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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Criminal Law (Mental Impairment) Bill 2022
Contents
Part 1 -- Preliminary
Division 1 -- Introduction
1. Short title 2
2. Commencement 2
Division 2 -- General overview
3. Overview of Act 2
4. Overview: supervision orders 4
5. Overview: appeals and internal review 6
6. Overviews are guide only 6
Division 3 -- Objects, principles and
paramount consideration
7. Objects and principles 7
8. Paramount consideration 9
Division 4 -- Interpretation
9. Terms used 9
10. Child-specific considerations 16
11. Commission of offence: persons who have been
acquitted on account of mental impairment 16
Division 5 -- Other provisions
12. Act binds Crown 17
13. Application of Courts and Tribunals (Electronic
Processes Facilitation) Act 2013 Part 2 17
Part 2 -- General provisions
Division 1 -- Courts' procedures
14. Application of Criminal Procedure Act 2004 to
proceedings under Pt. 3 and 5 18
15. Adjournments 18
93--1 page i
Criminal Law (Mental Impairment) Bill 2022
Contents
Division 2 -- Interaction with Mental Health
Act 2014
16. Criminal law applies to involuntary patients 19
17. Person in custody may be made involuntary patient 19
18. Supervised person in community may be made
involuntary patient 20
19. Court may make hospital order in respect of
accused 20
Division 3 -- Communication with accused and
supervised persons
20. Communication and support measures 22
21. Appointment of communication partner for
accused or supervised person 22
Division 4 -- Submissions by close family
members and carers
22. Submission by close family members and carers 23
Division 5 -- Reports under this Act
23. Reports to include information about treatment,
training or other measures 24
Part 3 -- Accused who are unfit to
stand trial
Division 1 -- Preliminary matters
24. Overview of Part 25
25. Application of Part 25
Division 2 -- Raising and deciding question of
fitness of accused
26. Accused who is unfit to stand trial 26
27. Presumptions as to fitness to stand trial 26
28. When the question of fitness to stand trial may be
raised 26
29. Deciding question of fitness to stand trial 27
30. Chief Mental Health Advocate to be notified 28
31. Determining question of fitness if charge to be
dealt with on indictment 28
32. Fit to stand trial with support measures 29
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Criminal Law (Mental Impairment) Bill 2022
Contents
Division 3 -- Procedure following finding of
unfitness
Subdivision 1 -- Application of Division
33. Division applies to accused found unfit 29
34. Application of Young Offenders Act 1994 29
Subdivision 2 -- General procedure
35. Opportunity for accused to become fit to stand trial 29
36. Chief Mental Health Advocate to be notified 30
37. Court to make orders as to how charge against
unfit accused to be dealt with 30
38. Legal representation of unfit accused 31
39. Procedure for deciding if accused has become fit to
stand trial 31
40. Trial to continue if accused found fit to stand trial 31
Subdivision 3 -- Special proceedings
41. Nature of special proceedings 32
42. Conduct of special proceedings 32
43. Effect of findings 33
Part 4 -- Persons required to be dealt
with under this Act
44. Persons acquitted on account of mental impairment
or found to have committed offence 35
Part 5 -- Court-ordered dispositions
Division 1 -- Overview of Part
45. Overview of Part 36
Division 2 -- Orders that may be made by court
46. Orders that may be made 37
47. Orders that may be made: considerations 38
48. Court to notify Tribunal and Chief Mental Health
Advocate of orders 39
Division 3 -- Custody orders
49. Custody orders 39
50. Limiting term for custody order 39
51. When custody order ceases to have effect 40
Division 4 -- Community supervision orders
52. Community supervision orders 40
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Criminal Law (Mental Impairment) Bill 2022
Contents
53. Term of community supervision order 40
54. Conditions of community supervision order:
statutory conditions 41
55. Conditions of community supervision order: court
imposed conditions 41
56. When community supervision order ceases to have
effect 42
Part 6 -- Administration of
supervision orders by Tribunal
Division 1 -- Preliminary matters
57. Overview of Part 44
58. Representative of supervised person 45
59. Non-compliance with conditions of orders 46
Division 2 -- Declared places
60. Minister may make order as to declared places 46
Division 3 -- Custody orders: places of custody
61. Place of custody to be determined 47
62. Limitations on place of custody 47
63. Tribunal to notify of determination of place of
custody 48
64. Place of custody may be changed 49
Division 4 -- Tribunal to review orders
65. Terms used 49
66. Initial and periodic review 50
67. Application for review by supervised person,
representative or legal practitioner 50
68. Review by Tribunal on its own initiative 51
69. Review at request of Minister 51
70. Time of review may be extended in certain cases 51
71. Notice to supervised persons and CEO of review
proceedings 52
72. Matters to be considered on review 53
73. Orders the Tribunal may make after carrying out
review 54
74. Court may cancel certain orders 56
75. Truncated review in serious and urgent cases 56
76. Copy of order and reasons for decision to be given
to certain persons 57
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Criminal Law (Mental Impairment) Bill 2022
Contents
Division 5 -- Custody orders: leave of absence
77. Leave of absence orders 57
78. Tribunal making or varying leave of absence
orders 58
79. Effect of certain leave of absence orders 59
80. Notifying Tribunal about breach of leave of
absence order 60
81. Breach of conditions of leave of absence order 60
82. Cancelled leave of absence order 60
83. Absence without leave from place of custody 61
84. Relationship of Division to other Acts 62
Division 6 -- Community supervision orders
85. Tribunal to designate supervising officer 62
86. Tribunal varying conditions on community
supervision order 62
87. Notifying Tribunal about breach of conditions of
community supervision order 63
88. Breach of conditions of community supervision
order 64
89. Court's powers to deal with breach of conditions of
community supervision order 64
Division 7 -- Review of and appeals against
certain decisions
Subdivision 1 -- Internal review by Tribunal
90. Term used: reviewable decision 66
91. Internal review of Tribunal decision 66
92. Nature of review proceedings 67
Subdivision 2 -- Appeals to Supreme Court
93. Appeals against certain decisions 67
94. Arrest of person subject to custody order 69
95. Grounds of appeal 69
96. Dealing with appeal 70
97. Effect of appeal on decision appealed against 70
Subdivision 3 -- Effect of decisions made on, or as a
consequence of, review or appeal
98. Effect of decisions made on, or as a consequence
of, review or appeal 71
Division 8 -- Supervising officers
99. Supervising officers 71
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Criminal Law (Mental Impairment) Bill 2022
Contents
Part 7 -- Extended custody and
community supervision orders
Division 1 -- Preliminary matters
100. Overview of Part 73
101. Nature of court proceedings under Part 74
102. References to orders include extended orders 74
Division 2 -- Tribunal to consider and report
on need for extended orders
103. Tribunal to consider and report on need for
extended custody orders 74
104. Tribunal to consider and report on need for
extended community supervision orders 75
Division 3 -- Applications for extended orders
105. Minister may apply for extended order 75
106. Report to be prepared for application 76
Division 4 -- Interim orders pending
determination of applications
107. Interim custody orders 76
108. Interim community supervision orders 77
Division 5 -- Making extended custody orders
109. Extended custody orders 78
110. Supreme Court may make extended custody order 79
111. Leave of absence orders and conditions carried
over 80
112. When extended custody order has effect 80
Division 6 -- Making extended community
supervision orders
113. Extended community supervision orders 81
114. Supreme Court may make extended community
supervision order 81
115. Conditions carried over 81
116. When extended community supervision order has
effect 82
Division 7 -- Review of extended custody orders
117. Periodic review on application by Minister 82
118. Application by supervised person for review 83
119. Dealing with application for review 83
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Criminal Law (Mental Impairment) Bill 2022
Contents
120. Report to be prepared for review 83
121. Court's powers on review of extended custody
order 84
Division 8 -- General
122. Court to notify Tribunal of orders 85
123. Evidence in extended order proceedings 85
124. Court may give directions 86
125. Appearance at hearings 86
Part 8 -- Mental health advocacy
services for unfit accused and
supervised persons
Division 1 -- Preliminary matters
126. Overview of Part 87
127. Terms used 87
Division 2 -- Access to mental health advocacy
services
128. Access to mental health advocacy services 88
129. Request for CLMI identified person to be
contacted 89
130. Duty to contact CLMI identified person 89
Division 3 -- Functions and powers of mental
health advocates
131. Functions of Chief Mental Health Advocate 90
132. Directions to Chief Mental Health Advocate about
general matters 91
133. Delegation by Chief Mental Health Advocate 92
134. Functions of mental health advocates 93
135. Powers of mental health advocates relating to
CLMI identified persons 95
136. Issues arising out of inquiries and investigations 96
137. Documents to which access is restricted 97
138. Disclosure by mental health advocate 98
Division 4 -- Interaction with Mental Health
Act 2014
139. Interaction with Mental Health Act 2014 99
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Criminal Law (Mental Impairment) Bill 2022
Contents
Division 5 -- Reporting in relation to mental
health advocacy services
140. Annual reports 100
Part 9 -- Victim considerations
Division 1 -- Preliminary matters
141. Overview of Part 102
142. Terms used 102
Division 2 -- Victim impact statements may be
given to court
143. Term used 104
144. Victim impact statements may be given to court 104
145. Content of victim impact statements 104
146. Availability of victim impact statements 105
Division 3 -- Victim submissions may be made
to Tribunal
147. Victim submissions may be made to Tribunal 105
Division 4 -- Victim submissions may be made
to court
148. Victim submissions may be made to court 106
149. Content of victim's submission 107
150. Availability of victim's submissions 107
Division 5 -- Notice of Tribunal review given to
victims
151. Notice to victims of review proceedings 108
152. Delegation by CEO 109
Division 6 -- Miscellaneous
153. Disclosing information to victims 109
Part 10 -- Mental Impairment
Review Tribunal
Division 1 -- Preliminary matters
154. Overview of Part 110
155. Terms used 110
Division 2 -- Mental Impairment Review
Tribunal
156. Tribunal established 111
157. Tribunal's jurisdiction 111
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Criminal Law (Mental Impairment) Bill 2022
Contents
158. Constitution of Tribunal 111
159. Contemporaneous exercise of jurisdiction 112
Division 3 -- Proceedings of Tribunal
160. Conduct of proceedings 113
161. Who presides 113
162. Decision of Tribunal 113
163. Questions of law 114
164. Evidence generally 115
165. Appearance in review proceedings 115
166. Summons to give evidence or produce documents 116
167. Power to examine on oath 116
168. Privilege against self-incrimination 116
169. Confidentiality orders 117
170. Publication of names 118
Division 4 -- Membership of Tribunal
171. Tribunal members 118
172. Qualifications of certain members 119
173. Terms and conditions of appointment 121
174. Remuneration 121
175. Deputy President acting as President 122
176. Leave of absence from office 122
177. Vacating office prematurely 122
178. Conditions for public service members 123
179. Resignation of members 123
180. Terminating appointment of members 123
181. Training of members 124
Division 5 -- General powers of the Tribunal
182. Exercise and performance of Tribunal's
administrative powers and duties 124
183. Tribunal may use experts 125
184. Tribunal may require examination of supervised
person 125
185. Issue of warrants by Tribunal 125
186. Power to obtain information and records 126
187. Extension of time in which to give report or other
information 126
Division 6 -- Registrar, staff and facilities of
Tribunal
188. Registrar, staff and facilities to be made available 127
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Criminal Law (Mental Impairment) Bill 2022
Contents
Division 7 -- Miscellaneous
189. Offences relating to information and records 127
190. Tribunal to notify Public Advocate of orders 129
191. Tribunal to report death of supervised person to
coroner 129
192. Tribunal may request information from SAT about
supervised person's guardian or administrator 129
193. Seal 130
194. Orders 130
195. President may issue practice notes 130
196. Delegation by President 130
197. Judicial notice and evidence of certain matters 131
198. Annual report 131
Part 11 -- Transfer into and out of
the State
Division 1 -- Preliminary matters
199. Overview of Part 132
200. Terms used 132
201. Informed consent 133
202. Nature of proceedings under this Part 133
Division 2 -- Transfer of persons from Western
Australia
203. Transfer of persons from Western Australia to a
participating jurisdiction 133
Division 3 -- Transfer of persons to Western
Australia
204. Transfer of persons from a participating
jurisdiction to Western Australia 134
205. Interim dispositions for persons transferred to
Western Australia 136
206. Review of persons transferred to Western Australia 137
207. Limiting term for custody order 138
208. Court to make orders if person has been in custody
longer than limiting term 139
Division 4 -- Interaction with other transfer
related laws
209. Interaction with Mental Health Act 2014 140
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Criminal Law (Mental Impairment) Bill 2022
Contents
210. Interaction with Prisoners (Interstate Transfer)
Act 1983 140
211. Persons subject to international supervision orders 141
Part 12 -- Appeals to Court of
Appeal
Division 1 -- Preliminary matters
212. Overview of Part 142
213. Term used: deciding court 142
Division 2 -- Appeals to Court of Appeal
214. Appeals against certain decisions 142
215. Grounds of appeal 144
216. Dealing with appeal 145
217. Appeal does not stay decision 145
218. Effect of decisions made on, or as a consequence
of, appeal 146
Part 13 -- Miscellaneous
Division 1 -- Preliminary matters
219. Terms used 147
Division 2 -- Electronic monitoring and curfew
220. Term used: approved electronic monitoring device 149
221. Electronic monitoring 149
222. Curfew 150
223. Enforcement of electronic monitoring and curfew 151
Division 3 -- Protection of information
224. Protection of information about persons covered by
this Act 152
Division 4 -- Cooperation and sharing of
information between supporting agencies
225. Cooperation between supporting agencies 154
226. Disclosure of information between supporting
agencies 154
Division 5 -- Interactions between supervision
orders and sentences
227. Interactions between supervision orders and
sentences 155
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Criminal Law (Mental Impairment) Bill 2022
Contents
228. Interactions between supervision orders and
Commonwealth sentences 156
Division 6 -- General
229. Giving notice, information, summonses and other
documents 157
230. Issue and execution of warrants 157
231. Protection from liability 158
232. Regulations 159
233. Rules of court 159
234. Review of Act 159
Part 14 -- Repeals and transitional
provisions
Division 1 -- Repeals
235. Criminal Law (Mentally Impaired Accused)
Act 1996 repealed 160
236. Criminal Law (Mentally Impaired Accused)
Regulations 1997 repealed 160
Division 2 -- Transitional provisions for
Criminal Law (Mental Impairment)
Act 2022
Subdivision 1 -- Preliminary matters
237. Terms used 160
238. Interpretation Act 1984 not affected 160
Subdivision 2 -- General provisions
239. Completion of things commenced before
commencement day 161
240. Continuing effect of things done before
commencement day 161
241. Continuation of duties of Board or registrar 161
242. References to repealed Act and old provisions 161
243. Relationship of this Subdivision to other
transitional provisions 162
Subdivision 3 -- Court proceedings
244. Proceedings generally 162
245. Question of fitness raised under repealed Act s. 11 162
246. Inquiries and appeals under repealed Act s. 12 163
247. Adjournments and other matters under repealed
Act s. 16 or s. 19 163
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Criminal Law (Mental Impairment) Bill 2022
Contents
248. Previous finding of unfitness 164
249. Requirement to make order under repealed Act
s. 22 164
Subdivision 4 -- Orders and other things to continue
250. Purpose of Subdivision 165
251. Hospital orders 165
252. Bail and custody under repealed Act s. 14 165
253. Existing community orders 165
254. Existing custody orders 166
255. Leave of absence orders 167
256. Absence without leave 168
257. Release orders 168
258. Breaches of conditions of release orders 169
259. Warrants 170
Subdivision 5 -- Setting limiting term for existing
custody orders
260. Application of this Subdivision 170
261. Application to set limiting term 170
262. Limiting term in cases of murder and manslaughter 170
263. Procedural matters 171
264. Court to set limiting term 172
265. Where person subject to existing custody order has
been, or soon will have been, in custody longer
than limiting term 173
266. Legal representation of person subject to existing
custody order 174
267. Functions of the Director of Public Prosecutions 175
Subdivision 6 -- Matters relating to Board and its
functions
268. Proceedings generally 175
269. Places of custody 175
270. Supervising officers 176
271. Examination required by Board 177
272. Members of Board 177
273. Registrar 178
Subdivision 7 -- Miscellaneous
274. Final annual report to Minister 178
275. Records of Board 179
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Criminal Law (Mental Impairment) Bill 2022
Contents
276. Tribunal to provide Chief Mental Health Advocate
with details of supervised persons 179
277. Notice to Public Advocate 179
278. Declared places 179
Subdivision 8 -- Transitional regulations
279. Transitional regulations 180
Part 15 -- Consequential
amendments to other Acts
Division 1 -- Bail Act 1982 amended
280. Bail Act 1982 amended 182
281. Schedule 1 Part C amended 182
Division 2 -- Children's Court of Western
Australia Act 1988 amended
282. Children's Court of Western Australia Act 1988
amended 183
283. Section 21 amended 183
Division 3 -- Community Protection (Offender
Reporting) Act 2004 amended
284. Community Protection (Offender Reporting)
Act 2004 amended 184
285. Section 3 amended 184
286. Section 4 amended 185
287. Section 70 amended 186
288. Section 85A amended 186
Division 4 -- Coroners Act 1996 amended
289. Coroners Act 1996 amended 186
290. Section 3 amended 186
Division 5 -- Court Security and Custodial
Services Act 1999 amended
291. Court Security and Custodial Services Act 1999
amended 187
292. Section 3 amended 187
293. Section 4 amended 188
294. Section 16 amended 188
295. Section 96 amended 188
296. Schedule 2 amended 188
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Criminal Law (Mental Impairment) Bill 2022
Contents
Division 6 -- Criminal Appeals Act 2004
amended
297. Criminal Appeals Act 2004 amended 189
298. Section 4 amended 189
299. Section 6 amended 189
300. Section 8 amended 190
301. Section 11 amended 190
302. Section 12 amended 190
303. Section 14 amended 191
304. Section 24 amended 191
305. Section 25 amended 192
306. Section 25A inserted 193
25A. Rights of appeal relating to Criminal Law
(Mental Impairment) Act 2022 193
307. Section 30 amended 193
308. Section 31 amended 194
309. Section 32 amended 194
310. Sections 32A and 32B inserted 196
32A. Decision on appeal under s. 25A(a) or (b) 196
32B. Decision on appeal under s. 25A(c) or (d) 199
311. Section 41A inserted 200
41A. Custody orders under Criminal Law
(Mental Impairment) Act 2022 200
312. Section 46A amended 201
313. Various references to "unsoundness of mind"
amended 201
Division 7 -- Criminal Injuries Compensation
Act 2003 amended
314. Criminal Injuries Compensation Act 2003
amended 202
315. Section 15 amended 202
Division 8 -- Criminal Investigation (Identifying
People) Act 2002 amended
316. Criminal Investigation (Identifying People)
Act 2002 amended 202
317. Section 67 amended 202
Division 9 -- Criminal Procedure Act 2004
amended
318. Criminal Procedure Act 2004 amended 203
319. Section 126 amended 203
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Criminal Law (Mental Impairment) Bill 2022
Contents
320. Section 130 amended 203
Division 10 -- Cross-border Justice Act 2008
amended
321. Cross-border Justice Act 2008 amended 203
322. Part 9 heading replaced 203
Part 9 -- Persons with mental impairment
Division 11 -- Declared Places (Mentally
Impaired Accused) Act 2015 amended
323. Declared Places (Mentally Impaired Accused)
Act 2015 amended 204
324. Long title replaced 204
325. Section 1 amended 204
326. Section 3 amended 204
327. Section 18 replaced 206
18. CEO's functions as to residents 206
328. Section 19 amended 206
329. Section 20 amended 207
330. Section 53 amended 207
331. Section 57 amended 207
332. Part 12 replaced 208
Part 12 -- Transitional provisions for Criminal Law
(Mental Impairment) Act 2022
65. Terms used 208
66. Provision of information about residents 208
Division 12 -- Disability Services Act 1993
amended
333. Disability Services Act 1993 amended 209
334. Section 3 amended 209
335. Section 12 amended 209
336. Section 21 amended 210
Division 13 -- Electoral Act 1907 amended
337. Electoral Act 1907 amended 210
338. Section 18 amended 210
339. Section 59 amended 210
Division 14 -- Evidence Act 1906 amended
340. Evidence Act 1906 amended 212
341. Section 100A amended 212
342. Section 106A amended 212
page xvi
Criminal Law (Mental Impairment) Bill 2022
Contents
Division 15 -- Fines, Penalties and Infringement
Notices Enforcement Act 1994 amended
343. Fines, Penalties and Infringement Notices
Enforcement Act 1994 amended 213
344. Section 52C amended 213
Division 16 -- Guardianship and Administration
Act 1990 amended
345. Guardianship and Administration Act 1990
amended 213
346. Section 98 replaced 213
98. Supervised persons under Criminal Law
(Mental Impairment) Act 2022 213
Division 17 -- High Risk Serious Offenders
Act 2020 amended
347. High Risk Serious Offenders Act 2020 amended 214
348. Section 6 amended 214
349. Section 79 amended 214
Division 18 -- Juries Act 1957 amended
350. Juries Act 1957 amended 215
351. Section 5 amended 215
Division 19 -- Magistrates Court Act 2004
amended
352. Magistrates Court Act 2004 amended 215
353. Section 11A inserted 216
11A. Limitations on exercise of certain
jurisdiction 216
Division 20 -- Mental Health Act 2014 amended
354. Mental Health Act 2014 amended 216
355. Section 4 amended 216
356. Section 82 replaced 218
82. Application of this Part 218
357. Section 105 amended 218
358. Section 127 amended 219
359. Section 145 amended 219
360. Part 9 Division 4 inserted 220
Division 4 -- Notification of Mental Impairment
Review Tribunal about absence of supervised
persons
145A. Notification about absence of supervised
persons 220
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Criminal Law (Mental Impairment) Bill 2022
Contents
361. Section 177 amended 220
362. Section 185 amended 221
363. Section 196 amended 221
364. Section 198 amended 221
365. Section 199 amended 222
366. Section 200 amended 222
367. Section 201 amended 222
368. Section 204 amended 223
369. Section 209 amended 224
370. Section 224 amended 224
371. Section 240 amended 224
372. Section 241 amended 225
373. Section 242 amended 225
374. Section 243 amended 225
375. Section 249 amended 226
376. Section 258 amended 227
377. Section 288 amended 227
378. Section 289 amended 227
379. Section 348 amended 228
380. Section 357 amended 229
381. Section 409 amended 230
382. Section 423 amended 230
383. Section 515 amended 231
384. Section 520 amended 231
385. Section 527 amended 232
386. Section 536 amended 233
387. Part 30 inserted 234
Part 30 -- Transitional matters for Criminal Law
(Mental Impairment) Act 2022
678. Terms used 234
679. Functions in respect of the Board 234
680. Duty to contact identified person 234
388. Various headings amended 235
Division 21 -- National Disability Insurance
Scheme (Worker Screening) Act 2020
amended
389. National Disability Insurance Scheme (Worker
Screening) Act 2020 amended 235
390. Section 7 amended 235
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Criminal Law (Mental Impairment) Bill 2022
Contents
Division 22 -- Parliamentary Commissioner
Act 1971 amended
391. Parliamentary Commissioner Act 1971 amended 236
392. Section 19H amended 236
Division 23 -- Prisoners (Release for
Deportation) Act 1989 amended
393. Prisoners (Release for Deportation) Act 1989
amended 237
394. Section 6A inserted 237
6A. Persons under custody orders under
Criminal Law (Mental Impairment)
Act 2022 237
Division 24 -- Prisons Act 1981 amended
395. Prisons Act 1981 amended 238
396. Section 67 amended 238
397. Section 113 amended 238
Division 25 -- Restraining Orders Act 1997
amended
398. Restraining Orders Act 1997 amended 239
399. Section 44E amended 239
Division 26 -- Security and Related Activities
(Control) Act 1996 amended
400. Security and Related Activities (Control) Act 1996
amended 240
401. Section 4B amended 240
Division 27 -- Sentence Administration Act 2003
amended
402. Sentence Administration Act 2003 amended 240
403. Section 98 amended 240
404. Section 119 amended 241
Division 28 -- Working with Children (Criminal
Record Checking) Act 2004 amended
405. Working with Children (Criminal Record
Checking) Act 2004 amended 241
406. Section 8 amended 241
Division 29 -- Young Offenders Act 1994
amended
407. Young Offenders Act 1994 amended 242
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Criminal Law (Mental Impairment) Bill 2022
Contents
408. Section 16 amended 242
Division 30 -- Various Acts amended
409. Various references to Criminal Law (Mentally
Impaired Accused) Act 1996 amended 243
410. Various references to Declared Places (Mentally
Impaired Accused) Act 2015 amended 243
411. Various references to "Mentally Impaired Accused
Review Board" amended 245
412. Various references to "unsoundness of mind"
amended 245
Schedule 1 -- Serious offences
Division 1 -- Offences that are serious offences
in all circumstances
Subdivision 1 -- Offence under the Bush Fires
Act 1954
Subdivision 2 -- Offence under the Children and
Community Services Act 2004
Subdivision 3 -- Offences under The Criminal Code
Subdivision 4 -- Offences under the Prostitution
Act 2000
Subdivision 5 -- Offence under the Road Traffic
Act 1974
Division 2 -- Offences that are serious offences
if committed in specified circumstances
Subdivision 1 -- Offence under The Criminal Code
Subdivision 2 -- Offence under the Prostitution
Act 2000
Defined terms
page xx
Western Australia
LEGISLATIVE ASSEMBLY
Criminal Law (Mental Impairment) Bill 2022
A Bill for
An Act --
• to make provision in relation to criminal proceedings involving
persons with mental impairment; and
• to provide for special criminal proceedings for persons who are
unfit to stand trial; and
• to provide for the supervision of persons who, in special criminal
proceedings, are found to have committed an offence; and
• to provide for the supervision of persons acquitted on account of
mental impairment; and
• to provide for the safe reintegration into the community of
persons supervised under this Act; and
• to repeal the Criminal Law (Mentally Impaired Accused) Act 1996
and the Criminal Law (Mentally Impaired Accused)
Regulations 1997; and
• for related purposes.
