Fitness to Plead or Stand Trial Submission by QAI
QAI’s Recommendations to the Tasmania Law Reform Institute
- QAI supports and recommends to this inquiry the 2014 position of the Australian Law Reform Commission (‘ALRC’): that the test for fitness should be reformed consistently with the National Decision-Making Principles.
- People with intellectual impairments are capable of making decisions about their own lives. Intellectual impairment on its own, however defined, should not be a basis on which to deny anyone participation in criminal proceedings.
- The tests for fitness to plead and to stand trial should not be de facto tests of a person’s cognitive capacity: that is, they should not be about a person’s intellectual ability to comprehend specific aspects of legal proceedings and trial process.
- The tests should focus on a person’s decision-making ability, with support, and in the context of the particular criminal proceedings which they face. That is, the tests for fitness should take into account the supports mandated by Article 12 of the Convention on the Rights of Persons with Disabilities.