Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016

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Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016

PARLIAMENT OF VICTORIA Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 TABLE OF PROVISIONS Clause Page Part 1--Preliminary 1 1 Purposes 1 2 Commencement 3 3 Principal Act 3 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 4 4 Definitions 4 5 New sections 3A, 3B and 3C inserted 5 6 Application to courts and proceedings 8 7 New section 5B inserted 8 8 New sections 6 and 6A substituted 9 9 Presumptions, standard of proof, etc. 11 10 Committals 11 11 New sections 10, 11, 11A and 12 substituted 12 12 Abridgment of adjournment 15 13 What happens at the end of an adjournment? 16 14 New sections 14A, 14B and 14C substituted 17 15 New section 15 substituted 22 16 Procedure at special hearings 22 17 New section 16A inserted 23 18 Findings at special hearings 24 19 Effect of findings 24 20 New section 18A inserted 24 21 New section 19 substituted 26 22 Appeal against unconditional release 26 23 Defence of mental impairment 27 24 When may the question of mental impairment be raised? 27 25 New sections 23 and 24 substituted 28 26 Appeal against unconditional release 30 27 Supervision orders 30 28 New section 26A inserted 30 29 New sections 27 and 27A to 27E substituted 32 30 Nominal term of supervision order 35 31 Appeal against supervision order 35 581189B.I-6/12/2016 i BILL LA INTRODUCTION 6/12/2016

Clause Page 32 Non-compliance with non-custodial supervision order 36 33 Emergency power of apprehension 38 34 Warrant to arrest person breaching non-custodial supervision order who leaves Victoria 38 35 Warrant to arrest person subject to custodial supervision order who leaves Victoria 38 36 Application for variation or revocation of supervision order 39 37 New sections 32 and 33 substituted 39 38 Appeal against confirmation or variation of supervision orders 43 39 Appeal against revocation of non-custodial supervision orders 43 40 Section 35 repealed 43 41 Person subject to supervision order has right to appear 44 42 Other parties may appear 44 43 New section 37A inserted 45 44 Rules of evidence not to apply in certain hearings 46 45 Notice of hearings to persons subject to supervision orders 46 46 Notice of hearings to DPP, Attorney-General and Secretary to Department of Health and Human Services 46 47 Notice of hearings to family members and victims 47 48 New section 38DA inserted 47 49 Provision of information to family members and victims 48 50 List of family members 48 51 Application of Part 48 52 New sections 38K and 38KA substituted 48 53 Presumptions, standard of proof etc. 51 54 Children's Court may make orders pending investigation into fitness 51 55 Procedure on investigation 51 56 New sections 38R and 38RA substituted 52 57 Abridgment of adjournment 54 58 What happens at the end of an adjournment? 54 59 New sections 38U and 38UA substituted 54 60 New section 38V substituted 57 61 Procedure at special hearings 58 62 Findings at special hearings 58 63 Defence of mental impairment 58 64 New sections 38ZGA and 38ZGB inserted 58 65 Supervision orders 60 66 How long does a supervision order last? 60 67 Appeal against supervision order 61 68 Non-compliance with non-custodial supervision order 61 69 Emergency power of apprehension 62 70 Warrant to arrest child breaching non-custodial supervision order who leaves Victoria 62 71 Variation of custodial supervision orders on application or review 62 581189B.I-6/12/2016 ii BILL LA INTRODUCTION 6/12/2016

Clause Page 72 Variation or revocation of non-custodial supervision orders on application or review 63 73 Amendment of sections 38ZS and 38ZT 64 74 Section 38ZW substituted 64 75 Heading to Part 6 substituted 65 76 New sections 39 and 39A substituted 65 77 New Part heading inserted 68 78 New section 40, 41, 41A and 41B substituted 68 79 Reports of family members and victims 73 80 When and how is a report to be made? 74 81 New sections 46A, 46B and 46C inserted 74 82 Certificate of available services 78 83 Application of Division 1 of Part 7 78 84 Applicant profile 78 85 Granting of extended leave 79 86 Leave plan for extended leave 80 87 Appeals regarding extended leave 81 88 Suspension and revocation of extended leave 81 89 Appeals regarding revocation of extended leave 82 90 Transfer of persons from Victoria to a participating State 83 91 Transfer of persons from a participating State to Victoria 83 92 Review of persons transferred to Victoria 84 93 Nominal term of supervision order 84 94 Appeal against unconditional release 85 95 Warrant to arrest person who absconds to Victoria 85 96 Review of interim disposition order 85 97 Nominal term of supervision order 85 98 Appeal against unconditional release 86 99 Part 7C repealed 86 100 Section 74 repealed 86 101 New section 92 inserted 86 102 New Schedule 2 inserted 87 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal 105 Division 1--Amendment of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 105 103 Definitions 105 104 Special leave 105 105 Granting of on-ground or limited off-ground leave 107 106 Applicant profile 109 107 Leave plan or statement 109 108 New section 55 substituted 111 109 Divisions 2 and 3 of Part 7 repealed 112 110 Inadmissibility of evidence in other proceeding 112 111 New section 91 inserted 112 581189B.I-6/12/2016 iii BILL LA INTRODUCTION 6/12/2016

Clause Page 112 Schedules 1 and 2 substituted 113 Division 2--Amendment of Mental Health Act 2014 116 113 Definitions 116 114 Provision of advice, notification or information under this Act 117 115 Functions of the Tribunal 117 116 General powers of the Tribunal 118 117 Membership 118 118 Senior members and ordinary members 118 119 New section 162A inserted 119 120 Community members 119 121 New section 175 substituted 119 122 Annual report of the Tribunal 121 123 Divisions of the Tribunal 121 124 Constitution of the Tribunal 122 125 Who are the parties to a proceeding? 123 126 Interpreters 123 127 Notice of hearing 123 128 Access to documents 124 129 Hearings to be closed to the public 125 130 Determination of proceedings 125 131 Review by VCAT 125 132 New section 206A inserted 126 133 Definition for Part 12 126 134 Authorised psychiatrist may direct taking forensic patient to another designated mental health service 127 135 Chief psychiatrist may direct forensic patient to be taken to another designated mental health service 127 136 Application to Forensic Leave Panel for review of decision to take forensic patient to another designated mental health service 127 137 Disclosure of health information 127 138 Information from electronic health information system 128 139 New Part 16B inserted 128 Part 4--Amendment of other Acts 131 Division 1--Public Prosecutions Act 1994 131 140 Functions of Director 131 Division 2--Criminal Procedure Act 2009 131 141 Amendment of clause 5 of Schedule 1 131 Division 3--Disability Act 2006 131 142 The Senior Practitioner 131 143 Functions of the Senior Practitioner 132 144 Special powers of the Senior Practitioner 132 581189B.I-6/12/2016 iv BILL LA INTRODUCTION 6/12/2016

Clause Page Division 4--Sentencing Act 1991 133 145 New Division 6 of Part 4 inserted 133 Division 5--Confiscation Act 1997 134 146 Definitions 134 147 Meaning of conviction 134 148 Meaning of setting aside a conviction 135 149 New section 15B inserted 136 150 Application for forfeiture order 137 Division 6--Road Safety Act 1986 137 151 New section 28AA inserted 137 Part 5--Repeal 139 152 Repeal of amending Act 139 ═══════════════ Endnotes 140 1 General information 140 581189B.I-6/12/2016 v BILL LA INTRODUCTION 6/12/2016

PARLIAMENT OF VICTORIA Introduced in the Assembly Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 A Bill for an Act to amend the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to implement recommendations of the Victorian Law Reform Commission arising out of its review of that Act, to amend that Act and the Mental Health Act 2014 to transfer functions of the Forensic Leave Panel to the Mental Health Tribunal, to make consequential amendments to other Acts and for other purposes. The Parliament of Victoria enacts: Part 1--Preliminary 1 Purposes The main purposes of this Act are-- (a) to amend the Crimes (Mental Impairment 5 and Unfitness to be Tried) Act 1997 to implement recommendations of the 581189B.I-6/12/2016 1 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 1--Preliminary Victorian Law Reform Commission arising out of its review of that Act, in particular-- (i) to modernise the law relating to unfitness to be tried and include 5 statutory principles applying to adults and children; and (ii) to streamline proceedings under that Act and remove from juries the decision as to whether a person is fit to 10 stand trial; and (iii) to better provide for the distinct needs of people with cognitive impairment under that Act; and (iv) to improve the system for review of 15 supervision orders made under that Act; and (v) to reframe the roles under that Act of the Attorney-General, the Director of Public Prosecutions and the Secretary 20 to the Department of Health and Human Services; and (b) to amend the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and the Mental Health Act 2014 to transfer the 25 functions of the Forensic Leave Panel to the Mental Health Tribunal; and (c) to amend the Sentencing Act 1991, the Confiscation Act 1997 and the Road Safety Act 1986 to allow ancillary orders to 30 be made in relation to certain findings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and (d) to make consequential amendments to other Acts. 581189B.I-6/12/2016 2 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 1--Preliminary 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into 5 operation before 1 July 2018, it comes into operation on that day. 3 Principal Act In this Act, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 is called 10 the Principal Act. 581189B.I-6/12/2016 3 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 4 Definitions 5 (1) In section 3(1) of the Principal Act, for the definition of supervision order substitute-- "supervision order, except in Part 5A, means-- (a) an order under section 26, 73F(4)(a) or 73L(4)(a); or 10 (b) an order made by the Court of Appeal under section 24A(3)(b), 28A(3)(b), 73H(2)(a) or 73N(2)(b);". (2) In section 3(1) of the Principal Act insert the following definitions-- 15 "further progress review means a review of a supervision order under section 27B; initial progress review means a review of a supervision order under section 27A; major progress review means a review of a 20 supervision order under section 27C; progress review means-- (a) an initial progress review; or (b) a further progress review; or (c) a major progress review; 25 psychiatrist means a person who is registered under the Health Practitioner Regulation National Law as a medical practitioner in the speciality of psychiatry (other than as a student); 30 record of subsequent offending order means an order referred to in section 26A(1); 581189B.I-6/12/2016 4 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Secretary to the Department of Justice and Regulation means the Department Head (within the meaning of the Public Administration Act 2004) of the 5 Department of Justice and Regulation;". (3) In section 3(1) of the Principal Act omit the definitions of major review and Secure Treatment Order. 5 New sections 3A, 3B and 3C inserted 10 After section 3 of the Principal Act insert-- "3A Meaning of mental impairment (1) For the purposes of this Act, a mental impairment-- (a) includes-- 15 (i) a mental illness; and (ii) a cognitive impairment, such as an intellectual disability; but (b) does not include a temporary disorder or disturbance of an otherwise healthy 20 mind caused by an external event. Example A person who experiences psychosis as a result of the consumption of a psychoactive drug does not have a mental impairment for the purposes 25 of this Act unless the consumption of the drug has triggered an underlying mental condition that exists independently of the effects of the drug. (2) For the purposes of this Act, a person does 30 not have a mental impairment merely because the person has been diagnosed as having a personality disorder. 581189B.I-6/12/2016 5 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 3B Meaning of unacceptable risk of causing harm (1) This section applies where a provision of this Act requires a court or other decision 5 maker to consider whether or not there is an unacceptable risk of a person causing harm (serious or otherwise) if a certain decision is made or not made in relation to the person. (2) For the avoidance of doubt, the court or 10 decision maker may determine that there is an unacceptable risk of the person causing harm even if the likelihood of the person doing so is less than a likelihood of more likely than not. 15 (3) For the court or decision maker to determine that there is an unacceptable risk of the person causing harm, there must be a sufficient likelihood of the person doing so which, when considered in combination with 20 the nature and gravity of the harm that might result and any other relevant circumstance, makes the risk unacceptable. (4) In a provision to which this section applies, a reference to a person causing harm to any 25 other person includes causing harm to an identifiable person, to any member of an identifiable class of persons or to any members of the community in general. 3C Principles 30 (1) The following must have regard to the principles set out in subsection (2) in relation to any proceeding under this Act or when exercising any power or performing any function under this Act-- 35 (a) a court; (b) the Director of Public Prosecutions; 581189B.I-6/12/2016 6 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (c) the Secretary; (d) the Tribunal; (e) any other person or body. (2) For the purposes of subsection (1), the 5 following principles, where relevant, apply-- (a) restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety 10 of the community; (b) consideration should be given to the needs of everyone affected by the offence including the victim or victims of the offence, the accused and family 15 members of the accused; (c) in conducting any proceeding, making any decision or taking any action, the safety of the community should be considered; 20 (d) any proceeding should be conducted and, where appropriate and consistent with the rights of the accused, modified in a manner that acknowledges the need to involve and provide support to all the 25 people affected by the proceeding, including the victim or victims of the offence, the accused and family members of the accused; (e) unreasonable delay should be avoided 30 particularly-- (i) in matters involving the question of whether an accused is fit to stand trial or where the defence of mental impairment is raised; or 581189B.I-6/12/2016 7 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (ii) where the accused is a child or was a child at the time of the alleged offence.". 6 Application to courts and proceedings 5 In section 4(1) of the Principal Act, for "sections 5, 5A and 25(1)" substitute "sections 3C, 5, 5A, 25(1) and 42 to 46C". 7 New section 5B inserted After section 5A of the Principal Act insert-- 10 "5B Remand in custody (1) Subject to subsections (2) and (3), where a provision of this Act (other than a provision of Part 5A) provides that a court may remand a person in custody, the court may-- 15 (a) remand the person in an appropriate place; or (b) remand the person in a prison; or (c) in the case of an order under section 10(1) made in respect of an 20 accused who is a child--remand the person in a youth justice centre or a youth residential centre. Note Section 38J deals with the restrictions that apply to 25 the remand of a child in custody under Part 5A. (2) The court must not remand a person in custody in an appropriate place, a youth justice centre or a youth residential centre unless the court has received a certificate 30 under section 47 stating that the facilities or services necessary for that order are available. 581189B.I-6/12/2016 8 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) The court must not remand a person in custody in prison unless it is satisfied that there is no practicable alternative in the circumstances.". 5 8 New sections 6 and 6A substituted For section 6 of the Principal Act substitute-- "6 When is a person unfit to stand trial? (1) A person is unfit to stand trial for an offence if the person cannot receive a fair trial 10 because, as a result of the person's mental processes being disordered or impaired, the person is, or at some time during the trial will be, unable to do one or more of the following-- 15 (a) understand the offence with which the person is charged; (b) communicate effectively with, and understand advice given by, the person's legal representative; 20 (c) understand that the trial is an inquiry into whether it can be proved that the person committed the offence charged; (d) enter a plea to the charge and understand the significance of entering 25 a plea to the charge; (e) follow the course of the trial; (f) understand the substantial effect of any evidence that may be given against the person; 30 (g) provide the person's version of the facts to the court, if necessary. (2) A person is not unfit to stand trial only because the person is suffering from memory loss. 581189B.I-6/12/2016 9 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) In determining whether a person is unfit to stand trial, the court must consider the following-- (a) the availability of any support 5 service that would assist the person's understanding of the trial; (b) whether, to assist the person's understanding of the trial, more 10 appropriate communication methods or aids can be used in court; (c) whether court procedure can be appropriately modified to facilitate the person's effective participation in the 15 trial; (d) the likely length and complexity of the trial; (e) whether the person is legally represented; 20 (f) any other relevant matter. 6A When is a person fit to plead guilty? (1) A person who is unfit to stand trial is fit to plead guilty to a charge if the person is able to do all of the following-- 25 (a) understand the offence with which the person is charged; (b) communicate effectively with the person's legal representative and understand advice given by the legal 30 representative as to the plea, including as to the facts that will form the basis of the plea; (c) understand the significance of pleading guilty to the charge; 581189B.I-6/12/2016 10 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (d) follow the course of the procedure that would follow if the person were to plead guilty to the charge. (2) At the hearing of an investigation into the 5 fitness of a person to stand trial under section 11, the court must consider the question of whether the person is fit to plead guilty to the charge if-- (a) the person is represented in relation to 10 the charge by a legal practitioner; and (b) the court is requested to do so by the person's legal representative at any time before the hearing.". 9 Presumptions, standard of proof, etc. 15 (1) In section 7(3)(b) of the Principal Act, for "a jury empanelled for that purpose" substitute "the court at an investigation into the fitness of the accused to stand trial". (2) After section 7(5) of the Principal Act insert-- 20 "(6) If section 6A(2) applies, the question of whether an accused is fit to plead guilty to a charge-- (a) is a question of fact; and (b) is to be determined on the balance 25 of probabilities by the court at an investigation into the fitness of the accused to stand trial.". 10 Committals In section 8(1)(c) and (2)(b) of the Principal Act, 30 for "the trial judge" substitute "the court before which the accused is to be tried". 581189B.I-6/12/2016 11 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 11 New sections 10, 11, 11A and 12 substituted For sections 10, 11 and 12 of the Principal Act substitute-- "10 Court may make orders pending 5 investigation into fitness (1) If a court reserves for investigation the question of the fitness of an accused to stand trial, the court may-- (a) either-- 10 (i) grant the accused bail; or (ii) remand the accused in custody for a specified period; and (b) make any other order the court thinks appropriate. 15 (2) In addition, if the court is of the opinion that it is in the interests of justice to do so, the court may order that a report on the fitness of the accused to stand trial be prepared in accordance with section 40(1) and put before 20 the court. 11 Hearing of investigation into fitness to stand trial (1) At an investigation into the fitness of an accused to stand trial, the court-- 25 (a) must hear any relevant evidence and submissions put to the court by the prosecution and the defence; and (b) if of the opinion that it is in the interests of justice to do so, may do one or both 30 of the following-- (i) call evidence on its own initiative; 581189B.I-6/12/2016 12 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (ii) order that a report on the fitness of the accused to stand trial be prepared in accordance with section 40(1) and put before the 5 court. (2) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an investigation and, for the purposes of the application of Part 3.10, 10 the investigation is taken to be a criminal proceeding. (3) Section 232A of the Criminal Procedure Act 2009 applies to an investigation as if the investigation were a trial. 15 (4) If the court finds that the accused is not fit to stand trial, the court must-- (a) determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the 20 accused is likely to become fit to stand trial within the next 12 months; and (b) if the court determines that the accused is likely to become fit within the next 12 months--specify the period by the 25 end of which the accused is likely to be fit to stand trial. (5) For the purposes of subsection (4), the court may do one or both of the following-- (a) call further evidence on its own 30 initiative; (b) order that a further report on the fitness of the accused to stand trial be prepared in accordance with section 40(1) and put before the court. 