2006
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Attorney-General)
Criminal Code (Mental Impairment) Amendment Bill 2006

Contents
	Page
	1	Name of Act	2
	2	Commencement	2
	3	Legislation amended	2
	4	Delayed application of div 2.3.2 etc
Section 9	2
	5	Definitions—applied provisions and default application date
Section 10 (1), definition of applied provisions	2
	6	Section 10 (1), definition of applied provisions	2
	7	Section 10 (1), definition of applied provisions, note	3
	8	Mental impairment and criminal responsibility
Section 28 (7)	3
	9	Geographical application—procedure
Section 66 (2), note	3
Schedule 1	Other amendments	3
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)
Criminal Code (Mental Impairment) Amendment Bill 2006

A Bill for
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:

1	Name of Act
This Act is the Criminal Code (Mental Impairment) Amendment Act 2006.
2	Commencement
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)).
3	Legislation amended
This Act amends the Criminal Code 2002.
Note	This Act also amends other legislation (see sch 1).
4	Delayed application of div 2.3.2 etc
Section 9
omit
5	Definitions—applied provisions and default application date
Section 10 (1), definition of applied provisions
insert
·	division 2.3.2 (Lack of capacity—mental impairment)
6	Section 10 (1), definition of applied provisions
omit
other than section 66 (2) (d)
7	Section 10 (1), definition of applied provisions, note
substitute
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.
8	Mental impairment and criminal responsibility
Section 28 (7)
substitute
	(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.
9	Geographical application—procedure
Section 66 (2), note
omit