The Parliament of Western Australia enacts as follows:
page 1
Criminal Law (Mental Impairment) Bill 2022
Part 1 Preliminary
Division 1 Introduction
s. 1
1 Part 1 -- Preliminary
2 Division 1 -- Introduction
3 1. Short title
4 This is the Criminal Law (Mental Impairment) Act 2022.
5 2. Commencement
6 This Act comes into operation as follows --
7 (a) Part 1 -- on the day on which this Act receives the
8 Royal Assent;
9 (b) the rest of the Act -- on a day fixed by proclamation,
10 and different days may be fixed for different provisions.
11 Division 2 -- General overview
12 3. Overview of Act
13 (1) This Part provides for preliminary matters, including --
14 (a) the objects of this Act and the principles and
15 considerations to which persons performing functions
16 under this Act must have regard; and
17 (b) the interpretation of terms and expressions used in this
18 Act.
19 (2) Part 2 provides for certain general matters appropriately dealt
20 with at the beginning of this Act, including provisions that --
21 (a) address matters that can take place in the initial stages of
22 criminal proceedings; or
23 (b) have a bearing on many of the provisions that follow
24 including, importantly, aspects of the interaction of this
25 Act with the Mental Health Act 2014.
page 2
Criminal Law (Mental Impairment) Bill 2022
Preliminary Part 1
General overview Division 2
s. 3
1 (3) Part 3 provides for --
2 (a) raising and deciding the question of whether an accused
3 is fit to stand trial; and
4 (b) the court procedures, including special proceedings, for
5 dealing with an unfit accused.
6 (4) If a person is acquitted on account of mental impairment in an
7 ordinary criminal proceeding or is so acquitted on appeal, and
8 therefore must be dealt with under this Act, Part 4 provides that
9 the court must deal with the accused under Part 5 of this Act.
10 Note for this subsection:
11 The Criminal Procedure Act 2004 section 149(1) and the Criminal
12 Appeals Act 2004 sections 30(5), 32(7) and 32A(6) set out the
13 requirement to deal with such acquitted accused under this Act.
14 (5) Part 5 provides for the orders that can be made by a court in
15 relation to an accused who --
16 (a) has been acquitted on account of mental impairment; or
17 (b) although not fit to stand trial, has been found to have
18 committed an offence.
19 Note for this subsection:
20 The court can release the person unconditionally (in some
21 circumstances), or impose a community supervision order or custody
22 order.
23 (6) Part 6 provides for the administration, by the Mental
24 Impairment Review Tribunal, of the orders to which supervised
25 persons are subject.
26 Note for this subsection:
27 A supervised person is a person subject to a supervision order made
28 under this Act.
29 (7) Part 7 provides, in effect, for the extension of custody and
30 community supervision orders by the Supreme Court if the court
31 is satisfied that it is necessary on grounds that relate to the
32 protection of the community.
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Division 2 General overview
s. 4
1 (8) Part 8 provides for mental health advocacy services for unfit
2 accused and supervised persons, unless those services can be
3 provided under the Mental Health Act 2014 or the Declared
4 Places (Mental Impairment) Act 2015.
5 (9) Part 9 provides for victim impact statements and victim
6 submissions to be given or made to a relevant court or the
7 Mental Impairment Review Tribunal.
8 (10) Part 10 provides for the Mental Impairment Review Tribunal,
9 its jurisdiction, membership, procedures and related matters.
10 (11) Part 11 provides for --
11 (a) the transfer of supervised persons to another State or
12 Territory in which a corresponding law is in force; and
13 (b) the transfer to the State and disposition of persons
14 subject to an interstate supervision order; and
15 (c) the interaction between that Part and other transfer
16 related laws.
17 (12) Part 12 provides for appeals to the Court of Appeal against
18 certain decisions of courts other than courts of summary
19 jurisdiction.
20 (13) Part 13 includes provisions relating to electronic monitoring of
21 supervised persons, the protection and sharing of information,
22 interactions between supervision orders and sentences, and
23 other provisions of general application.
24 (14) Part 14 repeals the Criminal Law (Mentally Impaired Accused)
25 Act 1996 and provides for the transition from the repealed Act
26 to this Act.
27 4. Overview: supervision orders
28 (1) Supervision orders are --
29 (a) custody and community supervision orders made under
30 Part 5;
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Criminal Law (Mental Impairment) Bill 2022
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General overview Division 2
s. 4
1 (b) custody orders made under Part 6 in the course of the
2 administration of a supervision order under that Part; see
3 section 89(1);
4 (c) interim and extended custody and community
5 supervision orders made under Part 7;
6 (d) community supervision orders made under Part 7 in the
7 course of the review of an extended custody order under
8 that Part; see section 110(4) or 121(3);
9 (e) interim dispositions made under Part 11 for a person
10 subject to an interstate supervision order who is
11 transferred to the State;
12 (f) custody and community supervision orders made under
13 Part 11 on review by the Supreme Court of an interim
14 disposition; see section 206(3)(a) and (b).
15 (2) Other than interim dispositions, which are made by the Minister,
16 supervision orders are made by a court.
17 (3) The custody and community supervision orders referred to in
18 subsection (1)(a) can be made following --
19 (a) an ordinary criminal proceeding in which the accused is
20 acquitted on account of mental impairment; or
21 (b) an appeal under the Criminal Appeals Act 2004 in which
22 the offender is acquitted on account of mental
23 impairment; or
24 (c) a special proceeding under Part 3 Division 3.
25 (4) Although custody and community supervision orders referred to
26 in subsection (1)(b), (d) and (f) are not made under Part 5, Part 5
27 (to the extent relevant) applies to their making; see
28 sections 89(5), 110(5), 121(4) and 206(5).
29 (5) Although interim and extended custody and community
30 supervision orders, and interim dispositions, are not custody or
31 community supervision orders as defined, Part 6 (to the extent
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Criminal Law (Mental Impairment) Bill 2022
Part 1 Preliminary
Division 2 General overview
s. 5
1 relevant) applies to the administration of them; see
2 sections 107(4), 108(4), 109(2), 113(2) and 205(4) and (5).
3 5. Overview: appeals and internal review
4 (1) Relevant decisions, findings and orders of courts in ordinary
5 criminal proceedings and in proceedings under Parts 3 and 5 are
6 appealable under the Criminal Appeals Act 2004.
7 (2) The results of those appeals can include that the accused must
8 be dealt with under this Act; see Part 4.
9 (3) Part 6 Division 7 provides for --
10 (a) internal review of decisions of the Tribunal in the
11 administration of supervision orders under Part 6; and
12 (b) appeals to the Supreme Court against decisions of courts
13 of summary jurisdiction relating to making, cancelling
14 or confirming custody orders and community
15 supervision orders; and
16 (c) appeals to the Supreme Court against some initial
17 decisions of the Tribunal and most internal review
18 decisions of the Tribunal.
19 (4) Part 12 provides for appeals to the Court of Appeal against
20 certain decisions of courts other than courts of summary
21 jurisdiction.
22 6. Overviews are guide only
23 The overviews in this Division and the overviews in other Parts
24 of this Act are intended only as a guide to the general scheme
25 and effect of this Act, and do not limit or otherwise affect the
26 other provisions of this Act.
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Criminal Law (Mental Impairment) Bill 2022
Preliminary Part 1
Objects, principles and paramount consideration Division 3
s. 7
1 Division 3 -- Objects, principles and paramount consideration
2 7. Objects and principles
3 (1) The objects of this Act are as follows --
4 (a) to ensure the protection of the community;
5 (b) to ensure persons with mental impairment who are
6 charged with an offence --
7 (i) are identified early in their contact with the
8 justice system; and
9 (ii) are given a reasonable opportunity to become fit
10 to stand trial; and
11 (iii) are given a fair hearing even if they are unfit to
12 stand trial in accordance with ordinary
13 procedures; and
14 (iv) are not found to have committed the offence
15 unless, on the evidence available, it can be
16 proved to the ordinary criminal standard of proof
17 that the person committed the offence; and
18 (v) are subject to the least possible interference with
19 their rights and dignity;
20 (c) to ensure that persons who are subject to supervision
21 orders --
22 (i) are afforded procedural fairness in relation to the
23 administration and management of those orders;
24 and
25 (ii) are reintegrated into the community in a safe
26 manner.
27 (2) A person performing a function under this Act (including when
28 constituting or a member of a court or tribunal) must have
29 regard to the following principles --
30 (a) that persons with mental impairment should be subject
31 to the least possible restriction on their freedom
32 consistent with the protection of the community;
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Division 3 Objects, principles and paramount consideration
s. 7
1 (b) that persons with mental impairment in the justice
2 system should have access to advocacy services;
3 (c) that persons with mental impairment in the justice
4 system should be provided with the best possible
5 treatment, care and support;
6 (d) that persons with mental impairment in the justice
7 system should be dealt with in a manner that is
8 culturally appropriate;
9 (e) that persons with mental impairment in the justice
10 system should not be subject to outcomes under this Act
11 that restrict their freedom more severely than if they had
12 been convicted of the offence that they have been found
13 to have, or are alleged to have, committed;
14 (f) that there should be special provision to ensure the fair
15 treatment of children with mental impairment who have
16 been found to have, or are alleged to have, committed
17 offences;
18 (g) that detaining a child with mental impairment for an
19 offence, whether before or after the child is found to
20 have committed the offence, should only be used as a
21 last resort and, if required, should only be used for as
22 short a time as is necessary;
23 (h) that the detention of a child, if required, should be in a
24 facility that is for, and suitable for, children;
25 (i) that if a child who has not reached the age of 16 years is
26 detained in a facility in which an adult is detained, the
27 child should not be exposed to contact with an adult
28 detained in the facility;
29 (j) that if a child who has reached the age of 16 years is
30 detained in a facility in which an adult is detained, the
31 child should not share living quarters with an adult
32 detained in the facility;
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Interpretation Division 4
s. 8
1 (k) that victims of offences committed by persons with
2 mental impairment should have the opportunity to be
3 acknowledged and heard;
4 (l) that the role of carers and families in the treatment, care
5 and support of persons with mental impairment should
6 be recognised.
7 8. Paramount consideration
8 The paramount consideration of a person when performing a
9 function under this Act (including when constituting or a
10 member of a court or tribunal) is the protection of the
11 community.
12 Division 4 -- Interpretation
13 9. Terms used
14 (1) In this Act --
15 accused means a person charged with an offence, and includes a
16 person --
17 (a) acquitted on account of mental impairment or in respect
18 of whom a finding under section 41(2)(c) has been
19 made; but
20 (b) in respect of whom no order has yet been made under
21 section 46;
22 administrator means --
23 (a) an administrator as defined in the Guardianship and
24 Administration Act 1990 section 3(1); and
25 (b) a donee of an enduring power of attorney as those terms
26 are defined in the Guardianship and Administration
27 Act 1990 section 102;
28 advocacy services officer has the meaning given in the Mental
29 Health Act 2014 section 374(1);
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Criminal Law (Mental Impairment) Bill 2022
Part 1 Preliminary
Division 4 Interpretation
s. 9
1 audio link has the meaning given in the Criminal Procedure
2 Act 2004 section 3(1);
3 authorised hospital has the meaning given in the Mental Health
4 Act 2014 section 4;
5 carer has the meaning given in the Carers Recognition Act 2004
6 section 5;
7 CEO means the chief executive officer of the Department;
8 CEO (Corrections) means the chief executive officer of the
9 department of the Public Service principally assisting in the
10 administration of the Sentence Administration Act 2003 Part 8;
11 CEO (Young Offenders) means the chief executive officer of
12 the department of the Public Service principally assisting in the
13 administration of the Young Offenders Act 1994;
14 charge has the meaning given in the Criminal Procedure
15 Act 2004 section 3(1);
16 Chief Mental Health Advocate has the meaning given in the
17 Mental Health Act 2014 section 4;
18 Chief Psychiatrist has the meaning given in the Mental Health
19 Act 2014 section 4;
20 child means a person who is under 18 years of age;
21 child-specific considerations means the considerations set out
22 in section 10;
23 close family member has the meaning given in the Mental
24 Health Act 2014 section 281;
25 community has a meaning affected by subsection (3);
26 community corrections officer has the meaning given in the
27 Sentence Administration Act 2003 section 4(2);
28 Community Services Department means the department of the
29 Public Service principally assisting in the administration of the
30 Children and Community Services Act 2004;
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Criminal Law (Mental Impairment) Bill 2022
Preliminary Part 1
Interpretation Division 4
s. 9
1 community supervision order (CSO) means an order of a kind
2 referred to in section 52 made under --
3 (a) section 46(1)(b); or
4 (b) section 110(4); or
5 (c) section 121(3); or
6 (d) section 206(3)(b);
7 custody order (CO) means an order of a kind referred to in
8 section 49 made under --
9 (a) section 46(1)(a); or
10 (b) section 89(1); or
11 (c) section 206(3)(a);
12 declared place means a place to which a declaration under
13 section 60 applies;
14 Department means the department of the Public Service
15 principally assisting in the administration of this Act;
16 Deputy President means a Deputy President of the Tribunal;
17 detention centre has the meaning given in the Young Offenders
18 Act 1994 section 3;
19 Disability Services Commission means the Disability Services
20 Commission referred to in the Disability Services Act 1993
21 section 6;
22 DSC declared place means a declared place that is controlled
23 and managed by or on behalf of the Disability Services
24 Commission under the Declared Places (Mental Impairment)
25 Act 2015;
26 enduring guardian has the meaning given in the Guardianship
27 and Administration Act 1990 section 3(1);
28 experienced lawyer has the meaning given in section 155;
29 extended community supervision order means an order made
30 under section 114(1);
31 extended custody order means an order made under
32 section 110(1);
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Criminal Law (Mental Impairment) Bill 2022
Part 1 Preliminary
Division 4 Interpretation
s. 9
1 extended order means an extended community supervision
2 order or an extended custody order;
3 guardian means --
4 (a) a guardian as defined in the Guardianship and
5 Administration Act 1990 section 3(1); and
6 (b) an enduring guardian;
7 health professional has the meaning given in the Mental Health
8 Act 2014 section 4;
9 hospital order means an order made under section 19;
10 inpatient treatment order has the meaning given in the Mental
11 Health Act 2014 section 4;
12 interim community supervision order means an order made
13 under section 108(2);
14 interim custody order means an order made under
15 section 107(2);
16 interim disposition has the meaning given in section 200;
17 involuntary inpatient has the meaning given in the Mental
18 Health Act 2014 section 4;
19 involuntary patient has the meaning given in the Mental Health
20 Act 2014 section 4;
21 leave of absence order has the meaning given in section 77(1);
22 limiting term --
23 (a) for a custody order -- means the term set under
24 section 50(2); and
25 (b) for an extended custody order -- means the term set
26 under section 110(1);
27 member means a member of the Tribunal;
28 mental health advocate has the meaning given in the Mental
29 Health Act 2014 section 4;
30 mental illness has the meaning given in the Mental Health
31 Act 2014 section 4;
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Criminal Law (Mental Impairment) Bill 2022
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Interpretation Division 4
s. 9
1 mental impairment means any of, or a combination of, the
2 following --
3 (a) an intellectual disability;
4 (b) a mental illness as defined in The Criminal Code
5 section 1(1);
6 (c) an acquired brain injury;
7 (d) dementia;
8 Minister for Corrective Services means the Minister to whom
9 the administration of the Prisons Act 1981 is committed;
10 parent, in relation to a child, includes any person who has
11 parental responsibility (as defined in the Family Court Act 1997
12 section 68) for the child;
13 personal information means information or an opinion, whether
14 true or not, about an individual whose identity is apparent, or
15 can reasonably be ascertained, from the information or opinion;
16 prescribed means prescribed by regulations made under this
17 Act;
18 President means the President of the Tribunal;
19 prison has the meaning given in the Prisons Act 1981
20 section 3(1);
21 psychiatrist has the meaning given in the Mental Health
22 Act 2014 section 4;
23 psychologist has the meaning given in the Mental Health
24 Act 2014 section 4;
25 Public Advocate has the meaning given in the Guardianship
26 and Administration Act 1990 section 3(1);
27 remuneration has the meaning given in the Salaries and
28 Allowances Act 1975 section 4(1);
29 representative, of a supervised person, means any of the
30 following --
31 (a) a guardian of the person;
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Criminal Law (Mental Impairment) Bill 2022
Part 1 Preliminary
Division 4 Interpretation
s. 9
1 (b) a person recognised by the Tribunal under section 58 as
2 a representative of the supervised person;
3 safety of the community has a meaning affected by
4 subsection (4);
5 serious offence means an offence listed in Schedule 1;
6 special proceeding means a proceeding under Part 3 Division 3
7 Subdivision 3;
8 specified, in relation to an order, instrument or other document
9 made under or referred to in this Act, means specified in that
10 order, instrument or document;
11 statutory penalty has the meaning given in the Sentencing
12 Act 1995 section 4(1);
13 supervised person means a person subject to a supervision
14 order;
15 supervising officer, for a supervised person, means a person
16 designated under section 99 for the supervised person and,
17 where relevant, includes a person referred to in section 54(2)(a);
18 supervision order means any of the following --
19 (a) a community supervision order;
20 (b) a custody order;
21 (c) an extended community supervision order;
22 (d) an extended custody order;
23 (e) an interim community supervision order;
24 (f) an interim custody order;
25 (g) an interim disposition;
26 supporting agency has the meaning given in section 219;
27 support measure means any measure that may facilitate
28 participation of an accused or supervised person in proceedings
29 before a court or the Tribunal, including (without limitation)
30 any of the following --
31 (a) that the accused or supervised person, while before the
32 court or Tribunal, have near them a person approved by
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Criminal Law (Mental Impairment) Bill 2022
Preliminary Part 1
Interpretation Division 4
s. 9
1 the court or Tribunal who may provide them with
2 support;
3 (b) that the accused or supervised person have a
4 communication partner (as defined in section 21) while
5 communicating with the court or Tribunal;
6 (c) that the accused or supervised person communicate with
7 the court or Tribunal through the use of any device (for
8 example, a communication board) approved by the court
9 or Tribunal;
10 trial does not include --
11 (a) a proceeding in relation to bail; or
12 (b) a sentencing proceeding; or
13 (c) a special proceeding;
14 Tribunal means the Mental Impairment Review Tribunal
15 established by section 156;
16 underlying custody order, in relation to a leave of absence
17 order, means the custody order in respect of which the leave of
18 absence order is made;
19 unfit accused means an accused who is currently unfit to stand
20 trial or in respect of whom the question of fitness to stand trial
21 has been raised but has yet to be resolved;
22 victim, of an offence, has the meaning given in section 142;
23 video link has the meaning given in the Criminal Procedure
24 Act 2004 section 3(1);
25 working day means a day other than a Saturday, a Sunday or a
26 public holiday.
27 (2) A reference to varying conditions of an order includes a
28 reference to --
29 (a) imposing new conditions on the order; and
30 (b) cancelling 1 or more, but not all, conditions of the order.
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Criminal Law (Mental Impairment) Bill 2022
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Division 4 Interpretation
s. 10
1 (3) A reference to the community includes any community and is
2 not limited to the community of Western Australia or Australia.
3 (4) A reference to the safety of the community includes a reference
4 to the safety of an individual in the community.
5 10. Child-specific considerations
6 For the purposes of this Act, the child-specific considerations
7 are --
8 (a) the age and level of maturity of the child;
9 (b) the availability of a responsible person (as defined in the
10 Bail Act 1982 Schedule 1 Part C clause 2) to care for the
11 child;
12 (c) any requirement that the child attend school or
13 educational or vocational training;
14 (d) the availability of accommodation for the child;
15 (e) any involvement in relation to the child of the
16 Community Services Department;
17 (f) the best interests of the child.
