2006

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

Part 1.1 Children and Young People Act 1999 4

Part 1.2 Crimes Act 1900 5

Part 1.3 Mental Health (Treatment and Care) Act 1994 12

2006

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

An Act to amend the Criminal Code 2002 in relation to mentally impaired offenders, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Criminal Code (Mental Impairment) Amendment Act 2006.

This Act commences on the day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

This Act amends the Criminal Code 2002.

Note This Act also amends other legislation (see sch 1).

• division 2.3.2 (Lack of capacity—mental impairment)

other than section 66 (2) (d)

Note Div 2.3.2 and s 66 (2) (d) became applied provisions on the commencement of the Criminal Code (Mental Impairment) Amendment Act 2006. Pt 2.5 became an applied provision on 9 April 2004. The other applied provisions have been applied provisions since the commencement of the Code on 1 January 2003.

(7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must—

(a) for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or

(b) for any other offence—find the person not guilty of the offence because of mental impairment.

mental dysfunction or mental illness

mental impairment

(a) the young person has a mental impairment; and

is mentally dysfunctional or mentally ill

has a mental impairment

is mentally dysfunctional or mentally ill

has a mental impairment

is mentally dysfunctional or mentally ill

has a mental impairment

is mentally dysfunctional or mentally ill

has a mental impairment

mental impairment—see the Criminal Code, section 27.

mental dysfunction or mental illness

mental impairment

(1) If, in a proceeding in the Magistrates Court, the court has reasonable grounds for believing that an accused needs immediate treatment or care because of mental impairment, the court may, without requiring the accused to submit to the jurisdiction of the tribunal, order that—

(a) the accused be taken by a police officer or custodial escort to an approved health facility for clinical examination for the purpose of deciding whether the accused needs immediate treatment or care because of mental impairment; and

(ii) if the accused is found to need detention and care because of mental impairment—by the person who is in charge of an approved health facility or approved mental health facility where the accused is detained for care; and

disability

mental impairment

(1) This section applies if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court.

(2) The Supreme Court must enter a special verdict that the person is not guilty of the offence because of mental impairment if—

(a) the court considers the verdict appropriate; and

(b) the prosecution agrees to the entering of the verdict.

be acquitted on the grounds of mental impairment

a special verdict of not guilty because of mental impairment

is acquitted on the grounds of mental impairment

a special verdict of not guilty because of mental impairment is returned or entered

is acquitted on the grounds of mental impairment

a special verdict of not guilty because of mental impairment is returned or entered

(1) This section applies if an accused pleads not guilty because of mental impairment to a charge before the Magistrates Court.

(2) The Magistrates Court must find that the person is not guilty because of mental impairment if—

(a) the court considers the finding appropriate; and

(b) the prosecution agrees to the finding.

the charges are dismissed on the ground of mental impairment

is found not guilty because of mental impairment

the charges against him or her are dismissed on the ground of mental impairment

is found not guilty because of mental impairment

is mentally dysfunctional or mentally ill

has a mental impairment

is mentally dysfunctional or mentally ill

has a mental impairment

be mentally dysfunctional or mentally ill

have a mental impairment

by reason of mental dysfunction or mental illness

because of mental impairment

(a) the accused is mentally impaired; and

mental dysfunction or mental illness

mental impairment

is mentally dysfunctional or mentally ill

has a mental impairment

mental impairment—see the Criminal Code, section 27.

on the ground of mental illness

because of mental impairment

because of mental dysfunction or mental illness

because of mental impairment

(Unfitness to plead, mental illness and mental dysfunction)

(Unfitness to plead and mental impairment)

a mentally ill or mentally dysfunctional offender

an offender with a mental impairment

mental illness or mental dysfunction

mental impairment

a mentally ill or mentally dysfunctional offender

an offender with a mental impairment

(2) This section does not apply to an order made in relation to an offender with a mental impairment.

a mentally dysfunctional or mentally ill offender

an offender with a mental impairment

section 315A (2)

section 315A (3)

section 319 (2)

or (3)

is mentally dysfunctional or mentally ill

has a mental impairment

(f) making a recommendation under section 70 about a person who has a mental impairment;

(1) This section sets out provisions that apply if, before the commencement of the Crimes Amendment Act 2005 (the relevant commencement day), the Supreme Court or the Magistrates Court had made an order under the Crimes Act, part 13 requiring a person to submit to the jurisdiction of the tribunal to enable the tribunal to determine whether or not the person was fit to plead to a charge.

(2) If, before the relevant commencement day, the tribunal had made a final determination about the person’s fitness to plead, the Crimes Act, part 13 and this Act, section 68 apply in relation to the matter as if the question of the person’s fitness to plead had been decided by the court.

(3) If, before the relevant commencement day, the tribunal had not made a final determination about the person’s fitness to plead—

(a) former part 8 applies in relation to the matter if the tribunal has not made a final determination about the person’s fitness to plead; and

(b) if the tribunal has made its final determination, the Crimes Act, part 13 and this Act, section 68 apply in relation to the matter as if the question of the person’s fitness to plead had been decided by the court.

(4) On the commencement of this section, part 15 (Transitional) as inserted by the Crimes Amendment Act 2005 ceases to have effect.

(5) This section is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(6) In this section:

final determination about a person’s fitness to plead means—

(a) a determination under former section 68 that the person is unfit to plead and is unlikely to become fit within 12 months; or

(b) a determination under former section 68, or on a review under former section 69, that the person is fit to plead; or

(c) if the tribunal first determines under former section 68 that the person is unfit to plead but is likely to become fit within 12 months after the determination is made—a determination under former section 69 after the end of the 12-month period that the person is unfit to plead.

former part 8 means that part as in force immediately before the commencement of the Crimes Amendment Act 2005.

former section 68 means that section as in force immediately before the commencement of the Crimes Amendment Act 2005.

former section 69 means that section as in force immediately before the commencement of the Crimes Amendment Act 2005.

This part expires 5 years after the day it commences.

mental impairment—see the Criminal Code, section 27.

offender with a mental impairment means a person who has been ordered by a court, under the Crimes Act, part 13 (Unfitness to plead and mental impairment) or the C&YP Act, part 6.2 (which is about dealing with young offenders), to submit to the jurisdiction of the tribunal to enable the tribunal to make a mental health order in relation to the person.

Presentation speech made in the Legislative Assembly on 2006.

Notified under the Legislation Act on 2006.

For the latest republication of amended laws, see www.legislation.act.gov.au.