tried or not guilty because of mental impairment.

I myself, when I was working at the Victorian Government Solicitor’s Office, dealt with many defendants and quite a number of cases dealing specifically with crimes of mental impairment. It was a learning curve for me to sit through some court cases to see a defendant who had committed in some cases horrendous crimes but they did fall under this provision where it was not them acting in full cognitive awareness of the crime they had committed. Hence, we do have this avenue of therapeutic justice where you can fall under the category of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 1997, and essentially the court and the judge take into account that you were acting without your full cognitive functions.

This legislation is very important legislation that began under the member for Box Hill when he was the Attorney‑General and was carried through by the current Attorney‑General, who is at the table. It is very important to acknowledge the work of the Victorian Law Reform Commission (VLRC), which has done an incredibly substantive body of work to get us to where we are today. Their report, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), really goes to what we need to do to streamline the processes, modernise the legal tests and make systematic improvements to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA) to enhance its operation, most importantly for the people who are subject to the act and indeed all people who go through our court system. These reforms will help ensure that the CMIA operates consistent with its underlying principles.

As I said at the very beginning, we need to strike a balance between the need to protect people’s rights and acknowledge those who are suffering mental impairment or illness and the need to protect the rights of victims and the community at large. The reforms in this quite substantive bill in many respects 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.

It is very much a Labor thing to acknowledge the role of therapeutic justice. Only last week I had the pleasure, on behalf of the Attorney‑General, to chair a round table on justice reinvestment with a whole range of stakeholders. Overwhelmingly they were very pleased with our Attorney‑General and the work he is doing in terms of acknowledging that there is more to this than just our courts; it is about therapeutic justice. Every day we hear about the drug crystal methamphetamine in our community and we hear about the role of and the need to expand the Drug Court. That will go down in this Attorney‑General’s history as a landmark reform. You need only look at the reports from Turning Point that say that the Drug Court returns $5 to the community for every $1 invested. Its expansion into Melbourne and hopefully one day to the western suburbs — which I cannot wait for and will continue to advocate for to the Attorney‑General — will be a very positive step forward.

The reforms in this bill go to the heart of implementing the recommendations of the Victorian Law Reform Commission. The creation of a set of statutory principles will guide decision‑makers. The bill introduces a new test of fit to plead guilty. It also transfers responsibility for determining fitness from the jury to the judge. It creates a definition of ‘mental impairment’ and reframes the test for whether a person is fit to stand. I want to acknowledge the work that went into defining ‘mental impairment’ and to thank the parliamentary library for their work and research paper. They included a paper from the Victorian Law Reform Commission which basically spells out the work that went into defining ‘mental impairment’, which includes the phrase ‘disease of the mind’.

Defining mental impairment is no easy task. In 2012 the Attorney‑General at the time asked the VLRC to review the legislation and report on what changes were required. Going to the heart of it, it has long been recognised that a person should not be held criminally responsible if at the time of committing an offence they lacked the necessary intent to commit the offence due to mental impairment. Prior to the commencement of the Crimes (Mental Impairment and Unfitness to be Tried) Act in 1997 a parliamentary committee recommended that a statutory definition of ‘mental impairment’ be introduced to clarify the types of conditions that fall within the scope of the defence. Despite this recommendation, Victoria remained one of the few Australian jurisdictions without a statutory definition of the term. Those supporting a definition of mental impairment argued that it was unclear which mental conditions fall within the scope of the defence, particularly in relation to intellectual disability and cognitive impairment.

The Community Development Committee report acknowledges that there was ambiguity in the meaning of the term ‘mental impairment’ and recommended that it be defined to encompass mental illness, intellectual disability, acquired brain injuries (ABIs) and severe personality disorders. The report also puts forward that a definition would ensure that Victoria is consistent with other jurisdictions that expressly recognise intellectual disability and some other cognitive impairments, such as ABIs, as well as other conditions that may qualify for the defendant and the defence. In relation to the definition, this bill introduces a system of mandatory and regular progress reviews, including a new test of unacceptable risk.

This legislation goes a long way to making sure we have simpler and more accountable courts and is also very much in line with the legislation introduced by the Attorney‑General this week in relation to juries and directions. The bill also goes to the heart of the Attorney‑General’s role. There is a change in responsibility for representation of the public interest from the Attorney‑General to the Director of Public Prosecutions at CMIA hearings. This change will affect hearings related to a person’s supervision level and to extend leave.

There will also be a new test of what counts as unacceptable risk. The bill amends a range of tests throughout the CMIA regarding supervision levels and leave so decision‑makers will be required to consider whether the proposed order would give rise to an ‘unacceptable risk’ that the supervised person will cause harm or serious harm as the case may be. Essentially the new test replaces the existing test of whether the person is likely to seriously endanger themselves or others.

There are a lot of procedural improvements in the legislation. I do not propose to go through them all, but I do want to just highlight some of them, including mechanisms designed to assist accused persons to become fit, allowing progress reviews to be conducted, facilitating attendance via video link and enhancing the rights of victims and family members. The bill strikes a balance between the need to protect the rights of those charged with crimes who are suffering mental impairment with the need to protect community safety and uphold the rights of victims.

In my remaining 90 seconds, as a member of the Law Institute of Victoria who pays their dues every year, I want to thank the LIV for supplying me with a copy of their submission. I also want to thank the VLRC in relation to their review of the Crimes (Mental Impairment and Unfitness to be Tried) Act. More broadly, this legislation deals with mental illness, cognitive impairment and intellectual disability. As the Attorney‑General would know — indeed the member for Malvern, who is sitting across from him, would also be aware as a former member of the bar — the issue of mental health is quite pervasive right throughout the legal profession, whether it be for a student, a lawyer, a barrister or even a judge. It is a very stressful profession to be involved in.

Periodically the law institute through their journals highlight the need for people within the profession to look after one another. The statistics speak for themselves. A 2009 study by the Brain and Mind Research Institute found that 35 per cent of all law students, 31 per cent of solicitors and more than 16 per cent of barristers were suffering psychological distress. This is a pervasive issue right across the community. This legislation amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 will go a long way to ensuring our laws are up to date. It follows on from a substantive body of work undertaken by the Victorian Law Reform Commission. I want to thank them, and I want to commend the Attorney‑General for his introduction of the bill and the member for Box Hill for his work as well.