18 11. Commission of offence: persons who have been acquitted on
19 account of mental impairment
20 (1) A reference in this Act to the commission of an offence
21 includes, in relation to a person who has been acquitted of the
22 offence on account of mental impairment, a reference to the
23 doing of the act or the making of the omission that would have
24 constituted the offence of which the person was acquitted.
25 (2) A reference in this Act to an offence that a person is found to
26 have committed includes a reference to an offence of which the
27 person was acquitted on account of mental impairment.
28 (3) This section applies unless the contrary intention appears.
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Criminal Law (Mental Impairment) Bill 2022
Preliminary Part 1
Other provisions Division 5
s. 12
1 Division 5 -- Other provisions
2 12. Act binds Crown
3 This Act binds the Crown in right of Western Australia and, so
4 far as the legislative power of the Parliament permits, the Crown
5 in all its other capacities.
6 13. Application of Courts and Tribunals (Electronic Processes
7 Facilitation) Act 2013 Part 2
8 The Courts and Tribunals (Electronic Processes Facilitation)
9 Act 2013 Part 2 applies to this Act.
page 17
Criminal Law (Mental Impairment) Bill 2022
Part 2 General provisions
Division 1 Courts' procedures
s. 14
1 Part 2 -- General provisions
2 Division 1 -- Courts' procedures
3 14. Application of Criminal Procedure Act 2004 to proceedings
4 under Pt. 3 and 5
5 (1) The Criminal Procedure Act 2004 applies, with the necessary
6 modifications, to and in relation to proceedings under Parts 3
7 and 5 and a court may, for the purposes of particular
8 proceedings, modify the application of that Act to and in
9 relation to the proceedings.
10 (2) Without limiting subsection (1), the definition of prosecution in
11 the Criminal Procedure Act 2004 section 3(1) is to be read as
12 including proceedings under Part 3.
13 (3) Regulations may modify the application of the Criminal
14 Procedure Act 2004 to and in relation to proceedings under
15 Parts 3 and 5.
16 (4) To the extent of any inconsistency between this Act and the
17 Criminal Procedure Act 2004, this Act prevails.
18 15. Adjournments
19 (1) A court has a general power to adjourn proceedings under this
20 Act at any time.
21 (2) A court that adjourns proceedings under this Act in respect of a
22 person may --
23 (a) remand the person in custody subject to the Bail
24 Act 1982; or
25 (b) grant the person bail in accordance with the Bail
26 Act 1982; or
27 (c) make a hospital order; or
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Criminal Law (Mental Impairment) Bill 2022
General provisions Part 2
Interaction with Mental Health Act 2014 Division 2
s. 16
1 (d) if the person is an involuntary inpatient -- order that the
2 person be returned to the hospital at which they are
3 detained.
4 Division 2 -- Interaction with Mental Health Act 2014
5 16. Criminal law applies to involuntary patients
6 Except to the extent that this Act provides otherwise, the fact
7 that a person is an involuntary patient under the Mental Health
8 Act 2014 does not affect the operation of this Act, or the
9 operation of the criminal law, in respect of the person.
10 17. Person in custody may be made involuntary patient
11 (1) In this section --
12 custodial order means any of the following --
13 (a) an order remanding an accused in custody;
14 (b) a hospital order under which a person is in custody in
15 accordance with section 19(3)(c)(ii);
16 (c) a custody order;
17 (d) an interim or extended custody order;
18 (e) an interim disposition under section 205(1)(a).
19 (2) This Act does not prevent a person who is in custody under a
20 custodial order from being made an involuntary patient.
21 (3) If an inpatient treatment order is made in respect of a person
22 who is in custody under a custodial order, the person must be
23 detained at a hospital in accordance with the Mental Health
24 Act 2014.
25 (4) If a person to whom subsection (3) applies is released from the
26 hospital, the person must be detained in custody in accordance
27 with the custodial order.
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Criminal Law (Mental Impairment) Bill 2022
Part 2 General provisions
Division 2 Interaction with Mental Health Act 2014
s. 18
1 (5) Subsection (3) does not apply to a supervised person required to
2 be detained at an authorised hospital under --
3 (a) a custody order; or
4 (b) an interim or extended custody order; or
5 (c) an interim disposition under section 205(1)(a).
6 Note for this subsection:
7 The detention, leave of absence and release of such a person is
8 governed by this Act and not the Mental Health Act 2014 Part 7; see
9 section 82 of that Act.
10 18. Supervised person in community may be made involuntary
11 patient
12 This Act does not prevent a person living in the community
13 under 1 of the following from being made an involuntary
14 patient --
15 (a) a community supervision order;
16 (b) an interim or extended community supervision order;
17 (c) a leave of absence order;
18 (d) an interim disposition under section 205(1)(b).
19 19. Court may make hospital order in respect of accused
20 (1) This section applies if an accused has been refused bail under
21 the Bail Act 1982.
22 (2) A judicial officer (as defined in the Bail Act 1982 section 3(1))
23 may make an order under this section (a hospital order) in
24 respect of the accused if the judicial officer reasonably suspects
25 that --
26 (a) the accused has a mental illness for which the accused is
27 in need of treatment; and
28 (b) because of the mental illness there is --
29 (i) a significant risk to the health or safety of the
30 accused or to the safety of another person; or
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Criminal Law (Mental Impairment) Bill 2022
General provisions Part 2
Interaction with Mental Health Act 2014 Division 2
s. 19
1 (ii) a significant risk of serious harm to the accused
2 or to another person;
3 and
4 (c) the accused does not have the capacity to consent to
5 treatment.
6 (3) A hospital order is an order that the accused --
7 (a) must be taken to and detained at an authorised hospital;
8 and
9 (b) must be examined by a psychiatrist; and
10 (c) following the examination, must, until brought before
11 the court in accordance with subsection (4), be
12 detained --
13 (i) if, as a result of the examination, an inpatient
14 treatment order is made in respect of the
15 accused -- at a hospital;
16 (ii) in any other case -- in custody.
17 (4) A hospital order must specify a day, that is not more than 7 days
18 after the day on which the order is made, for the accused to be
19 brought before the court specified in the order.
20 (5) A hospital order has effect as if the accused had been referred
21 under the Mental Health Act 2014 section 26(2) for an
22 examination by a psychiatrist at an authorised hospital and,
23 subject to subsections (3) and (4), that Act applies accordingly.
24 (6) An accused who, while required to be detained at an authorised
25 hospital under a hospital order, is away from the hospital
26 without lawful authority, may be apprehended and returned,
27 either under an order under the Mental Health Act 2014 Part 7
28 Division 5 or on the basis that they have escaped lawful
29 custody.
30 (7) A hospital order must not be made if the accused is subject to an
31 inpatient treatment order.
page 21
Criminal Law (Mental Impairment) Bill 2022
Part 2 General provisions
Division 3 Communication with accused and supervised persons
s. 20
1 Division 3 -- Communication with accused and supervised
2 persons
3 20. Communication and support measures
4 (1) For the purposes of this section, communication with a person
5 includes the provision to a person of any advice, explanation,
6 information, notification or reasons.
7 (2) Communication with an accused or supervised person under this
8 Act must be in a language, form of communication and terms
9 that the person is likely to understand using any means of
10 communication that is practicable and using an interpreter if
11 necessary and practicable.
12 (3) For the purposes of proceedings before a court or the Tribunal,
13 the court or Tribunal may order that an accused or supervised
14 person be provided with any support measure that is reasonably
15 available.
16 21. Appointment of communication partner for accused or
17 supervised person
18 (1) If, during proceedings before a court or the Tribunal, an accused
19 or supervised person is to give evidence or otherwise
20 communicate with the court or Tribunal, the court or Tribunal
21 may appoint a person (a communication partner) to perform
22 the function described in subsection (2).
23 (2) The function of a communication partner is, when requested by
24 the court or Tribunal, to --
25 (a) communicate and explain to the accused or supervised
26 person, any questions put to the accused or supervised
27 person; and
28 (b) communicate and explain to the court or Tribunal, the
29 information given by the accused or supervised person.
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Criminal Law (Mental Impairment) Bill 2022
General provisions Part 2
Submissions by close family members and carers Division 4
s. 22
1 (3) The court or Tribunal can only appoint a person as a
2 communication partner if it considers that the person is suitable
3 and competent.
4 (4) A communication partner must take an oath or make a
5 declaration, in a form that the court or Tribunal considers
6 appropriate, that they will faithfully perform their function
7 under subsection (2).
8 (5) A communication partner who, while performing or purportedly
9 performing a function under subsection (2), makes a statement
10 to the accused or supervised person or to the court or Tribunal
11 that the person knows is false or misleading in a material
12 particular commits a crime.
13 Penalty for this subsection: imprisonment for 5 years.
14 Summary conviction penalty for this subsection: imprisonment
15 for 2 years and a fine of $24 000.
16 (6) The regulations may provide for matters relating to
17 communication partners, including the kinds of qualifications
18 and experience that a court or the Tribunal must have regard to
19 when considering whether to appoint a communication partner.
20 Division 4 -- Submissions by close family members and carers
21 22. Submission by close family members and carers
22 (1) This section applies in relation to proceedings before a court or
23 the Tribunal under Part 5, 6, 7 or 11.
24 (2) A close family member or carer of the accused or supervised
25 person may make a submission to the court or Tribunal in
26 relation to the treatment, care and support of the person.
27 (3) A submission must be in writing.
28 (4) A submission may include suggestions about the conditions that
29 should apply to the accused or supervised person.
page 23
Criminal Law (Mental Impairment) Bill 2022
Part 2 General provisions
Division 5 Reports under this Act
s. 23
1 (5) A court may rule as inadmissible the whole or any part of a
2 submission.
3 (6) The Tribunal must establish procedures for the giving of
4 submissions.
5 (7) In exercising its jurisdiction, the Tribunal may have regard to a
6 submission received by it and may give the submission such
7 weight as it sees fit.
8 Division 5 -- Reports under this Act
9 23. Reports to include information about treatment, training or
10 other measures
11 If, under this Act, a person is required to make an assessment of,
12 or report on, the mental state of an accused or a supervised
13 person, the person must include in the report the following
14 information --
15 (a) the nature of any treatment, training or other measures
16 provided in relation to the person's condition;
17 (b) the reasons for the treatment, training or other measures;
18 (c) the response to the treatment, training or other measures;
19 (d) the prescribed information.
page 24
Criminal Law (Mental Impairment) Bill 2022
Accused who are unfit to stand trial Part 3
Preliminary matters Division 1
s. 24
1 Part 3 -- Accused who are unfit to stand trial
2 Division 1 -- Preliminary matters
3 24. Overview of Part
4 (1) Division 2 deals with raising and deciding the question of
5 whether an accused is fit to stand trial.
6 (2) Division 3 provides for the procedure for dealing with an unfit
7 accused, which includes --
8 (a) in the case of a charge of a simple offence or an
9 indictable offence that was to be dealt with
10 summarily -- the court deciding whether to discharge
11 the accused from the charge; and
12 (b) a special proceeding in which the court is to decide the
13 charge against the accused, on the evidence available.
14 (3) This Part includes requirements, at sections 30 and 36, to notify
15 the Chief Mental Health Advocate of adjournment of
16 proceedings in relation to unfit accused.
17 Note for this section:
18 An unfit accused includes a person in respect of whom the question of
19 fitness to stand trial has been raised but has yet to be resolved.
20 25. Application of Part
21 This Part applies in respect of an accused before a court
22 exercising criminal jurisdiction.
page 25
Criminal Law (Mental Impairment) Bill 2022
Part 3 Accused who are unfit to stand trial
Division 2 Raising and deciding question of fitness of accused
s. 26
1 Division 2 -- Raising and deciding question of fitness
2 of accused
3 26. Accused who is unfit to stand trial
4 An accused is unfit to stand trial on a charge of an offence if the
5 accused, because of mental impairment, is unable to do 1 or
6 more of the following --
7 (a) understand the nature of the charge;
8 (b) give instructions to a legal practitioner representing the
9 accused;
10 (c) understand the requirement to plead to the charge or the
11 effect of a plea;
12 (d) understand the purpose of a trial;
13 (e) understand or exercise the right to challenge jurors;
14 (f) follow the course of the trial;
15 (g) understand the substantial effect of evidence presented
16 by the prosecution in the trial;
17 (h) decide whether to give evidence, or to give evidence if
18 they wish to do so;
19 (i) properly defend the charge.
20 27. Presumptions as to fitness to stand trial
21 (1) An accused is presumed to be fit to stand trial until the contrary
22 is found under this Division.
23 (2) An accused found under this Division to be unfit to stand trial is
24 presumed to remain unfit until the contrary is found under this
25 Division.
26 28. When the question of fitness to stand trial may be raised
27 (1) The question of whether an accused is unfit to stand trial may be
28 raised at any time before or during a trial.
page 26
Criminal Law (Mental Impairment) Bill 2022
Accused who are unfit to stand trial Part 3
Raising and deciding question of fitness of accused Division 2
s. 29
1 (2) The question may be raised by the defence, the prosecution or
2 the court on its own initiative.
3 (3) The question may be raised more than once but, if the question
4 is raised a second or subsequent time, it need not be considered
5 unless the court is satisfied that new facts have been discovered,
6 new circumstances have arisen or the circumstances have
7 changed since the question was last raised.
8 29. Deciding question of fitness to stand trial
9 (1) The question of whether an accused is unfit to stand trial is to be
10 decided on the balance of probabilities by a court constituted by
11 a magistrate or judge sitting alone.
12 (2) The court deciding the question may inquire into the question
13 and inform itself in any way that it considers appropriate.
14 (3) For the purpose of the inquiry the court may do any of the
15 following --
16 (a) order that the accused be examined by a psychiatrist,
17 psychologist or other appropriate expert;
18 (b) order that a report about the accused by an expert be
19 submitted to the court;
20 (c) adjourn the proceedings and, if there is a jury, discharge
21 it;
22 (d) make any other order the court considers appropriate.
23 (4) The court may make a report about the accused available to the
24 prosecutor and to the accused, on any conditions the court
25 considers appropriate.
26 (5) In deciding the question, the court may have regard to the extent
27 to which support measures that are, in the court's opinion,
28 reasonably available would enable the accused to be fit to stand
29 trial.
page 27
Criminal Law (Mental Impairment) Bill 2022
Part 3 Accused who are unfit to stand trial
Division 2 Raising and deciding question of fitness of accused
s. 30
1 30. Chief Mental Health Advocate to be notified
2 If proceedings are adjourned under section 29(3)(c), the court
3 must immediately notify, and give the prescribed information
4 to, the Chief Mental Health Advocate.
5 31. Determining question of fitness if charge to be dealt with on
6 indictment
7 (1) Subsection (2) applies if the question of whether an accused is
8 unfit to stand trial is raised in 1 of the following
9 circumstances --
10 (a) the accused is before the Magistrates Court and --
11 (i) the accused is charged with an indictable
12 offence; and
13 (ii) the charge is to be dealt with on indictment by
14 the District Court or the Supreme Court;
15 (b) the accused is before the Children's Court and --
16 (i) the accused is charged with an indictable
17 offence; and
18 (ii) the charge is, because of the Children's Court of
19 Western Australia Act 1988 section 19B(1)
20 or 19C(1), to be dealt with on indictment by the
21 District Court or the Supreme Court;
22 (c) the accused is before the Children's Court and --
23 (i) the accused is charged with an indictable
24 offence; and
25 (ii) the charge is, because of the Children's Court of
26 Western Australia Act 1988 section 19D, to be
27 dealt with by the Magistrates Court.
28 (2) If this subsection applies the court must reserve the question for
29 determination by the court that is to deal with the charge.
page 28
Criminal Law (Mental Impairment) Bill 2022
Accused who are unfit to stand trial Part 3
Procedure following finding of unfitness Division 3
s. 32
1 32. Fit to stand trial with support measures
2 If a court finds that an accused is fit to stand trial while the
3 accused has access to support measures, those support
4 measures, to the extent that they remain necessary for the person
5 to be fit, must be made available to the accused throughout the
6 trial.
7 Division 3 -- Procedure following finding of unfitness
8 Subdivision 1 -- Application of Division
9 33. Division applies to accused found unfit
10 This Division applies when a court finds an accused to be unfit
11 to stand trial.
12 34. Application of Young Offenders Act 1994
13 Nothing in this Division prevents an accused who is a young
14 person (as defined in the Young Offenders Act 1994 section 3)
15 from being dealt with under Part 5 of that Act unless a finding
16 has been made under section 41(2) of this Act.
17 Subdivision 2 -- General procedure
18 35. Opportunity for accused to become fit to stand trial
19 (1) If, after making the finding that the accused is unfit to stand trial
20 (the finding of unfitness), the court is satisfied on the balance
21 of probabilities that the accused will not become fit to stand trial
22 within 6 months, the court must make an order under section 37.
23 (2) If the court is not satisfied under subsection (1), the court must
24 adjourn the proceedings in order to see whether the accused will
25 become fit to stand trial.
page 29
Criminal Law (Mental Impairment) Bill 2022
Part 3 Accused who are unfit to stand trial
Division 3 Procedure following finding of unfitness
s. 36
1 (3) The court may adjourn proceedings under subsection (2) for any
2 period or periods that the court considers appropriate, but not
3 beyond the period of --
4 (a) 6 months after the finding of unfitness; or
5 (b) if the court is satisfied that there are exceptional
6 circumstances that justify a longer period or periods of
7 adjournment -- 12 months after the finding of unfitness.
8 (4) If, at any time after adjourning the proceedings under
9 subsection (2), the court becomes satisfied on the balance of
10 probabilities that the accused will not become fit to stand trial
11 within the period of 6 months after the finding of unfitness, or
12 any period of adjournment extending beyond the 6 months, the
13 court must make an order under section 37.
14 (5) If the accused has not become fit at the end of the period of
15 6 months after the finding of unfitness, or any period of
16 adjournment extending beyond the 6 months, the court must
17 make an order under section 37.
18 36. Chief Mental Health Advocate to be notified
19 If proceedings are adjourned under section 35(2), the court must
20 immediately notify, and give the prescribed information to, the
21 Chief Mental Health Advocate.
22 37. Court to make orders as to how charge against unfit accused
23 to be dealt with
24 (1) This section applies if the court must, under section 35, make an
25 order under this section.
26 (2) In the case of a charge of a simple offence or an indictable
27 offence that was to be dealt with summarily, the court must
28 either --
29 (a) discharge the accused from the charge; or
30 (b) order that a special proceeding take place under
31 Subdivision 3.
page 30
Criminal Law (Mental Impairment) Bill 2022
Accused who are unfit to stand trial Part 3
Procedure following finding of unfitness Division 3
s. 38
1 (3) In any other case, the court must order that a special proceeding
2 take place under Subdivision 3.
3 (4) If the accused is discharged under subsection (2)(a) the accused
4 cannot be charged with or tried for an offence which, on the
5 charge, the accused might have been found to have committed.
6 38. Legal representation of unfit accused
7 (1) If it appears to the court that the accused should have legal
8 representation, the court may (on application or its own
9 initiative) adjourn proceedings until the accused is represented
10 by a legal practitioner.
11 (2) If the accused is unable to instruct their legal practitioner, the
12 legal practitioner may exercise an independent discretion and, in
13 doing so, must act in a way that they reasonably believe to be in
14 the accused's best interests.
15 (3) If there is a question as to the extent to which the accused is
16 able to instruct a legal practitioner or is able to make
17 admissions, the question must be determined by the court.
18 39. Procedure for deciding if accused has become fit to stand
19 trial
20 Sections 28 and 29 apply, with the necessary modifications, in
21 relation to the question of whether the accused has become fit to
22 stand trial.
23 40. Trial to continue if accused found fit to stand trial
24 If, after finding that the accused is unfit to stand trial, the court
25 finds that the accused is fit to stand trial, the trial must be
26 resumed in accordance with ordinary procedures.
page 31
Criminal Law (Mental Impairment) Bill 2022
Part 3 Accused who are unfit to stand trial
Division 3 Procedure following finding of unfitness
s. 41
1 Subdivision 3 -- Special proceedings
2 41. Nature of special proceedings
3 (1) The purpose of a special proceeding is for the court, constituted
4 by a magistrate or judge sitting alone, to decide the charge
5 against the accused, on the evidence available.
6 (2) In deciding the charge the court may find that the accused --
7 (a) is not guilty (other than as described in paragraph (b));
8 or
9 (b) is not guilty on account of mental impairment under The
10 Criminal Code section 27; or
11 (c) committed the offence charged or another offence
12 which, on the charge, the accused might be found to
13 have committed.
14 (3) To find that the accused committed an offence, the court must
15 be satisfied beyond a reasonable doubt.
16 (4) The decision of the court must include the reasons for its
17 decision but the validity of a decision is not affected by a failure
18 to comply with this subsection.
19 42. Conduct of special proceedings
20 (1) A special proceeding may be conducted in the manner that the
21 court considers appropriate in the circumstances of the case,
22 including without holding a hearing.
23 (2) However, the court must, to the extent practicable, endeavour to
24 conduct the proceeding as if it were an ordinary criminal
25 proceeding.
26 (3) In determining the manner in which a special proceeding is to
27 be conducted, the court must confer with the parties to the
28 proceeding.
page 32
Criminal Law (Mental Impairment) Bill 2022
Accused who are unfit to stand trial Part 3
Procedure following finding of unfitness Division 3
s. 43
1 (4) Without limiting subsection (1), for the purposes of a special
2 proceeding --
3 (a) the accused is taken to plead not guilty; and
4 (b) the accused may raise any defence that the accused
5 could raise at a trial; and
6 (c) the rules of evidence apply, subject to any modifications
7 determined by the court; and
8 (d) the accused may give evidence.
9 (5) Subsection (4)(d) does not imply that the court must hold a
10 hearing.
11 43. Effect of findings
12 (1) If a finding is made under section 41(2)(a) the accused is taken
13 for all purposes to have been found not guilty at a criminal trial.
14 (2) If a finding is made under section 41(2)(b) the accused is taken
15 for all purposes to have been found not guilty on account of
16 mental impairment under The Criminal Code section 27 at a
17 criminal trial.
18 (3) If a finding is made under section 41(2)(c) --
19 (a) the court must not enter a judgment of conviction; and
20 (b) in relation to a simple offence or an indictable offence
21 that was to be dealt with summarily -- the accused
22 cannot be charged with or tried for an offence which, on
23 the charge, the accused might have been found to have
24 committed; and
25 (c) in relation to an indictable offence other than an offence
26 that was to be dealt with summarily -- the finding does
27 not prevent the accused from being charged with and
28 tried for an offence which, on the charge, the accused
29 might have been found to have committed.
page 33
Criminal Law (Mental Impairment) Bill 2022
Part 3 Accused who are unfit to stand trial
Division 3 Procedure following finding of unfitness
s. 43
1 (4) If a finding is made under section 41(2)(a) or (b), the court must
2 enter judgment accordingly.