Schedule 1	Other amendments
(see s 3)
Part 1.1	Children and Young People Act 1999
[1.1]	Section 81 (3) (i)
omit
mental dysfunction or mental illness
substitute
mental impairment
[1.2]	Section 95 (1) (a)
substitute
	(a)	the young person has a mental impairment; and
[1.3]	Section 95 (6)
omit
is mentally dysfunctional or mentally ill
substitute
has a mental impairment
[1.4]	Section 118
omit
is mentally dysfunctional or mentally ill
substitute
has a mental impairment
[1.5]	Section 246 (3) (e) (i) and (ii)
omit
is mentally dysfunctional or mentally ill
substitute
has a mental impairment
[1.6]	Section 255 (4) (d) (i) and (ii)
omit
is mentally dysfunctional or mentally ill
substitute
has a mental impairment
[1.7]	Dictionary, definition of mental dysfunction 
omit
[1.8]	Dictionary, definition of mental illness
omit
[1.9]	Dictionary, new definition of mental impairment
insert
mental impairment—see the Criminal Code, section 27.
Part 1.2	Crimes Act 1900
[1.10]	Part 13 heading
substitute
Part 13	Unfitness to plead and mental impairment
[1.11]	Section 300, definitions of mental dysfunction and mental illness
omit
[1.12]	Section 308 (a)
omit
mental dysfunction or mental illness
substitute
mental impairment
[1.13]	Section 309 (1)
omit everything before paragraph (b), substitute
	(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
[1.14]	Section 309 (1) (b) (ii)
substitute
	(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
[1.15]	Section 315 (4)
omit
disability
substitute
mental impairment
[1.16]	Division 13.3 heading
substitute
Division 13.3	Supreme Court—special verdict of not guilty because of mental impairment
[1.17]	Section 320
omit
[1.18]	Section 321
substitute
321	Supreme Court—plea of not guilty because of 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.
[1.19]	Section 322
omit
be acquitted on the grounds of mental impairment
substitute
a special verdict of not guilty because of mental impairment
[1.20]	Section 323 heading
substitute
323	Supreme Court orders following special verdict of not guilty because of mental impairment—non-serious offence
[1.21]	Section 323 (1)
omit
is acquitted on the grounds of mental impairment
substitute
a special verdict of not guilty because of mental impairment is returned or entered
[1.22]	Section 324 heading
substitute
324	Supreme Court orders following special verdict of not guilty because of mental impairment—serious offence
[1.23]	Section 324 (1)
omit
is acquitted on the grounds of mental impairment
substitute
a special verdict of not guilty because of mental impairment is returned or entered
[1.24]	Division 13.4 heading
substitute
Division 13.4	Magistrates Court—finding of not guilty because of mental impairment
[1.25]	Section 326
omit
[1.26]	Section 327
substitute
327	Magistrates Court—plea of not guilty because of mental impairment
	(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.
[1.27]	Section 328 heading
substitute
328	Magistrates Court orders following finding of not guilty because of mental impairment—non-serious offence
[1.28]	Section 328 (1)
omit
the charges are dismissed on the ground of mental impairment
substitute
is found not guilty because of mental impairment 
[1.29]	Section 329 heading
substitute
329	Magistrates Court orders following finding of not guilty because of mental impairment—serious offence
[1.30]	Section 329 (1)
omit
the charges against him or her are dismissed on the ground of mental impairment
substitute
is found not guilty because of mental impairment 
[1.31]	Division 13.5 heading
substitute
Division 13.5	Referral of mentally impaired people to tribunal after conviction
[1.32]	Section 330 (b)
omit
is mentally dysfunctional or mentally ill
substitute
has a mental impairment
[1.33]	Section 331 (1) and (2)
omit
is mentally dysfunctional or mentally ill
substitute
has a mental impairment
[1.34]	Section 331 (4)
omit
be mentally dysfunctional or mentally ill
substitute
have a mental impairment
[1.35]	Division 13.6 heading
substitute
Division 13.6	Summary proceedings against mentally impaired people
[1.36]	Section 333 (a)
omit
by reason of mental dysfunction or mental illness
substitute
because of mental impairment
[1.37]	Section 334 (1) (a)
substitute
	(a)	the accused is mentally impaired; and
[1.38]	Section 334 (3) (a), (b), (c) and (g) (i)
omit
mental dysfunction or mental illness
substitute
mental impairment
[1.39]	Section 334 (8)
omit
is mentally dysfunctional or mentally ill
substitute
has a mental impairment
[1.40]	Dictionary, new definition of mental impairment
insert
mental impairment—see the Criminal Code, section 27.
Part 1.3	Mental Health (Treatment and Care) Act 1994
[1.41]	Section 11 (g)
omit
on the ground of mental illness
substitute
because of mental impairment
[1.42]	Section 15 (1) (a)
omit
because of mental dysfunction or mental illness
substitute
because of mental impairment
[1.43]	Section 16 (1) (d)
omit
(Unfitness to plead, mental illness and mental dysfunction)
substitute
(Unfitness to plead and mental impairment)
[1.44]	Section 26 (n) and (o)
omit
a mentally ill or mentally dysfunctional offender
substitute
an offender with a mental impairment
[1.45]	Section 26 (o) 
omit
mental illness or mental dysfunction
substitute
mental impairment
[1.46]	Section 26 (p)
omit
a mentally ill or mentally dysfunctional offender
substitute
an offender with a mental impairment
[1.47]	Section 36J (2)
substitute
	(2)	This section does not apply to an order made in relation to an offender with a mental impairment.
[1.48]	Section 52 (3) and (4)
omit
a mentally dysfunctional or mentally ill offender
substitute
an offender with a mental impairment
[1.49]	Section 68 (1) (a)
omit
section 315A (2)
substitute
section 315A (3)
[1.50]	Section 68 (1) (c)
after
section 319 (2)
insert
or (3)
[1.51]	Section 70 heading
substitute
70	Recommendations about people with mental impairment
[1.52]	Section 70
omit
is mentally dysfunctional or mentally ill
substitute
has a mental impairment
[1.53]	Section 83A (2) (f)
substitute
	(f)	making a recommendation under section 70 about a person who has a mental impairment;
[1.54]	New part 15
insert
Part 15	Transitional
150	Application of amendments made by Crimes Amendment Act 2005
	(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. 
151	Expiry of pt 15
This part expires 5 years after the day it commences.
[1.55]	Dictionary, new definition of mental impairment
insert
mental impairment—see the Criminal Code, section 27.
[1.56]	Dictionary, definition of mentally dysfunctional or mentally ill offender
omit
[1.57]	Dictionary, definition of offender with a mental impairment
insert
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.

Endnotes
1	Presentation speech
	Presentation speech made in the Legislative Assembly on	2006.
2	Notification
	Notified under the Legislation Act on	2006.
3	Republications of amended laws
	For the latest republication of amended laws, see www.legislation.act.gov.au.

© Australian Capital Territory 2006