581189B.I-6/12/2016 13 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 11A Findings of investigation into fitness to stand trial (1) At an investigation into the fitness of an accused to stand trial, the court may find-- 5 (a) the accused is fit to stand trial; or (b) the accused is not fit to stand trial. (2) If the accused has been found not fit to stand trial and the question of the whether the accused is fit to plead guilty to the charge 10 has been raised in accordance with section 6A(2), the court may find-- (a) the accused is fit to plead guilty to the charge; or (b) the accused is not fit to plead guilty to 15 the charge. 12 What happens after an investigation? (1) If the court finds that the accused is fit to stand trial, the trial must be commenced or resumed in accordance with usual criminal 20 procedures. (2) Subject to subsection (5), if the court finds that the accused is not fit to stand trial but determines that the accused is likely to become fit within the next 12 months, the 25 court must adjourn the matter for the period specified under section 11(4)(b) and may-- (a) either-- (i) grant the accused bail; or (ii) remand the accused in custody 30 for a specified period (not exceeding the period specified under section 11(4)(b)); and 581189B.I-6/12/2016 14 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (b) make any other order the court thinks appropriate. (3) Subject to subsection (5), if the court finds that the accused is not fit to stand trial and 5 determines that the accused is not likely to become fit within the next 12 months, the court must proceed to hold a special hearing under Part 3 within 3 months and may-- (a) either-- 10 (i) grant the accused bail; or (ii) remand the accused in custody for a specified period; and (b) make any other order the court thinks appropriate. 15 (4) If subsection (3) applies, the court may at any time, whether or not the period within which a special hearing must be held has expired, extend that period for a further period not exceeding 3 months. 20 (5) Despite a finding by the court that the accused is not fit to stand trial, if the court finds that the accused is fit to plead guilty to the charge and the accused enters, or has entered, a formal plea of guilty to the charge, 25 the accused must be dealt with in accordance with usual criminal procedures.". 12 Abridgment of adjournment (1) For section 13(2) of the Principal Act substitute-- 30 "(2) An application under subsection (1) must be accompanied by a report on the fitness of the accused to stand trial prepared in accordance with section 40(1).". 581189B.I-6/12/2016 15 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (2) In section 13(3)(c) of the Principal Act, after "satisfied" insert "on the balance of probabilities, having regard to the education, treatment and services received by the accused,". 5 (3) After section 13(3) of the Principal Act insert-- "(4) If under subsection (3)(b) the court orders that the trial of the accused commence or resume, the period of adjournment is taken to have ended and section 14(4), (5), (6) 10 and (7) apply accordingly. (5) If under subsection (3)(c) the court orders that the court proceed to hold a special hearing within 3 months, the court may at any time, whether or not that period has 15 expired, extend that period for a further period not exceeding 3 months.". 13 What happens at the end of an adjournment? For section 14(2) and (3) of the Principal Act substitute-- 20 "(2) If a real and substantial question of fitness is raised again in a report on the fitness of the accused to stand trial prepared in accordance with section 40(1), the court must-- (a) extend the period of adjournment for a 25 further period, but not so that the period since the first finding of unfitness exceeds 12 months; or (b) proceed to hold a special hearing under Part 3 within 3 months if 30 satisfied, having regard to the education, treatment and services received, that the accused is not fit to stand trial. 581189B.I-6/12/2016 16 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) If the court extends the period of adjournment under subsection (2)(a), the court may make any order referred to in section 12(2) or vary any order already 5 made under that section. (3A) If the court decides under subsection (2)(b) to proceed to hold a special hearing, the court may at any time, whether or not the period within which the special hearing must 10 be held has expired, extend that period for a further period not exceeding 3 months.". 14 New sections 14A, 14B and 14C substituted For section 14A of the Principal Act substitute-- "14A Appeal by accused against finding of 15 investigation (1) This section applies if, in a criminal proceeding in the County Court or the Trial Division of the Supreme Court, the question has arisen whether an accused is unfit to 20 stand trial and an investigation under this Part has been conducted to determine that question. (2) With the leave of the Court of Appeal, the accused may appeal to the Court of Appeal 25 on any ground against a finding that-- (a) the accused is not fit to stand trial; or (b) the accused is not fit to plead guilty to the charge; or (c) the accused is fit to stand trial. 581189B.I-6/12/2016 17 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) An application for leave to appeal under subsection (2) is commenced by filing a notice of application for leave to appeal in accordance with the rules of court within 5 28 days after the day on which the finding is made or any extension of that period granted under section 76C. (4) The Registrar of Criminal Appeals of the Supreme Court must provide to 10 the respondent a copy of the notice of application for leave to appeal within 7 days after the day on which the notice of application is filed. (5) If an appeal is commenced under 15 subsection (2)(a) against a finding that the accused is not fit to stand trial-- (a) a special hearing must not be held under Part 3 before the appeal is determined; and 20 (b) any order made under section 12(3) granting the accused bail or remanding the accused in custody may be extended accordingly. (6) On an appeal under subsection (2), the Court 25 of Appeal must allow the appeal if the appellant satisfies the court that-- (a) the finding is unreasonable or cannot be supported having regard to the evidence; or 30 (b) the judge conducting the investigation made a material error of law; or (c) for any other reason the court considers that the finding should not stand. (7) In any other case, the Court of Appeal must 35 dismiss an appeal under subsection (2). 581189B.I-6/12/2016 18 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 14B Action Court of Appeal may take if appeal allowed (1) If the Court of Appeal allows an appeal under section 14A(2)(a) against a finding 5 that the accused is not fit to stand trial, the Court of Appeal must set aside that finding and either-- (a) refer the matter to the Trial Division of the Supreme Court or to the County 10 Court for trial; or (b) remit the matter for a rehearing of the investigation under this Part as to whether the accused is fit to stand trial. (2) Despite subsection (1), if the Court 15 of Appeal allows an appeal under section 14A(2)(a) but considers that the accused is unfit to stand trial, it may affirm the finding and refer the matter to the Trial Division of the 20 Supreme Court or to the County Court. (3) If the Court of Appeal allows an appeal under section 14A(2)(b) against a finding that the accused is not fit to plead guilty to the charge, the Court of Appeal must set 25 aside that finding and either-- (a) where the accused enters, or has entered, a formal plea of guilty to the charge, refer the matter to the Trial Division of the Supreme Court or to 30 the County Court to be dealt with in accordance with usual criminal procedures; or 581189B.I-6/12/2016 19 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (b) remit the matter for a rehearing of the investigation under this Part as to whether the accused is fit to stand trial. (4) If the Court of Appeal allows an appeal 5 under section 14A(2)(c) against a finding that the accused is fit to stand trial, the Court of Appeal must set aside that finding and either-- (a) refer the matter to the Trial Division of 10 the Supreme Court or to the County Court; or (b) remit the matter for a rehearing of the investigation under this Part as to whether the accused is fit to stand trial. 15 (5) If the Court of Appeal refers a matter to the Trial Division of the Supreme Court or to the County Court under subsection (2) or (4)(a), the relevant court must proceed to hold a special hearing under Part 3. 20 (6) If the Court of Appeal remits a matter under subsection (1)(b), (3)(b) or (4)(b) for a rehearing of the investigation-- (a) it may give directions concerning the manner and scope of the rehearing, 25 including a direction as to whether the rehearing is to be conducted by the same judge or a different judge; and (b) the judge conducting the rehearing, whether the same judge who conducted 30 the investigation or a different judge, must hear and determine the matter in accordance with the directions, if any. 581189B.I-6/12/2016 20 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (7) On remitting or referring a matter under this section, the Court of Appeal may-- (a) either-- (i) grant the accused bail; or 5 (ii) remand the accused in custody; and (b) make any other order the court thinks appropriate. 14C Finding of unfitness may be set aside in 10 certain circumstances (1) At any time before a supervision order is made in respect of an accused, the Supreme Court or the County Court may set aside a finding of unfitness to stand trial and make a 15 finding that the accused is fit to stand trial if satisfied that there is a high degree of probability that the accused was feigning unfitness. (2) For the purposes of subsection (1), the court 20 must be satisfied by-- (a) evidence not put before the court conducting the investigation; and (b) a report on the fitness of the accused to stand trial prepared in accordance with 25 section 40(1). (3) Nothing in subsection (1) enables a court to set aside a finding of unfitness if, due to education, treatment and services, the accused becomes fit to stand trial before a 30 supervision order is made. 581189B.I-6/12/2016 21 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (4) If, before the court makes a finding under subsection (1) that the accused is fit to stand trial, a special hearing has been held under Part 3, the court must set aside any finding 5 made by the jury at the special hearing. (5) On the setting aside of a finding of unfitness and the making of a finding under subsection (1) that the accused is fit to stand trial, the trial of the accused must 10 be commenced or resumed in accordance with usual criminal procedures.". 15 New section 15 substituted For section 15 of the Principal Act substitute-- "15 Purpose of special hearings 15 The purpose of a special hearing is to determine, on the evidence available, the criminal responsibility (if any) of an accused who is found not fit to stand trial.". 16 Procedure at special hearings 20 (1) In section 16(2) of the Principal Act, for "subsection (2)" substitute "subsection (1)". (2) For section 16(3) of the Principal Act substitute-- "(3) At a special hearing, the judge may, with the 25 consent of both parties-- (a) excuse the accused from attending; or (b) allow the accused to attend by audiovisual link; or (c) make any reasonable modifications to 30 procedure at the special hearing that the judge believes would assist the accused to attend in person.". 581189B.I-6/12/2016 22 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 17 New section 16A inserted After section 16 of the Principal Act insert-- "16A Explanations to be given to jury (1) At the commencement of a special hearing, 5 the judge must explain to the jury-- (a) that the accused is unfit to be tried in accordance with the usual procedures of a criminal trial; and (b) the meaning of being unfit to stand 10 trial; and (c) the purpose of the special hearing; and (d) the findings that are available; and (e) the standard of proof required for those findings. 15 (2) Subject to this section, the Jury Directions Act 2015 applies to a special hearing as if-- (a) a reference in that Act to a criminal trial were a reference to a special hearing; and 20 (b) a reference in that Act to a trial judge were a reference to a judge presiding at a special hearing; and (c) a reference in that Act to a direction (other than a direction given under 25 Part 3 of that Act) were a reference to any explanation or direction required to be given to the jury in the course of the special hearing, including any explanation required to be given under 30 this section.". 581189B.I-6/12/2016 23 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 18 Findings at special hearings (1) In section 17(1) of the Principal Act, for "The following" substitute "Subject to subsection (3), the following". 5 (2) After section 17(2) of the Principal Act insert-- "(3) A finding under subsection (1)(b) is not a finding available to the jury unless the question of mental impairment has been raised by the defence or, with the leave of 10 the judge, by the prosecution.". 19 Effect of findings (1) Section 18(4) of the Principal Act is repealed. (2) At the foot of section 18 of the Principal Act insert-- 15 "Note Where appropriate, a court may make ancillary orders under the Sentencing Act 1991 (see section 89DJ of that Act), the Confiscation Act 1997 (see section 4(1A) of that Act) or the Road Safety Act 1986 (see section 28AA of that Act) in 20 relation to a person in respect of whom a finding under section 17(1)(b) or (c) has been made.". 20 New section 18A inserted After section 18 of the Principal Act insert-- "18A Action by judge on finding under 25 section 17(1)(c) (1) If a jury makes a finding under section 17(1)(c), the judge must-- (a) declare that the person is liable to supervision under Part 5; or 30 (b) order the person to be released unconditionally; or (c) subject to subsection (3), make a record of subsequent offending order. 581189B.I-6/12/2016 24 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (2) Before taking action under subsection (1), the judge may-- (a) do one or both of the following-- (i) order that a report under 5 section 41 be prepared and filed with the court; (ii) request a certificate of available services under section 47; and (b) adjourn the hearing for that purpose or 10 those purposes. Note Under section 39A(1), a court must not order the release of a person unconditionally unless it has considered a report submitted to it under section 41. 15 (3) The court may make a record of subsequent offending order in respect of the person if-- (a) the person is already subject to a supervision order; and (b) the court considers it would not be 20 appropriate in all the circumstances to make a further supervision order in respect of the new offence or offences. Example The further supervision order would have a 25 nominal term of the same or lesser duration than the remaining term of the current supervision order. (4) If the judge adjourns the hearing under subsection (2), the judge may-- 30 (a) either-- (i) grant the person bail; or (ii) remand the person in custody for a specified period; and 581189B.I-6/12/2016 25 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (b) make any other order the judge thinks appropriate.". 21 New section 19 substituted For section 19 of the Principal Act substitute-- 5 "19 Court may make orders pending making of supervision order (1) If under section 18A(1)(a) the judge declares a person liable to supervision, the judge may, pending the making of the supervision 10 order-- (a) either-- (i) grant the person bail; or (ii) remand the person in custody; and (b) make any other order the court thinks 15 appropriate. (2) If the judge declares a person liable to supervision, the judge must order that a report under section 41 be prepared and filed with the court unless that report has been 20 prepared and filed pursuant to an order under section 18A(2)(a). (3) If a report has been prepared and filed pursuant to an order under section 18A(2)(a), the judge may order that an updated report 25 under section 41 be prepared and filed with the court.". 22 Appeal against unconditional release In section 19A(1) of the Principal Act, for "section 18(4)(b)" substitute "section 18A(1)(b)". 581189B.I-6/12/2016 26 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 23 Defence of mental impairment In section 20(1)(a) and (b) of the Principal Act, for "he or she" (wherever occurring) substitute "the person". 5 24 When may the question of mental impairment be raised? After section 22(2) of the Principal Act insert-- "(2A) In explaining under subsection (2)(a) the legal consequences of the findings available 10 to the jury, the judge must not give any impression concerning the desirability of, or the punitive features or community safety considerations associated with, any particular finding. 15 (2B) Without limiting subsection (2)(a), in explaining the legal consequence of a finding that the accused is not guilty of the offence because of mental impairment, the judge must-- 20 (a) explain that the accused may be made subject to an indefinite supervision order or released unconditionally; and (b) explain that there is a process that must be followed by the judge in deciding 25 which of those options is to apply that includes the judge considering evidence on the risk to community safety and the appropriate treatment for the accused; and 30 (c) refrain from indicating the likelihood of which option would apply.". 581189B.I-6/12/2016 27 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 25 New sections 23 and 24 substituted For sections 23 and 24 of the Principal Act substitute-- "23 Action by court on finding of not guilty 5 because of mental impairment (1) If a person is found not guilty because of mental impairment, the court must-- (a) declare that the person is liable to supervision under Part 5; or 10 (b) order the person to be released unconditionally; or (c) subject to subsection (3), make a record of subsequent offending order. (2) Before taking action under subsection (1), 15 the court may-- (a) do one or both of the following-- (i) order that a report under section 41 be prepared and filed with the court; 20 (ii) request a certificate of available services under section 47; and (b) adjourn the hearing for that purpose or those purposes. Note 25 Under section 39A(1), a court must not order the release of a person unconditionally unless it has considered a report submitted to it under section 41. (3) The court may make a record of subsequent offending order in respect of the person if-- 30 (a) the person is already subject to a supervision order; and 581189B.I-6/12/2016 28 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (b) the court considers it would not be appropriate in all the circumstances to make a further supervision order in respect of the new offence or offences. 5 Example The further supervision order would have a nominal term of the same or lesser duration than the remaining term of the current supervision order. 10 (4) If the court adjourns the hearing under subsection (2)(b), the court may-- (a) either-- (i) grant the accused bail; or (ii) remand the accused in custody for 15 a specified period; and (b) make any other order the court thinks appropriate. 24 Court may make orders pending making of supervision order 20 (1) If under section 23(1)(a) the court declares a person liable to supervision, the court may, pending the making of the supervision order-- (a) either-- 25 (i) grant the person bail; or (ii) remand the person in custody; and (b) make any other order the court thinks appropriate. (2) If the court declares a person liable to 30 supervision, the court must order that a report under section 41 be prepared and filed with the court unless that report has been prepared and filed pursuant to an order under section 23(2)(a). 581189B.I-6/12/2016 29 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) If a report has been prepared and filed pursuant to an order under section 23(2)(a), the court may order that an updated report under section 41 be prepared and filed with 5 the court.". 26 Appeal against unconditional release In section 24A(1) of the Principal Act, for "section 23(b)" substitute "section 23(1)(b)". 27 Supervision orders 10 (1) In section 26(1) of the Principal Act, for "the person4" substitute "the person". (2) After section 26(2) of the Principal Act insert-- "(2A) A supervision order is for an indefinite term. Note 15 However, under section 32 a custodial supervision order may be varied to a non-custodial supervision order and under section 33 a non-custodial supervision order may be revoked by the court.". (3) In section 26(3) of the Principal Act-- 20 (a) in paragraph (b), for "Secretary to the Department of Health and Human Services" substitute "Secretary"; (b) after "are available" insert "and considered the suggested treatment or other plan 25 included in a report under section 41". 28 New section 26A inserted After section 26 of the Principal Act insert-- "26A Record of subsequent offending order (1) A record of subsequent offending order is 30 an order made in respect of a person who is currently subject to a supervision order that-- 581189B.I-6/12/2016 30 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (a) states the further offence or offences in respect of which a finding under section 17(1)(b) or (c) or 20(2) has been made against the person; and 5 (b) includes a list of the victim or victims of that offence or those offences provided to the court by the Director of Public Prosecutions; and (c) states the reasons why the court has 10 declined to declare the person liable to supervision or make a further supervision order in respect of that offence or those offences. (2) Despite section 26(1), the court may decline 15 to make a supervision order in respect of a person who has been declared liable to supervision and instead make a record of subsequent offending order if-- (a) the person is already subject to a 20 supervision order; and (b) the court considers it would not be appropriate in all the circumstances to make a further supervision order in respect of the new offence or offences. 