Ms Nadia Baillie1
1Victorian Institute of Forensic Mental Health (Forensicare), Australia
Biography:
Nadia Baillie has over 20 years’ experience working in top tier legal firms in Australia and the UK, as well as in-house in the university and health sectors. Nadia joined Forensicare, Victoria’s statewide forensic mental health service, in 2017 and is Forensicare’s Chief Legal Officer. Nadia is a passionate, insightful and dedicated lawyer, who champions the rights of those receiving mental health treatment who are in contact with the criminal justice system and the double stigma this presents. Nadia’s work involves advice in relation to the application of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
Abstract:
The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA) replaced the Governor’s pleasure regime in Victoria in 1997.
The CMIA aims to uphold the legal principles that a person should not be tried for an offence if they're not mentally fit to participate in their trial, nor punished for an offence for which they are not criminally responsible. In recognition of these principles, the CMIA aimed to create a therapeutic pathway, separate from the criminal justice pathway.
The CMIA also aimed to address problems identified in the Governor’s pleasure regime, including procedural fairness and independent decision making that objectively balances a person’s rights and community safety.
In this paper the author will explore the flaws in the design of the CMIA and argue that despite the aspiration to rectify issues inherent in the Governor’s pleasure regime, the solution design, and its operation in practice, results in a system doing what it set out to avoid – punish. The author will argue that the CMIA does not appropriately balance the rights of the person against the risk they present to community safety. In doing so, the author will explore the factors that inform a disposition; the impact of setting a nominal term by reference to the maximum penalty under the Sentencing Act 1991; as well as the broader oversight and governance of those placed on supervision orders. The author will draw on existing research and case law, and consider frameworks adopted in other jurisdictions to inform this argument.