3 (5) If a finding is made under section 41(2)(b) or (c), the court must
4 make an order under Part 5 in respect of the accused.
page 34
Criminal Law (Mental Impairment) Bill 2022
Persons required to be dealt with under this Act Part 4
s. 44
1 Part 4 -- Persons required to be dealt with under
2 this Act
3 44. Persons acquitted on account of mental impairment or
4 found to have committed offence
5 (1) If a court must deal with a person under this Act because of the
6 Criminal Procedure Act 2004 section 149(1), the court must
7 make an order under Part 5 in respect of the accused.
8 (2) If a court must deal with a person under this Act because of the
9 Criminal Appeals Act 2004 section 30(5), 32(7) or 32A(6)
10 (including as referred to in section 14 of that Act), the court
11 must make an order under Part 5 in respect of the accused.
12 Note for this section:
13 This section applies when --
14 (a) a person is acquitted on account of mental impairment, either at
15 trial or on appeal; and
16 (b) on appeal, a person is found under section 41(2)(c) to have
17 committed an offence.
page 35
Criminal Law (Mental Impairment) Bill 2022
Part 5 Court-ordered dispositions
Division 1 Overview of Part
s. 45
1 Part 5 -- Court-ordered dispositions
2 Division 1 -- Overview of Part
3 45. Overview of Part
4 (1) This Part provides for the orders that can be made by a court in
5 relation to --
6 (a) an accused who has been acquitted on account of mental
7 impairment, whether in a trial or in a special proceeding
8 under Part 3 Division 3 for unfit accused; and
9 (b) an accused who, in a special proceeding under Part 3
10 Division 3 for unfit accused, has been found to have
11 committed an offence.
12 (2) Three types of orders can be made --
13 (a) a CO;
14 (b) a CSO;
15 (c) an order that the accused be released unconditionally.
16 (3) An accused subject to a CO or a CSO is a supervised person.
17 (4) Under this Part, the court, if it does not release the accused
18 unconditionally, determines what type of order the accused will
19 be subject to, the term of the order and, for a CSO, may impose
20 conditions. Under Part 6 the Tribunal then administers the order
21 including, for a CO, determining the place of custody.
22 (5) This Part (to the extent relevant) also applies to the making of
23 COs and CSOs under Parts 6, 7 and 11 as if these orders were
24 made under this Part; see sections 89(5), 110(5), 121(4)
25 and 206(5).
26 (6) A CO ceases to have effect in accordance with section 51, and a
27 CSO in accordance with section 56.
page 36
Criminal Law (Mental Impairment) Bill 2022
Court-ordered dispositions Part 5
Orders that may be made by court Division 2
s. 46
1 (7) This Part includes a requirement, under section 48, to notify the
2 Chief Mental Health Advocate of the making of a CO or CSO.
3 Division 2 -- Orders that may be made by court
4 46. Orders that may be made
5 (1) If a court must make an order under this Part in respect of an
6 accused, it must --
7 (a) make a custody order; or
8 (b) make a community supervision order; or
9 (c) order that the person be released unconditionally.
10 (2) Subject to subsection (3), a custody order must be made in
11 respect of a person if the offence that the person is found to
12 have committed was a serious offence, unless --
13 (a) the court is satisfied on the balance of probabilities that
14 any risk that the person appears to present to the safety
15 of the community can be adequately managed under a
16 community supervision order; or
17 (b) the person was, at the time of the commission of the
18 offence, a child and the court is satisfied that there are
19 exceptional circumstances.
20 (3) A custody order must not be made in respect of a person unless
21 the statutory penalty for the offence is or includes
22 imprisonment.
23 (4) An order that the person be released unconditionally cannot be
24 made in respect of a person if the offence that the person is
25 found to have committed was a serious offence unless the
26 person was, at the time of the commission of the offence, a child
27 and the court is satisfied that there are exceptional
28 circumstances.
page 37
Criminal Law (Mental Impairment) Bill 2022
Part 5 Court-ordered dispositions
Division 2 Orders that may be made by court
s. 47
1 47. Orders that may be made: considerations
2 (1) When making an order under this Part, the court must have
3 regard to the following --
4 (a) the protection of the community;
5 (b) the nature of the offence and the circumstances of its
6 commission;
7 (c) the person's character, antecedents, age and health;
8 (d) the nature of the person's mental impairment;
9 (e) the relationship between the mental impairment and the
10 offending conduct;
11 (f) the degree of risk that the person appears to present to
12 themself or the safety of the community because of their
13 mental impairment;
14 (g) the extent to which adequate resources are available for
15 the treatment, care and support of the person in the
16 community;
17 (h) if the person is a child -- the child-specific
18 considerations;
19 (i) if the person was a child at the time of the commission
20 of the offence -- the general principles of juvenile
21 justice set out in the Young Offenders Act 1994
22 section 7.
23 (2) Subsection (1) does not limit the matters to which the court may
24 have regard.
25 (3) The court may require a prosecutor to provide copies of
26 documents relevant to the factors to be considered under
27 subsection (1)(b) and (c).
28 (4) The court may order that a report by a psychiatrist, psychologist
29 or other appropriate expert about any of the matters referred to
30 in subsection (1) be submitted to the court.
page 38
Criminal Law (Mental Impairment) Bill 2022
Court-ordered dispositions Part 5
Custody orders Division 3
s. 48
1 48. Court to notify Tribunal and Chief Mental Health Advocate
2 of orders
3 If a court makes a custody order or a community supervision
4 order, the court must immediately --
5 (a) notify the Tribunal and the Chief Mental Health
6 Advocate that the order has been made; and
7 (b) give the Tribunal and the Chief Mental Health Advocate
8 a copy of the order and the prescribed information.
9 Division 3 -- Custody orders
10 49. Custody orders
11 A custody order is an order that, subject to this Act, a person be
12 detained in custody at a place determined from time to time by
13 the Tribunal under Part 6 Division 3 for the protection of the
14 community.
15 50. Limiting term for custody order
16 (1) In this section --
17 term of detention means a term of detention under the Young
18 Offenders Act 1994;
19 term of imprisonment means term as defined in the Sentencing
20 Act 1995 section 85(1).
21 (2) If a court makes a custody order, the court must set a limiting
22 term for the order, being the best estimate of the term of
23 imprisonment or term of detention that the court would, in all
24 the circumstances, have imposed if --
25 (a) the court were sentencing the person for the offence; and
26 (b) any mental impairment of the person were not taken into
27 account.
page 39
Criminal Law (Mental Impairment) Bill 2022
Part 5 Court-ordered dispositions
Division 4 Community supervision orders
s. 51
1 (3) For the purposes of subsection (2), the court must assume
2 that --
3 (a) the person had pleaded guilty to the charge at the earliest
4 opportunity; and
5 (b) there is no other option but to impose a term of
6 imprisonment or term of detention.
7 (4) The limiting term commences on the day on which the order is
8 made unless the court, after taking into account any time that
9 the person has already spent in custody in relation to the
10 offence, orders that the term be taken to have commenced on an
11 earlier day.
12 51. When custody order ceases to have effect
13 A custody order has effect until the earliest of the following --
14 (a) its limiting term expires;
15 (b) it is cancelled under section 74;
16 (c) if a leave of absence order applies to the person subject
17 to the custody order -- an order of the Tribunal under
18 section 73(1)(d)(iii) cancelling all of the conditions of
19 the leave of absence order comes into effect.
20 Division 4 -- Community supervision orders
21 52. Community supervision orders
22 A community supervision order is an order that a person, while
23 residing in the community, must comply with the conditions of
24 the order for the protection of the community.
25 53. Term of community supervision order
26 (1) The term of a community supervision order must be set by the
27 court and must not be more than 5 years.
page 40
Criminal Law (Mental Impairment) Bill 2022
Court-ordered dispositions Part 5
Community supervision orders Division 4
s. 54
1 (2) The term of a community supervision order begins on the day
2 on which the order is made.
3 54. Conditions of community supervision order: statutory
4 conditions
5 (1) It is a condition of a community supervision order that the
6 supervised person be under the supervision of a supervising
7 officer designated for the person, which includes complying
8 with the lawful directions of the officer.
9 (2) It is a condition of a community supervision order that the
10 supervised person must --
11 (a) on the next working day after the day on which the order
12 is made, report to a community corrections officer or, if
13 the person is a child, an officer of the Department (as
14 defined in the Young Offenders Act 1994 section 3)
15 assigned by the CEO (Young Offenders) for the child;
16 and
17 (b) be under the supervision of the officer; and
18 (c) comply with the lawful directions of the officer until a
19 supervising officer is designated for the person.
20 (3) The powers of an officer referred to in subsection (2) are, when
21 performing functions under that subsection, those of a
22 supervising officer under this Act.
23 55. Conditions of community supervision order: court imposed
24 conditions
25 (1) A court making a community supervision order may impose any
26 conditions on the order that it considers are necessary to protect
27 the community.
28 (2) Without limiting subsection (1), if the supervised person is a
29 child the court must have regard to the child-specific
30 considerations.
page 41
Criminal Law (Mental Impairment) Bill 2022
Part 5 Court-ordered dispositions
Division 4 Community supervision orders
s. 56
1 (3) Without limiting subsection (1), the kinds of conditions that
2 may be imposed include the following --
3 (a) that the person undergo treatment, training or other
4 measures that may alleviate, or prevent the deterioration
5 of, the person's condition;
6 (b) that the person reside at a specified place;
7 (c) that the person notify the supervising officer of any
8 change to the person's name or place of residence within
9 a specified number of days after the change;
10 (d) that the person not leave the State except with, and in
11 accordance with, the permission of the supervising
12 officer;
13 (e) that the person be subject to electronic monitoring under
14 section 221 or a curfew under section 222 or both;
15 (f) that the person comply with a specified requirement
16 relating to the protection of a victim of an offence
17 committed by the person;
18 (g) if the person is a child -- conditions relevant to the
19 child-specific considerations.
20 Example for paragraph (f):
21 A requirement preventing the person from coming into contact with the
22 victim.
23 (4) A condition subjecting a person to electronic monitoring --
24 (a) cannot be imposed unless the court has received a report
25 from the CEO (Corrections) about the suitability of
26 electronic monitoring in relation to the person; and
27 (b) cannot be imposed on a person who is a child.
28 56. When community supervision order ceases to have effect
29 A community supervision order has effect until the earliest of
30 the following --
31 (a) its term expires;
page 42
Criminal Law (Mental Impairment) Bill 2022
Court-ordered dispositions Part 5
Community supervision orders Division 4
s. 56
1 (b) it is cancelled under section 74 or 89(1);
2 (c) an order of the Tribunal under section 73(1)(c)(ii)
3 cancelling all of the conditions of the community
4 supervision order comes into effect.
page 43
Criminal Law (Mental Impairment) Bill 2022
Part 6 Administration of supervision orders by Tribunal
Division 1 Preliminary matters
s. 57
1 Part 6 -- Administration of supervision orders
2 by Tribunal
3 Division 1 -- Preliminary matters
4 57. Overview of Part
5 (1) Under this Part, the Tribunal administers the orders to which
6 supervised persons are subject.
7 (2) Supervision orders are --
8 (a) COs and CSOs made under Part 5;
9 (b) COs made under this Part; see section 89(1);
10 (c) CSOs made under Part 7; see section 110(4) and 121(3);
11 (d) interim and extended COs and CSOs made under Part 7;
12 (e) interim dispositions made under Part 11;
13 (f) COs and CSOs made under Part 11; see
14 section 206(3)(a) and (b).
15 (3) Under Division 3 the Tribunal determines the place of custody
16 of a person subject to a CO, an interim or extended CO or a
17 relevant interim disposition.
18 (4) Under Division 4 the Tribunal must review COs, CSOs and
19 leave of absence orders and, on review, can --
20 (a) for a person subject to a CO -- make or cancel a leave
21 of absence order or vary or cancel all of the conditions
22 of a leave of absence order; and
23 (b) for a person subject to a CSO -- vary or cancel all of the
24 conditions of the CSO.
25 (5) If the Tribunal cancels all of the conditions of a leave of
26 absence order or CSO --
27 (a) in the case of a leave of absence order -- the underlying
28 CO ceases; see section 51(c);
page 44
Criminal Law (Mental Impairment) Bill 2022
Administration of supervision orders by Tribunal Part 6
Preliminary matters Division 1
s. 58
1 (b) in the case of a CSO -- the CSO ceases; see
2 section 56(c).
3 Notes for this subsection:
4 1. The Tribunal cannot cancel all of the conditions in the initial period of
5 an order (see section 73(3)) but under section 74 an application may
6 instead be made to the original court.
7 2. The Tribunal cannot cancel all of the conditions of a leave of absence
8 order applying in respect of a person subject to an extended CO; see
9 section 109(3).
10 (6) If the Tribunal cancels a leave of absence order, the supervised
11 person must again be detained under the underlying CO.
12 (7) In the case of a breach of a CSO, the court that made the CSO
13 can make a CO that replaces a CSO if satisfied of the matters in
14 section 89(3). Part 5 (to the extent relevant) applies to the
15 making of the order; see section 89(5).
16 (8) Division 7 provides for --
17 (a) internal review of decisions of the Tribunal in the
18 administration of supervision orders under this Part; and
19 (b) appeals to the Supreme Court against decisions of courts
20 of summary jurisdiction relating to making, cancelling
21 or confirming COs or CSOs (including for breach of a
22 CSO); and
23 (c) appeals to the Supreme Court against some initial
24 decisions of the Tribunal and most internal review
25 decisions of the Tribunal.
26 (9) Although interim and extended orders and interim dispositions
27 are not COs or CSOs as defined, this Part applies (to the extent
28 relevant) to such orders and dispositions; see
29 sections 107(4), 108(4), 109(2), 113(2) and 205(4) and (5).
30 58. Representative of supervised person
31 (1) The Tribunal may recognise as the representative of a
32 supervised person --
33 (a) a person chosen by the supervised person; or
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1 (b) another person if, in the opinion of the Tribunal --
2 (i) the supervised person is unable to choose a
3 person to be their representative; and
4 (ii) the prospective representative is a person who
5 has a sufficient interest in the person.
6 Examples for this subsection:
7 1. A carer of the person.
8 2. A family member of the person.
9 (2) The Tribunal cannot recognise a person as the representative of
10 a supervised person unless satisfied that the prospective
11 representative is acting without remuneration.
12 (3) Remuneration or similar payment as part of the following is
13 disregarded for the purposes of subsection (2) --
14 (a) appointment as the Public Advocate;
15 (b) appointment under the Guardianship and
16 Administration Act 1990 section 94;
17 (c) appointment as the Chief Mental Health Advocate;
18 (d) engagement as a mental health advocate under the
19 Mental Health Act 2014 section 350.
20 59. Non-compliance with conditions of orders
21 For the purposes of this Part, a reference to a condition of a
22 leave of absence order or a community supervision order not
23 having been complied with is not limited to a failure to comply
24 that arises because of an act or omission of the person to whom
25 the order applies.
26 Division 2 -- Declared places
27 60. Minister may make order as to declared places
28 The Minister may, by order published in the Gazette, declare
29 that a place has appropriate facilities for the assessment,
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1 detention, treatment, care and protection of persons subject to a
2 custody order.
3 Division 3 -- Custody orders: places of custody
4 61. Place of custody to be determined
5 (1) Within 5 working days after the day on which a custody order is
6 made, the Tribunal must determine the place where the
7 supervised person is to be detained.
8 (2) Subsection (1) has effect subject to section 62.
9 (3) Until the Tribunal determines the place where the supervised
10 person is to be detained, the supervised person must be
11 detained --
12 (a) if, when the custody order is made, the person is
13 detained at a hospital (whether under an inpatient
14 treatment order or otherwise) -- at a hospital; or
15 (b) in any other case -- in a prison or detention centre.
16 62. Limitations on place of custody
17 (1) The Tribunal must not determine that a supervised person is to
18 be detained in a prison or detention centre unless satisfied that
19 there is no available alternative place of custody that would be
20 suitable.
21 (2) The Tribunal must not determine that a supervised person is to
22 be detained in a DSC declared place unless --
23 (a) the Tribunal is satisfied that the person is a person with
24 a disability (as defined in the Disability Services
25 Act 1993 section 3) the predominant reason for which is
26 not mental illness; and
27 (b) the Tribunal is satisfied that the person has reached
28 16 years of age; and
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1 (c) the Tribunal has regard to the degree of risk that the
2 person's detention in the declared place appears to
3 present to the safety of the community; and
4 (d) the constitution of the Tribunal includes a member
5 referred to in section 171(1)(f).
6 (3) The Tribunal must not determine that a supervised person is to
7 be detained at an authorised hospital unless satisfied that the
8 person has a mental illness that is capable of being treated.
9 (4) The Tribunal should not determine that a supervised person is to
10 be detained at an authorised hospital unless --
11 (a) the Tribunal is satisfied that the person has a mental
12 illness requiring treatment; and
13 (b) the Tribunal is satisfied that because of the mental
14 illness, there is --
15 (i) a significant risk to the health or safety of the
16 person or to the safety of another person; or
17 (ii) a significant risk of serious harm to the person or
18 to another person;
19 and
20 (c) the Tribunal is satisfied that the treatment can only be
21 provided satisfactorily at an authorised hospital; and
22 (d) the constitution of the Tribunal includes a member who
23 is a psychiatrist.
24 (5) A failure to comply with subsection (4) does not affect the
25 lawfulness of the detention of a person.
26 63. Tribunal to notify of determination of place of custody
27 (1) The Tribunal must, within 24 hours of determining a place
28 where a supervised person is to be detained, notify the Chief
29 Mental Health Advocate of the determination.
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1 (2) If the Tribunal determines that a supervised person is to be
2 detained in a DSC declared place, the Tribunal must, within
3 5 working days after the day on which the determination is
4 made, notify the Minister to whom the administration of the
5 Declared Places (Mental Impairment) Act 2015 is committed.
6 64. Place of custody may be changed
7 (1) The Tribunal may change its determination as to the place
8 where a supervised person is to be detained.
9 (2) The Tribunal must, as soon as practicable after a supervised
10 person reaches the age of 18 years, consider whether to change
11 its determination as to the place where the person is to be
12 detained.
13 (3) Subsection (1) has effect subject to section 62.
14 Division 4 -- Tribunal to review orders
15 65. Terms used
16 (1) In this Division --
17 CEO (Community Services) means the chief executive officer
18 of the Community Services Department;
19 reviewable order means --
20 (a) a custody order;
21 (b) a community supervision order;
22 (c) a leave of absence order.
23 (2) A reference in this Division to a child in the care of the CEO
24 (Community Services) is a reference to a child who, under the
25 Children and Community Services Act 2004 section 30(a) or (b),
26 is in the CEO's care.
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1 66. Initial and periodic review
2 (1) The Tribunal must carry out a review of a reviewable order --
3 (a) in the case of a leave of absence order applying to a
4 supervised person who is a child -- not later than
5 3 months after the order is made; and
6 (b) in the case of a leave of absence order applying to a
7 supervised person who is not a child -- not later than
8 12 months after the order is made; and
9 (c) in any other case -- as soon as practicable, but no later
10 than 4 weeks after the order is made.
11 (2) The Tribunal must carry out a review of the order --
12 (a) if the supervised person is a child -- not later than
13 3 months after the previous review of the order under
14 this Part; or
15 (b) if the supervised person is not a child -- not later than
16 12 months after the previous review of the order under
17 this Part.
18 (3) A reference in subsection (2) to a previous review includes a
19 reference to --
20 (a) review by the Tribunal under Division 7 of a reviewable
21 decision relating to the order; and
22 (b) an appeal to the Supreme Court under Division 7 against
23 a decision relating to the order.
24 67. Application for review by supervised person, representative
25 or legal practitioner
26 (1) A supervised person, their representative or their legal
27 practitioner may, in writing, make an application to the Tribunal
28 for review of a reviewable order to which the person is subject.
29 (2) An application may be made at any time other than within
30 28 days after the Tribunal makes a decision the making of
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1 which involved a consideration of substantially the same issue
2 as would be raised by the proposed application.
3 (3) The Tribunal must carry out the review within a reasonable
4 period of time after receiving an application.
5 (4) However, the Tribunal may reject an application if the Tribunal
6 is satisfied that the application is vexatious or frivolous.
7 68. Review by Tribunal on its own initiative
8 The Tribunal may, at any time, carry out a review of a
9 reviewable order if the Tribunal considers that there are
10 circumstances that justify it doing so.
11 69. Review at request of Minister
12 (1) The Minister may, at any time, request the Tribunal to carry out
13 a review of a reviewable order and report to the Minister on the
14 outcome of that review.
15 (2) The Tribunal must carry out the review within a reasonable
16 period of time after receiving the request.
17 (3) A request must be in writing.
18 70. Time of review may be extended in certain cases
19 (1) In this section --
20 relevant decision, in relation to a review, means a decision the
21 making of which involves a consideration of substantially the
22 same issues as would be raised by the review.
23 (2) If, within 28 days before the time by which the Tribunal is
24 required under section 66 to carry out a review, the Tribunal has
25 made a relevant decision, the Tribunal may extend the time by
26 which the review is required to not later than 28 days after the
27 decision was made.
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1 71. Notice to supervised persons and CEO of review
2 proceedings
3 (1) The Tribunal must, before commencing review proceedings
4 under this Division in relation to a supervised person, give the
5 supervised person, their representative and their legal
6 practitioner --
7 (a) adequate notice of the impending proceedings, including
8 the date, time and place of any hearing; and
9 (b) a copy of any reports about the supervised person to
10 which the Tribunal intends to have regard when making
11 a decision under section 73.
12 (2) The Tribunal must also give notice of the proceedings to the
13 CEO.
14 (3) If the supervised person is a child, the Tribunal must also --
15 (a) give notice and copies of reports to a parent of the child
16 and any guardian of the child; and
17 (b) if the child is in the care of the CEO (Community
18 Services) -- give notice and copies of reports to that
19 CEO.
20 (4) Subsection (1) is subject to any restriction on access to
21 information or documents under section 169 or the Mental
22 Health Act 2014 section 249.
23 (5) Notice and reports under subsection (1) need not be given when
24 the Tribunal is constituted in accordance with section 75(1).
25 (6) The validity of a decision of the Tribunal is not affected by a
26 failure to notify in accordance with this section.