25 Note The court may also make a record of subsequent offending order instead of declaring a person liable to supervision in respect of the offence or offences to which a finding under section 17(1)(b) or (c) or 20(2) 30 has been made. See sections 18A(1)(c) and 23(1)(c). (3) In deciding whether to vary a supervision order under section 32 or 33 or revoke a non-custodial supervision order under section 33, the available evidence to be 35 considered by the court includes any offence or offences in respect of which a record of subsequent offending order has been made. 581189B.I-6/12/2016 31 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (4) A reference in sections 38C and 38E to the victims of the offence with which a person was charged includes the victims of the offence or offences in respect of which a 5 record of subsequent offending order has been made.". 29 New sections 27 and 27A to 27E substituted For section 27 of the Principal Act substitute-- "27 Progress review of supervision order 10 (1) The purpose of a progress review of a supervision order is to monitor the progress, treatment and recovery of a person who is subject to the supervision order in order to determine whether any change should be 15 made to the person's current level of supervision. (2) A progress review of a supervision order must be conducted by the court that made the order. 20 (3) If an initial progress review of a supervision order has been conducted by the court, any subsequent progress review of the order, other than a major progress review, must be conducted as a further progress review 25 despite any variation to the order. Example If an initial review of a non-custodial supervision order has been conducted and the order is subsequently varied to a custodial supervision order, 30 the next progress review of the order (unless it is a major progress review) must be conducted as a further progress review. 27A Initial progress review (1) Within 5 years after making a supervision 35 order, the court must conduct an initial progress review of the order. 581189B.I-6/12/2016 32 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (2) For a custodial supervision order that has a nominal term of 10 years or more, the initial progress review must be conducted on a date as close as is practicable to the expiry of the 5 5 year period referred to in subsection (1). (3) For any other supervision order, the initial progress review must be conducted on any date within that 5 year period considered appropriate by the court. 10 27B Further progress review (1) Within 5 years after completing a progress review of a supervision order, the court must conduct a further progress review of the order. 15 (2) Subsection (1) does not apply if-- (a) as a result of the progress review, the court revokes the supervision order; or (b) the progress review that is completed is a major progress review; or 20 Note For a major progress review, the court must conduct a further major progress review within 5 years. See section 27C. (c) a major progress review of the 25 supervision order is required to be conducted within 5 years after the completion of the progress review and the court does not consider it necessary to conduct a further progress review 30 before then. 27C Major progress review (1) In addition to the purpose set out in section 27(1), the purpose of a major progress review of a supervision order 35 is to determine whether the person who is 581189B.I-6/12/2016 33 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 subject to the order is able to be released from it. (2) The court that made a supervision order must conduct a major progress review of the 5 order-- (a) at least 3 months before the expiry of the nominal term of the order; and (b) after then and for the duration of the order, at intervals not exceeding 10 5 years. 27D Progress review may be conducted on the papers On an application by any of the parties, the court may order the progress review of a 15 supervision order to be conducted on the papers if-- (a) no variation or revocation of the order under section 32 or 33 is sought by any of the parties; and 20 (b) all the parties consent to the progress review being conducted on the papers. 27E Attendance at progress review (1) The following may apply to the court to attend a progress review by audiovisual 25 link-- (a) the person subject to the supervision order being reviewed; (b) any other person required to attend the review hearing. 30 (2) With the consent of all the parties, the court may grant an application under subsection (1).". 581189B.I-6/12/2016 34 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 30 Nominal term of supervision order After section 28(5) of the Principal Act insert-- "(6) If the court varies a custodial supervision order to a non-custodial supervision order 5 before the end of the nominal term, that nominal term continues to run. (7) If the court varies a non-custodial supervision order to a custodial supervision order before the end of the nominal term, 10 that nominal term continues to run.". 31 Appeal against supervision order (1) For section 28A(2) of the Principal Act substitute-- "(2) A person referred to in subsection (2AA) 15 may appeal to the Court of Appeal against a supervision order if the person considers that-- (a) a different supervision order should have been made; and 20 (b) an appeal should be brought in the public interest. (2AA) For the purposes of subsection (2), the following persons may appeal against a supervision order-- 25 (a) the Director of Public Prosecutions; (b) the Secretary.". (2) In section 28A(2C) of the Principal Act, for "the Secretary to the Department of Health and Human Services, the Director of Public 30 Prosecutions or the Attorney-General" substitute "the Director of Public Prosecutions or the Secretary". 581189B.I-6/12/2016 35 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) After section 28A(2C) of the Principal Act insert-- "(2D) A supervision order is not stayed during the appeal period unless an order is made under 5 subsection (2E). (2E) The judge that made the supervision order or, if a notice of appeal is filed, the Court of Appeal may stay the supervision order if satisfied that it is in the interests of justice to 10 do so.". (4) For section 28A(5) of the Principal Act substitute-- "(5) Pending the making of the supervision order in respect of a person under this section, the 15 Court of Appeal may-- (a) order that a report under section 41 be prepared and filed with the court; and (b) either-- (i) grant the person bail; or 20 (ii) remand the person in custody; and (c) make any other order the court thinks appropriate.". (5) Section 28A(6) and (7) of the Principal Act are repealed. 25 32 Non-compliance with non-custodial supervision order (1) In section 29(1) of the Principal Act-- (a) for "(the supervisor), the Secretary to the Department of Health and Human Services" 30 substitute "(the supervisor) or the Secretary"; 581189B.I-6/12/2016 36 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (b) for "supervisor, the Secretary to the Department of Health and Human Services" substitute "supervisor or the Secretary". (2) After section 29(3) of the Principal Act insert-- 5 "(3A) Without limiting its general powers of adjournment, the court may adjourn the hearing of an application under subsection (1) to enable the person to be assessed and treated. 10 (3B) The court may order that the person be detained in an appropriate place and for a period the court considers appropriate to enable the person to be assessed and treated if the court-- 15 (a) is satisfied on the evidence available that it is necessary to do so; and (b) has received a certificate under section 47 stating that the facilities or services necessary for the order are 20 available. (3C) A person may be detained under subsection (3B) only while the application under subsection (1) remains on foot and detention under that provision ends when 25 the application is determined or withdrawn. (3D) The supervisor or the Secretary may withdraw an application made under subsection (1) at any time during an adjournment if satisfied that the variation 30 is no longer required.". 581189B.I-6/12/2016 37 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) At the foot of section 29(4) of the Principal Act insert-- "Note Under section 39A(1), before the court conducts a review 5 of or determines any application in respect of a supervision order, it must consider the report on the mental condition and supervision of the supervised person prepared in accordance with section 41A by the person having the custody, care, control or supervision of the supervised 10 person.". 33 Emergency power of apprehension For section 30(1)(b) of the Principal Act substitute-- "(b) that there will be an unacceptable risk of the 15 person causing serious harm to any other person if the person is not apprehended.". 34 Warrant to arrest person breaching non-custodial supervision order who leaves Victoria In section 30A(1) of the Principal Act-- 20 (a) for "order, the Secretary to the Department of Health and Human Services" substitute "order or the Secretary"; (b) for "supervision, the Secretary to the Department of Health and Human Services" 25 substitute "supervision or the Secretary". 35 Warrant to arrest person subject to custodial supervision order who leaves Victoria (1) In section 30B(1), (1A) and (1B) of the Principal Act, for "Secretary to the Department of Health 30 and Human Services" (wherever occurring) substitute "Secretary". (2) In section 30B(1A) of the Principal Act, after "federal forensic patient" insert "or an international forensic patient within the meaning 35 of section 3(1) of the Mental Health Act 2014". 581189B.I-6/12/2016 38 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) In section 30B(2) of the Principal Act, for "subsection (1) or (1A)" substitute "subsection (1), (1A) or (1B)". 36 Application for variation or revocation of 5 supervision order (1) In section 31(1) of the Principal Act-- (a) in paragraph (c), for "Prosecutions;" substitute "Prosecutions."; (b) paragraph (d) is repealed. 10 (2) For section 31(2) of the Principal Act substitute-- "(2) If an application under this section is made by a person who is subject to a custodial supervision order and the court confirms the 15 order, a later application cannot be made by that person for 18 months or any lesser period as the court directs.". 37 New sections 32 and 33 substituted For sections 32 and 33 of the Principal Act 20 substitute-- "32 Variation of custodial supervision order (1) This section applies to the following proceedings held in respect of a custodial supervision order to which a person is 25 subject-- (a) the initial progress review of the order; (b) a further progress review of the order; (c) a major progress review of the order; (d) the hearing of an application under 30 section 31 for a variation of the order. 581189B.I-6/12/2016 39 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (2) Subject to this section, the court conducting the proceeding must, by order-- (a) confirm the order; or (b) vary the place of custody; or 5 (c) vary the order to a non-custodial supervision order. Note Under section 39A(1), before the court conducts a review of or determines any application in respect of 10 a supervision order, it must consider the report on the mental condition and supervision of the supervised person prepared in accordance with section 41A by the person having the custody, care, control or supervision of the supervised person. 15 (3) At the initial progress review or at any proceeding held before that progress review, the court must not vary the order to a non-custodial supervision order unless satisfied on the evidence available that the 20 person would not pose an unacceptable risk of causing serious harm to any other person as a result of the release of the person on a non-custodial supervision order. (4) At any proceeding held after the initial 25 progress review but before the first major progress review, the court may vary the order to a non-custodial supervision order unless satisfied on the evidence available that the person would pose an unacceptable 30 risk of causing serious harm to any other person as a result of the release of the person on a non-custodial supervision order. (5) At the first major progress review or any proceeding held after that progress 35 review, the court must vary the order to a non-custodial supervision order unless satisfied on the evidence available that 581189B.I-6/12/2016 40 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 the person would pose an unacceptable risk of causing serious harm to any other person as a result of the release of the person on a non-custodial supervision order. 5 (6) In addition to the requirements set out in subsections (3), (4) and (5), the court must not vary the custodial supervision order to a non-custodial supervision order unless-- (a) the person has completed a period of at 10 least 12 months extended leave; or (b) there are exceptional circumstances that have prevented the person from completing 12 months extended leave. (7) If the person has completed a period of at 15 least 12 months extended leave, in deciding whether the person meets the requirements set out in subsections (3), (4) and (5), the court must take into account whether or not the person has complied with any conditions 20 of that leave. (8) If, at a further progress review or a major progress review, the court confirms the custodial supervision order, the court may grant extended leave to the person without 25 the need for a separate application for leave, provided the court could have granted extended leave to the person on an application under section 57. 33 Variation or revocation of non-custodial 30 supervision order (1) This section applies to the following proceedings held in respect of a non-custodial supervision order to which a person is subject-- 581189B.I-6/12/2016 41 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (a) the initial progress review of the order; (b) a further progress review of the order; (c) a major progress review of the order; (d) the hearing of an application under 5 section 31 for the variation or revocation of the order. (2) Subject to this section, the court conducting the proceeding must, by order-- (a) confirm the order; or 10 (b) vary the conditions of the order; or (c) vary the order to a custodial supervision order; or (d) revoke the order. Note 15 Under section 39A(1), before the court conducts a review of or determines any application in respect of a supervision order, it must consider the report on the mental condition and supervision of the supervised person prepared in accordance with section 41A by 20 the person having the custody, care, control or supervision of the supervised person. (3) At the initial progress review or at any proceeding held before that progress review, the court must not revoke the order unless 25 satisfied on the evidence available that the person would not pose an unacceptable risk of causing harm to any other person as a result its revocation. (4) At any proceeding held after the initial 30 progress review but before the first major progress review, the court may revoke the order unless satisfied on the evidence available that the person would pose an unacceptable risk of causing harm to any 35 other person as a result of its revocation. 581189B.I-6/12/2016 42 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (5) At the first major progress review or any proceeding held after that progress review, the court must revoke the order unless satisfied on the evidence available that the 5 person would pose an unacceptable risk of causing harm to any other person as a result of its revocation.". 38 Appeal against confirmation or variation of supervision orders 10 (1) Section 34(2) of the Principal Act is repealed. (2) In section 34(3) of the Principal Act, for "the Attorney-General" substitute "Secretary". (3) In section 34(3C) of the Principal Act, for "the Secretary to the Department of Health 15 and Human Services, the Director of Public Prosecutions or the Attorney-General" substitute "the Director of Public Prosecutions or the Secretary". (4) In section 34(4)(b) and (5)(b) of the Principal 20 Act, for "section 29, 32, 33 or 35" substitute "section 29, 32 or 33". 39 Appeal against revocation of non-custodial supervision orders (1) Section 34A(1) of the Principal Act is repealed. 25 (2) In section 34A(2) of the Principal Act, for "Attorney-General" substitute "Secretary". (3) In section 34A(2B) of the Principal Act, for "the Secretary to the Department of Health and Human Services, the Director of Public 30 Prosecutions or the Attorney-General" substitute "the Director of Public Prosecutions or the Secretary". 40 Section 35 repealed Section 35 of the Principal Act is repealed. 581189B.I-6/12/2016 43 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 41 Person subject to supervision order has right to appear (1) At the foot of section 36(1)(a) of the Principal Act insert-- 5 "Note Paragraph (a) applies to any progress review of a supervision order.". (2) In section 36(1)(c) of the Principal Act, for "person." substitute "person; or". 10 (3) After section 36(1)(c) of the Principal Act insert-- "(d) making a record of subsequent offending order.". 42 Other parties may appear 15 (1) For section 37(1) and (1A) of the Principal Act substitute-- "(1) At any hearing referred to in section 36(1), the Director of Public Prosecutions must appear before the court unless excused by 20 the court from doing so. Note Under section 30 of the Public Prosecutions Act 1994, the Director of Public Prosecutions may delegate any of his or her functions to the Chief 25 Crown Prosecutor or a Crown Prosecutor. (1A) The person having the custody, care, control or supervision of a person who is subject to a supervision order, unless excused by the court from doing so, must appear before the 30 court at any hearing in which the court is considering-- 581189B.I-6/12/2016 44 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (a) varying or revoking the supervision order; or Note Paragraph (a) applies to any progress review of 5 a supervision order. (b) granting extended leave to the person subject to the order; or (c) revoking a grant of extended leave to the person.". 10 (2) In section 37(2) of the Principal Act, for "is entitled or allowed" substitute "must appear or is allowed". (3) After section 37(2) of the Principal Act insert-- "(3) At any hearing at which they are required 15 under this section to appear before the court, the following persons may, but are not required to, make submissions as to the appropriate disposition-- (a) the Director of Public Prosecutions; 20 (b) the person having the custody, care, control or supervision of the person who is subject to the supervision order.". 43 New section 37A inserted 25 After section 37 of the Principal Act insert-- "37A Attendance at hearing (1) The following may apply to the court to attend a hearing referred to in section 36(1) by audiovisual link-- 30 (a) a party to the hearing; (b) any other person required to attend the hearing. 581189B.I-6/12/2016 45 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (2) With the consent of all the parties, the court may grant an application under subsection (1).". 44 Rules of evidence not to apply in certain hearings 5 In section 38(1) of the Principal Act-- (a) in paragraph (a), for "major review" substitute "progress review"; (b) paragraph (b) is repealed. 45 Notice of hearings to persons subject to supervision 10 orders For section 38A(1)(a) of the Principal Act substitute-- "(a) in the case of a progress review--as directed by the court; or". 15 46 Notice of hearings to DPP, Attorney-General and Secretary to Department of Health and Human Services (1) For the heading to section 38B of the Principal Act substitute-- 20 "Notice of hearings to DPP and Secretary". (2) In section 38B(1) of the Principal Act-- (a) paragraph (b) is repealed; (b) in paragraph (c), for "Secretary to the Department of Health and Human Services" 25 substitute "Secretary". (3) For section 38B(2)(a) of the Principal Act substitute-- "(a) in the case of a progress review--as directed by the court; or". 581189B.I-6/12/2016 46 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 47 Notice of hearings to family members and victims (1) At the foot of section 38C(1)(b) of the Principal Act insert-- "Note 5 Under section 26A(4), a reference to the victims of the offence with which a person was charged includes the victims of the offence or offences in respect of which a record of subsequent offending order has been made.". (2) In section 38C(2) of the Principal Act-- 10 (a) in paragraph (a), for "major review" substitute "progress review"; (b) paragraph (b) is repealed. (3) In section 38C(8) of the Principal Act, for ", the Attorney-General or the Secretary to 15 the Department of Health and Human Services" substitute "or the Secretary". 48 New section 38DA inserted After section 38D of the Principal Act insert-- "38DA Means of giving notice to family members 20 or victims (1) This section applies if the Director of Public Prosecutions is required to give notice of a court hearing under section 38C(1) to a family member of a person subject to a 25 supervision order or a victim of the offence with which the person was charged. (2) The Director of Public Prosecutions may give that notice by the means that the Director determines to be the most effective. 30 (3) The Director of Public Prosecutions must take reasonable steps to ascertain-- (a) the contact details of the family members and victims and, if section 38C(4) applies, any 581189B.I-6/12/2016 47 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 persons to whom the notice must be given under that section; and (b) if notice of a hearing has been given to a family member or victim--whether 5 the notice has been received.". 49 Provision of information to family members and victims At the foot of section 38E(2) of the Principal Act insert-- 10 "Note Under section 26A(4), a reference to the victims of the offence with which a person was charged includes the victims of the offence or offences in respect of which a record of subsequent offending order has been made.". 