Victoria Legal Aid

Solving problems and supporting recovery

We have been pleased to engage with the Royal Commission into Victoria's Mental Health System, as it considers how to reduce the disproportinate number of people with a mental health issue in the criminal justice system.

Wednesday 1 July 2020 12:00am

People experiencing mental health issues in Victoria would benefit from a range of changes to reduce their likelihood of being caught up in the criminal justice system.

Our Executive Director of Criminal Law, Dan Nicholson, recently participated in a panel discussion about these issues with the Royal Commission into Victoria’s Mental Health System and has provided a witness statementExternal Link to the Commission.

‘We strongly welcome the royal commission’s interest in examining ways to reduce the disproportionate number of people experiencing mental health issues in the criminal justice system,’ said Dan.

‘Most people experiencing mental health issues are not involved in criminal activity, but too many find themselves charged with minor offences as a result of service gaps in the community, and the justice system currently doesn’t support them to recover,’ said Dan.

We recommend a range of changes including:

  • Summary offences reform to reduce the overcriminalisation of people experiencing mental health needs.
  • Increased and consistent use of cautions and diversions by Victoria Police.
  • Expanded access to therapeutic and problem solving court options like the Assessment and Referral Court and the Drug Court.
  • Properly resourced and therapeutically focused bail and community supervision programs.

‘Offences that penalise poverty and addiction, such as begging and low-level possession of drugs for personal use, should be repealed to reduce the overcriminalisation of people with complex needs,’ said Dan.

We also support measures to reduce the reliance on police as first responders to people experiencing a mental health crisis. When police are involved, an increased and consistent use of cautions and diversions is an opportunity to link the person to services and help rather than send them to court.

‘Enforcement of minor offences does not address the underlying circumstances of mental health issues, disability, homelessness and social marginalisation, and can further entrench these issues,’ said Dan.

When charges are appropriate, the criminal justice system should be sufficiently resourced to act as a moment of intervention to help people access the support and services they need to recover.

Watch Abe's story to learn more about how the Assessment and Referral Court helps people to recover and build a safe and fulfilling life.

‘Our practitioners consistently raise the need for more time and space to help a person, not just work on the presenting legal issue, as the thing that would make the biggest difference in being more effective,’ said Dan.

We know that spending time in prison makes it more likely that someone will reoffend.

‘The recent changes to bail laws have significantly increased the number of people on remand, who are not facing a prison term because of the nature of their offending,’ said Dan.

‘Short periods on remand can be particularly detrimental for our vulnerable clients. It’s long enough to disrupt existing supports, such as mental health treatment, training, employment and housing, but not long enough to get access to programs or any meaningful support while in custody.’

Problem solving courts like the Assessment and Referral Court and the Drug Court have an excellent record of supporting people experiencing mental health issues to address the underlying causes of their offending.

‘Problem solving courts should be available to people across Victoria, not just in a few locations, and a therapeutic approach should be the norm for all parts of the criminal justice system.’

We also recommend measures to improve access to mental health treatment in custody, and proper transition planning and support for every person leaving prison – to help them reintegrate to the community and rebuild their lives.

More information

Read Dan Nicholson’s witness statementExternal Link on the Royal Commission into Victoria’s Mental Health System website.

Watch Abe’s story about how the Assessment and Referral Court made a difference in his life.

Reviewed 19 April 2022