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1 72. Matters to be considered on review
2 (1) In reviewing a reviewable order, the Tribunal must have regard
3 to the following --
4 (a) the degree of risk that the release or unconditional
5 release of the supervised person appears to present to the
6 safety of the community;
7 (b) in the case of a custody order --
8 (i) the likelihood that, if released on conditions
9 under a leave of absence order, the supervised
10 person would be able to comply with those
11 conditions; and
12 (ii) the likelihood that, if so released, the supervised
13 person would be able to take care of their
14 day-to-day needs and, where relevant, obtain
15 appropriate treatment; and
16 (iii) whether there are facilities or services in the
17 community for the treatment, care and support of
18 the supervised person;
19 (c) in the case of a community supervision order or a leave
20 of absence order --
21 (i) the supervised person's ability to comply with
22 the conditions of the order; and
23 (ii) the supervised person's ability to take care of
24 their day-to-day needs and, where relevant,
25 obtain appropriate treatment;
26 (d) the extent to which the supervised person's mental
27 impairment might benefit from, or is benefitting from,
28 particular treatment, training or other measures;
29 (e) the principle of imposing the least possible restriction on
30 the freedom of the supervised person that is consistent
31 with the need to protect the community;
32 (f) any statement received from or on behalf of the
33 supervised person;
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1 (g) a victim impact statement or a victim's submission
2 under Part 9 that was given or made in respect of the
3 supervised person;
4 (h) any advice from a person with knowledge of issues
5 relating to persons of the cultural background of the
6 supervised person;
7 (i) any information received by the Tribunal under
8 section 48, 122 or 204(4);
9 (j) in the case of a supervised person who is a child -- the
10 child-specific considerations;
11 (k) in the case of a supervised person who is a child in the
12 care of the CEO (Community Services) -- any
13 submission made by that CEO for the purposes of the
14 review.
15 (2) Subsection (1) does not limit the matters to which the Tribunal
16 may have regard.
17 Note for this section:
18 The Tribunal may, under section 22, have regard to a submission by a
19 close family member or carer of a supervised person in relation to the
20 treatment, care and support of the supervised person.
21 73. Orders the Tribunal may make after carrying out review
22 (1) After carrying out a review under this Division, the Tribunal
23 may do any of the following --
24 (a) confirm the reviewable order and any conditions
25 imposed on it;
26 (b) if the supervised person is subject to a custody order --
27 make, in accordance with section 78, a leave of absence
28 order;
29 (c) if the supervised person is subject to a community
30 supervision order --
31 (i) vary, in accordance with section 86, the
32 conditions of the order (other than the conditions
33 referred to in section 54); or
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1 (ii) cancel all of the conditions of the order
2 (including the conditions referred to in
3 section 54);
4 (d) if a leave of absence order applies to the supervised
5 person --
6 (i) cancel the order; or
7 (ii) vary, in accordance with section 78, the
8 conditions of the order (other than the condition
9 referred to in section 78(2)); or
10 (iii) cancel all of the conditions of the order
11 (including the condition referred to in
12 section 78(2)).
13 Notes for this subsection:
14 1. If all of the conditions of a community supervision order are cancelled,
15 the order ceases to have effect; see section 56(c).
16 2. If a leave of absence order is cancelled, the supervised person must
17 be detained under the underlying custody order; see section 82.
18 3. If all of the conditions of a leave of absence order are cancelled, the
19 underlying custody order ceases to have effect; see section 51(c).
20 4. However, despite paragraph (d)(iii), the Tribunal cannot cancel all of
21 the conditions of a leave of absence order --
22 (a) in the initial period of the order; see subsection (3); or
23 (b) if the underlying order is an extended custody order; see
24 section 109(3).
25 (2) The Tribunal cannot make an order under subsection (1)(c)(ii)
26 or (1)(d)(iii) unless the Tribunal is satisfied that it is no longer
27 necessary, for the protection of the community, for the
28 supervised person to be subject to the order.
29 (3) The Tribunal cannot make an order under subsection (1)(c)(ii)
30 or (1)(d)(iii) within --
31 (a) if the term of the community supervision order or
32 custody order underlying the leave of absence order is
33 2 years or more -- the first 12 months of the term of the
34 order; or
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1 (b) if the term of the community supervision order or
2 custody order underlying the leave of absence order is
3 less than 2 years -- the first half of the term of the order.
4 74. Court may cancel certain orders
5 (1) If the Tribunal cannot make an order under section 73(1)(c)(ii)
6 or (d)(iii) because of section 73(3), the Tribunal may --
7 (a) in the case of an order under section 73(1)(c)(ii) --
8 apply to the court that made the community supervision
9 order to cancel the community supervision order; or
10 (b) in the case of an order under section 73(1)(d)(iii) --
11 apply to the court that made the custody order
12 underlying the leave of absence order to cancel the
13 custody order.
14 (2) The court may cancel the community supervision order or
15 custody order if satisfied that the order is no longer necessary
16 for the protection of the community, otherwise the court must
17 confirm the order.
18 (3) The supervised person and the Minister are also parties to
19 proceedings under this section.
20 75. Truncated review in serious and urgent cases
21 (1) For the purposes of this Division, the Tribunal may be
22 constituted by the President or a Deputy President if the
23 President or Deputy is satisfied that the seriousness and urgency
24 of the circumstances require that the Tribunal's jurisdiction
25 under section 73 be exercised at a time before it is practicable to
26 constitute the Tribunal in accordance with section 158.
27 (2) The Tribunal, when constituted in accordance with
28 subsection (1) --
29 (a) need only have regard to those matters that are
30 immediately relevant, despite section 72; and
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1 (b) cannot cancel all conditions of a community supervision
2 order or leave of absence order, despite section 73.
3 76. Copy of order and reasons for decision to be given to certain
4 persons
5 (1) As soon as practicable after making an order under section 73,
6 the Tribunal must give a copy of the order and the reasons for
7 its decision to each of the following --
8 (a) the supervised person;
9 (b) if the supervised person has a guardian or an
10 administrator -- the guardian or administrator;
11 (c) if the supervised person is represented by a legal
12 practitioner -- the legal practitioner;
13 (d) if the supervised person has a representative -- the
14 representative;
15 (e) if the supervised person is a child -- a parent of the
16 child;
17 (f) if the supervised person is a child in the care of the CEO
18 (Community Services) -- that CEO;
19 (g) the Minister.
20 (2) As soon as practicable after making an order under section 73 of
21 a particular type, the Tribunal must give a copy of the order and
22 the reasons for its decision to a person prescribed in relation to
23 orders of that type, unless the regulations provide otherwise.
24 Division 5 -- Custody orders: leave of absence
25 77. Leave of absence orders
26 (1) A leave of absence order is an order that a supervised person be
27 released from a place of custody --
28 (a) for a period or periods specified by the Tribunal; and
29 (b) for a purpose or purposes specified by the Tribunal; and
30 (c) on conditions specified by the Tribunal.
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1 (2) Without limiting subsection (1)(b), the purposes that may be
2 specified include --
3 (a) receiving medical or dental treatment;
4 (b) cultural or compassionate purposes;
5 (c) reintegration into the community.
6 (3) A period specified should not, to the extent practicable, exceed
7 that which is necessary for the purpose or purposes specified.
8 (4) A leave of absence order does not have effect after the limiting
9 term for the custody order expires.
10 78. Tribunal making or varying leave of absence orders
11 (1) The Tribunal may, when making a leave of absence order under
12 section 73(1)(b), impose any conditions on the order that it
13 considers are necessary to protect the community.
14 (2) It is a condition of a leave of absence order that the supervised
15 person be under the supervision of a supervising officer
16 designated for the person, which includes complying with the
17 lawful directions of the officer.
18 (3) The Tribunal must, under section 99, designate a person as the
19 supervising officer for the supervised person.
20 (4) The Tribunal may, when varying the conditions of a leave of
21 absence order under section 73(1)(d)(ii), impose further
22 conditions on the order that it considers are necessary to protect
23 the community.
24 (5) Without limiting subsection (1) or (4), the kinds of conditions
25 that may be imposed include the following --
26 (a) that the person undergo treatment, training or other
27 measures that may alleviate, or prevent the deterioration
28 of, the person's condition;
29 (b) that the person reside at a specified place;
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1 (c) that the person notify the supervising officer of any
2 change to the person's name or place of residence within
3 a specified number of days after the change;
4 (d) that the person not leave the State except with, and in
5 accordance with, the permission of the supervising
6 officer;
7 (e) that the person be subject to electronic monitoring under
8 section 221 or a curfew under section 222 or both;
9 (f) that the person comply with a specified requirement
10 relating to the protection of a victim of an offence
11 committed by the person;
12 (g) if the person is a child -- conditions relevant to the
13 child-specific considerations.
14 Example for paragraph (f):
15 A requirement preventing the person from coming into contact with the
16 victim.
17 (6) A condition subjecting a person to electronic monitoring --
18 (a) cannot be imposed unless the Tribunal has received a
19 report from the CEO (Corrections) about the suitability
20 of electronic monitoring in relation to the person; and
21 (b) cannot be imposed on a person who is a child.
22 79. Effect of certain leave of absence orders
23 (1) This section applies to a supervised person to whom a leave of
24 absence order applies unless the person is required by the
25 underlying custody order to be detained at an authorised
26 hospital.
27 (2) If the leave of absence order does not require that the person
28 return to a place of custody at the end of the period of leave, the
29 person is not to be regarded as a person who is required by the
30 underlying custody order to be detained at a place of custody.
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1 80. Notifying Tribunal about breach of leave of absence order
2 (1) This section applies to the following --
3 (a) a person who is a supervising officer;
4 (b) a person within a class of person prescribed for the
5 purposes of this section.
6 (2) A person to whom this section applies must advise the Tribunal
7 as soon as practicable after forming a reasonable suspicion that
8 a condition of a leave of absence order has not been complied
9 with.
10 81. Breach of conditions of leave of absence order
11 (1) This section applies if the Tribunal reasonably suspects that a
12 condition of a leave of absence order has not been complied
13 with.
14 (2) The Tribunal may review the order under Division 4.
15 (3) The Tribunal may cancel the order without first carrying out a
16 review under Division 4 if satisfied that the seriousness and
17 urgency of the circumstances require that it do so.
18 (4) For the purposes of this section, the Tribunal may be constituted
19 by the President or a Deputy President if the President or
20 Deputy is satisfied that the seriousness and urgency of the
21 circumstances require that the Tribunal's jurisdiction under this
22 section be exercised at a time before it is practicable to
23 constitute the Tribunal in accordance with section 158.
24 82. Cancelled leave of absence order
25 (1) If a leave of absence order is cancelled under section 73(1)(d)(i)
26 or 81(3) --
27 (a) the Tribunal must issue a warrant for the arrest of the
28 person; and
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1 (b) the supervised person to whom the leave of absence
2 order applied must be arrested and detained under the
3 custody order to which the person is subject; and
4 (c) if necessary, the person's place of custody must be
5 determined under Division 3.
6 (2) Subsection (1) need not be complied with to the extent that it is
7 not relevant.
8 83. Absence without leave from place of custody
9 (1) A supervised person is absent without leave if the person --
10 (a) is away from a place at which the person is required to
11 be detained, without lawful authority; or
12 (b) having been away from such a place with lawful
13 authority, fails to return to the place, or another place at
14 which the person is required to be detained, when the
15 authority to be absent ceases.
16 (2) A supervised person who is absent without leave may be
17 apprehended by any of the following --
18 (a) a person who --
19 (i) is employed at the place of custody from which
20 the person is absent; and
21 (ii) has the prescribed qualifications;
22 (b) a person who --
23 (i) although not employed at the place of custody, is
24 authorised by a person referred to in
25 paragraph (a); and
26 (ii) has the prescribed qualifications;
27 (c) a police officer.
28 (3) A person apprehending a supervised person under
29 subsection (2) must, as soon as practicable, take the supervised
30 person to the place from which the supervised person is absent.
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1 84. Relationship of Division to other Acts
2 (1) The Prisons Act 1981 Part VIII does not apply to authorise the
3 absence of a supervised person from a prison unless the reason
4 for the absence is --
5 (a) the facilitation of the provision of medical or health
6 services to the person; or
7 (b) the furthering of the interests of justice.
8 (2) The Young Offenders Act 1994 section 188(4) does not apply to
9 authorise the absence of a supervised person from a detention
10 centre unless the reason for the absence is to attend, or travel to
11 or from, a court, medical or dental practitioner or a hospital.
12 Note for this section:
13 Under the Mental Health Act 2014 section 82, Part 7 of that Act (which
14 deals with detention at, release from and leave from authorised
15 hospitals and other places) does not apply in relation to a supervised
16 person required to be detained at an authorised hospital under this Act.
17 Division 6 -- Community supervision orders
18 85. Tribunal to designate supervising officer
19 Within 5 working days after the day on which a court makes a
20 community supervision order, the Tribunal must, under
21 section 99, designate a person as a supervising officer for the
22 supervised person.
23 86. Tribunal varying conditions on community supervision
24 order
25 (1) The Tribunal may, when varying the conditions of a community
26 supervision order under section 73(1)(c)(i) --
27 (a) vary conditions imposed under section 55; and
28 (b) impose conditions of a kind described in section 55(3).
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1 (2) When considering varying the conditions of a community
2 supervision order, the Tribunal must have regard to the
3 following --
4 (a) the supervised person's rehabilitation, retraining or
5 resocialisation requirements;
6 (b) the ways in which any risk that the supervised person
7 appears to present to the safety of the community could
8 be further reduced;
9 (c) measures that could be implemented to improve the
10 supervised person's mental or physical health;
11 (d) whether there are facilities or services in the community
12 for the treatment, care and support of the supervised
13 person;
14 (e) in the case of a supervised person who is a child -- the
15 child-specific considerations.
16 (3) A condition subjecting a person to electronic monitoring --
17 (a) cannot be imposed unless the Tribunal has received a
18 report from the CEO (Corrections) about the suitability
19 of electronic monitoring in relation to the person; and
20 (b) cannot be imposed on a person who is a child.
21 87. Notifying Tribunal about breach of conditions of community
22 supervision order
23 (1) This section applies to the following --
24 (a) a person who is a supervising officer;
25 (b) a person within a class of person prescribed for the
26 purposes of this section.
27 (2) A person to whom this section applies must advise the Tribunal
28 as soon as practicable after forming a reasonable suspicion that
29 a condition of a community supervision order has not been
30 complied with.
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1 88. Breach of conditions of community supervision order
2 (1) This section applies if the Tribunal reasonably suspects that a
3 condition of a community supervision order has not been
4 complied with.
5 (2) The Tribunal may review the order under Division 4.
6 (3) The Tribunal must apply to the court that made the community
7 supervision order (the relevant court) for an order under
8 section 89 if --
9 (a) it reasonably suspects that there is a significant risk to
10 the health or safety of a person; and
11 (b) the statutory penalty for the offence in respect of which
12 the community supervision order was made is or
13 includes imprisonment; and
14 (c) it is satisfied that a custody order should be sought in
15 relation to the supervised person.
16 (4) If the Tribunal makes an application it must, as soon as
17 practicable, give notice of the application, together with the
18 prescribed details, to the supervised person, their representative
19 and their legal practitioner.
20 (5) If the Tribunal makes an application, the Tribunal may issue a
21 warrant to have the supervised person arrested for the purposes
22 of bringing the person before the relevant court.
23 89. Court's powers to deal with breach of conditions of
24 community supervision order
25 (1) If, on application under section 88, the relevant court is satisfied
26 of the matters in subsection (3), it must cancel the community
27 supervision order and make a custody order in relation to the
28 supervised person and the offence in relation to which the
29 community supervision order was made.
30 (2) However, if the court is not so satisfied, it must confirm the
31 community supervision order.
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Administration of supervision orders by Tribunal Part 6
Community supervision orders Division 6
s. 89
1 (3) The matters, for the purposes of subsection (1), are --
2 (a) that a condition of the community supervision order has
3 not been complied with; and
4 (b) the failure to comply indicates a significant risk to the
5 health or safety of a person; and
6 (c) that the risk cannot be adequately managed under the
7 community supervision order.
8 (4) When considering the matter in subsection (3)(b), the relevant
9 court must have regard to the extent to which the supervised
10 person has complied with the conditions of the community
11 supervision order.
12 (5) Part 5, to the extent relevant, applies to the making of a custody
13 order under this section as if the order were being made under
14 Part 5.
15 (6) When determining, under section 50, when the limiting term for
16 the custody order commences, the relevant court must take into
17 account any time the supervised person has already spent in
18 custody in relation to the failure to comply with the conditions
19 of the community supervision order.
20 (7) Confirmation of a community supervision order under
21 subsection (2) does not prevent the Tribunal from exercising its
22 jurisdiction under Division 4 in relation to the order.
23 (8) Proceedings under this section are civil proceedings.
24 (9) The supervised person and the Minister are also parties to
25 proceedings under this section.
26 (10) The relevant court may issue a warrant for the arrest of the
27 person subject to the community supervision order if the person
28 fails to appear at the hearing of an application under section 88.
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Criminal Law (Mental Impairment) Bill 2022
Part 6 Administration of supervision orders by Tribunal
Division 7 Review of and appeals against certain decisions
s. 90
1 Division 7 -- Review of and appeals against certain decisions
2 Subdivision 1 -- Internal review by Tribunal
3 90. Term used: reviewable decision
4 In this Subdivision --
5 reviewable decision means a decision of the Tribunal under
6 section 73.
7 91. Internal review of Tribunal decision
8 (1) If a reviewable decision is made about a supervised person, the
9 person, their representative or their legal practitioner may,
10 within 28 days after the day on which the decision is made,
11 request the Tribunal to review the decision.
12 (2) A request for review must --
13 (a) be in writing; and
14 (b) state the grounds for the request; and
15 (c) include any submissions that the applicant wants to
16 make to the Tribunal about the decision.
17 (3) Application may be made to the Tribunal for an extension of the
18 period referred to in subsection (1) (whether before or after its
19 expiry), and the Tribunal may grant the extension if there is
20 sufficient reason to do so.
21 (4) Once a request for review is made, the Tribunal must --
22 (a) consider any submissions included with the request; and
23 (b) review the decision within 28 days after the day on
24 which the request is made; and
25 (c) do 1 of the following --
26 (i) confirm the decision;
27 (ii) vary the decision;
28 (iii) cancel the decision and make another decision;
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Review of and appeals against certain decisions Division 7
s. 92
1 (iv) cancel the decision and refer the matter to the
2 Tribunal that made the decision for further
3 consideration.
4 (5) The Tribunal must, when exercising its jurisdiction under this
5 Subdivision, be constituted by the President or a Deputy
6 President who is an experienced lawyer.
7 (6) On review, the Tribunal must give the applicant written notice
8 of the decision, with reasons for the decision.
9 92. Nature of review proceedings
10 (1) The review of a reviewable decision is to be by way of a hearing
11 de novo, and it is not confined to matters that were before the
12 Tribunal when making the reviewable decision but may involve
13 the consideration of new material whether or not it existed at the
14 time the reviewable decision was made.
15 (2) The purpose of the review is to produce the correct and
16 preferable decision at the time of the review.
17 (3) The reasons for the reviewable decision, or any grounds for
18 review set out in the application, do not limit the Tribunal in
19 conducting the review of the reviewable decision.
20 Subdivision 2 -- Appeals to Supreme Court
21 93. Appeals against certain decisions
22 (1) A supervised person may, with the leave of the court, appeal to
23 the Supreme Court against the following --
24 (a) a decision of a court of summary jurisdiction to confirm
25 a custody order or community supervision order under
26 section 74;
27 (b) a decision of a court of summary jurisdiction under
28 section 89 --
29 (i) to make a custody order; or
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Part 6 Administration of supervision orders by Tribunal
Division 7 Review of and appeals against certain decisions
s. 93
1 (ii) determining the limiting term for a custody
2 order;
3 (c) a decision of the Tribunal under section 91, other than a
4 decision under that section on a decision of the Tribunal
5 under section 73(1)(c)(i) or (d)(ii).
6 (2) The Minister may, with the leave of the court, appeal to the
7 Supreme Court against the following --
8 (a) a decision of a court of summary jurisdiction to cancel a
9 custody order or community supervision order under
10 section 74;
11 (b) a decision of a court of summary jurisdiction under
12 section 89 to confirm a community supervision order;
13 (c) a decision of the Tribunal under any of the following --
14 (i) section 73(1)(b);
15 (ii) section 73(1)(c)(ii);
16 (iii) section 73(1)(d)(iii);
17 (iv) section 91, other than a decision under that
18 section on a decision of the Tribunal under
19 section 73(1)(c)(i) or (d)(ii).
20 (3) An appeal is commenced by lodging with the Supreme Court an
21 application for leave to appeal that sets out the grounds of the
22 appeal.
23 (4) An appeal against a decision cannot be commenced later than
24 21 days after the day on which the decision is made.
25 (5) The Supreme Court may decide whether or not to give leave to
26 appeal --
27 (a) with or without written or oral submissions from the
28 parties to the appeal; and
29 (b) before or at the hearing of, or when giving judgment on,
30 the appeal.
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Administration of supervision orders by Tribunal Part 6
Review of and appeals against certain decisions Division 7
s. 94
1 (6) The Supreme Court may extend the time limit in subsection (4)
2 in a particular case, and the extension may be given even though
3 the time limit has passed.
4 (7) A party commencing an appeal must notify the Tribunal.
5 94. Arrest of person subject to custody order
6 (1) Subsection (2) applies if the Minister commences an appeal
7 under section 93 against --
8 (a) a decision of a court to cancel a custody order; or
9 (b) a decision of the Tribunal under section 73(1)(b) to
10 make a leave of absence order; or
11 (c) a decision of the Tribunal under section 91 to make, or
12 confirm the making of, a leave of absence order.
13 (2) The Supreme Court may issue a warrant for the arrest of the
14 person who was subject to the custody order, or to whom the
15 leave of absence order applies, if satisfied that it is necessary to
16 do so because of the risk that the person appears to present to
17 the safety of the community.
18 (3) A person arrested under a warrant under subsection (2) must, as
19 soon as practicable, be returned to their place of custody under
20 the custody order.
21 95. Grounds of appeal
22 The grounds of an appeal are --
23 (a) that the court or Tribunal --
24 (i) made an error of law or of fact, or of both law
25 and fact; or
26 (ii) acted without jurisdiction or in excess of its
27 jurisdiction;
28 or
29 (b) that there is another sufficient reason for hearing an
30 appeal against the decision.
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Part 6 Administration of supervision orders by Tribunal
Division 7 Review of and appeals against certain decisions
s. 96
1 96. Dealing with appeal
2 (1) An appeal is by way of rehearing.
3 (2) When dealing with an appeal, the Supreme Court may make any
4 order it considers appropriate.
5 (3) The Supreme Court, in deciding an appeal, may do 1 of the
6 following --
7 (a) confirm the decision;
8 (b) vary the decision;
9 (c) set aside the decision and make any decision that the
10 court or Tribunal could have made in the proceedings;
11 (d) set aside the decision and send the matter back to the
12 court or Tribunal for reconsideration, either with or
13 without the hearing of further evidence, in accordance
14 with any directions or recommendations that it considers
15 appropriate.
16 (4) If the Supreme Court sends the matter back to the court or
17 Tribunal, it may give directions as to the constitution of the
18 court or Tribunal.
19 97. Effect of appeal on decision appealed against
20 (1) An appeal against a decision does not affect the operation of the
21 decision or prevent the taking of action to implement the
22 decision unless the Supreme Court orders otherwise.