15 50 List of family members In section 38F(2)(b) of the Principal Act omit "or (b)". 51 Application of Part In section 38G(3) of the Principal Act, for "Parts 6 20 (other than sections 39, 40(1) and 47)" substitute "Parts 6, 6A (other than sections 40(2) and 42 to 47)". 52 New sections 38K and 38KA substituted For section 38K of the Principal Act substitute-- 25 "38K When is a child unfit to stand trial? (1) A child is unfit to stand trial for an indictable offence if the child cannot receive a fair hearing in the Children's Court because, as a result of the child's mental processes being 30 disordered or impaired, the child is, or at some time during the hearing will be, unable to do one or more of the following-- (a) understand the offence with which the child is charged; 581189B.I-6/12/2016 48 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (b) communicate effectively with, and understand advice given by, the child's legal representative; (c) understand that the hearing is an 5 inquiry into whether it can be proved that the child committed the offence charged; (d) enter a plea to the charge and understand the significance of entering 10 a plea to the charge; (e) follow the course of the hearing; (f) understand the substantial effect of any evidence that may be given against the child; 15 (g) provide the child's version of the facts to the Children's Court, if necessary. (2) A child is not unfit to stand trial only because the child is suffering from memory loss. 20 (3) In determining whether a child is unfit to stand trial, the Children's Court must consider the following-- (a) the availability of any support service that would assist the child's 25 understanding of the hearing; (b) whether, to assist the child's understanding of the hearing, more appropriate communication methods or aids can be used in court; 30 (c) whether court procedure can be appropriately modified to facilitate the child's effective participation in the hearing; 581189B.I-6/12/2016 49 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (d) the likely length and complexity of the hearing; (e) whether the child is legally represented; (f) any other relevant matter. 5 38KA When is a child fit to plead guilty? (1) A child who is unfit to stand trial is fit to plead guilty to a charge if the child is able to do all of the following-- (a) understand the offence with which the 10 child is charged; (b) communicate effectively with the child's legal representative and understand advice given by the legal representative as to the plea, including 15 as to the facts that will form the basis of the plea; (c) understand the significance of pleading guilty to the charge; (d) follow the course of the procedure that 20 would follow if the child were to plead guilty to the charge. (2) At the hearing of an investigation into the fitness of a child to stand trial under section 38Q, the Children's Court must 25 consider the question of whether the child is fit to plead guilty to the charge if-- (a) the child is represented in relation to the charge by a legal practitioner; and (b) the Children's Court is requested to do 30 so by the child's legal representative at any time before the hearing.". 581189B.I-6/12/2016 50 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 53 Presumptions, standard of proof etc. After section 38L(6) of the Principal Act insert-- "(7) If section 38KA(2) applies, the question of whether a child is fit to plead guilty to a 5 charge-- (a) is a question of fact; and (b) is to be determined on the balance of probabilities by the Children's Court at an investigation into the fitness of the 10 child to stand trial.". 54 Children's Court may make orders pending investigation into fitness For section 38P(c) of the Principal Act substitute-- 15 "(c) if the Children's Court is of the opinion that it is in the interests of justice to do so--an order that a report on the fitness of the child to stand trial be prepared in accordance with section 40(2) and put before the court;". 20 55 Procedure on investigation (1) For section 38Q(1)(b)(ii) and (iii) of the Principal Act substitute-- "(ii) require that a report on the fitness of the child to stand trial be prepared in accordance 25 with section 40(2) and put before the court.". (2) For section 38Q(4) of the Principal Act substitute-- "(4) For the purposes of subsection (3)(a), the Children's Court may do one or both of the 30 following-- (a) call further evidence on the court's own initiative; 581189B.I-6/12/2016 51 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (b) require a further report on the fitness of the child to stand trial be prepared in accordance with section 40(2) and put before the court.". 5 56 New sections 38R and 38RA substituted For section 38R of the Principal Act substitute-- "38R Findings of investigation into fitness to stand trial (1) At an investigation into the fitness of a child 10 to stand trial, the Children's Court may find-- (a) the child is fit to stand trial; or (b) the child is not fit to stand trial. (2) If the child has been found not fit to stand 15 trial and the question of whether the child is fit to plead guilty to the charge has been raised in accordance with section 38KA(2), the Children's Court may find-- (a) the child is fit to plead guilty to the 20 charge; or (b) the child is not fit to plead guilty to the charge. 38RA What happens after an investigation? (1) If the Children's Court finds that the child 25 is fit to stand trial, the hearing must be commenced or resumed in accordance with usual criminal procedures as soon as possible and in any event within 3 months. (2) Subject to subsection (4), if the Children's 30 Court finds that the child is not fit to stand trial but determines that the child is likely to become fit within the next 6 months, the court must adjourn the matter for the period specified under section 38Q(3)(b) and may-- 581189B.I-6/12/2016 52 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (a) either-- (i) grant the child bail; or (ii) remand the child in custody for a specified period (not exceeding 5 the period specified under section 38Q(3)(b)); and (b) make any other order the court thinks appropriate. (3) Subject to subsection (4), if the Children's 10 Court finds that the child is not fit to stand trial and determines that the child is not likely to become fit within the next 6 months, the court must proceed to hold a special hearing under Part 3 as soon as 15 possible and in any event within 3 months and may-- (a) either-- (i) grant the child bail; or (ii) remand the child in custody for 20 a specified period (not exceeding 3 months); and (b) make any other order the court thinks appropriate for the safe custody of the child until the special hearing. 25 (4) Despite a finding by the Children's Court that the child is not fit to stand trial, if the Children's Court finds that the child is fit to plead guilty to the charge and the child enters, or has entered, a formal plea of guilty 30 to the charge, the child must be dealt with in accordance with usual criminal procedures.". 581189B.I-6/12/2016 53 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 57 Abridgment of adjournment (1) In section 38S(1) of the Principal Act, for "section 38R(2)" substitute "section 38RA(2)". (2) For section 38S(2) of the Principal Act 5 substitute-- "(2) An application under subsection (1) must be accompanied by a report on the fitness of the child to stand trial prepared in accordance with section 40(2).". 10 (3) In section 38S(3)(c) of the Principal Act, after "satisfied" insert "on the balance of probabilities, having regard to the treatment and services received by the child,". 58 What happens at the end of an adjournment? 15 (1) In section 38T(1) of the Principal Act, for "section 38R(2)" substitute "section 38RA(2)". (2) In section 38T(2) of the Principal Act, after "raised again" insert "in a report on fitness to stand trial prepared in accordance with 20 section 40(2) in respect of the child". 59 New sections 38U and 38UA substituted For section 38U of the Principal Act substitute-- "38U Appeal against finding of investigation (1) This section applies if, in a criminal 25 proceeding in the Children's Court, the question has arisen whether a child is unfit to stand trial and an investigation under this Division has been conducted to determine that question. 30 (2) The child may appeal to the County Court or, if the Children's Court was constituted by the President or the Chief Magistrate who is a dual commission holder, to the Trial Division of the Supreme Court on any 581189B.I-6/12/2016 54 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ground against a finding of the Children's Court that-- (a) the child is not fit to stand trial; or (b) the child is not fit to plead guilty to the 5 charge; or (c) the child is fit to stand trial. (3) An appeal under subsection (2) is commenced by filing a notice of appeal with a registrar of the Children's Court at 10 any venue of the Children's Court within 28 days after the day on which the finding is made. (4) A copy of the notice of appeal must be served on the respondent in accordance with 15 section 392 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of application is filed. (5) A notice of appeal must be in the form prescribed by the rules of the appellate court. 20 (6) The Children's Court must transmit a notice of appeal filed under this section to the appellate court. (7) On an appeal under subsection (2), the appellate court must allow the appeal if the 25 appellant satisfies the court that-- (a) the finding is unreasonable or cannot be supported having regard to the evidence; or (b) the Children's Court made a material 30 error of law; or (c) for any other reason the appellate court considers that the finding should not stand. 581189B.I-6/12/2016 55 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (8) In any other case, the appellate court must dismiss an appeal under subsection (2). 38UA Action appellate court may take if appeal allowed 5 (1) If the appellate court allows an appeal under section 38U(2)(a) against a finding that the child is not fit to stand trial, the appellate court must set aside that finding and either-- (a) refer the matter to the Children's Court 10 for hearing and determination of the offence charged against the child; or (b) remit the matter for a rehearing of the investigation under this Division as to whether the child is fit to stand trial. 15 (2) Despite subsection (1), if the appellate court allows an appeal under section 38U(2)(a) but considers that the child is unfit to stand trial it may affirm the finding and refer the matter to the Children's Court in which case the 20 Children's Court must proceed to hold a special hearing as soon as possible and, in any event, within 3 months. (3) If the appellate court allows an appeal under section 38U(2)(b) against a finding that the 25 child is not fit to plead guilty to the charge, the appellate court must set aside that finding and either-- (a) refer the matter to the Children's Court for hearing and determination of the 30 offence charged against the child; or (b) remit the matter for a rehearing of the investigation under this Division as to whether the child is fit to stand trial. 581189B.I-6/12/2016 56 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (4) If the appellate court allows an appeal under section 38U(2)(c) against a finding that the child is fit to stand trial, the appellate court must set aside that finding and either-- 5 (a) refer the matter to the Children's Court in which case the Children's Court must proceed to hold a special hearing as soon as possible and, in any event, within 3 months; or 10 (b) remit the matter for a rehearing of the investigation under this Division as to whether the child is fit to stand trial. (5) If the appellate court remits a matter under subsection (1)(b), (3)(b) or (4)(b) for a 15 rehearing of the investigation-- (a) it may give directions concerning the manner and scope of the rehearing; and (b) the Children's Court conducting the investigation must hear and determine 20 the matter in accordance with the directions, if any. (6) On remitting or referring a matter under this section, the appellate court may remand the child in custody or grant bail to the child or 25 make any other order that the court considers appropriate for the safe custody of the child.". 60 New section 38V substituted For section 38V of the Principal Act substitute-- 30 "38V Purpose of special hearings The purpose of a special hearing is to determine, on the evidence available, the criminal responsibility (if any) of a child who is found not fit to stand trial.". 581189B.I-6/12/2016 57 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 61 Procedure at special hearings After section 38W(2) of the Principal Act insert-- "(3) At a special hearing, the Children's Court 5 may, with the consent of both parties-- (a) excuse the child from attending; or (b) allow the child to attend by audiovisual link; or (c) make any reasonable modifications to 10 procedure at the special hearing that the court believes would assist the child to attend in person.". 62 Findings at special hearings (1) In section 38X(1) of the Principal Act, for 15 "The following" substitute "Subject to subsection (3), the following". (2) After section 38X(2) of the Principal Act insert-- "(3) A finding under subsection (1)(b) is not an available finding unless the question of 20 mental impairment has been raised by the defence or, with the leave of the judge, by the prosecution.". 63 Defence of mental impairment In section 38ZA(1) of the Principal Act, for "he or 25 she" (wherever occurring) substitute "the child". 64 New sections 38ZGA and 38ZGB inserted After section 38ZG of the Principal Act insert-- "38ZGA Matters to which Children's Court must have regard 30 (1) The purpose of a supervision order is to ensure that a child receives treatment, support, guidance and assistance for the 581189B.I-6/12/2016 58 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 child's mental impairment or other condition or disability. (2) A custodial supervision order has an additional purpose of protecting the child or 5 the community while the child receives the treatment, support, guidance and assistance referred to in subsection (1). (3) In deciding whether or not to make, vary or revoke a supervision order under this 10 Division, the Children's Court must have regard to-- (a) the need to strengthen and preserve the relationship between the child and the child's family; and 15 (b) the desirability of allowing the living arrangements of the child to continue without interruption or disturbance; and (c) the desirability of allowing the education, training or employment of 20 the child to continue without interruption or disturbance; and (d) the need to minimise stigma and discrimination to the child resulting from a determination of the court. 25 (4) In considering whether a less restrictive order would be more appropriate, the court must have regard to-- (a) whether the child is currently receiving treatment or services pursuant to 30 an order under the Mental Health Act 2014 or the Disability Act 2006; and 581189B.I-6/12/2016 59 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (b) if so, the conditions of the order; and (c) whether any order could be made under one of those Acts as an alternative to the making or continuation of an order 5 under this Act. 38ZGB Release of child or significant change in supervision The Children's Court must not order a child to be released unconditionally or otherwise 10 release a child from custody under this Part or significantly change the degree of supervision to which a child is subject, unless the court-- (a) has considered the report submitted to 15 the court under section 38ZW; and (b) has obtained and considered any other reports the court considers necessary.". 65 Supervision orders Section 38ZH(2) and (3) of the Principal Act are 20 repealed. 66 How long does a supervision order last? At the foot of section 38ZI(3) of the Principal Act insert-- "Note 25 Under section 38ZGB, before the Children's Court considers extending the term of a supervision order, it must consider the report on the mental condition and supervision of the supervised child prepared in accordance with section 38ZW by the person having the custody, care, control or 30 supervision of the supervised child.". 581189B.I-6/12/2016 60 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 67 Appeal against supervision order (1) In section 38ZJ(2) of the Principal Act, for ", the Attorney-General or the Secretary to the Department of Health and Human Services" 5 substitute "or the Secretary". (2) In section 38ZJ(5) of the Principal Act, for "the Secretary to the Department of Health and Human Services, the Director of Public Prosecutions or the Attorney-General" substitute 10 "the Director of Public Prosecutions or the Secretary". (3) After section 38ZJ(7) of the Principal Act insert-- "(7A) A supervision order is not stayed during the 15 appeal period unless an order is made under subsection (7B). (7B) On the filing of a notice of appeal, a magistrate or judge of the Children's Court may stay the supervision order if satisfied 20 that it is in the interests of justice to do so.". (4) In section 38ZJ(10) of the Principal Act, for "registered medical practitioner" substitute "psychiatrist". 68 Non-compliance with non-custodial supervision 25 order In section 38ZK(1) of the Principal Act-- (a) for "(the supervisor), the Secretary to the Department of Health and Human Services" substitute "(the supervisor) or the 30 Secretary"; (b) for "supervisor, the Secretary to the Department of Health and Human Services" substitute "supervisor or the Secretary". 581189B.I-6/12/2016 61 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 69 Emergency power of apprehension (1) For section 38ZL(1)(b) of the Principal Act substitute-- "(b) that there will be an unacceptable risk of 5 the child causing serious harm to any other person if the child is not apprehended.". (2) In section 38ZL(2) of the Principal Act, for "his or her" substitute "the child's". (3) In section 38ZL(3)(a) of the Principal Act, for 10 "he or she" substitute "the appropriate person". 70 Warrant to arrest child breaching non-custodial supervision order who leaves Victoria In section 38ZM(1) of the Principal Act-- (a) for "order, the Secretary to the Department 15 of Health and Human Services" substitute "order or the Secretary"; (b) for "supervision, the Secretary to the Department of Health and Human Services" substitute "supervision or the Secretary". 20 71 Variation of custodial supervision orders on application or review (1) At the foot of section 38ZO(1) of the Principal Act insert-- "Note 25 Under section 38ZGB, before the Children's Court conducts a review of or determines any application in respect of a supervision order, it must consider the report on the mental condition and supervision of the supervised child prepared in accordance with section 38ZW by the person having the 30 custody, care, control or supervision of the supervised child.". 581189B.I-6/12/2016 62 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (2) For section 38ZO(2) of the Principal Act substitute-- "(2) The Children's Court must not vary the custodial supervision order to a 5 non-custodial supervision order unless satisfied on the evidence available that the child would not pose an unacceptable risk of causing serious harm to any other person as a result of the release of the child 10 on a non-custodial supervision order.". (3) In section 38ZO(3) of the Principal Act, for "Unless the Children's Court revokes the order, the court" substitute "The court". (4) After section 38ZO(3) of the Principal Act 15 insert-- "(4) The court may extend the term of the order in accordance with section 38ZI(3).". 72 Variation or revocation of non-custodial supervision orders on application or review 20 (1) At the foot of section 38ZP(1) of the Principal Act insert-- "Note Under section 38ZGB, before the Children's Court conducts a review of or determines any application in respect of a 25 supervision order, it must consider the report on the mental condition and supervision of the supervised child prepared in accordance with section 38ZW by the person having the custody, care, control or supervision of the supervised child.". 30 (2) After section 38ZP(2) of the Principal Act insert-- "(3) Unless the Children's Court revokes the order, the court may extend the term of the order in accordance with section 38ZI(3).". 581189B.I-6/12/2016 63 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 73 Amendment of sections 38ZS and 38ZT In sections 38ZS and 38ZT(3) of the Principal Act, for "Secretary to the Department of Health and Human Services" substitute "Secretary". 5 74 Section 38ZW substituted For section 38ZW of the Principal Act substitute-- "38ZW Report on mental condition and supervision of child subject to supervision 10 order (1) Before the Children's Court conducts a review of, considers extending the term of or determines any application in respect of a supervision order, the person having the 15 custody, care, control or supervision of the child who is subject to the order must prepare and file a report with the court on the mental condition and supervision of the child. 20 (2) The purpose of a report under subsection (1) is to assist the Children's Court in conducting a review of, considering extending the term of or determining an application in respect of the supervision order. 25 Note Section 38ZGB requires the Children's Court to consider the report before it can make certain orders or other determinations in respect of the child to whom it relates. 30 (3) In preparing the report, the person having the care, custody, control or supervision of the child must-- (a) arrange for a psychiatrist or registered psychologist to examine the child and 35 report on-- 581189B.I-6/12/2016 64 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (i) the mental condition of the child; and (ii) the possible effect of the proposed extension, order or variation of the 5 order on the behaviour of the child; and (b) include in the report to the court-- (i) the results of that examination; and 10 (ii) a report on any other relevant matter.". 