Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

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If mental impairment is defined, how should it be defined
5.63 Previous reviews have identified that developing a definition of what constitutes a mental
impairment can be problematic. A number of different options have been proposed for
defining mental impairment, including:
• categories of impairments (for example, listing conditions that are included such as
mental illness, intellectual disability and cognitive impairments)
• diagnostic criteria (such as those in the Diagnostic and Statistical Manual of Mental
Disorders)
• operational definition (for example by linking the impairment to its effect on the
person’s ability to understand, know or control their behaviour).
5.64 Other Australian jurisdictions with statutory definitions of mental impairment employ
a mixture of categorical and operational definitions. Appendix B provides details of the
different approaches.
5.65 The Commonwealth definition of mental impairment includes senility, intellectual
disability, mental illness, brain damage and severe personality disorder. 57 South Australia,
Western Australia, the Australian Capital Territory and the Northern Territory have
substantially adopted this definition. The Northern Territory includes the category of
involuntary intoxication and South Australia excludes intoxication. 58
5.66 Queensland legislation provides that a mental impairment is a ‘mental disease’ or ‘natural
mental infirmity’ while Tasmanian legislation outlines that a ‘mental disease’ includes
‘natural imbecility’. 59
5.67 The Community Development Committee considered whether Victoria should align itself
with the Commonwealth Code by incorporating a volitional element (that is, an element
about the person’s ability to control their actions). However, the Community Development
Committee was unable to resolve competing arguments and stated the area required
further consideration. 60 It therefore recommended development of a statutory definition
of ‘mental impairment’ that includes mental illness, intellectual disability, acquired brain
injury (including senility) and severe personality disorder. 61
5.68 Most Australian states provide broad definitions of mental impairment that incorporate a
volitional element by linking the mental impairment to the person’s ability to understand,
control their actions or know that they ought not to do the act or make the omission.
5.69 In 1990, the Law Reform Commission of Victoria’s report Mental Malfunction and
Criminal Responsibility recommended that ‘mental impairment should be defined so
as to include mental illness, personality disorder, intellectual disability, senility and
brain damage’. 62
5.70 The Law Reform Committee’s report recommended that mental impairment ‘encompass
mental illness, intellectual disability, acquired brain injuries and severe personality
disorders’. 63 The report argued that a definition would ensure Victoria is consistent with
legislation in other Australian jurisdictions that ‘expressly recognise intellectual disability
and some other cognitive impairments such as ABIs [acquired brain injuries] and senility as
conditions that may qualify a defendant for the defence’. 64
57 Criminal Code Act 1995 (Cth) s 7.3(8).
58 Criminal Law Consolidation Act 1935 (SA) s 269A; Criminal Code Act 1913 (WA) s 1(1); Criminal Code 2002 (ACT) s 27(1); Criminal Code Act
(NT) s 43A.
59 Criminal Code 1899 (Qld) s 27; Criminal Code 1924 (Tas) s 16.
60 Community Development Committee, above n 53, 149.
61 Ibid 152.
62 Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility, Report No 34 (1990) 18.
63 Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual
Disability and Their Families and Carers (2013) 243.
64 Ibid.
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