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

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2.16 Prior to these reviews, the Law Reform Commission of Victoria also conducted work in
this area and made a number of recommendations regarding the insanity defence in
its report on Mental Malfunction and Criminal Responsibility. 7 An extensive review of
sentencing in Victoria undertaken by the Victorian Sentencing Committee in 1998 also
examined and made recommendations on the Governor’s pleasure regime. 8
2.17 These reviews, along with much academic commentary, highlighted a number of
problems with the Governor’s pleasure regime:
• Lack of coherent framework—the detention, management and release of people
found to be either unfit to plead or not guilty on the ground of insanity under
the Governor’s pleasure regime was regulated by various pieces of legislation and
convention. There was no single piece of legislation that set out the process that
applied to people under Governor’s pleasure orders. 9
• Overlap with the criminal justice system of detention, supervision and review—there
was the possibility of people being detained in the prison system even though they
were not criminally responsible for their crime. 10 The involvement of the Adult Parole
Board, that generally makes decisions in relation to people found guilty of an offence,
in making recommendations for the release of people under Governor’s pleasure
orders, also brought these people under the criminal justice system. 11
• No testing of evidence—people found unfit to plead to criminal offences would be
detained at the Governor’s pleasure without a further hearing to test the prosecution
evidence against them and to determine whether or not they committed the criminal
offences charged. 12
• Involvement of the executive—the executive 13 made decisions on the release of
people under Governor’s pleasure orders. A decision to release a person under a
Governor’s pleasure order could be influenced by political considerations that could
favour community safety over the rights of the person subject to the order. 14
• Duration of detention—the process that was in place, particularly the involvement of
the executive in decisions to revoke Governor’s pleasure orders, resulted in periods
of detention that were ‘far in excess of the time required for effective treatment’. 15 A
study by the Commission of all people subject to Governor’s pleasure orders between
1959 and 1988 provided some indication that orders were based on a tariff system
rather than a genuine assessment of dangerousness. 16
• Lack of transparency and procedural fairness—the Governor’s pleasure regime lacked
transparency, particularly in relation to the process behind the executive’s decision to
release a person subject to a Governor’s pleasure order. Leave decisions were also not
transparent, for example, the criteria for granting leave were not clear and had no
legislative basis. The right to appear and to appeal leave decisions was limited.
7 Law Reform Commission of Victoria, Mental Malfunction and Criminal Responsibility, Report No 34 (1990).
8 Victorian Sentencing Committee, Sentencing – Report of the Victorian Sentencing Committee, Volume 2 (1988) 387–482.
9 Community Development Committee, Parliament of Victoria, Inquiry into Persons Detained at the Governor’s Pleasure (1995) 29.
10 Ibid 48.
11 Ibid 94–5.
12 Ibid 119.
13 The executive is the administrative arm of government and comprises government employees who work in government departments and
agencies. Ministers, who are members of the legislature, also work as part of the executive.
14 Community Development Committee, above n 9, 2.
15 Ibid 1.
16 Law Reform Commission of Victoria, above n 7, 6.
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