75 Heading to Part 6 substituted For the heading to Part 6 of the Principal Act substitute-- 15 "Part 6--Matters to which court is to have regard". 76 New sections 39 and 39A substituted For section 39 of the Principal Act substitute-- "39 Matters to which court is to have regard 20 relating to supervision of person (1) This section applies to a court when making any of the following decisions-- (a) whether to declare a person liable to supervision under Part 3 or 4; 25 (b) whether to make, vary or revoke an order under Part 3, 4 or 5 in relation to a person; (c) whether to grant or revoke a grant of extended leave to a person. 581189B.I-6/12/2016 65 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (2) In making the decision, the court must have regard to-- (a) the nature of the person's mental impairment; and 5 (b) the relationship between the mental impairment and the offending conduct; and (c) whether the person is likely to pose a risk of causing harm to any other 10 person or other people generally because of the person's mental impairment; and (d) the need to protect people from such harm; and 15 (e) whether there are adequate facilities or services available in the community for the care or treatment of the person (as the case requires); and (f) the extent to which those facilities or 20 services mitigate any risk posed by the person; and (g) the person's response to treatment and the person's progress towards attaining independence and physical, mental, 25 social and vocational ability; and (h) any other matters the court thinks relevant. (3) In considering whether a less restrictive order would be more appropriate, the court 30 must have regard to-- (a) whether the person is currently receiving treatment or services pursuant to an order under the Mental Health Act 2014 or the Disability Act 2006 581189B.I-6/12/2016 66 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and, if so, the conditions of the order; and (b) whether the making of an order under one of those Acts is likely to be 5 available as an alternative to the making or continuation of an order under this Act. Note The court must have regard also to the principles set out in 10 section 3C. 39A Release of person or significant change in supervision (1) The court must not order a person to be released unconditionally or otherwise 15 release a person from custody under Part 3, 4 or 5 or significantly change the degree of supervision to which a person is subject, unless the court-- (a) has considered the report submitted 20 to the court under section 41 or 41A (as the case may be); and (b) has obtained and considered any other reports the court considers necessary. (2) The court must not order a person to be 25 released unconditionally or otherwise release a person from custody under Part 3, 4 or 5 or significantly reduce the degree of supervision to which a person is subject, unless the court-- 30 (a) is satisfied that each of the family members of the person and each of the victims of the offence have been given reasonable notice of the hearing at which the release or reduction is 35 proposed to be ordered; and 581189B.I-6/12/2016 67 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (b) has considered any report of the family members or victims made under section 42. (3) Subsection (2) does not apply in relation to 5 a family member or victim if section 38C provides that notice is not to be given, or need not be given, to that family member or victim.". 77 New Part heading inserted 10 Before section 40 of the Principal Act insert-- "Part 6A--Reports and certificates". 78 New section 40, 41, 41A and 41B substituted For sections 40 and 41 of the Principal Act 15 substitute-- "40 Report on fitness of accused (1) For the purposes of Part 2, a report on the fitness of the accused to stand trial must be prepared by a psychiatrist or registered 20 psychologist, following an examination of the accused, that-- (a) states, with reference to the criteria set out in section 6(1), whether an impairment or disorder of the accused's 25 mental processes may affect the fitness of the accused to stand trial; and (b) if so, contains-- (i) information regarding any treatment, services and education 30 that has been provided to the accused in relation to that impairment or disorder; and 581189B.I-6/12/2016 68 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (ii) recommendations on any treatment, services and education that may assist the accused to become fit to stand trial; and 5 (c) if requested to do so, states, with reference to the criteria set out in section 6A(1), whether the accused may be fit to plead guilty to the charge. (2) For the purposes of Division 2 of Part 5A, a 10 report on the fitness of a child to stand trial must be prepared by a psychiatrist or registered psychologist, following an examination of the child, that-- (a) states, with reference to the criteria 15 set out in section 38K(1), whether an impairment or disorder of the child's mental processes may affect the fitness of the child to stand trial; and (b) if so, contains-- 20 (i) information regarding any treatment, services and education that has been provided to the child in relation to that impairment or disorder; and 25 (ii) recommendations on any treatment, services and education that may assist the child to become fit to stand trial; and (c) if requested to do so, states, with 30 reference to the criteria set out in section 38KA(1), whether the child may be fit to plead guilty to the charge.". 581189B.I-6/12/2016 69 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 41 Report on mental condition of person-- declaration that person is liable to supervision (1) If a report on a person under this section is 5 ordered by a court under section 18A, 19, 23, 24 or 28A(5), the appropriate person must arrange for a psychiatrist or registered psychologist to prepare a report on the mental condition of the person containing-- 10 (a) a diagnosis and prognosis of the condition or an outline of the person's behavioural problems; and (b) the person's response to treatment, therapy or counselling (if any); and 15 (c) a suggested treatment or other plan for managing the condition. (2) The purpose of a report under subsection (1) is-- (a) to assist the court in deciding whether 20 to declare a person liable to supervision or to release the person unconditionally; and (b) if the person is declared liable to supervision, to assist the court in 25 determining appropriate orders as to the treatment or other plan for managing the person's condition, including whether the supervision should be custodial or non-custodial. 30 Note Section 39A(1) requires the court to consider the report before it can make certain orders or other determinations in respect of the person to whom it relates. 581189B.I-6/12/2016 70 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) The appropriate person must ensure that the report is filed with the court that ordered the report within 30 days after the order is made or within a longer period allowed by the 5 court. (4) In this section-- appropriate person means-- (a) in the case of a report on a person who is in custody in prison--the 10 Secretary to the Department of Justice and Regulation; or (b) in any other case--the Secretary. 41A Report on mental condition and supervision of person subject to 15 supervision order (1) Before a court conducts a progress review of or determines any application in respect of a supervision order, the person having the custody, care, control or supervision 20 of the person who is subject to the order (the supervised person) must prepare and file a report with the court on the mental condition and supervision of the supervised person. 25 (2) The purpose of a report under subsection (1) is to assist the court in conducting a review of or determining an application in respect of the supervision order. Note 30 Section 39A(1) requires the court to consider the report before it can make certain orders or other determinations in respect of the person to whom it relates. 581189B.I-6/12/2016 71 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) In preparing the report, the person having the custody, care, control or supervision of the supervised person must-- (a) arrange for a psychiatrist or registered 5 psychologist to examine the supervised person and report on-- (i) the mental condition of the person; and (ii) the possible effect of the proposed 10 extension, order or variation of the order on the behaviour of the person; and (b) include in the report to the court-- (i) the results of that examination; 15 and (ii) a report on any other relevant matter including, but not limited to, the matters referred to in section 39(2). 20 (4) The person having the custody, care, control or supervision of the person must give a copy of each report filed with the court under subsection (1) to-- (a) the Director of Public Prosecutions; and 25 (b) the legal representative of the supervised person. 41B Annual report on mental condition of person subject to supervision order (1) If a supervision order is made in relation 30 to a person (the supervised person), the person having the custody, care, control or supervision of the supervised person must prepare and file with the court that made the order, at intervals of not more than 581189B.I-6/12/2016 72 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 12 months for the duration of the order, a report containing-- (a) a statement of any treatment, therapy or counselling that the supervised person 5 has undergone, or any services that the person has received, since the making of the order or the last report; and (b) any changes to the prognosis of the supervised person's condition or the 10 person's behavioural problems and the plan for managing the condition or problems. (2) The purpose of a report under subsection (1) is to assist the court in monitoring the 15 supervised person's response to treatment and the person's progress towards attaining independence and physical, mental, social and vocational ability. (3) The person having the custody, care, control 20 or supervision of the supervised person must give a copy of each report filed with the court under subsection (1) to-- (a) the Director of Public Prosecutions; and (b) the legal representative of the 25 supervised person if requested to do so by the legal representative.". 79 Reports of family members and victims (1) After section 42(1) of the Principal Act insert-- "(1A) A report under this section may be made to 30 the Children's Court for the purposes set out in subsection (1), in which case, in this section and in sections 43, 44, 45, 46, 46A, 46B and 46C-- 581189B.I-6/12/2016 73 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (a) any reference to the court is to be read as a reference to the Children's Court; and (b) any reference to the Director of Public 5 Prosecutions is to be read as a reference to the Chief Commissioner of Police.". (2) After section 42(2) of the Principal Act insert-- "(3) A report by a family member or victim may include photographs, drawings or poems and 10 other material that relates to the impact of the offender's conduct on the family member or victim.". 80 When and how is a report to be made? In section 43(1) of the Principal Act-- 15 (a) after paragraph (a) insert-- "(ab) before the Children's Court makes an order under Part 5A in respect of a child; or"; (b) in paragraph (b), for "such an order" 20 substitute "an order referred to in paragraph (a) or (ab)"; (c) in paragraph (c), for "major review" substitute "progress review". 81 New sections 46A, 46B and 46C inserted 25 After section 46 of the Principal Act insert-- "46A Reading aloud of report (1) A person who has made a report under section 42 may request that any part of that report-- 30 (a) is read aloud or displayed at the hearing in relation to which it was made by-- (i) the person making the request; or 581189B.I-6/12/2016 74 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (ii) a person chosen by the person making the request who consents and who is approved by the court for that purpose; or 5 (b) is read aloud in the course of the hearing by the Director of Public Prosecutions. (2) If a request is made under subsection (1) and the person specified in the request is 10 available to do so during the hearing, the court must ensure that any admissible parts of the report that are-- (a) identified in the request; and (b) relevant to the conditions of 15 supervision or the request for leave-- are read aloud or displayed by the person or persons specified in the request in the course of the hearing. (3) For the purposes of subsection (2), the court 20 may direct the person who made the request or the person chosen by that person as to which admissible parts of the report are relevant. (4) Nothing in this section prevents the judge 25 conducting the hearing from reading aloud any admissible part of the report in the course of the hearing. (5) If under this section a person requests that a part of a report under section 42 be read 30 aloud, the Director of Public Prosecutions must notify the person subject to the supervision order of the request. 581189B.I-6/12/2016 75 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 46B Alternative arrangements for reading aloud of report (1) On the application of the person who, under section 46A, is to read aloud a 5 report at a hearing or the Director of Public Prosecutions or on its own motion, the court may direct that alternative arrangements be made for the reading aloud of the report, including any of the following-- 10 (a) permitting the report to be read aloud from a place other than the court room by means of an audiovisual link or any other facility that enables communication between that place 15 and the court room; (b) using screens to remove the person reading the report from the direct line of vision of the person or child who is the subject of the hearing; 20 (c) permitting a person, chosen by the person reading the report and approved by the court for this purpose, to be beside the person reading the report while it is read aloud, for the purpose 25 of providing emotional support to the person reading the report; (d) permitting only persons specified by the court to be present while the report is read aloud; 30 (e) requiring legal practitioners not to robe. (2) The court may, on the application of the person who is to read aloud the report, on the application of the Director of Public Prosecutions or on its own motion, revoke or 35 vary a direction made under subsection (1). 581189B.I-6/12/2016 76 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) For the purposes of this section, the reading aloud of a report includes the display of material included in the report. 46C Alternative arrangements for examination 5 (1) On the application of a person who gives evidence under section 46, on the application of the Director of Public Prosecutions or on its own motion, the court may direct that alternative arrangements be made for the 10 examination and cross-examination of that person. (2) A direction under subsection (1) may include any of the following-- (a) permitting the person to be examined 15 and cross-examined from a place other than the court room by means of an audiovisual link or any other facility that enables communication between that place and the court room; 20 (b) using screens to remove the person from the direct line of vision of the person or child who is the subject of the hearing; (c) permitting a person, chosen by 25 the person being examined and cross-examined and approved by the court for this purpose, to be beside the person being examined and cross-examined during the 30 examination and cross-examination, for the purpose of providing emotional support to the person being examined and cross-examined; (d) permitting only persons specified by 35 the court to be present while the person is being examined and cross-examined; 581189B.I-6/12/2016 77 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (e) requiring legal practitioners not to robe; (f) requiring legal practitioners to be seated while examining or cross-examining the person. 5 (3) The court may, on the application of a person who gives evidence under section 46, on the application of the Director of Public Prosecutions or on its own motion, revoke or vary a direction made under subsection (1).". 10 82 Certificate of available services (1) In section 47(1), (1)(a)(ii), (ab)(ii) and (b)(ii) and (3) of the Principal Act, for "Secretary to the Department of Health and Human Services" substitute "Secretary". 15 (2) In section 47(4) of the Principal Act-- (a) for "Secretary to the Department of Health and Human Services" substitute "Secretary"; (b) for "7 days" substitute "30 days". 20 (3) In section 47(5) of the Principal Act, for "Secretary to the Department of Health and Human Services" substitute "Secretary". 83 Application of Division 1 of Part 7 Section 48(2) of the Principal Act is repealed. 25 84 Applicant profile In section 54A(2) of the Principal Act-- (a) in paragraph (f), for "run." substitute "run; and"; (b) after paragraph (f) insert-- 30 "(g) the date of the next progress review.". 581189B.I-6/12/2016 78 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 85 Granting of extended leave (1) In section 57(1)(b) of the Principal Act, for "Secretary to the Department of Health and Human Services" substitute "Secretary". 5 (2) At the foot of section 57(1) of the Principal Act insert-- "Note Under section 39A(1), before the court conducts a review of or determines any application in respect of a supervision 10 order, it must consider the report on the mental condition and supervision of the supervised person prepared in accordance with section 41A by the person having the custody, care, control or supervision of the supervised person.". 15 (3) For section 57(2) of the Principal Act substitute-- "(2) The court may grant an application under subsection (1) unless satisfied on the evidence available that granting the 20 application for extended leave will result in an unacceptable risk of the forensic patient or forensic resident causing serious harm to themselves or any other person. (2A) In deciding whether to grant extended leave 25 to a person, the court must have regard to-- (a) any on-ground leave and limited off-ground leave granted to the person; and (b) any extended leave previously granted 30 to the person; and 581189B.I-6/12/2016 79 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (c) the person's compliance with the conditions to which leave referred to in paragraph (a) or (b) was subject. Note 5 Section 39 sets out other matters to which a court must have regard in considering applications for extended leave. (2B) The court must not grant an application under subsection (1) unless it has considered 10 the leave plan filed under section 57A.". (4) After section 57(4)(a)(iv) of the Principal Act insert-- "(v) an international forensic patient within the meaning of section 3(1) of the Mental 15 Health Act 2014; or". 86 Leave plan for extended leave (1) In section 57A(b) of the Principal Act, for "Secretary to the Department of Health and Human Services" substitute "Secretary". 20 (2) At the end of section 57A of the Principal Act insert-- "(2) The leave plan must include the following information-- (a) the purpose of the extended leave and 25 how it will contribute to the person's rehabilitation; (b) any proposed conditions of leave; (c) any extended leave that has been granted previously to the person and the 30 person's compliance with the conditions to which that leave was subject; (d) any other information the authorised psychiatrist or Secretary considers relevant; 581189B.I-6/12/2016 80 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (e) any other information required by the court.". 87 Appeals regarding extended leave (1) Section 57B(2) of the Principal Act is repealed. 5 (2) In section 57B(3) of the Principal Act-- (a) for "the Attorney-General" substitute "the Secretary"; (b) paragraph (a) is repealed. (3) In section 57B(3C) of the Principal Act, for 10 "the Secretary to the Department of Health and Human Services, the Director of Public Prosecutions or the Attorney-General" substitute "the Director of Public Prosecutions or the Secretary". 15 88 Suspension and revocation of extended leave (1) In section 58(1) of the Principal Act-- (a) for "Secretary to the Department of Health and Human Services" substitute "Secretary"; 20 (b) for "the safety of the person on leave or members of the public will be seriously endangered if leave is not suspended" substitute "there would be an unacceptable risk of the person causing serious harm to 25 themselves or any other person if the leave is not suspended". (2) For section 58(4)(a) of the Principal Act substitute-- "(a) revoke the leave if satisfied on the evidence 30 available that there would be an unacceptable risk of the person causing serious harm to themselves or any other person if the leave is not revoked; or". 581189B.I-6/12/2016 81 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) In section 58(6) of the Principal Act, for "A person" substitute "Subject to subsection (7), a person". (4) After the note at the foot of section 58(6) of the 5 Principal Act insert-- "(7) Subsection (6) does not apply to a person while the person is on special leave of absence granted under section 50(3) or on-ground or limited off-ground leave 10 granted under section 54(2). Note Sections 50(7) and 54(8) allow a person whose extended leave is suspended under this section to apply, respectively, for special leave of absence or 15 on-ground or limited off-ground leave during the period of suspension.". 89 Appeals regarding revocation of extended leave (1) In section 58A(2) of the Principal Act-- (a) for "Secretary to the Department of Health 20 and Human Services" substitute "Director of Public Prosecutions or the Secretary"; (b) for "the Secretary" substitute "the Director of Public Prosecutions or the Secretary (as the case may be)". 25 (2) Section 58A(3) of the Principal Act is repealed. (3) In section 58A(3C) of the Principal Act, for "the Secretary to the Department of Health and Human Services, the Director of Public Prosecutions or the Attorney-General" substitute 30 "the Director of Public Prosecutions or the Secretary". 