23 (2) Without limiting subsection (1), the Supreme Court may, by
24 order, stay the operation of a decision pending the determination
25 of an application for leave to appeal against the decision and of
26 any appeal.
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Administration of supervision orders by Tribunal Part 6
Supervising officers Division 8
s. 98
1 Subdivision 3 -- Effect of decisions made on, or as a consequence of,
2 review or appeal
3 98. Effect of decisions made on, or as a consequence of, review
4 or appeal
5 (1) The fact that a decision is made on reconsideration as required
6 under section 91(4)(c)(iv) or 96(3)(d) does not prevent the
7 decision from being open to review or appeal under this
8 Division.
9 (2) The rest of this section applies to and in relation to a decision
10 (the original decision) described in section 90 or 93(1) or (2).
11 (3) The original decision as confirmed or varied by the Tribunal or
12 the Supreme Court under this Division, or a decision of the
13 Tribunal or the Supreme Court substituted under this Division
14 for the original decision --
15 (a) is to be regarded as, and has effect as, a decision of the
16 original decision maker; and
17 (b) unless the Tribunal or Supreme Court (as is relevant)
18 orders otherwise -- is to be regarded as having effect, or
19 having had effect, from the time when the original
20 decision would have, or would have had, effect.
21 (4) Despite subsection (3)(a), the decision as confirmed, varied or
22 substituted is not again open to review or appeal under this
23 Division.
24 Division 8 -- Supervising officers
25 99. Supervising officers
26 (1) When designating, for the purposes of section 78(3) or 85, a
27 person as a supervising officer for a supervised person, the
28 Tribunal must be satisfied that the person to be designated is
29 suitably qualified and experienced.
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Part 6 Administration of supervision orders by Tribunal
Division 8 Supervising officers
s. 99
1 (2) The functions of the supervising officer in relation to the
2 supervised person include --
3 (a) assisting in the determination of appropriate conditions
4 for the supervised person; and
5 (b) supervising, at the direction of the Tribunal, the
6 supervised person, which includes giving lawful
7 directions to the supervised person; and
8 (c) reporting to the Tribunal about the supervised person in
9 accordance with the directions of the Tribunal.
10 (3) If the supervised person dies, the supervising officer must, upon
11 being informed of that, immediately notify the Tribunal of the
12 death.
13 (4) The President may make arrangements with any person or a
14 department of the Public Service or any statutory authority (as
15 defined in the Financial Management Act 2006 section 3) for
16 the purpose of, or in connection with, designating a person as a
17 supervising officer.
18 (5) A person may be designated as a supervising officer for a
19 supervised person for a fixed or unspecified period.
20 (6) The Tribunal may at any time cancel the designation of a person
21 as a supervising officer either generally or in relation to a
22 supervised person.
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Extended custody and community supervision orders Part 7
Preliminary matters Division 1
s. 100
1 Part 7 -- Extended custody and community
2 supervision orders
3 Division 1 -- Preliminary matters
4 100. Overview of Part
5 (1) This Part provides for extended COs or CSOs to replace
6 existing COs, CSOs or extended orders.
7 (2) The Tribunal must, before a CO, CSO or extended order
8 expires, consider and report to the Minister on the need for an
9 extended order to replace the existing order; see Division 2.
10 (3) The Supreme Court may, on application by the Minister, make
11 an extended CO or CSO if satisfied that it is necessary on
12 grounds that relate to the protection of the community; see
13 Divisions 5 and 6.
14 (4) The Supreme Court may make an interim CO or CSO pending
15 the resolution of an application for an extended CO or CSO; see
16 Division 4.
17 (5) An extended CO must be periodically reviewed by the Supreme
18 Court, which must either confirm the order or cancel it; see
19 Division 7.
20 (6) If, on an initial application or on review, the Supreme Court is
21 not satisfied that an extended CO is necessary, it may make a
22 CSO instead; see sections 110 and 121.
23 Note for this subsection:
24 Such a CSO is not an extended CSO, and Part 5 (to the extent
25 relevant) applies to the making of the CSO; see sections 110(5)
26 and 121(4).
27 (7) Although interim and extended orders are not COs or CSOs as
28 defined, Part 6 applies (to the extent relevant) to such orders;
29 see sections 107(4), 108(4), 109(2) and 113(2).
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Part 7 Extended custody and community supervision orders
Division 2 Tribunal to consider and report on need for extended
orders
s. 101
1 (8) Part 12 provides for appeals to the Court of Appeal against the
2 making of extended orders and the term of extended COs.
3 (9) A person subject to an interim or extended CO or CSO is a
4 supervised person.
5 101. Nature of court proceedings under Part
6 Proceedings in the Supreme Court under this Part are civil
7 proceedings.
8 102. References to orders include extended orders
9 In this Part, unless the contrary intention appears --
10 (a) a reference to a custody order includes a reference to an
11 extended custody order; and
12 (b) a reference to a community supervision order includes a
13 reference to an extended community supervision order.
14 Division 2 -- Tribunal to consider and report on need for
15 extended orders
16 103. Tribunal to consider and report on need for extended
17 custody orders
18 (1) If a supervised person is subject to a custody order with a
19 limiting term of 12 months or more, the Tribunal must, no later
20 than 6 months before the expiry of the order, consider the need
21 for an extended custody order in respect of the person.
22 (2) If a supervised person is subject to a custody order with a
23 limiting term of less than 12 months, the Tribunal must, before
24 the supervised person has been subject to the order for half of
25 the limiting term, consider the need for an extended custody
26 order in respect of the person.
27 (3) The Tribunal must, as soon as practicable, report to the Minister
28 on the need for an extended custody order in respect of the
29 supervised person.
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Extended custody and community supervision orders Part 7
Applications for extended orders Division 3
s. 104
1 (4) If the Tribunal is satisfied that it is necessary that an extended
2 custody order be made in respect of the supervised person so as
3 to ensure the adequate protection of the community against an
4 unacceptable risk that the person will commit a serious offence,
5 the Tribunal must recommend in its report that the Minister
6 apply for an extended custody order in respect of the person.
7 104. Tribunal to consider and report on need for extended
8 community supervision orders
9 (1) The Tribunal must, no later than 3 months before the expiry of a
10 community supervision order, consider the need for an extended
11 community supervision order in respect of the supervised
12 person.
13 (2) The Tribunal must, as soon as practicable, report to the Minister
14 on the need for an extended community supervision order in
15 respect of the supervised person.
16 (3) If the Tribunal is satisfied that after the expiry of the current
17 community supervision order the supervised person should, to
18 ensure the adequate protection of the community, remain under
19 supervision due to the person's rehabilitation, retraining or
20 resocialisation requirements, the Tribunal must recommend in
21 its report that the Minister apply for an extended community
22 supervision order in respect of the person.
23 Division 3 -- Applications for extended orders
24 105. Minister may apply for extended order
25 (1) The Minister may, after having regard to a report under
26 section 103, apply to the Supreme Court for an extended
27 custody order in respect of the supervised person.
28 (2) The Minister may, after having regard to a report under
29 section 104, apply to the Supreme Court for an extended
30 community supervision order in respect of the supervised
31 person.
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Part 7 Extended custody and community supervision orders
Division 4 Interim orders pending determination of applications
s. 106
1 (3) If the Minister makes an application under this section, the
2 Minister must notify the Tribunal.
3 106. Report to be prepared for application
4 (1) If an application is made for an extended order in respect of a
5 supervised person, the court --
6 (a) must order that the person be examined by a
7 psychiatrist, psychologist or other appropriate expert
8 and that a report be prepared and submitted to the court;
9 and
10 (b) may make any related orders it considers appropriate.
11 (2) The Minister must arrange for the examination and report.
12 (3) A report under subsection (2) must set out --
13 (a) in relation to an application for an extended custody
14 order -- the expert's assessment of the likelihood that
15 the supervised person will commit a serious offence if
16 not subject to an extended custody order; and
17 (b) the expert's assessment of the supervised person's
18 rehabilitation, retraining or resocialisation requirements;
19 and
20 (c) the reasons for the expert's assessment.
21 (4) Subsection (2) does not prevent --
22 (a) the supervised person from arranging for an examination
23 and report; or
24 (b) the court from considering the report.
25 Division 4 -- Interim orders pending determination of
26 applications
27 107. Interim custody orders
28 (1) If, after an application for an extended custody order is made
29 but before the application is determined, the current custody
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Interim orders pending determination of applications Division 4
s. 108
1 order will or is likely to expire, the Minister may apply to the
2 Supreme Court for an interim custody order in respect of the
3 supervised person.
4 (2) If the court is satisfied that, to ensure the adequate protection of
5 the community, it is desirable that the supervised person
6 continue to be subject to a custody order while the application
7 for an extended custody order is yet to be determined, it may
8 make an interim custody order in respect of the person, which
9 has effect until the application for the extended order is
10 determined.
11 (3) If, immediately before the current custody order is replaced by
12 an interim custody order, a leave of absence order applies to the
13 supervised person, the leave of absence order continues in
14 effect, according to its terms, to the extent not inconsistent with
15 the interim order.
16 (4) Part 6, to the extent relevant, applies to and in relation to an
17 interim custody order as if it were a custody order, and to any
18 leave of absence order continued under subsection (3).
19 (5) Despite subsection (4), the Tribunal --
20 (a) need not comply with a review requirement under Part 6
21 Division 4, including when exercising a power under
22 section 73; and
23 (b) cannot make a leave of absence order in respect of the
24 interim custody order other than for a short term purpose
25 (for example, receiving medical or dental treatment or
26 cultural or compassionate purposes); and
27 (c) cannot cancel all conditions of a leave of absence order
28 continued under subsection (3) in relation to the interim
29 custody order.
30 108. Interim community supervision orders
31 (1) If, after an application for an extended community supervision
32 order is made but before the application is determined, the
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Part 7 Extended custody and community supervision orders
Division 5 Making extended custody orders
s. 109
1 current community supervision order will or is likely to expire,
2 the Minister may apply to the Supreme Court for an interim
3 community supervision order in respect of the supervised
4 person.
5 (2) If the court is satisfied that, to ensure the adequate protection of
6 the community, it is desirable that the supervised person
7 continue to be subject to a community supervision order while
8 the application for an extended community supervision order is
9 yet to be determined, it may make an interim community
10 supervision order in respect of the person, which has effect until
11 the application for the extended order is determined.
12 (3) The conditions of the interim community supervision order are
13 those of the community supervision order that it replaces, to the
14 extent not inconsistent with the interim order.
15 (4) Part 6, to the extent relevant, applies to and in relation to an
16 interim community supervision order as if it were a community
17 supervision order.
18 (5) Despite subsection (4), the Tribunal --
19 (a) need not comply with a review requirement under Part 6
20 Division 4, including when exercising a power under
21 section 73; and
22 (b) cannot vary the conditions of the order referred to in
23 section 54; and
24 (c) cannot cancel all conditions of the order.
25 Division 5 -- Making extended custody orders
26 109. Extended custody orders
27 (1) An extended custody order is an order that, subject to this Act, a
28 supervised person be detained in custody at a place determined
29 from time to time by the Tribunal under Part 6 Division 3 for
30 the protection of the community.
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Extended custody and community supervision orders Part 7
Making extended custody orders Division 5
s. 110
1 (2) Part 6, to the extent relevant, applies to and in relation to an
2 extended custody order as if it were a custody order.
3 (3) Despite subsection (2), the Tribunal cannot cancel all conditions
4 of a leave of absence order applying to the supervised person.
5 110. Supreme Court may make extended custody order
6 (1) The Supreme Court may, on application under section 105(1),
7 make an extended custody order in respect of the supervised
8 person that is to have effect for the term set by the court.
9 (2) The term set for the order is its limiting term.
10 (3) Before making an extended custody order, the court must be
11 satisfied, by acceptable and cogent evidence and to a high
12 degree of probability, that, to ensure the adequate protection of
13 the community against an unacceptable risk that the supervised
14 person will commit a serious offence, it is necessary to make an
15 extended custody order in respect of the supervised person.
16 (4) If the court is not satisfied as to the matter in subsection (3), but
17 is satisfied as to the matter in section 114(2), it may make a
18 community supervision order in respect of the supervised
19 person.
20 (5) Part 5, to the extent relevant, applies to the making of a
21 community supervision order under subsection (4) as if the
22 order were being made under Part 5.
23 (6) For the purposes of subsection (3), a reference to the
24 commission of a serious offence includes a reference to --
25 (a) the doing of an act or the making of an omission in any
26 State or Territory that, if done within this State, would
27 constitute a serious offence; and
28 (b) the doing of an act or the making of an omission outside
29 Australia that, if done within this State, would constitute
30 a serious offence.
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Part 7 Extended custody and community supervision orders
Division 5 Making extended custody orders
s. 111
1 (7) For the purposes of this section, it makes no difference whether
2 a person doing an act or making an omission referred to in
3 subsection (6) --
4 (a) would be likely to be charged with an offence; or
5 (b) would, if charged with an offence, be found fit to stand
6 trial; or
7 (c) would, if tried for an offence, be convicted.
8 111. Leave of absence orders and conditions carried over
9 (1) If, immediately before a custody order or an interim custody
10 order is replaced by an extended custody order, a leave of
11 absence order is in effect in relation to the custody order or
12 interim custody order, the leave of absence order continues in
13 effect, according to its terms, in relation to the extended order,
14 to the extent not inconsistent with the extended order.
15 (2) Subsection (1) does not prevent the leave of absence order being
16 cancelled or its conditions being varied.
17 112. When extended custody order has effect
18 (1) An extended custody order in respect of a supervised person
19 takes effect on the later of the following --
20 (a) the expiration of the current custody order;
21 (b) the day on which the extended order is made.
22 (2) An extended custody order has effect until the earlier of the
23 following --
24 (a) its limiting term expires;
25 (b) it is cancelled by an order of the Supreme Court (under
26 section 121(2)).
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Extended custody and community supervision orders Part 7
Making extended community supervision orders Division 6
s. 113
1 Division 6 -- Making extended community supervision orders
2 113. Extended community supervision orders
3 (1) An extended community supervision order is an order that a
4 supervised person, while residing in the community, must
5 comply with the conditions of the order for the protection of the
6 community.
7 (2) Part 6, to the extent relevant, applies to and in relation to an
8 extended community supervision order as if it were a
9 community supervision order.
10 114. Supreme Court may make extended community supervision
11 order
12 (1) The Supreme Court may, on application under section 105(2),
13 make an extended community supervision order in respect of
14 the supervised person that is to have effect for the term set by
15 the court.
16 (2) Before making an extended community supervision order, the
17 court must be satisfied that, to ensure the adequate protection of
18 the community, the supervised person should remain under
19 supervision due to the person's rehabilitation, retraining or
20 resocialisation requirements.
21 115. Conditions carried over
22 (1) The conditions of the extended community supervision order
23 are those of the community supervision order or interim
24 community supervision order that it replaces, to the extent not
25 inconsistent with the extended order.
26 (2) Subsection (1) does not prevent the Tribunal varying, or
27 cancelling all of, the conditions of the order.
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Part 7 Extended custody and community supervision orders
Division 7 Review of extended custody orders
s. 116
1 116. When extended community supervision order has effect
2 (1) An extended community supervision order in respect of a
3 supervised person takes effect on the later of the following --
4 (a) the expiration of the current community supervision
5 order;
6 (b) the day on which the extended order is made.
7 (2) An extended community supervision order has effect until the
8 earliest of the following --
9 (a) its term expires;
10 (b) it is cancelled under section 74 or 89(1);
11 (c) an order of the Tribunal under section 73(1)(c)(ii)
12 cancelling all of the conditions of the extended
13 community supervision order comes into effect.
14 Division 7 -- Review of extended custody orders
15 117. Periodic review on application by Minister
16 (1) While a supervised person is subject to an extended custody
17 order, the Minister may at any time apply to the Supreme Court
18 for review of the order.
19 (2) The Minister must apply for review of the order so as to ensure
20 that reviews are carried out --
21 (a) as soon as practicable after the end of the period of
22 1 year commencing on the day on which the order is
23 made; and
24 (b) as soon as practicable after the end of the period of
25 1 year commencing on the day on which the order was
26 most recently reviewed under this Division.
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Extended custody and community supervision orders Part 7
Review of extended custody orders Division 7
s. 118
1 118. Application by supervised person for review
2 (1) A supervised person who is subject to an extended custody
3 order may, with the leave of the court, apply to the Supreme
4 Court for review of the order.
5 (2) Before granting leave the court must be satisfied that there are
6 exceptional circumstances.
7 (3) The court may decide whether or not to give leave --
8 (a) with or without written or oral submissions from the
9 parties to the application; and
10 (b) before or at the hearing of, or when determining, the
11 application for review.
12 (4) If a supervised person makes an application for review under
13 subsection (1), the court must immediately give a copy of the
14 application to the Minister and the Tribunal.
15 119. Dealing with application for review
16 (1) As soon as practicable after an application is made for review of
17 an extended custody order, the court must give directions for the
18 hearing of the application.
19 (2) The application must be heard, and the review must be carried
20 out, as soon as practicable, in accordance with any directions
21 given by the court.
22 (3) However, the court may adjourn the hearing of the application,
23 and the carrying out of the review, if there is sufficient reason to
24 do so.
25 120. Report to be prepared for review
26 (1) If an application is made for review of an extended custody
27 order, the court --
28 (a) must order that the person be examined by a
29 psychiatrist, psychologist or other appropriate expert
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1 and that a report be prepared and submitted to the court;
2 and
3 (b) may make any related order it considers appropriate.
4 (2) The Minister must arrange for the examination and report.
5 (3) A report under subsection (2) must set out --
6 (a) the expert's assessment of the likelihood that the
7 supervised person will commit a serious offence if not
8 subject to the extended custody order; and
9 (b) the expert's assessment of the supervised person's
10 rehabilitation, retraining or resocialisation requirements;
11 and
12 (c) the reasons for the expert's assessment.
13 (4) Subsection (2) does not prevent --
14 (a) the supervised person from arranging for an examination
15 and report; or
16 (b) the court from considering the report.
17 121. Court's powers on review of extended custody order
18 (1) If, on review of a supervised person's extended custody order,
19 the court is satisfied that there remains an unacceptable risk that
20 the person would commit a serious offence if not subject to the
21 extended order, it must confirm the order.
22 (2) However, if the court is not so satisfied, it must cancel the order.
23 (3) If the court cancels an extended custody order in respect of a
24 supervised person under subsection (2), it may, if satisfied as to
25 the matter in section 114(2), make a community supervision
26 order in respect of the person.
27 (4) Part 5, to the extent relevant, applies to the making of a
28 community supervision order under subsection (3) as if the
29 order were being made under Part 5.
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General Division 8
s. 122
1 Division 8 -- General
2 122. Court to notify Tribunal of orders
3 If the Supreme Court makes an interim or extended order or a
4 community supervision order under this Part, the court must
5 immediately --
6 (a) notify the Tribunal that the order has been made; and
7 (b) give the Tribunal a copy of the order and the prescribed
8 information.
9 123. Evidence in extended order proceedings
10 (1) In this section --
11 relevant proceeding, in relation to a supervised person, means
12 any proceeding of a court --
13 (a) relating to an offence with which the person was
14 charged; and
15 (b) that the Supreme Court considers relevant, having
16 regard to the matter to be determined under this Part by
17 the court.
18 (2) Before the Supreme Court determines an application under this
19 Part it must, if the evidence is admissible, hear evidence given
20 or called by the parties to the application.
21 (3) Except as modified by subsection (4), the ordinary rules of
22 evidence apply to evidence given or called under subsection (2).
23 (4) Things that the court may receive in evidence for the purpose of
24 determining the application include the following --
25 (a) any document relevant to the supervised person's
26 antecedents or criminal record;
27 (b) anything relevant contained in the official transcript of
28 any relevant proceeding against the person;
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s. 124
1 (c) any relevant material that was tendered to the court, or
2 that informed the court, in a relevant proceeding against
3 the person;
4 (d) any report that a psychiatrist, psychologist or other
5 appropriate expert prepares under this Part and the
6 extent to which the person cooperated when the expert
7 examined the person;
8 (e) any other medical, psychiatric, psychological or other
9 assessment relating to the person;
10 (f) information indicating whether or not the person has a
11 propensity to engage in conduct that could constitute a
12 serious offence in the future;
13 (g) information indicating whether or not there is any
14 pattern of offending behaviour on the part of the person.
15 Note for this section:
16 The court may receive a victim's submission made under Part 9
17 Division 4; see section 148.
18 124. Court may give directions
19 The Supreme Court may, on its own initiative or on the
20 application of a party to proceedings under this Part, give
21 directions in relation to the conduct of the proceedings,
22 including with respect to evidence received or to be received
23 under section 123.
24 125. Appearance at hearings
25 (1) A supervised person is entitled to appear at the hearing of --
26 (a) an application for an extended order in relation to that
27 person; or
28 (b) an application for review of the person's extended
29 custody order.
30 (2) The court may direct that a supervised person is to appear by
31 means of an audio or video link.
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Preliminary matters Division 1
s. 126
1 Part 8 -- Mental health advocacy services for unfit
2 accused and supervised persons
3 Division 1 -- Preliminary matters
4 126. Overview of Part
5 (1) This Part provides for mental health advocacy services for unfit
6 accused and supervised persons, unless those services can be
7 provided under the Mental Health Act 2014 Part 20 or the
8 Declared Places (Mental Impairment) Act 2015 Part 10.
9 Note for this subsection:
10 See the definitions of --
11 (a) CLMI identified person in section 127 of this Act; and
12 (b) identified person in the Mental Health Act 2014 section 348;
13 and
14 (c) resident in the Declared Places (Mental Impairment) Act 2015
15 section 3.
16 (2) Division 2 provides for access to mental health advocacy and
17 for the right of an unfit accused or supervised person to be
18 visited or contacted by a mental health advocate.
19 (3) Division 3 provides for the functions and powers of the Chief
20 Mental Health Advocate and of mental health advocates.
21 (4) The functions and powers under this Part are similar to, but not
22 the same as, those under the Mental Health Act 2014 or the
23 Declared Places (Mental Impairment) Act 2015 since mental
24 health advocacy under this Part is provided, amongst others, to
25 persons who are detained in a prison or detention centre.
26 127. Terms used
27 In this Part --
28 CLMI identified person means an unfit accused or a supervised
29 person, other than a person who is --
30 (a) an identified person as defined in the Mental Health
31 Act 2014 section 348; or
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Division 2 Access to mental health advocacy services
s. 128
1 (b) a resident as defined in the Declared Places (Mental
2 Impairment) Act 2015 section 3;
3 mandatory service means a service in relation to an unfit
4 accused or a supervised person that is required by, or necessary
5 for compliance with, conditions of a grant of bail to the person,
6 a community supervision order to which the person is subject or
7 a leave of absence order applying to the person;
8 medical practitioner means a person registered under the
9 Health Practitioner Regulation National Law (Western
10 Australia) in the medical profession;
11 mental health practitioner has the meaning given in the Mental
12 Health Act 2014 section 4.
13 Division 2 -- Access to mental health advocacy services
14 128. Access to mental health advocacy services
15 (1) Within 3 working days after the day on which the Chief Mental
16 Health Advocate is first notified under section 30 or 36 of an
17 adjournment of proceedings in respect of a person, the Chief
18 Mental Health Advocate must ensure that the person is informed
19 of --
20 (a) their right, under section 129, to request that they be
21 contacted by a mental health advocate; and
22 (b) the functions of a mental health advocate under this Act.
