New regime for persons with mental impairment in the justice system

  • Criminal Law (Mental Impairment) Bill 2022 passes through Parliament
  • Bill implements 2017 State election commitment to reform WA’s mentally impaired accused laws

The treatment and management of persons with mental impairment in the justice system will significantly improve following the passage of laws through the State Parliament.

The Criminal Law (Mental Impairment) Bill 2022 completely overhauls Western Australia’s outdated mentally impaired accused laws.

The new laws will play a significant role in protecting the human rights of persons with mental impairment in the justice system, ensure procedural fairness, and bring WA into line with best practice in other States and Territories, including through:

  • expanding the disposition options available to the judiciary so that community supervision orders are available for both those acquitted on account of mental impairment and those found unfit to stand trial;
  • limiting the terms of custody orders to ensure they align with the likely sentence the court would have imposed if they were sentencing the person in the ordinary course, having found them guilty of the offence; 
  • introducing procedural fairness provisions to provide for the rights to appear, appeal and seek review of decisions of the courts and the new Mental Impairment Review Tribunal; and
  • ensuring determinations about the release of persons with mental impairment from custody, and the conditions to be attached to such release (if any), are made by the new Mental Impairment Review Tribunal.

The Government remains committed to ensuring the safety of the community. The paramount consideration for any person performing a function under the laws is the protection of the community.

There are currently approximately 56 individuals under the Criminal Law (Mentally Impaired Accused) Act 1996 subject to indefinite custody orders. The laws contain transitional provisions which require these people to be brought before the court for a limiting term to be placed on their custody order, as soon as practicable.

Careful planning is underway to ensure a safe, staged reintegration into the community and, where appropriate, the continued provision of supervision and support, consistent with the protection of the community.

As stated by Attorney General John Quigley:

“I am pleased that the McGowan Government has been able to deliver on its commitment to reform the unfair and outdated mental impairment framework.

“Rewriting this legislation was a significant and complex task.

“The previous laws had been in operation for more than 25 years without significant amendment and had been subject to justifiable criticism since their inception.

“It was high profile cases like Marlin Noble, an Indigenous man who spent 10 years in jail without being convicted of a crime, that were the catalyst for change to the current laws.

“There is a significant amount of work required across Government to implement the reforms provided by the new Act and it is anticipated that this implementation work will take approximately 12 months.”

/Public Release. View in full here.