581189B.I-6/12/2016 82 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 90 Transfer of persons from Victoria to a participating State (1) In section 73D(1)(b) of the Principal Act, for "Victorian Minister" substitute "Secretary". 5 (2) In section 73D(2) of the Principal Act-- (a) for "Victorian Minister" (where first occurring) substitute "Secretary"; (b) in paragraph (a), for "the chief psychiatrist" substitute "the person referred to in 10 subsection (2A)"; (c) in paragraphs (b) and (c), for "Victorian Minister" substitute "Secretary". (3) After section 73D(2) of the Principal Act insert-- "(2A) For the purposes of subsection (2)(a), the 15 person who may certify the matters referred to in that provision is-- (a) in the case of a person with a mental illness--the chief psychiatrist; and (b) in the case of a person with a cognitive 20 impairment--the Secretary.". 91 Transfer of persons from a participating State to Victoria (1) In section 73E(1)(b) of the Principal Act, for "Victorian Minister" substitute "Secretary". 25 (2) In section 73E(2) of the Principal Act-- (a) for "Victorian Minister" (where first occurring) substitute "Secretary"; (b) in paragraph (a), for "the chief psychiatrist" substitute "the person referred to in 30 subsection (2A)"; (c) in paragraphs (b) and (c), for "Victorian Minister" substitute "Secretary". 581189B.I-6/12/2016 83 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) After section 73E(2) of the Principal Act insert-- "(2A) For the purposes of subsection (2)(a), the person who may certify the matters referred to in that provision is-- 5 (a) in the case of a person with a mental illness--the chief psychiatrist; and (b) in the case of a person with a cognitive impairment--the Secretary.". (4) In section 73E(3) of the Principal Act-- 10 (a) for "Victorian Minister" (where first occurring) substitute "Secretary"; (b) in paragraph (a), for "Victorian Minister" substitute "Secretary"; (c) in paragraph (b), for "Minister" (where twice 15 occurring) substitute "Secretary". (5) In section 73E(5) of the Principal Act, for "Victorian Minister" substitute "Secretary". 92 Review of persons transferred to Victoria (1) In section 73F(1) of the Principal Act, for 20 "Secretary to the Department of Health and Human Services" substitute "Secretary". (2) In section 73F(5) of the Principal Act, for "the safety of the person or members of the public would be seriously endangered" substitute 25 "there would be an unacceptable risk of the transferred person causing serious harm to any other person". 93 Nominal term of supervision order In section 73G(5) of the Principal Act, for 30 "the first major review" substitute "a major progress review". 581189B.I-6/12/2016 84 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 94 Appeal against unconditional release (1) In section 73H(1), (1B) and (1D) of the Principal Act, for "Attorney-General" substitute "Director of Public Prosecutions". 5 (2) For section 73H(4) of the Principal Act substitute-- "(4) Pending the making of a supervision order under this section, the Court of Appeal may-- 10 (a) either-- (i) grant the person bail; or (ii) remand the person in custody; and (b) make any other order the court thinks appropriate.". 15 (3) Section 73H(5) and (6) of the Principal Act are repealed. 95 Warrant to arrest person who absconds to Victoria In section 73J(1) of the Principal Act, for "Secretary to the Department of Health and 20 Human Services" substitute "Secretary". 96 Review of interim disposition order In section 73L(1) of the Principal Act, for "Secretary to the Department of Health and Human Services" substitute "Secretary". 25 97 Nominal term of supervision order In section 73M(3) of the Principal Act, for "the first major review" substitute "a major progress review". 581189B.I-6/12/2016 85 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 98 Appeal against unconditional release (1) In section 73N(1), (1B) and (1D) of the Principal Act, for "Attorney-General" substitute "Director of Public Prosecutions". 5 (2) For section 73N(4) of the Principal Act substitute-- "(4) Pending the making of a supervision order under this section, the Court of Appeal may-- 10 (a) either-- (i) grant the person bail; or (ii) remand the person in custody; and (b) make any other order the court thinks appropriate.". 15 (3) Section 73N(5) and (6) of the Principal Act are repealed. 99 Part 7C repealed Part 7C of the Principal Act is repealed. 100 Section 74 repealed 20 Section 74 of the Principal Act is repealed. 101 New section 92 inserted After section 91 of the Principal Act insert-- "92 Savings and transitional provisions-- Crimes (Mental Impairment and 25 Unfitness to be Tried) Amendment Act 2016 Schedule 2 has effect.". 581189B.I-6/12/2016 86 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 102 New Schedule 2 inserted After Schedule 1 to the Principal Act insert-- "Schedule 2--Savings and transitional provisions--Crimes 5 (Mental Impairment and Unfitness to be Tried) Amendment Act 2016 Division 1--General 1 Definition In this Schedule-- 10 commencement day means the day on which Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 2016 comes into operation. 15 2 Criminal proceedings Subject to anything to the contrary in this Division, the amendments to this Act by Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment 20 Act 2016 apply only in respect of-- (a) a criminal proceeding in the Children's Court commenced on or after the commencement day; and (b) any other criminal proceeding in which 25 the accused is committed for trial or a direct indictment is filed against the accused on or after the commencement day. 581189B.I-6/12/2016 87 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 3 Mental impairment Section 3A applies only to a criminal proceeding in relation to conduct alleged to have occurred on or after the commencement 5 day. 4 Principles (1) Section 3C applies to-- (a) any proceeding under this Act commenced on or after the 10 commencement day; or (b) any power exercised or any function performed under this Act on or after the commencement day. (2) Subclause (1) applies irrespective of 15 whether the matter that is the subject of the proceeding or in relation to which the power is exercised or the function performed, occurred before, on or after the commencement day. 20 5 Investigation into fitness to stand trial (1) An investigation into the fitness of an accused (other than a child) to stand trial commenced on or after the commencement day must be heard under Part 2 of this Act as 25 amended by Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 2016 whether-- (a) the accused was committed for trial before, on or after the commencement 30 day; or (b) a court reserved for investigation the question of the fitness of the accused to stand trial before, on or after the commencement day. 581189B.I-6/12/2016 88 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (2) An investigation into the fitness of a child to stand trial commenced on or after the commencement day must be heard under Division 2 of Part 5A as amended by Part 2 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 2016 whether-- (a) the child was committed for trial before, on or after the commencement 10 day; or (b) the Children's Court reserved for investigation the question of the fitness of the child to stand trial before, on or after the commencement day. 15 6 Special hearing (1) A special hearing of an accused (other than a child) found unfit to stand trial commenced on or after the commencement day must be heard under Part 3 as amended by Part 2 of 20 the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 2016 whether-- (a) the accused was committed for trial before, on or after the commencement 25 day; or (b) the accused was found unfit to stand trial before, on or after the commencement day. (2) A special hearing of a child found unfit 30 to stand trial commenced on or after the commencement day must be heard under Division 3 of Part 5A as amended by Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment 35 Act 2016 whether-- 581189B.I-6/12/2016 89 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (a) the child was committed for trial before, on or after the commencement day; or (b) the child was found unfit to stand trial 5 before, on or after the commencement day. 7 Action taken on finding of not guilty because of mental impairment (1) If, before the commencement day, a person 10 has been found not guilty because of mental impairment but the court has not made further orders in respect of the person before that day, the court may take any action that the court may take under section 23 as 15 substituted by Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 2016. (2) Despite clause 3, subclause (1) applies whether the conduct in respect of which the 20 finding is made occurred before, on or after the commencement day. 8 Action taken in finding accused committed the offence If, before the commencement day, a finding 25 under section 17(1)(c) has been made but the court has not made further orders in respect of the person before that day, the court may take any action that the court may take under section 18A as inserted by Part 2 of the 30 Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 2016. 581189B.I-6/12/2016 90 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 9 Declaration that person is liable to supervision If, before the commencement day, a court declares that a person is liable to supervision 5 under Part 5 but a supervision order has not been made in respect of the person before that day, the court must-- (a) make a supervision order under section 26 in respect of the person; or 10 (b) make a record of subsequent offending order in respect of the person if-- (i) the person is already subject to a supervision order; and (ii) the court considers it would 15 not be appropriate in all the circumstances to make a further supervision order in respect of the new offence or offences. 10 Supervision orders 20 Subject to Division 2, on and after the commencement day, Part 5 as amended by Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 2016 applies to all supervision orders in 25 force immediately before the commencement day. 11 Reports On and after the commencement day-- (a) the results of an examination ordered 30 under section 28A(5)(d) before that day are taken to be a report prepared under section 41A; and 581189B.I-6/12/2016 91 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (b) a report prepared under section 40(2)(ab) before that day is taken to be a report prepared under section 41A; and 5 (c) a report prepared under section 41(3) before that day is taken to be an annual report prepared under section 41B. 12 Extended leave (1) If, before the commencement day, an 10 application for extended leave has been made but the hearing of the application has not commenced before that day, the application must be heard under section 57 as amended by Part 2 of the of the Crimes 15 (Mental Impairment and Unfitness to be Tried) Amendment Act 2016 unless, under Division 2, the hearing must be conducted as progress review of the supervision order. (2) On and after the commencement day, 20 Part 7 as amended by Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 2016 applies to all extended leave in force immediately before the commencement day. 25 13 Interstate transfers (1) On and after the commencement day, an order by the Victorian Minister under section 73D authorising the transfer of a person who is subject to a supervision 30 order to a participating State that is in force immediately before that day is taken to be an order by the Secretary under that section. 581189B.I-6/12/2016 92 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (2) On and after the commencement day, an agreement given by the Victorian Minister under section 73E to the transfer of a person who is subject to an interstate supervision 5 order to Victoria that is in force immediately before that day is taken to be an agreement given by the Secretary under that section. 14 Appeals (1) If a finding or a decision is made on or after 10 the commencement day, an appeal to the Court of Appeal or other appellate court against the finding or decision must be made, and the hearing of the appeal conducted, in accordance with this Act as amended by 15 Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 2016. (2) Subclause (1) applies whether the proceeding in which the finding or decision is made 20 commenced before, on or after the commencement day. (3) If, on or after the commencement day, the Court of Appeal or any other appellate court allows an appeal and remits the matter for 25 rehearing, the rehearing must be conducted in accordance with this Act as amended by Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 2016. 30 (4) Subclause (3) applies whether the appeal was commenced before, on or after the commencement day. 581189B.I-6/12/2016 93 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Division 2--Reviews of supervision orders 15 Definitions (1) In this Division-- 5 major review means a major review of a supervision order conducted under section 35 as in force immediately before the commencement day; review, of a supervision order, means-- 10 (a) a review ordered by the court under section 27(2), 32(5) or 33(2) as in force immediately before the commencement day; and (b) a hearing of an application under 15 section 31(1) for a variation of a supervision order; and (c) a hearing of an application under section 57(1) for extended leave; the court, in relation to a supervision order, 20 means the court that made the order. (2) For the purposes of this Division, except clause 23 and 24-- (a) a reference to a custodial supervision order is taken to be a reference to a 25 supervision order made as a custodial supervision order; and Example A custodial supervision order that is later varied to a non-custodial supervision order. 581189B.I-6/12/2016 94 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (b) a reference to a non-custodial supervision order is taken to be a reference to a supervision order made as a non-custodial supervision order. 5 Example A non-custodial supervision order that is later varied to a custodial supervision order. 16 General (1) This Division applies to supervision orders 10 in force immediately before the commencement day. (2) Where, under this Division, the Secretary is required to arrange with the courts the date on which a progress review of a supervision 15 order is to be conducted, the Secretary-- (a) must take into account-- (i) the time elapsed since the last review of the supervision order was conducted; or 20 (ii) if no review of the supervision order has been conducted, the time elapsed since the court made the supervision order; and (b) give priority to those orders for which 25 no review has been conducted in the previous 5 years. 17 Major progress review to be conducted in place of major review If, immediately before the commencement 30 day, a major review of a supervision order is required to be undertaken within a certain timeframe, the major review must be conducted by the court as a major progress review of the order within that timeframe. 581189B.I-6/12/2016 95 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 18 Custodial supervision orders with a nominal term of 10 years or more made within 4 years before commencement day (1) This clause applies to a custodial supervision 5 order with a nominal term of 10 years or more made within 4 years before the commencement day. (2) The court must conduct an initial progress review of the order within 6 months before 10 or after the fifth anniversary of the day on which the court made the order. (3) For the purposes of subclause (2), if, immediately before the commencement day, a review of the order is due to be heard 15 within the period referred to in subclause (2), that review must be conducted by the court as an initial progress review of the order, otherwise the Secretary must arrange with the court for an initial progress review of the 20 order to be conducted on a date as close as possible to the fifth anniversary of the day on which the court made the order. 19 Custodial supervision orders with a nominal term of less than 10 years made 25 within 4 years before commencement day (1) This clause applies to a custodial supervision order with a nominal term of less than 10 years made within 4 years before the commencement day. 30 (2) The court must conduct a progress review of the order in accordance with this clause unless a major review of the order is required to be undertaken within-- (a) 2 years after the commencement day; or 35 (b) 5 years after the date on which the court made the order. 581189B.I-6/12/2016 96 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (3) The progress review must be conducted as-- (a) an initial progress review, if no review of the order has been conducted by the court before the commencement day; or 5 (b) a further progress review, in any other case. (4) For the purposes of subclause (2), if, immediately before the commencement day, a review of the order is due to be heard 10 within 5 years after the day on which the court made the order, that review must be conducted by the court as a progress review of the order, otherwise the Secretary must arrange with the court for a progress review 15 of the order to be conducted on a date within that period. 20 Non-custodial supervision orders made within 4 years before commencement date (1) This clause applies to a non-custodial 20 supervision order made within 4 years before the commencement day. (2) The court must conduct a progress review of the order in accordance with this clause unless a major review of the order is required 25 to be undertaken within-- (a) 2 years after the commencement day; or (b) 5 years after the date on which the court made the order. (3) If no review of the order has been conducted 30 before the commencement day, the court must conduct an initial progress review of the order within 5 years after the day on which the court made the order. 581189B.I-6/12/2016 97 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (4) For the purposes of subclause (3), if, immediately before the commencement day, a review of the order is due to be heard within 5 years after the day on which the 5 court made the order, that review must be conducted by the court as an initial progress review of the order, otherwise the Secretary must arrange with the court for an initial progress review of the order to be conducted 10 on a date within that period. (5) If a review of the order has been conducted before the commencement day, the court must conduct a further progress review of the order within 5 years after the last review of 15 the order. (6) For the purposes of subclause (5), if, immediately before the commencement day, a review of the order is due to be heard within 5 years after the last review of the 20 order, that review must be conducted by the court as a further progress review of the order, otherwise the Secretary must arrange with the court for a further progress review of the order to be conducted on a date within 25 that period. 21 Custodial supervision orders made 4 years or more before commencement day (1) This clause applies to a custodial supervision order made 4 years or more before the 30 commencement day. (2) The court must conduct a progress review of the order in accordance with this clause unless a major review of the order is required to be undertaken within-- 581189B.I-6/12/2016 98 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (a) 2 years after the commencement day; or (b) 5 years after the date on which the court made the order. (3) The progress review must be conducted as-- 5 (a) an initial progress review, if no review of the order has been conducted by the court before the commencement day; or (b) a further progress review, in any other case. 10 (4) If a review of the order has not been conducted within 3 years before the commencement day, the court must conduct a progress review of the order within 2 years after the commencement day. 15 (5) For the purposes of subclause (4), if, immediately before the commencement day, a review is due to be heard within 2 years after the commencement day, that review must be conducted by the court as a progress 20 review of the order, otherwise the Secretary must arrange with the court for a progress review of the order to be conducted on a date within that period. (6) If a review of the order has been conducted 25 within the 3 years before the commencement day, the court must conduct a progress review of the order within 5 years after the last review of the order. (7) For the purposes of subclause (6), if, 30 immediately before the commencement day, a review of the order is due to be heard within 5 years after the last review of the order, that review must be conducted by the court as a progress review of the order, 35 otherwise the Secretary must arrange with the court for a further progress review of the 581189B.I-6/12/2016 99 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 order to be conducted on a date within that period. 22 Non-custodial supervision orders made 4 years or more before commencement 5 day (1) This clause applies to a non-custodial supervision order made 4 years or more before the commencement day. (2) The court must conduct a progress review 10 of the order in accordance with this clause unless a major review of the order is required to be undertaken within-- (a) 2 years after the commencement day; or (b) 5 years after the date on which the court 15 made the order. (3) If a review of the order has not been conducted before the commencement day, the court must conduct a progress review of the order within 2 years after the 20 commencement day. (4) For the purposes of subclause (3), if, immediately before the commencement day, a review of the order is due to be heard within 2 years after the commencement day, 25 that review must be conducted by the court as a further progress review of the order, otherwise the Secretary must arrange with the court for a further progress review of the order to be conducted on a date within that 30 period. 