23 (2) Within 3 working days after the day on which the Chief Mental
24 Health Advocate is notified under section 48 or 204(4) that a
25 custody order, community supervision order or interim
26 disposition has been made in respect of a person, the Chief
27 Mental Health Advocate must ensure that the person is informed
28 of --
29 (a) their right, under section 129, to request that they be
30 contacted by a mental health advocate; and
31 (b) the functions of a mental health advocate under this Act.
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s. 129
1 (3) If a person in respect of whom subsection (1) or (2) applies is a
2 child, the subsection must be complied with within 24 hours of
3 the Chief Mental Health Advocate being notified.
4 129. Request for CLMI identified person to be contacted
5 (1) A request for a CLMI identified person to be contacted by a
6 mental health advocate may be made by --
7 (a) the person, their representative or their legal
8 practitioner; or
9 (b) a psychiatrist or psychologist; or
10 (c) if the person is detained at a place -- the person in
11 charge of the place; or
12 (d) any other person who has a sufficient interest in the
13 person.
14 (2) A request may be made to --
15 (a) the Chief Mental Health Advocate; or
16 (b) if the request relates to a person detained at a place --
17 the person in charge of the place.
18 (3) If a request is made as described in subsection (2)(b), the person
19 in charge of the place must ensure that the Chief Mental Health
20 Advocate is notified of the request as soon as practicable but no
21 later than 24 hours after the request is made.
22 (4) The person in charge of a place at which a CLMI identified
23 person is detained must ensure that the person is given the
24 means and opportunity to exercise their right under this section.
25 130. Duty to contact CLMI identified person
26 (1) A CLMI identified person detained under this Act must be
27 visited or otherwise contacted by a mental health advocate
28 within 3 working days after the day on which the Chief Mental
29 Health Advocate is notified under this Act that the person is
30 detained.
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Division 3 Functions and powers of mental health advocates
s. 131
1 (2) A CLMI identified person must be visited or otherwise
2 contacted by a mental health advocate within 3 working days
3 after the day on which the Chief Mental Health Advocate
4 receives or is notified of a request under section 129.
5 (3) If a CLMI identified person in respect of whom subsection (1)
6 or (2) applies is a child, the subsection must be complied with
7 within 24 hours of the Chief Mental Health Advocate being
8 notified of the detention or receiving or being notified of the
9 request.
10 (4) In addition to any requirement under this section to visit or
11 otherwise contact a CLMI identified person, a mental health
12 advocate may, subject to any direction of the Chief Mental
13 Health Advocate, visit or otherwise contact a CLMI identified
14 person on their own initiative.
15 Division 3 -- Functions and powers of mental health advocates
16 131. Functions of Chief Mental Health Advocate
17 (1) The functions of the Chief Mental Health Advocate are --
18 (a) ensuring that CLMI identified persons are visited or
19 otherwise contacted in accordance with section 130;
20 (b) promoting compliance with the principles in
21 section 7(2)(a) to (j);
22 (c) preparing and publishing information about the role of
23 mental health advocates and how to contact the Chief
24 Mental Health Advocate;
25 (d) promoting the role of mental health advocates;
26 (e) developing standards and protocols for the performance
27 by mental health advocates of their functions under this
28 Act, including a conflict of interest policy;
29 (f) ensuring that mental health advocates receive adequate
30 training in relation to the performance of their functions
31 under this Act;
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Functions and powers of mental health advocates Division 3
s. 132
1 (g) providing advice, assistance, control and direction to
2 mental health advocates in relation to the performance
3 of their functions under this Act;
4 (h) any other functions conferred on the Chief Mental
5 Health Advocate under this Act.
6 (2) The function of the Chief Mental Health Advocate under
7 subsection (1)(c) does not include the publication of personal
8 information about a CLMI identified person.
9 (3) The functions of the Chief Mental Health Advocate under this
10 Act are in addition to, and do not limit, the functions of the
11 Chief Mental Health Advocate under any other written law.
12 132. Directions to Chief Mental Health Advocate about general
13 matters
14 (1) The Minister may, after consultation with the Chief Mental
15 Health Advocate, issue written directions about the general
16 policy to be followed by the Chief Mental Health Advocate in
17 performing functions under this Act.
18 (2) The Chief Mental Health Advocate may request the Minister to
19 issue a direction under subsection (1).
20 (3) A direction cannot be issued under this section in respect of --
21 (a) a particular CLMI identified person; or
22 (b) a particular place at which a CLMI identified person is
23 detained or receives mandatory services; or
24 (c) any other particular person or body.
25 (4) The Chief Mental Health Advocate must comply with a
26 direction issued under this section.
27 (5) The power to issue a direction under this section includes the
28 power to amend, replace or revoke the direction and that power
29 is exercisable in the same manner, and is subject to the same
30 conditions, as the power to issue the direction.
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1 (6) The Minister must cause the text of a direction under this
2 section to be laid before each House of Parliament within
3 12 sitting days of the House after the day on which a direction is
4 issued under this section.
5 (7) The text of a direction issued under this section must be
6 included in the Chief Mental Health Advocate's annual report
7 under section 140(2).
8 133. Delegation by Chief Mental Health Advocate
9 (1) The Chief Mental Health Advocate may delegate to another
10 mental health advocate or an advocacy services officer any
11 power or duty of the Chief Mental Health Advocate under
12 another provision of this Act.
13 (2) The delegation must be in writing signed by the Chief Mental
14 Health Advocate.
15 (3) Despite subsection (1), the Chief Mental Health Advocate
16 cannot delegate to an advocacy services officer a power or duty
17 of the Chief Mental Health Advocate as a representative of a
18 supervised person.
19 (4) A person to whom a power or duty is delegated under this
20 section cannot delegate that power or duty.
21 (5) A person exercising a power or performing a duty that has been
22 delegated to the person under this section is taken to do so in
23 accordance with the terms of the delegation unless the contrary
24 is shown.
25 (6) This section does not limit the ability of the Chief Mental
26 Health Advocate to perform a function through an officer or
27 agent.
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Functions and powers of mental health advocates Division 3
s. 134
1 134. Functions of mental health advocates
2 (1) The functions of a mental health advocate are to assist and
3 advocate for CLMI identified persons, including (without
4 limitation) --
5 (a) visiting or otherwise contacting CLMI identified persons
6 in accordance with section 130;
7 (b) inquiring into or investigating any matter relating to the
8 conditions of a place at which a CLMI identified person
9 is detained, or receives mandatory services, that is
10 adversely affecting, or is likely to adversely affect, the
11 health, safety or wellbeing of the person;
12 (c) inquiring into or investigating the extent to which --
13 (i) CLMI identified persons have been informed of
14 their right, under section 129, to request that they
15 be contacted by a mental health advocate; and
16 (ii) CLMI identified persons who are detained have
17 been given the means and opportunity to exercise
18 that right; and
19 (iii) CLMI identified persons have been visited or
20 otherwise contacted in accordance with
21 section 130;
22 (d) inquiring into and seeking to resolve complaints
23 about --
24 (i) the treatment, care and support provided to a
25 CLMI identified person at a place at which the
26 person is detained or receives mandatory
27 services; or
28 (ii) the provision of mandatory services to a CLMI
29 identified person;
30 (e) inquiring into or investigating the provision of
31 mandatory services;
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Division 3 Functions and powers of mental health advocates
s. 134
1 (f) referring any issues arising out of the performance of a
2 mental health advocate's functions under paragraphs (b)
3 to (e) to the Chief Mental Health Advocate;
4 (g) assisting CLMI identified persons in relation to
5 proceedings under this Act before a court;
6 (h) assisting and representing supervised persons in and in
7 relation to proceedings under this Act before the
8 Tribunal;
9 (i) liaising with the guardians and administrators of CLMI
10 identified persons;
11 (j) assisting CLMI identified persons to access legal
12 services;
13 (k) in consultation with the medical practitioners, mental
14 health practitioners, other health professionals and
15 representatives responsible for the treatment, care and
16 support of CLMI identified persons, advocating for and
17 facilitating access by CLMI identified persons to other
18 services;
19 (l) any other functions conferred on a mental health
20 advocate under this Act.
21 (2) The functions of a mental health advocate are to be performed
22 in relation to particular CLMI identified persons.
23 (3) For the purposes of subsection (1)(d), a complaint may be made
24 to a mental health advocate by a person who has a sufficient
25 interest in the CLMI identified person concerned.
26 (4) In performing functions under this Act, mental health advocates
27 are subject to the general direction and control of the Chief
28 Mental Health Advocate.
29 (5) The functions of mental health advocates under this Act are in
30 addition to, and do not limit, the functions of mental health
31 advocates under any other written law.
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Functions and powers of mental health advocates Division 3
s. 135
1 135. Powers of mental health advocates relating to CLMI
2 identified persons
3 (1) The powers of a mental health advocate, when performing a
4 function under this Act, are --
5 (a) visiting a place at which a CLMI identified person is
6 detained or receives mandatory services;
7 (b) inspecting any part of a place visited under
8 paragraph (a);
9 (c) seeing and speaking with a CLMI identified person
10 unless the person objects to the advocate doing so;
11 (d) asking a person who works at a place visited under
12 paragraph (a) questions about --
13 (i) the welfare, health, care, training, safety,
14 management or security of any CLMI identified
15 person who is detained, or receives mandatory
16 services, at the place; and
17 (ii) the operation, control, management, security and
18 good order of the place, but only to the extent to
19 which the matter is relevant to a matter
20 mentioned in subparagraph (i);
21 (e) asking a person who is involved in the provision of a
22 mandatory service in relation to a CLMI identified
23 person questions about the provision of the service;
24 (f) inspecting and taking a copy of the whole or any part of
25 any document about a CLMI identified person that is
26 held at a place at which the person is detained, or
27 receives mandatory services, unless the person objects to
28 the advocate doing so;
29 (g) doing anything else necessary or convenient for the
30 performance of the functions conferred on the mental
31 health advocate under this Act.
32 (2) The exercise of the powers of a mental health advocate under
33 subsection (1) in relation to a CLMI identified person who is
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Division 3 Functions and powers of mental health advocates
s. 136
1 detained at, or who receives mandatory services at, a place is
2 subject to --
3 (a) the direction of the person in charge of the place; and
4 (b) rules under the Prisons Act 1981 section 35 or the Young
5 Offenders Act 1994 section 181, as is relevant.
6 (3) However, the powers to direct and to make rules referred to in
7 subsection (2) --
8 (a) must be exercised having regard to the principle in
9 section 7(2)(b); and
10 (b) cannot be exercised so as to limit the exercise of a
11 mental health advocate's powers under subsection (1)
12 except for the purposes of --
13 (i) ensuring the safety of persons; or
14 (ii) maintaining the security of a prison or detention
15 centre.
16 (4) A mental health advocate may require a person who works at a
17 place at which a CLMI identified person is detained, or receives
18 mandatory services, to give reasonable assistance to the mental
19 health advocate for the purpose of the performance of the
20 mental health advocate's functions under this Act.
21 (5) A person who, without reasonable excuse (proof of which is on
22 the person), does not give reasonable assistance when required
23 under subsection (4) commits an offence.
24 Penalty for this subsection: a fine of $6 000.
25 136. Issues arising out of inquiries and investigations
26 (1) A mental health advocate may attempt to resolve any issue that
27 arises in the course of an inquiry into or investigation of a
28 matter referred to in section 134(1)(b) or (c) by dealing directly
29 with persons who work at the place at which the CLMI
30 identified person is detained or receives mandatory services.
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Functions and powers of mental health advocates Division 3
s. 137
1 (2) A mental health advocate must refer an issue to the Chief
2 Mental Health Advocate if the mental health advocate cannot
3 resolve the issue or considers it appropriate to do so.
4 (3) The Chief Mental Health Advocate may give a report about an
5 issue referred under subsection (2) to the person in charge of the
6 place in relation to which the issue arose.
7 (4) The Chief Mental Health Advocate may also give a copy of a
8 report given under subsection (3) to 1 or more of the
9 following --
10 (a) the Minister;
11 (b) the Minister for Corrective Services;
12 (c) the Minister to whom the administration of the Young
13 Offenders Act 1994 is committed;
14 (d) the CEO (Corrections);
15 (e) the CEO (Young Offenders).
16 (5) A person to whom a copy of a report about an issue is given
17 under subsection (4) must --
18 (a) advise the Chief Mental Health Advocate whether or not
19 the person considers further inquiry into or investigation
20 of the issue is warranted; and
21 (b) if there is an inquiry or investigation -- advise the Chief
22 Mental Health Advocate of its outcome, including any
23 recommendations made, directions given or other action
24 taken.
25 (6) This section does not limit the powers that a mental health
26 advocate has for dealing with any issue that arises in the course
27 of an inquiry into or investigation of a matter.
28 137. Documents to which access is restricted
29 (1) This section applies if a CLMI identified person who is
30 detained, or who receives mandatory services, is not entitled
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Division 3 Functions and powers of mental health advocates
s. 138
1 under the Mental Health Act 2014 section 249 to have access to
2 a document.
3 (2) The person in charge of a place at which the CLMI identified
4 person is detained, or receives mandatory services, must ensure
5 that, before a person who works at that place makes the
6 document available to a mental health advocate under
7 section 135, the mental health advocate is advised --
8 (a) that the CLMI identified person is not entitled to have
9 access to the document; and
10 (b) that it is an offence under section 138 for the mental
11 health advocate to disclose any information in the
12 document to the CLMI identified person.
13 (3) The person in charge of a place at which the CLMI identified
14 person is detained, or receives mandatory services, must ensure
15 that a record of any advice given to a mental health advocate
16 under subsection (2) about the matters referred to in that
17 subsection is recorded in any record of information kept in
18 respect of the CLMI identified person.
19 138. Disclosure by mental health advocate
20 A mental health advocate who under section 135 inspects, or
21 takes a copy of the whole or any part of, a document must not
22 disclose any information in the document if --
23 (a) the CLMI identified person to whom the document
24 relates is not entitled under the Mental Health Act 2014
25 section 249 to have access to the document; and
26 (b) before the document was made available to the mental
27 health advocate under section 135, the mental health
28 advocate was advised of the matters referred to in
29 section 137(2).
30 Penalty: a fine of $5 000.
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Interaction with Mental Health Act 2014 Division 4
s. 139
1 Division 4 -- Interaction with Mental Health Act 2014
2 139. Interaction with Mental Health Act 2014
3 (1) The purpose of this section is to ensure continuity of the
4 provision of advocacy services under this Act and the Mental
5 Health Act 2014, where appropriate.
6 (2) In this section --
7 MHA identified person means an identified person as defined in
8 the Mental Health Act 2014 section 348.
9 (3) Subsection (4) applies if --
10 (a) a CLMI identified person becomes an MHA identified
11 person; and
12 (b) a person (the responsible person) had a power or duty
13 under a provision of this Part in relation to the identified
14 person; and
15 (c) there is a provision of the Mental Health Act 2014
16 Part 20 that --
17 (i) corresponds to the provision under this Part
18 referred to in paragraph (b); and
19 (ii) provides for a corresponding power or duty.
20 (4) The responsible person has the corresponding power or duty in
21 relation to the identified person.
22 (5) Subsection (6) applies if --
23 (a) an MHA identified person becomes a CLMI identified
24 person; and
25 (b) a person (the responsible person) had a power or duty
26 under a provision of the Mental Health Act 2014 Part 20
27 in relation to the identified person; and
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Division 5 Reporting in relation to mental health advocacy services
s. 140
1 (c) there is a provision of this Part that --
2 (i) corresponds to the provision of the Mental
3 Health Act 2014 Part 20 referred to in
4 paragraph (b); and
5 (ii) provides for a corresponding power or duty.
6 (6) The responsible person has the corresponding power or duty in
7 relation to the identified person.
8 (7) If a mental health advocate has a power or duty under
9 subsection (4) or (6) in relation to an identified person but it is
10 not practicable for them to exercise the power or perform the
11 duty, another mental health advocate may do so.
12 (8) Regulations may modify the effect of subsections (4) and (6).
13 Division 5 -- Reporting in relation to mental health advocacy
14 services
15 140. Annual reports
16 (1) In this section --
17 contractor means a person who is a contractor under the Court
18 Security and Custodial Services Act 1999, the Declared Places
19 (Mental Impairment) Act 2015 or the Prisons Act 1981.
20 (2) Before 1 October in each year, the Chief Mental Health
21 Advocate must report to the following on the activities of all
22 mental health advocates under this Act during the previous
23 financial year --
24 (a) the Minister;
25 (b) the Minister for Corrective Services;
26 (c) the Minister to whom the administration of the Young
27 Offenders Act 1994 is committed.
28 (3) Personal information relating to a CLMI identified person must
29 not be included in a report unless, on their views being sought,
30 they do not object to the disclosure.
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Reporting in relation to mental health advocacy services Division 5
s. 140
1 (4) The Minister must cause a copy of a report to be laid before
2 each House of Parliament within 12 sitting days of the House
3 after receiving it.
4 (5) The Chief Mental Health Advocate must not, in a report,
5 disclose information or make a statement setting out an opinion
6 that is, either expressly or impliedly, critical of the following
7 unless the Chief Mental Health Advocate has complied with
8 subsection (6) in relation to the matter --
9 (a) the department of the Public Service principally
10 assisting in the administration of the Prisons Act 1981;
11 (b) the department of the Public Service principally
12 assisting in the administration of the Young Offenders
13 Act 1994;
14 (c) a contractor;
15 (d) any other person who performs functions under this Act
16 or provides mandatory services.
17 (6) Before disclosing information or making a statement as
18 described in subsection (5), the Chief Mental Health Advocate
19 must give the following the opportunity to make written
20 submissions in relation to the matter --
21 (a) if the opinion relates to a department referred to in
22 subsection (5) -- the chief executive officer of the
23 department;
24 (b) if the opinion relates to a contractor -- the contractor;
25 (c) if the opinion relates to a person referred to in
26 subsection (5)(d) -- the person.
27 (7) If the Chief Mental Health Advocate is not able to comply with
28 subsection (2) in a year the Chief Mental Health Advocate must
29 inform each House of Parliament of the inability to do so, and
30 the reasons for that inability, by 1 October in that year or the 1st
31 sitting day of each House after that.
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Part 9 Victim considerations
Division 1 Preliminary matters
s. 141
1 Part 9 -- Victim considerations
2 Division 1 -- Preliminary matters
3 141. Overview of Part
4 This Part provides for --
5 (a) victim impact statements to be given to a court
6 considering whether to make a supervision order; and
7 (b) victim submissions to be made to the Tribunal generally
8 in respect of a supervised person; and
9 (c) victim submissions to be made --
10 (i) to a court in relation to an application to cancel a
11 CO or CSO under section 74; and
12 (ii) to the Supreme Court in relation to an application
13 for an extended order under Part 7.
14 142. Terms used
15 (1) In this Part --
16 member of the immediate family of the deceased means --
17 (a) the deceased's spouse; and
18 (b) the deceased's de facto partner; and
19 (c) a person to whom the deceased was engaged to be
20 married; and
21 (d) a parent, grandparent, guardian, step-parent or
22 step-grandparent of the deceased; and
23 (e) a child, grandchild, step-child or step-grandchild of the
24 deceased or some other child for whom the deceased is
25 the guardian; and
26 (f) a brother, sister, half-brother, half-sister, step-brother or
27 step-sister of the deceased; and
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s. 142
1 (g) a person regarded under Aboriginal or Torres Strait
2 Islander customary law and culture as a member of the
3 extended family or kinship group of the deceased;
4 victim, of an offence, means --
5 (a) a person who has suffered injury, loss or damage as a
6 direct result of the offence, whether or not that injury,
7 loss or damage was reasonably foreseeable by the
8 person found to have committed the offence; and
9 (b) if the offence resulted in a death, a member of the
10 immediate family of the deceased; and
11 (c) a person protected by a family violence restraining order
12 under the Restraining Orders Act 1997 to which the
13 person found to have committed the offence is or was a
14 respondent; and
15 (d) a person who can demonstrate, to the satisfaction of the
16 CEO, that --
17 (i) the person is the victim of a violent personal
18 offence previously committed by the person
19 found to have committed the offence; and
20 (ii) the violent personal offence occurred in the
21 context of a family relationship (as defined in the
22 Restraining Orders Act 1997 section 4) with the
23 person found to have committed the offence;
24 violent personal offence means --
25 (a) an offence specified in the Restraining Orders Act 1997
26 section 63(4AA)(a); or
27 (b) a violent personal offence as defined in the Restraining
28 Orders Act 1997 section 63A(1A).
29 (2) For the purposes of paragraph (c) of the definition of victim (in
30 subsection (1)), it is irrelevant that the family violence
31 restraining order is unrelated to the offence referred to in that
32 definition.
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Division 2 Victim impact statements may be given to court
s. 143
1 Division 2 -- Victim impact statements may be given to court
2 143. Term used
3 In this Division --
4 victim impact statement, in relation to a victim of an offence,
5 means a statement containing particulars of any bodily harm or
6 psychological or psychiatric harm suffered by the victim as a
7 result of the offence.
8 144. Victim impact statements may be given to court
9 (1) A victim of an offence in respect of which a court must make an
10 order under Part 5 may give a victim impact statement to the
11 court to assist the court in determining what order to make.
12 (2) If an application for an order under section 89 is made in
13 relation to a supervised person, a victim of an offence
14 committed by the supervised person may give a victim impact
15 statement to the court.
16 (3) If because of age, disability or any other reason a victim is
17 incapable of giving a victim impact statement, another person
18 may give it on the victim's behalf if the court is satisfied that it
19 is appropriate for the other person to do so.
20 (4) A court may rule as inadmissible the whole or any part of a
21 victim impact statement.
22 145. Content of victim impact statements
23 (1) A victim impact statement must not address the way in which or
24 the extent to which the person found to have committed the
25 offence is to be dealt with under this Act.
26 (2) A victim impact statement may be accompanied by a report by
27 any person who has treated the victim in connection with the
28 offence.
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s. 146
1 146. Availability of victim impact statements
2 (1) A court may make a written victim impact statement available
3 to another person on the conditions it considers appropriate.
4 (2) If a court makes a victim impact statement available under
5 subsection (1), it must notify the victim of this as soon as
6 practicable.
7 (3) A court must, after making an order under Part 5 or section 89,
8 make available to the Tribunal a copy of any victim impact
9 statement given to the court under section 144.
