New scheme to manage persons with mental impairment in justice system

  • Criminal Law (Mental Impairment) Bill 2022 to be introduced into Parliament
  • Bill implements 2017 State election commitment to reform WA’s mentally impaired accused laws
  • Reforms to Western Australia’s mentally impaired accused laws are set to significantly improve the treatment and management of persons with mental impairment in the justice system.

    The Criminal Law (Mental Impairment) Bill 2022 repeals and replaces the existing Criminal Law (Mentally Impaired Accused) Act 1996 (CLMIA Act).

    It was high profile cases like Marlon 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.

    The proposed reforms 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, 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 Bill is the protection of the community, including when a person is a member of a court or tribunal.

    The introduction of community supervision orders for unfit accused persons as an alternative to custody is a first for WA and a significant improvement on the current situation, where community-based orders are only available to persons found not guilty on account of unsoundness of mind.

    The community-based orders that are currently available are not fit-for-purpose, which has resulted in them rarely being used. The community supervision orders proposed by the Bill can be tailored to the needs of the individual.

    There are currently approximately 50 individuals under the CLMIA Act subject to indefinite custody orders. The Bill contains transitional provisions which require these individuals to be brought before the court for a limiting term to be placed on their custody order, as soon as practicable after commencement of the new Act.

    The Bill has been subject to extensive consultation with more than 40 stakeholders both within and outside Government.

    As stated by Attorney General John Quigley:

    “The unfair and outdated mental impairment framework has long been a matter of immense importance to me, and it gives me great pleasure to see those reforms come to fruition with the introduction of this particularly important and complex Bill.

    “The existing CLMIA Act has been in operation for more than 25 years without significant amendment and has been subject to justifiable criticism since its inception.

    “Regrettably, as it currently stands, people who would likely be found either unfit to stand trial or found not guilty on account of unsoundness of mind choose to instead go through the justice system without raising their mental impairment, for fear of coming under the CLMIA Act and never being released.

    “It is critical that people with mental impairment who are found to have committed offences are appropriately managed in the justice system.

    “The Mental Impairment Review Tribunal will be presided over by a retired judge of the Supreme or District Court and comprise a specialist membership of experts including psychiatrists and psychologists, and community members with knowledge of Aboriginal cultural considerations, victims’ interests and forensic mental health and disability.

    “The Tribunal will be well placed to manage supervised persons, both in custody and in the community.

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

    /Public Release. View in full here.