581189B.I-6/12/2016 100 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (5) If a review of the order has been conducted before the commencement day and, immediately before the commencement day, a further review is due to be heard within 5 5 years after the last review, the further review must be conducted by the court as a further progress review of the order. (6) If a review of the order has been conducted before the commencement day but, 10 immediately before the commencement day, no further review is due to be heard within 5 years after the last review, the Secretary must arrange with the court-- (a) for any later review to be brought 15 forward to a date within that period and to be conducted as a further progress review of the order; or (b) in any other case, for a further progress review of the order to be conducted on 20 a date within 5 years after the last review. 23 Hearing of application for variation or revocation of supervision order (1) This clause applies if, in respect of a 25 supervision order made before the commencement day-- (a) an application is made on or after the commencement day for a variation or the revocation of a supervision order; 30 and (b) the application is heard before a progress review of the order has been arranged in accordance with this Division. 581189B.I-6/12/2016 101 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (2) If the first progress review of the order that would be conducted under this Division is an initial progress review, the hearing of the application must be conducted as if-- 5 (a) section 32(3) applied to the proceeding, in the case of a custodial supervision order; or (b) section 33(3) applied to the proceeding, in the case of a non-custodial 10 supervision order. (3) If the first progress review of the order that would be conducted under this Division is a further progress review or the first major progress review, the hearing of the 15 application must be conducted as if-- (a) section 32(4) applied to the proceeding, in the case of a custodial supervision order; or (b) section 33(4) applied to the proceeding, 20 in the case of a non-custodial supervision order. (4) If the first progress review of the order that would be conducted under this Division is a further major progress review, the hearing of 25 the application must be conducted as if-- (a) section 32(5) applied to the proceeding, in the case of a custodial supervision order; or (b) section 33(5) applied to the proceeding, 30 in the case of a non-custodial supervision order. 581189B.I-6/12/2016 102 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 24 Review ordered by court (1) This clause applies if-- (a) immediately before the commencement day, a review ordered by the court is, or 5 is required to be heard on a day on or after the commencement day; and (b) the review is not required under this Division to be heard as a progress review of a supervision order. 10 (2) The Secretary, with the consent of all parties to the review, may request the court not to proceed with the review. (3) If the court proceeds with the review and the first progress review of the order following 15 the review is an initial progress review, the review must be conducted as if-- (a) section 32(3) applied to the proceeding, in the case of a custodial supervision order; or 20 (b) section 33(3) applied to the proceeding, in the case of a non-custodial supervision order. (4) If the court proceeds with the review and the first progress review of the order following 25 the review is a further progress review, the hearing of the application must be conducted as if-- (a) section 32(4) applied to the proceeding, in the case of a custodial supervision 30 order; or (b) section 33(4) applied to the proceeding, in the case of a non-custodial supervision order. 581189B.I-6/12/2016 103 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 2--General amendments to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 25 Exercise of powers where review conducted as progress review If, under this Division, the hearing of an application by the person subject to a 5 supervision order must be conducted as a progress review of the supervision order, the court may exercise any power that the court could exercise in hearing the application. Example 10 If the hearing of an application under section 57 for extended leave is conducted as a progress review of a supervision order, the court may grant the application for extended leave.". 581189B.I-6/12/2016 104 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal Division 1--Amendment of Crimes (Mental 5 Impairment and Unfitness to be Tried) Act 1997 103 Definitions (1) In section 3(1) of the Principal Act insert the following definitions-- "Secretary means the Department Head (within 10 the meaning of the Public Administration Act 2004) of the Department of Health and Human Services; Tribunal means the Mental Health Tribunal established under section 152 of the Mental 15 Health Act 2014;". (2) In section 3(1) of the Principal Act omit the definitions of judicial member, Panel and President. 104 Special leave 20 (1) In section 50(2)(b) of the Principal Act, for "Secretary to the Department of Health and Human Services" substitute "Secretary". (2) For section 50(3) of the Principal Act substitute-- 25 "(3) Subject to subsection (3A), the authorised psychiatrist or Secretary must grant an application for special leave of absence if satisfied that there are special circumstances that justify doing so. 581189B.I-6/12/2016 105 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal (3A) The authorised psychiatrist or Secretary must refuse to grant special leave of absence if satisfied that the forensic patient or forensic resident would present an unacceptable risk 5 of causing serious harm to any other person if leave is granted.". (3) In section 50(4) of the Principal Act-- (a) for "Secretary to the Department of Health and Human Services" substitute 10 "Secretary"; (b) for "appeal to the Panel" substitute "apply to the Tribunal for a review of the decision". (4) After section 50(4) of the Principal Act insert-- "(4A) The Tribunal must hear and determine an 15 application under subsection (4) as soon as practicable after it is made.". (5) In section 50(5) of the Principal Act-- (a) for "On an appeal, the Panel" substitute "On hearing the application, the Tribunal"; 20 (b) in paragraph (a), for "Secretary to the Department of Health and Human Services" substitute "Secretary"; (c) in paragraph (b), for "allowed" substitute "granted". 25 (6) In section 50(6)(b) of the Principal Act-- (a) for "Secretary to the Department of Health and Human Services" substitute "Secretary"; (b) for "Panel" substitute "Tribunal". 581189B.I-6/12/2016 106 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal (7) After section 50(6) of the Principal Act insert-- "(7) If extended leave granted to a forensic patient or forensic resident is suspended under section 58, the forensic patient or 5 forensic resident, or a person on their behalf, may apply for special leave of absence during the period of suspension.". 105 Granting of on-ground or limited off-ground leave (1) In section 54(1) of the Principal Act-- 10 (a) for "Panel" substitute "Tribunal"; (b) in paragraph (b), for "Secretary to the Department of Health and Human Services" substitute "Secretary". (2) After section 54(1) of the Principal Act insert-- 15 "(1A) The Tribunal must hear and determine an application under subsection (1) as soon as practicable after it is made.". (3) For section 54(2) and (3) of the Principal Act substitute-- 20 "(2) Subject to subsection (3), the Tribunal may-- (a) grant an application for on-ground leave or limited off-ground leave; or (b) grant an application for a variation of 25 on-ground leave or limited off-ground leave-- if satisfied on the evidence available that the proposed leave, or proposed variation, will contribute to the person's rehabilitation. 581189B.I-6/12/2016 107 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal (3) The Tribunal must not grant an application for on-ground leave or limited off-ground leave or for a variation of that leave if satisfied that the person would present an 5 unacceptable risk of causing serious harm to themselves or any other person if the proposed leave is granted or the leave is varied as proposed.". (4) In section 54(4) of the Principal Act-- 10 (a) for "Panel" substitute "Tribunal"; (b) in paragraph (c), for "section 54B." substitute "section 54B; and"; (c) after paragraph (c) insert-- "(d) have regard to whether any on-ground 15 or limited off-ground leave has been granted previously and, if so, the person's compliance with the conditions to which that leave was subject; and (e) consider the person's response to 20 treatment and the person's progress towards attaining independence and physical, mental, social and vocational ability.". (5) In section 54(5) of the Principal Act-- 25 (a) for "Panel" substitute "Tribunal"; (b) for "Secretary to the Department of Health and Human Services" substitute "Secretary". (6) After section 54(5) of the Principal Act insert-- 30 "(5A) In deciding what conditions are appropriate for the purposes of subsection (5), the Tribunal must have regard to the circumstances of the person's family members and the victims of the offence, 581189B.I-6/12/2016 108 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal where those circumstances are known to the Tribunal.". (7) After section 54(7) of the Principal Act insert-- "(8) If extended leave granted to a forensic 5 patient or forensic resident is suspended under section 58, the forensic patient or forensic resident, or a person on their behalf, may apply for on-ground leave or limited off-ground leave during the period of 10 suspension.". 106 Applicant profile (1) In section 54A(1) of the Principal Act-- (a) for "Panel" substitute "Tribunal"; (b) in paragraph (c), for "Secretary to the 15 Department of Health and Human Services" substitute "Secretary". (2) After section 54A(2) of the Principal Act insert-- "(3) In addition, the applicant profile must include any other information requested by 20 the Tribunal.". 107 Leave plan or statement (1) In section 54B(1) of the Principal Act-- (a) for "Panel" substitute "Tribunal"; (b) in paragraph (c), for "Secretary to the 25 Department of Health and Human Services" substitute "Secretary". 581189B.I-6/12/2016 109 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal (2) For section 54B(2) of the Principal Act substitute-- "(2) The leave plan must include-- (a) information concerning-- 5 (i) the purpose of the leave applied for and how it will contribute to the person's rehabilitation; and (ii) any proposed conditions of leave; and 10 (iii) any on-ground or limited off-ground leave that has been granted previously to the person and the person's compliance with the conditions to which that leave 15 was subject; and (iv) the likelihood of the forensic patient of forensic resident causing serious harm to any other person if the leave is granted and 20 how any risk of serious harm would be mitigated; and (b) any other information the authorised psychiatrist or the Secretary considers relevant; and 25 (c) any other information requested by the Tribunal.". (3) In section 54B(3) and (3)(c) of the Principal Act, for "Panel" substitute "Tribunal". 581189B.I-6/12/2016 110 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal 108 New section 55 substituted For section 55 of the Principal Act substitute-- "55 Suspension of special leave, on-ground leave or limited off-ground leave 5 (1) Special leave of absence, on-ground leave or limited off-ground leave may be suspended in accordance with this section by-- (a) in the case of a forensic patient-- the authorised psychiatrist for the 10 designated mental health service in which the patient is detained or the chief psychiatrist; or (b) in the case of a forensic resident-- the Secretary. 15 (2) The chief psychiatrist, authorised psychiatrist or Secretary at any time may suspend the leave wholly or partly if satisfied on the evidence available that the person would present an unacceptable risk of causing 20 serious harm to themselves or any other person if the leave, or part of the leave, is not suspended. (3) If leave is suspended, the chief psychiatrist, authorised psychiatrist or Secretary must 25 give written notification of the suspension to the person whose leave is suspended. (4) The chief psychiatrist, authorised psychiatrist or Secretary must lift the suspension immediately if satisfied that the reason for 30 the suspension no longer exists. 581189B.I-6/12/2016 111 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal (5) The chief psychiatrist, authorised psychiatrist or Secretary must give notice of any suspension of leave, or the lifting of the suspension, under this section to the person 5 or body that granted the leave (except where the Secretary suspends special leave granted by the Secretary). (6) A person whose leave is wholly or partly suspended under this section is taken not to 10 have the suspended part of the leave of absence during the period of suspension.". 109 Divisions 2 and 3 of Part 7 repealed Divisions 2 and 3 of Part 7 of the Principal Act are repealed. 15 110 Inadmissibility of evidence in other proceeding In section 76(1) of the Principal Act, in the definition of hearing-- (a) in paragraph (c), for "section 36(1);" substitute "section 36(1)."; 20 (b) paragraph (d) is repealed. 111 New section 91 inserted After section 90 of the Principal Act insert-- "91 Savings and transitional provisions-- Transfer of functions of Forensic Leave 25 Panel to Mental Health Tribunal Schedule 1 has effect.". 581189B.I-6/12/2016 112 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal 112 Schedules 1 and 2 substituted For Schedules 1 and 2 to the Principal Act substitute-- "Schedule 1--Savings and 5 transitional provisions--Transfer of functions of Forensic Leave Panel to Mental Health Tribunal 1 Definitions In this Schedule-- 10 commencement day means the day on which Part 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 2016 comes into operation; 15 Forensic Leave Panel means the Forensic Leave Panel established under section 59 as in force immediately before the commencement day. 2 Special leave 20 (1) If, on the commencement day, an appeal to the Forensic Leave Panel under section 50(4) against the refusal to grant special leave of absence made before the commencement day has not been heard or has been part heard, 25 the appeal-- (a) may be withdrawn in accordance with section 188 of the Mental Health Act 2014 as if it were an application made under that Act; or 30 (b) if it is not withdrawn, must be heard and determined by the Tribunal as an application for a review of the decision under its procedures. 581189B.I-6/12/2016 113 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal (2) A direction that a forensic patient or forensic resident be allowed special leave of absence given by the Forensic Leave Panel under section 50(5) before the commencement 5 day is, on and after the commencement day, taken to have been a direction given by the Tribunal that the forensic patient or forensic resident be granted special leave of absence and that direction must be complied with by 10 the authorised psychiatrist or the Secretary (as the case may be). 3 On-ground or limited off-ground leave (1) If, on the commencement day, an application to the Forensic Leave Panel 15 under section 54(1) for on-ground leave or limited off-ground leave made before the commencement day has not been heard or has been part heard, the application-- (a) may be withdrawn in accordance with 20 section 188 of the Mental Health Act 2014 as if it were an application made to the Tribunal; or (b) if it is not withdrawn, must be heard and determined by the Tribunal under 25 its procedures. (2) Any on-ground leave or limited off-ground leave, or variation of that leave, granted by the Forensic Leave Panel under section 54 before the commencement day is, on and 30 after the commencement day, taken to have been granted by the Tribunal and, if the leave has not expired, continues on the terms and subject to any conditions on which it was granted. 581189B.I-6/12/2016 114 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal 4 Suspension of leave If on-ground leave or limited off-ground leave is granted by the Forensic Leave Panel before the commencement day, on 5 and after the commencement day notice under section 55 of the suspension of that leave, or the lifting of the suspension of that leave, must be given to the Tribunal. 5 Meaning of unacceptable risk of causing 10 harm (1) This clause applies where, on or after the commencement day and before the commencement of Part 2 of the Crimes (Mental Impairment and Unfitness to be 15 Tried) Amendment Act 2016, the Tribunal is required to consider whether or not there is an unacceptable risk of a person causing harm (serious or otherwise) in exercising a power under section 50, 54 or 55 as amended 20 by Part 3 of that Act. (2) For the avoidance of doubt, the Tribunal may determine that there is an unacceptable risk of the person causing harm even if the likelihood of the person doing so is less than 25 a likelihood of more likely than not. (3) For the Tribunal to determine that there is an unacceptable risk of the person causing harm, there must be a sufficient likelihood of the person doing so which, when considered 30 in combination with the nature and gravity of the harm that might result and any other relevant circumstance, makes the risk unacceptable. 581189B.I-6/12/2016 115 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal (4) In a provision to which this clause applies, a reference to a person causing harm to any other person includes causing harm to an identifiable person, to any member of an 5 identifiable class of persons or to any members of the community in general. 6 Secrecy Despite its repeal by Part 3 of the Crimes (Mental Impairment and Unfitness to be 10 Tried) Amendment Act 2016, section 62 as in force immediately before its repeal continues to apply to a person who-- (a) has at any time been a member or acting member of the Forensic Leave 15 Panel; or (b) has been present at any proceeding of the Forensic Leave Panel.". Division 2--Amendment of Mental Health Act 2014 113 Definitions 20 (1) In section 3(1) of the Mental Health Act 2014 insert the following definition-- "international forensic patient means a person who-- (a) is not subject to a Secure Treatment 25 Order; and (b) is detained in a designated mental health service while serving a sentence of imprisonment within the meaning of the International Transfer of Prisoners 30 Act 1997 of the Commonwealth;". (2) In section 3(1) of the Mental Health Act 2014 the definition of Panel is repealed. 581189B.I-6/12/2016 116 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal 114 Provision of advice, notification or information under this Act (1) For section 8(1) of the Mental Health Act 2014 substitute-- 5 "(1) This section applies to any advice, notice or information-- (a) given or provided to a patient under this Act; or (b) given or provided to a person the 10 subject of an application in relation to a hearing of the Tribunal under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. (1A) To the maximum extent possible, the advice, 15 notice or information must be explained to the patient or applicant by the person giving the advice, notice or information in the language, mode of communication and terms which the patient or applicant is most likely 20 to understand.". (2) In section 8(2) of the Mental Health Act 2014, for "subsection (1)" substitute "subsection (1A)". 115 Functions of the Tribunal (1) After section 153(a)(x) of the Mental Health 25 Act 2014 insert-- "(xa) an application under section 310 for a review of a direction to take a forensic patient to another designated mental health service;". 581189B.I-6/12/2016 117 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal (2) At the end of section 153 of the Mental Health Act 2014 insert-- "(2) In addition, the Tribunal has the following functions under the Crimes (Mental 5 Impairment and Unfitness to be Tried) Act 1997-- (a) to hear and determine the following-- (i) an application by a forensic patient or forensic resident for 10 on-ground or limited off-ground leave; (ii) an application by a forensic patient or forensic resident for a review of a decision made in 15 respect of special leave of absence; and (b) any other functions conferred on the Tribunal by or under that Act.". 116 General powers of the Tribunal 20 In section 154 of the Mental Health Act 2014, for "this Act" substitute "this or any other Act". 117 Membership In the note at the foot of section 156 of the Mental Health Act 2014, after "registered 25 medical practitioner" insert ", psychologist". 118 Senior members and ordinary members (1) After section 159(1)(c) of the Mental Health Act 2014 insert-- "(ca) the psychologist members; and". 581189B.I-6/12/2016 118 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal (2) After section 159(1) of the Mental Health Act 2014 insert-- "(1A) A psychologist member may be appointed as a community member and hold both 5 memberships simultaneously.". 119 New section 162A inserted After section 162 of the Mental Health Act 2014 insert-- "162A Psychologist members 10 A person is eligible for appointment as a psychologist member if the person-- (a) is a registered psychologist; and (b) has experience in the field of intellectual disabilities and has 15 forensic experience.". 120 Community members In section 163(a) of the Mental Health Act 2014, after "mental illness" insert "or intellectual disability". 20 121 New section 175 substituted For section 175 of the Mental Health Act 2014 substitute-- "175 Secrecy (1) This section applies to a person (a relevant 25 person) who is, or has been, a member (including as President or Deputy President) of the Tribunal or an executive officer, principal registrar, registrar or other member of staff of the Tribunal. 30 (2) A relevant person must not, directly or indirectly, make a record of, disclose or communicate to any person, any information relating to the affairs of a natural person 581189B.I-6/12/2016 119 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal acquired in the performance of functions or duties or the exercise of powers under this Act which may identify the natural person, unless-- 5 (a) it is necessary to do so for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act; or 10 (b) it is necessary to do so for the purposes of criminal proceedings or to initiate any proceedings under this Act; or (c) the person to whom the information relates gives written consent to the 15 making of the record, disclosure or communication. Penalty: 60 penalty units. (3) A relevant person must not, directly or indirectly, make a record of, disclose or 20 communicate to any person, any information relating to the affairs of a natural person acquired in the performance of functions or duties or the exercise of powers under the Crimes (Mental Impairment and 25 Unfitness to be Tried) Act 1997 which may identify the natural person, unless-- (a) it is necessary to do so for the purposes of, or in connection with, the performance of a function or duty or 30 the exercise of a power under that Act; or (b) it is necessary to do so for the purposes of criminal proceedings or to initiate any proceedings under that Act; or 581189B.I-6/12/2016 120 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal (c) the person to whom the information relates gives written consent to the making of the record, disclosure or communication. 5 Penalty: 60 penalty units.". 122 Annual report of the Tribunal In section 177 of the Mental Health Act 2014, for "As soon" substitute "(1) As soon". 123 Divisions of the Tribunal 10 (1) For section 178(1)(b) of the Mental Health Act 2014 substitute-- "(b) the special division; (c) the forensic division.". (2) In section 178(2) of the Mental Health Act 2014, 15 for "except those relating to the performance of electroconvulsive treatment or neurosurgery for mental illness" substitute "except those matters that must be heard and determined by the special division or the forensic division of the Tribunal". 20 (3) After section 178(3) of the Mental Health Act 2014 insert-- "(4) The forensic division of the Tribunal must hear and determine-- (a) applications for on-ground and limited 25 off-ground leave and appeals in respect of special leave of absence under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and (b) applications under section 310 for a 30 review of a direction to take a forensic patient to another designated mental health service.". 581189B.I-6/12/2016 121 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal 124 Constitution of the Tribunal (1) In section 179(1) of the Mental Health Act 2014, for "subsections (2) and (3)" substitute "subsections (2), (3) and (3A)". 5 (2) After section 179(3) of the Mental Health Act 2014 insert-- "(3A) For the purposes of a proceeding in the forensic division of the Tribunal, the Tribunal is constituted by-- 10 (a) a legal member; and (b) either-- (i) a psychiatrist member, if the matter relates to a forensic patient; or 15 (ii) a psychologist member, if the matter relates to a forensic resident; and (c) a community member.". (3) After section 179(4) of the Mental Health 20 Act 2014 insert-- "(5) A person who holds membership both as a psychologist member and a community member-- (a) sits as psychologist member when 25 assigned to the forensic division of the Tribunal; and (b) sits as a community member when assigned to the general division or special division of the Tribunal.". 581189B.I-6/12/2016 122 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal 125 Who are the parties to a proceeding? For section 182(b) of the Mental Health Act 2014 substitute-- "(b) either-- 5 (i) if the person who is the subject of the proceeding is a forensic resident--the Secretary; or (ii) in any other case--the psychiatrist treating the person who is the subject of 10 the proceeding; and". 126 Interpreters (1) In section 185(2) of the Mental Health Act 2014 omit "conducted under this Act". (2) In section 185(3) of the Mental Health Act 2014 15 omit "under this Act". (3) After section 185(3) of the Mental Health Act 2014 insert-- "(4) In this section-- hearing means a hearing conducted by the 20 Tribunal under-- (a) this Act; or (b) the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.". 25 127 Notice of hearing After section 189(1)(b) of the Mental Health Act 2014 insert-- "(ba) if the person who is the subject of the proceeding is a forensic resident, the 30 Secretary;". 581189B.I-6/12/2016 123 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal 128 Access to documents (1) After section 191(2) of the Mental Health Act 2014 insert-- "(2A) Subject to subsection (3), the Secretary must 5 give a forensic resident who is the subject of a proceeding access to any documents in the Secretary's possession in connection with the proceeding at least 48 hours before the hearing. 10 (2B) The Secretary may apply to the Tribunal for access to any documents referred to in subsection (2A) to be denied to the forensic resident who is the subject of a proceeding if the Secretary is of the opinion that the 15 disclosure of information in such a document may cause serious harm to the forensic resident or to another person.". (2) In section 191(3) and (4) of the Mental Health Act 2014, after "subsection (2)" insert "or (2B)". 20 (3) In section 191(4)(a) of the Mental Health Act 2014, after "designated mental health service" insert "or the Secretary (as the case may be)". (4) After section 191(4) of the Mental Health Act 2014 insert-- 25 "(5) A designated mental health service or the Secretary must give the legal representative of a person who is the subject of a proceeding access to any documents in connection with the proceeding including 30 those documents of which the Tribunal denied disclosure to the person under subsection (3). 581189B.I-6/12/2016 124 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal (6) If an application is made to the Tribunal under subsection (2) or (2B) for access to a document to be denied to the person who is the subject of the proceeding, the applicant 5 must give access to the document to the legal representative of the person prior to the hearing of the application. (7) Before access to a document is given under subsection (5) or (6) to the legal 10 representative of a person who is the subject of a proceeding, the legal representative must undertake not to provide the document or disclose its contents to the person.". 129 Hearings to be closed to the public 15 In section 193(3) of the Mental Health Act 2014, after "this Act" insert "or under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997". 130 Determination of proceedings 20 In section 195(2)(b) of the Mental Health Act 2014, after "this Act" insert "or the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997". 131 Review by VCAT 25 In section 201(1) of the Mental Health Act 2014, after "this Act" insert "or the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997". 581189B.I-6/12/2016 125 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal 132 New section 206A inserted After section 206 of the Mental Health Act 2014 insert-- "206A Inadmissibility of evidence in other 5 proceedings (1) Evidence of anything said in a hearing of the Tribunal under Part 7 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, or of any document prepared 10 solely for the purpose of such a hearing, is not admissible in any civil or criminal proceeding except-- (a) in a proceeding arising out of the hearing; or 15 (b) in a proceeding for an offence against section 314(1) of the Crimes Act 1958 (perjury) or for any other offence that involves interference with the due administration of justice; or 20 (c) with the consent of the person to whom the words or documents principally refers or relates. (2) A court, tribunal or person acting judicially may rule as admissible in a proceeding 25 before it any matter inadmissible because of subsection (1) if satisfied, on the application of a party to the proceeding, that it is in the interests of justice to do so.". 133 Definition for Part 12 30 In section 305(1) of the Mental Health Act 2014, for paragraph (f) of the definition of forensic patient substitute-- "(f) an international forensic patient.". 581189B.I-6/12/2016 126 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal 134 Authorised psychiatrist may direct taking forensic patient to another designated mental health service After section 307(3) of the Mental Health Act 2014 insert-- 5 "(4) This section does not apply to an international forensic patient.". 135 Chief psychiatrist may direct forensic patient to be taken to another designated mental health service After section 308(3) of the Mental Health 10 Act 2014 insert-- "(4) This section does not apply to an international forensic patient.". 136 Application to Forensic Leave Panel for review of decision to take forensic patient to another 15 designated mental health service (1) In the heading to section 310 of the Mental Health Act 2014, for "Forensic Leave Panel" substitute "Tribunal". (2) In section 310 of the Mental Health Act 2014, 20 for "Panel" (wherever occurring) substitute "Tribunal". (3) Section 310(8) of the Mental Health Act 2014 is repealed. 137 Disclosure of health information 25 In section 346(2)(m) of the Mental Health Act 2014, for "Tribunal, VCAT or the Panel" substitute "Tribunal or VCAT". 581189B.I-6/12/2016 127 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal 138 Information from electronic health information system In section 347(2)(d) of the Mental Health Act 2014-- 5 (a) for "the Panel" substitute "the Tribunal"; (b) omit "this Act or". 139 New Part 16B inserted After Part 16A of the Mental Health Act 2014 insert-- 10 "Part 16B--Savings and transitionals--Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 2016 429 Definitions 15 In this Part-- commencement day means the day on which Part 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Act 2016 comes 20 into operation; Forensic Leave Panel means the Forensic Leave Panel established under section 59 of the Crimes (Mental Impairment and Unfitness to 25 be Tried) Act 1997 as in force immediately before the commencement day. 581189B.I-6/12/2016 128 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal 430 Members of Forensic Leave Panel (1) A person who, immediately before the commencement day, is a member of the Forensic Leave Panel is, on and after that 5 day, taken to be an ordinary member of the Mental Health Tribunal. (2) Subsection (1) does not apply to a person who, immediately before the commencement day, is-- 10 (a) a judicial member of the Forensic Leave Panel; or (b) the chief psychiatrist, or a nominee of the chief psychiatrist; or (c) already a member of the Mental Health 15 Tribunal. (3) For the purposes of subsection (1)-- (a) a member of the Forensic Leave Panel who is a psychiatrist is taken to be a psychiatrist member of the Tribunal; 20 and (b) a member of the Forensic Leave Panel who is a registered psychologist is taken to be both a psychologist member and community member of the 25 Tribunal; and Note Under section 159(1A) a psychologist member can hold both memberships simultaneously. (c) any other member of the Forensic 30 Leave Panel is taken to be a community member of the Tribunal. 581189B.I-6/12/2016 129 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 3--Amendments relating to transfer of functions of Forensic Leave Panel to Mental Health Tribunal (4) The membership of a person who is member of the Tribunal by virtue of this section remains in force to and including 30 June 2018 unless the person resigns or is removed 5 from office before then. 431 Application to Forensic Leave Panel If, on the commencement day, an application to the Forensic Leave Panel under section 310 for a review of a direction 10 under section 307 or 308 made before the commencement day has not been heard or has been part heard, the application-- (a) may be withdrawn in accordance with section 188 as if it were an application 15 made to the Tribunal; or (b) if it is not withdrawn, must be heard and determined by the Tribunal under its procedures. 432 Annual Report 20 In its annual report under section 177 for the first financial year ending after the commencement day, the Tribunal must include any information that the Forensic Leave Panel would be required to include in 25 its report under section 63(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, as in force immediately before the commencement day, relating to the period commencing immediately after 30 the last report of the Forensic Leave Panel under section 63 of that Act and ending immediately before the commencement day.". 581189B.I-6/12/2016 130 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 4--Amendment of other Acts Part 4--Amendment of other Acts Division 1--Public Prosecutions Act 1994 140 Functions of Director After section 22(1)(ba) of the Public 5 Prosecutions Act 1994 insert-- "(bb) to appear at hearings referred to in section 36(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;". 10 Division 2--Criminal Procedure Act 2009 141 Amendment of clause 5 of Schedule 1 After clause 5(1) of Schedule 1 to the Criminal Procedure Act 2009 insert-- "(1A) The court, on the application of the 15 prosecution, may make an order permitting a charge-sheet or an indictment to contain charges for unrelated offences against the accused if, in relation to each of those charges-- 20 (a) the question of the fitness of the accused to stand trial has been raised; or (b) the issue of whether the defence of mental impairment is established is to 25 be determined.". Division 3--Disability Act 2006 142 The Senior Practitioner (1) In section 23(2)(a) of the Disability Act 2006, for "complied with;" substitute "complied with; and". 581189B.I-6/12/2016 131 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 4--Amendment of other Acts (2) After section 23(2)(a) of the Disability Act 2006 insert-- "(ab) is responsible for ensuring that the rights of persons with a disability who are subject to a 5 supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 are protected and that appropriate standards for their treatment are complied with; and". 10 143 Functions of the Senior Practitioner After section 24(1)(e) of the Disability Act 2006 insert-- "(ea) to give directions to disability service providers in relation to the provision of 15 treatment to persons with a disability who are subject to a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;". 144 Special powers of the Senior Practitioner 20 (1) In section 27(1)(b) of the Disability Act 2006, for "in effect." substitute "in effect; or". (2) After section 27(1)(b) of the Disability Act 2006 insert-- "(c) in respect of persons with a disability who 25 are subject to a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.". 581189B.I-6/12/2016 132 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 4--Amendment of other Acts Division 4--Sentencing Act 1991 145 New Division 6 of Part 4 inserted After Division 5 of Part 4 of the Sentencing Act 1991 insert-- 5 "Division 6--Findings under Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 89DJ Application of this Part to persons to whom certain findings apply 10 (1) Subject to subsection (4), an order under this Part referred to in subsection (2) that may be made against a person who has been convicted or found guilty of an offence may be made against a person in relation to the 15 same offence in the same circumstances if-- (a) at a special hearing conducted under Part 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, a jury finds that-- 20 (i) the person is not guilty of the offence because of mental impairment; or (ii) the person committed the offence; or 25 (b) the person has otherwise been found not guilty of the offence because of mental impairment. (2) For the purposes of subsection (1), the following orders may be made against a 30 person to whom that subsection applies-- (a) a restitution order under section 84; 581189B.I-6/12/2016 133 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 4--Amendment of other Acts (b) a compensation order under section 85B or 86; (c) an order under section 89 or 89A. (3) If subsection (1) applies to a person, for the 5 purposes of the provision under which the order may be made or any other provision relating to the order, a reference to the offender is taken to be a reference to that person. 10 (4) A court must not make an order under this Part against a person to whom subsection (1) applies unless the court considers-- (a) it appropriate in the circumstances to do so; and 15 (b) in the case of an order under Division 3, the order is required to reduce the risk to other road users.". Division 5--Confiscation Act 1997 146 Definitions 20 In section 3(1) of the Confiscation Act 1997, in the definition of relevant period, after paragraph (c) insert-- "(d) if the person is taken to have been convicted of the offence by reason of section 4(1A)-- 25 the day on which the relevant finding referred to in that section was made;". 147 Meaning of conviction (1) After section 4(1) of the Confiscation Act 1997 insert-- 30 "(1A) For the purposes of Parts 1 and 2, Division 1 of Part 3 and Part 8, a person is taken to have been convicted of an offence if-- 581189B.I-6/12/2016 134 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 4--Amendment of other Acts (a) at a special hearing conducted under Part 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, a jury has found-- 5 (i) the person is not guilty of the offence because of mental impairment; or (ii) the person committed the offence; or 10 (b) the person has otherwise been found not guilty of the offence because of mental impairment. Note Under section 15B, the purposes for which an 15 application for a restraining order may be made against a person referred to in subsection (1A) are limited by that section.". (2) In section 4(2) of the Confiscation Act 1997, after "subsection (1)" insert "or (1A)". 20 (3) After section 4(2) of the Confiscation Act 1997 insert-- "(3) For the purposes of Part 8, a person referred to in subsection (1A) to whom a finding referred to in that section is made in relation 25 to a Schedule 2 offence is taken to have been convicted of a Schedule 1 offence other than a Schedule 2 offence.". 148 Meaning of setting aside a conviction In section 6 of the Confiscation Act 1997-- 30 (a) in paragraph (c), for "aside." substitute "aside; or"; 581189B.I-6/12/2016 135 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 4--Amendment of other Acts (b) after paragraph (c) insert-- "(d) where the person is taken to have been convicted by reason of section 4(1A)-- if the relevant finding referred to in that 5 section is set aside.". 149 New section 15B inserted After section 15A of the Confiscation Act 1997 insert-- "15B Restraining orders applying to person 10 against whom certain findings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 have been made (1) Where a person is taken to have been 15 convicted of a Schedule 1 or Schedule 2 offence or a serious drug offence by reason of section 4(1A), a restraining order under this Part may be made against the person in relation to that offence only for the purpose 20 of one or more of section 15(1)(a), (d) or (e). (2) If-- (a) in relation to an offence with which a person is charged a restraining order under this Part has been made against 25 the person for the purpose of section 15(1)(b) or (c); and (b) a finding referred to in section 4(1A) is made in relation to that offence-- the restraining order is taken to have been 30 made for the purpose of section 15(1)(a). (3) If a restraining order referred to in subsection (2) has been made also for the purpose of one or both of section 15(1)(d) and (e), that or those purposes continue to 35 apply to the restraining order.". 581189B.I-6/12/2016 136 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 4--Amendment of other Acts 150 Application for forfeiture order After section 32(1) of the Confiscation Act 1997 insert-- "(1A) If an accused is taken to have been convicted 5 of an offence by reason of section 4(1A), an application under subsection (1) may only be made in respect of property that was derived or realised, or substantially derived or realised, directly or indirectly, by the 10 accused from the commission of the offence.". Division 6--Road Safety Act 1986 151 New section 28AA inserted After section 28 of the Road Safety Act 1986 15 insert-- "28AA Persons against whom certain findings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 have been made 20 (1) This section applies in relation to any provision of this Act under which a court may cancel, suspend or vary the driver licence or learner permit of a person who has been found guilty or convicted of an offence. 25 (2) Subject to subsection (3), the court under that provision may cancel, suspend or vary the driver licence or learner permit of a person in relation to the offence if-- (a) at a special hearing conducted under 30 Part 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, a jury finds that-- 581189B.I-6/12/2016 137 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 4--Amendment of other Acts (i) the person is not guilty of the offence because of mental impairment; or (ii) the person committed the offence; 5 or (b) at a special hearing conducted under Division 3 of Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Children's 10 Court finds that-- (i) the person is not guilty of the offence because of mental impairment; or (ii) the person committed the offence; 15 or (c) the person has otherwise been found not guilty of the offence because of mental impairment. (3) A court must not cancel, suspend or vary the 20 driver licence or learner permit of a person referred to in subsection (2) unless the court considers-- (a) it appropriate in the circumstances to do so; and 25 (b) the order is required to reduce the risk to other road users.". 581189B.I-6/12/2016 138 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Part 5--Repeal Part 5--Repeal 152 Repeal of amending Act This Act is repealed on 1 July 2018. Note 5 The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ 581189B.I-6/12/2016 139 BILL LA INTRODUCTION 6/12/2016

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 Endnotes Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. By Authority. Government Printer for the State of Victoria. 581189B.I-6/12/2016 140 BILL LA INTRODUCTION 6/12/2016

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