10 Division 3 -- Victim submissions may be made to Tribunal
11 147. Victim submissions may be made to Tribunal
12 (1) A victim of the offence in relation to which a custody order or
13 community supervision order was made may make a submission
14 to the Tribunal that --
15 (a) if the supervised person is subject to a custody order --
16 (i) states the victim's opinion of the effect on the
17 victim of the release of the supervised person;
18 and
19 (ii) includes suggestions about the conditions that
20 should apply to the supervised person if released;
21 or
22 (b) if the supervised person is subject to a community
23 supervision order, or a leave of absence order applies to
24 the person --
25 (i) states the victim's opinion of the effect on the
26 victim of the cancellation of the conditions of the
27 order; and
28 (ii) includes suggestions about the conditions that
29 should apply to the supervised person.
30 (2) The submission must be in writing.
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Division 4 Victim submissions may be made to court
s. 148
1 (3) If because of age, disability or any other reason a victim is
2 incapable of giving a submission, another person may give it on
3 the victim's behalf if the Tribunal is satisfied that it is
4 appropriate for the other person to do so.
5 (4) The Tribunal must establish procedures for the giving of
6 victims' submissions.
7 (5) In exercising its jurisdiction, the Tribunal may have regard to a
8 victim's submission received by it in accordance with the
9 procedures and is to give the submission such weight as it sees
10 fit.
11 (6) The Tribunal may make a victim's submission available to
12 another person on the conditions it considers appropriate.
13 (7) If the Tribunal makes a victim's submission available under
14 subsection (6), it must notify the victim of this as soon as
15 practicable.
16 Division 4 -- Victim submissions may be made to court
17 148. Victim submissions may be made to court
18 (1) If an application for the cancellation of a custody order or
19 community supervision order is made under section 74, a victim
20 of an offence committed by the supervised person may make a
21 submission to the court that made the order in relation to the
22 need to ensure adequate protection of the victim.
23 (2) If an application for an extended order or the review of an
24 extended order is made under Part 7 in relation to a supervised
25 person, a victim of an offence committed by the supervised
26 person may make a submission to the Supreme Court in relation
27 to the need to ensure adequate protection of the victim.
28 (3) A submission must be in writing.
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1 (4) If because of age, disability or any other reason a victim is
2 incapable of making a submission, another person may make it
3 on the victim's behalf if the court is satisfied that it is
4 appropriate for the other person to do so.
5 (5) A court may rule as inadmissible the whole or any part of a
6 victim's submission.
7 149. Content of victim's submission
8 A victim's submission may --
9 (a) if the application under section 148 is in relation to a
10 custody order -- state the victim's opinion of the effect
11 on the victim of the release of the supervised person; or
12 (b) if the application under section 148 is in relation to a
13 community supervision order --
14 (i) state the victim's opinion of the effect on the
15 victim of the supervised person no longer being
16 under supervision; and
17 (ii) include suggestions about the conditions that
18 should apply to the supervised person.
19 150. Availability of victim's submissions
20 (1) A court may make a victim's submission available to another
21 person on the conditions it considers appropriate.
22 (2) If a court makes a victim's submission available under
23 subsection (1), it must notify the victim of this as soon as
24 practicable.
25 (3) A court must, after confirming a custody order or community
26 supervision order under section 74(2) or making an extended
27 order under Part 7, make available to the Tribunal a copy of any
28 victim's submission given to the court under section 148.
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Division 5 Notice of Tribunal review given to victims
s. 151
1 Division 5 -- Notice of Tribunal review given to victims
2 151. Notice to victims of review proceedings
3 (1) As soon as practicable after receiving notice (under section 71)
4 of review proceedings under Part 6 Division 4 in relation to a
5 supervision order, the CEO must give written notice to each
6 victim of the offence in relation to which the order was made
7 who has notified the CEO that they wish to receive notice of
8 review proceedings in relation to the supervised person.
9 (2) A victim may nominate a person to receive notice on their
10 behalf.
11 (3) Notice to a victim who is a child must be given to a parent of
12 the child and any guardian of the child.
13 (4) Notice must include the following --
14 (a) if the supervised person is subject to a custody order --
15 whether or not a leave of absence order applies to the
16 person;
17 (b) if the supervised person is subject to a community
18 supervision order, or a leave of absence order applies to
19 the person -- the person's current level of supervision.
20 (5) Notice under this section need not be given --
21 (a) in relation to review proceedings solely for the purpose
22 of varying conditions of a leave of absence order; or
23 (b) to a person whose whereabouts have not, after
24 reasonable enquiry, been ascertained; or
25 (c) when the Tribunal is constituted in accordance with
26 section 75(1).
27 (6) The validity of a decision of the Tribunal is not affected by a
28 failure to notify each victim in accordance with this section.
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Miscellaneous Division 6
s. 152
1 152. Delegation by CEO
2 (1) The CEO may delegate to a person any power or duty the CEO
3 has under this Division.
4 (2) The delegation must be in writing signed by the CEO.
5 (3) A person to whom a power or duty is delegated under this
6 section cannot delegate that power or duty.
7 (4) A person exercising a power or performing a duty that has been
8 delegated to the person under this section is taken to do so in
9 accordance with the terms of the delegation unless the contrary
10 is shown.
11 (5) This section does not limit the ability of the CEO to perform a
12 function through an officer or an agent.
13 Division 6 -- Miscellaneous
14 153. Disclosing information to victims
15 The CEO may, in relation to an offence committed by a
16 supervised person, disclose information of a prescribed kind
17 regarding the supervised person to a victim of the offence or a
18 person acting on the victim's behalf.
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Division 1 Preliminary matters
s. 154
1 Part 10 -- Mental Impairment Review Tribunal
2 Division 1 -- Preliminary matters
3 154. Overview of Part
4 (1) The principal function of the Tribunal is, under Part 6, to
5 administer the orders to which supervised persons are subject.
6 (2) The Tribunal's other functions include --
7 (a) conducting internal reviews of decisions of the Tribunal;
8 see section 91;
9 (b) considering and reporting on the need for extended COs
10 and CSOs; see section 103;
11 (c) advising the Minister about appropriate interim
12 dispositions of persons to be transferred to the State; see
13 section 205(2);
14 (d) its functions under this Part.
15 (3) Division 2 establishes the Tribunal and provides for its
16 jurisdiction and constitution.
17 (4) Division 3 makes provision in relation to proceedings of the
18 Tribunal.
19 (5) Division 4 provides for the membership of the Tribunal.
20 (6) Divisions 5 to 7 provide for --
21 (a) the general powers of the Tribunal; and
22 (b) the registrar and staff of the Tribunal; and
23 (c) miscellaneous matters.
24 155. Terms used
25 In this Part --
26 community member means a member of the Tribunal appointed
27 under section 171(1)(c);
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1 experienced lawyer means a lawyer with at least 5 years' legal
2 experience;
3 member of staff, of the Tribunal, means an officer of the
4 Department made available to assist the Tribunal under
5 section 188(5);
6 proceedings means proceedings of the Tribunal under this Act
7 and includes part of a proceeding;
8 public service member means a member of the Tribunal
9 appointed under section 171(1)(f), (g) or (h);
10 question of law means a question of law arising in proceedings
11 for decision by the Tribunal and includes a question of mixed
12 law and fact;
13 registrar means the registrar of the Tribunal under
14 section 188(1).
15 Division 2 -- Mental Impairment Review Tribunal
16 156. Tribunal established
17 The Mental Impairment Review Tribunal is established.
18 157. Tribunal's jurisdiction
19 The Tribunal has the jurisdiction conferred on it by this Act.
20 158. Constitution of Tribunal
21 (1) When exercising its jurisdiction, the Tribunal must be
22 constituted by --
23 (a) the President or a Deputy President; and
24 (b) at least 2 other members, as specified by the President.
25 (2) If a matter before the Tribunal relates to an Aboriginal
26 supervised person, the President must, to the extent practicable,
27 ensure that the Tribunal is constituted so as to include a
28 community member who has knowledge and understanding of
29 Aboriginal culture local to the State.
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1 (3) If a matter before the Tribunal relates to a supervised person
2 who is a child, the President must, to the extent practicable,
3 ensure that the Tribunal is constituted so as to include a
4 psychiatrist, or psychologist, who specialises in child and
5 adolescent treatment.
6 (4) If a matter before the Tribunal relates to a supervised person
7 who has a mental illness, the President must, to the extent
8 practicable, ensure that the Tribunal is constituted so as to
9 include a psychiatrist.
10 (5) If a matter before the Tribunal relates to a supervised person
11 who has a disability (as defined in the Disability Services
12 Act 1993 section 3) the predominant reason for which is not
13 mental illness, the President must, to the extent practicable,
14 ensure that the Tribunal is constituted so as to include a member
15 referred to in section 171(1)(f).
16 (6) The President may alter who is to constitute the Tribunal for the
17 purpose of dealing with a matter, or anything relating to a
18 matter, and the Tribunal as constituted after the alteration may
19 have regard to any record of the proceedings of the Tribunal in
20 relation to the matter before the alteration or any evidence taken
21 in the proceedings before the alteration.
22 (7) Subsections (1) to (5) have effect subject to the provisions of
23 this Act that expressly provide otherwise.
24 Note for this subsection:
25 Those provisions are sections 75(1), 81(4) and 91(5).
26 159. Contemporaneous exercise of jurisdiction
27 The Tribunal constituted by particular members may exercise its
28 jurisdiction even if the Tribunal differently constituted is
29 exercising its jurisdiction at the same time.
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1 Division 3 -- Proceedings of Tribunal
2 160. Conduct of proceedings
3 (1) Proceedings must be conducted with as little formality and
4 technicality, and as speedily, as a proper consideration of the
5 matter before the Tribunal permits.
6 (2) In proceedings, the Tribunal is bound by the rules of natural
7 justice.
8 (3) If the presiding member considers it appropriate, they may
9 allow a member of the Tribunal to participate in a proceeding
10 (including a hearing) by means of an audio or video link, or any
11 other means of instantaneous communication.
12 (4) If the presiding member considers it appropriate, they may
13 allow a party to proceedings, a representative and any witness to
14 participate in a hearing in proceedings by means of an audio or
15 video link, or any other means of instantaneous communication.
16 (5) Subject to this Part, the practice and procedure of the Tribunal
17 in proceedings is --
18 (a) as provided for in the practice notes under section 195;
19 or
20 (b) if no relevant provision is made in the practice notes --
21 as determined by the Tribunal.
22 161. Who presides
23 (1) The most senior of the members constituting the Tribunal must
24 preside at proceedings.
25 (2) The seniority of members is determined by the President.
26 162. Decision of Tribunal
27 (1) A question that the Tribunal is required to decide is decided
28 according to the opinion of the majority.
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1 (2) However, if opinions on a question are equally divided, the
2 question is to be resolved according to the opinion of the
3 presiding member.
4 (3) This section has effect subject to section 163.
5 163. Questions of law
6 (1) If a question of law arises in proceedings and the presiding
7 member is the President or a Deputy President who is an
8 experienced lawyer, the question is decided by the Tribunal
9 according to the opinion of the presiding member.
10 (2) The presiding member referred to in subsection (1) may, if the
11 question is not a question of mixed law and fact, refer the
12 question to the Supreme Court for decision by the court.
13 (3) If a question of law arises in proceedings and the presiding
14 member is neither the President nor a Deputy President who is
15 an experienced lawyer, the Tribunal must refer the question to
16 the President or a Deputy President who is an experienced
17 lawyer.
18 (4) If a question referred to the President or a Deputy President is
19 not a question of mixed law and fact, the President or Deputy
20 President may refer the question to the Supreme Court for
21 decision by the court.
22 (5) If a question of law is referred to the President or a Deputy
23 President, and is not then referred to the Supreme Court, the
24 question is taken to have been decided by the Tribunal
25 according to the opinion of the President or Deputy President.
26 (6) A question of law referred to the Supreme Court under
27 subsection (2) or (4) is taken to have been decided by the
28 Tribunal according to the decision of the court.
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s. 164
1 164. Evidence generally
2 (1) In proceedings, the Tribunal --
3 (a) is not bound by the rules of evidence; and
4 (b) may inform itself in such manner as it considers
5 appropriate; and
6 (c) may, on its own initiative, call any person to give
7 evidence; and
8 (d) may examine or cross-examine any witness to the extent
9 the Tribunal considers appropriate for the purposes of
10 the proceedings.
11 (2) Evidence in proceedings may be given orally or in writing.
12 (3) The Tribunal may require evidence in proceedings to be given
13 on oath or by affidavit.
14 (4) The presiding member may direct a person appearing as a
15 witness in proceedings --
16 (a) to answer a question relevant to the proceedings; or
17 (b) to produce a document relevant to the proceedings.
18 (5) Subject to section 168, a person appearing as a witness has the
19 same protection and immunity as a witness has in proceedings
20 in the Supreme Court.
21 165. Appearance in review proceedings
22 (1) In proceedings under Part 6 Division 4, the supervised
23 person --
24 (a) may appear before the Tribunal, unless the Tribunal
25 considers that it is not safe or practicable for the person
26 to do so; and
27 (b) may be accompanied by a representative of the person;
28 and
29 (c) may be represented by a legal practitioner or a
30 representative of the person.
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1 (2) Even though a supervised person is represented in proceedings,
2 the person is entitled to express in person their views about any
3 matter arising in the course of the proceedings that may affect
4 them.
5 (3) The President may order that a person's appearance before the
6 Tribunal be by means of an audio or video link, or any other
7 means of instantaneous communication.
8 166. Summons to give evidence or produce documents
9 (1) The Tribunal may, by issuing a summons and giving it to the
10 person to whom it is addressed, require the person to attend
11 before the Tribunal at the time and place specified in the
12 summons to do 1 or both of the following --
13 (a) give evidence in proceedings;
14 (b) produce a specified document relevant to proceedings in
15 the person's custody or control.
16 (2) The power of the Tribunal to issue a summons is exercisable by
17 a member or the registrar.
18 (3) A summons must be signed by the person issuing it.
19 167. Power to examine on oath
20 The following persons may administer an oath or affirmation to
21 any person appearing as a witness in proceedings before the
22 Tribunal --
23 (a) a member;
24 (b) the registrar;
25 (c) a member of staff of the Tribunal.
26 168. Privilege against self-incrimination
27 (1) A person is not excused from complying with a direction under
28 section 164(4), or with a summons under section 166, on the
29 ground that the answer to a question or the production of a
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s. 169
1 document might tend to incriminate the person or expose the
2 person to a criminal penalty.
3 (2) However, any answer given or document produced by the
4 person, or the fact of the person having answered the question
5 or produced the document, in compliance with the direction or
6 summons is not admissible in evidence in any criminal
7 proceedings against the person other than proceedings for
8 perjury or an offence under section 189.
9 169. Confidentiality orders
10 (1) The Tribunal may, by order (a confidentiality order), prohibit or
11 restrict the disclosure of any of the following to a supervised
12 person --
13 (a) information given in proceedings relating to the person;
14 (b) matters contained in documents received by it relating to
15 the person;
16 (c) the reasons for its decisions in proceedings relating to
17 the person.
18 (2) The Tribunal must not make a confidentiality order in respect of
19 a supervised person unless it is satisfied that the disclosure
20 would create a risk to the health or safety of the supervised
21 person or to the safety of another person.
22 (3) If the Tribunal makes a confidentiality order in respect of a
23 supervised person, the Tribunal must --
24 (a) disclose to a representative of the supervised person, or
25 a legal practitioner representing the person, the
26 information or matters mentioned in subsection (1) to
27 which the order relates; and
28 (b) give the representative or legal practitioner a copy of the
29 order and written reasons for the order.
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1 (4) A person who, without reasonable excuse, contravenes a
2 confidentiality order where the person knew or ought
3 reasonably to have known about the order, commits an offence.
4 Penalty for this subsection: a fine of $10 000.
5 (5) This section has effect despite any other provision of this Act.
6 170. Publication of names
7 A person must not, except with the consent of the Tribunal,
8 publish or broadcast in relation to proceedings of the
9 Tribunal --
10 (a) the name of any supervised person or any witness or
11 other person appearing in or mentioned in proceedings;
12 or
13 (b) any other information, picture or material that identifies
14 or is likely to lead to the identification of such a person.
15 Penalty: a fine of $10 000.
16 Division 4 -- Membership of Tribunal
17 171. Tribunal members
18 (1) The members of the Tribunal are --
19 (a) the President, appointed by the Governor on the
20 nomination of the Minister; and
21 (b) 1 or more Deputy Presidents, appointed by the Minister;
22 and
23 (c) as many community members as are necessary to deal
24 with the workload of the Tribunal, appointed by the
25 Minister; and
26 (d) 1 or more psychiatrists, appointed by the Minister; and
27 (e) 1 or more psychologists, appointed by the Minister; and
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1 (f) 1 or more persons who --
2 (i) are appointed or employed under the Disability
3 Services Act 1993 section 9 or made available
4 under section 10 of that Act; and
5 (ii) are appointed by the Minister on the nomination
6 of the Minister to whom the administration of the
7 Disability Services Act 1993 is committed;
8 and
9 (g) 1 or more persons who --
10 (i) are employed in the department of the Public
11 Service principally assisting in the administration
12 of the Prisons Act 1981; and
13 (ii) are appointed by the Minister on the nomination
14 of the Minister for Corrective Services;
15 and
16 (h) 1 or more persons who --
17 (i) are employed in the department of the Public
18 Service principally assisting in the administration
19 of the Young Offenders Act 1994; and
20 (ii) are appointed by the Minister on the nomination
21 of the Minister to whom the administration of the
22 Young Offenders Act 1994 is committed.
23 (2) A member may be appointed on a full-time, part-time or
24 sessional basis.
25 172. Qualifications of certain members
26 (1) The Minister must not nominate a person as the President
27 unless --
28 (a) the person has served as, or is qualified for appointment
29 as, a judge of the District Court of Western Australia,
30 the Supreme Court of Western Australia or another State
31 or Territory, the High Court of Australia or the Federal
32 Court of Australia; and
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1 (b) if the person holds judicial office, the person has
2 consented in writing to be nominated.
3 (2) A person holding a judicial office must retire upon being
4 nominated as the President.
5 (3) The Minister must not appoint a person as Deputy President
6 unless the Minister is satisfied that the person has extensive or
7 special knowledge of matters involved in the performance of the
8 Tribunal's functions.
9 (4) The Minister must ensure that the Deputy President, or at least 1
10 of the Deputy Presidents, is an experienced lawyer.
11 (5) The Minister must not appoint a person as a community
12 member unless satisfied that --
13 (a) the person is able to make an objective and reasonable
14 assessment of the degree of risk that a supervised person
15 would appear to present to the safety of the community;
16 and
17 (b) the person has 1 or more of the following attributes --
18 (i) knowledge and understanding of forensic mental
19 health and disability;
20 (ii) knowledge and understanding of victims'
21 interests and concerns;
22 (iii) knowledge and understanding of Aboriginal
23 culture local to the State;
24 (iv) knowledge and understanding of a range of
25 cultures among Australians;
26 (v) knowledge and understanding of the criminal
27 justice system;
28 (vi) broad experience in a range of issues such as
29 issues relating to employment, substance abuse,
30 physical or mental illness or disability, or lack of
31 housing, education or training.
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1 (6) In nominating persons as community members the Minister
2 must ensure that at all times at least one community member has
3 the attribute mentioned in subsection (5)(b)(ii) and at least one
4 community member is an Aboriginal person who has the
5 attribute mentioned in subsection (5)(b)(iii).
6 173. Terms and conditions of appointment
7 (1) A member holds office for the period, not exceeding 5 years,
8 specified in the member's instrument of appointment.
9 (2) A member is eligible for reappointment.
10 (3) Subject to this Division, a member holds office on the terms and
11 conditions of appointment determined by the Minister or, in the
12 case of the President, by the Governor.
13 174. Remuneration
14 (1) A member is entitled to the remuneration determined from time
15 to time --
16 (a) in the case of the President -- by the Governor on the
17 recommendation of the Minister; and
18 (b) in any other case -- by the Minister.
19 (2) The Minister's recommendation as to, or determination of,
20 remuneration under subsection (1) is to be on the
21 recommendation of the Public Sector Commissioner
22 (3) Any remuneration paid to a member who is a retired judge does
23 not affect the member's entitlements under the Judges' Salaries
24 and Pensions Act 1950.
25 (4) Despite subsection (1), a member is not entitled to remuneration
26 under this section if the member holds a full-time office or
27 position that is remunerated out of funds appropriated by
28 Parliament.
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Division 4 Membership of Tribunal
s. 175
1 175. Deputy President acting as President
2 (1) In this section --
3 unable to act includes that the President is on leave, whether
4 extended or not and whether for illness or not.
5 (2) If there is a vacancy in the office of President or the President is
6 unable to act, the Deputy President, or the most senior Deputy
7 President, is to perform the functions of the President.
8 (3) The President may resolve any question as to the seniority of
9 Deputy Presidents.
10 (4) Despite subsection (2), a Deputy President who is not an
11 experienced lawyer cannot decide a question of law.
12 (5) An act or omission of a Deputy President acting in the
13 President's place cannot be questioned on the ground that the
14 occasion to act had not arisen or had ceased.
15 176. Leave of absence from office
16 (1) The Minister may, on terms and conditions the Minister
17 considers appropriate, grant the President leave to be absent
18 from office.
19 (2) The President may, on terms and conditions the President
20 considers appropriate, grant a member leave to be absent from
21 office.
22 177. Vacating office prematurely
23 A member ceases to be a member before the end of their term of
24 appointment if --
25 (a) they resign under section 179; or
26 (b) their appointment is terminated under section 180.
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s. 178
1 178. Conditions for public service members
2 (1) A member appointed under section 171(1)(f) is a member only
3 while the person is appointed, employed or made available as
4 described in section 171(1)(f)(i).
5 (2) A member appointed under section 171(1)(g) or (h) is a member
6 only while the person is an employee of the department referred
7 to in that paragraph.
8 179. Resignation of members
9 (1) A member may resign by giving the Minister a signed letter of
10 resignation.
11 (2) A resignation takes effect on the later of receipt by the Minister
12 and the day specified in the resignation.
13 180. Terminating appointment of members
14 (1) Grounds to terminate the appointment of a member exist if the
15 member --
16 (a) has been convicted of an indictable offence or an
17 offence committed under the law of another jurisdiction
18 that would, if it had been committed in this State, be an
19 indictable offence; or
20 (b) is incapable of performing the functions of a member; or
21 (c) has neglected without reasonable cause to perform the
22 functions of a member; or
23 (d) is incompetent; or
24 (e) is unfit to be a member due to misconduct; or
25 (f) ceases to have a particular status if the person was
26 appointed to that office on the basis of having that
27 status.
28 (2) The Governor may terminate the appointment of the President if
29 grounds to terminate the appointment exist.
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1 (3) The Minister may terminate the appointment of a member, other
2 than the President, if grounds to terminate the appointment
3 exist.
4 (4) The termination of the appointment of a public service member
5 does not, of itself, affect the person's employment as a public
6 service officer.
7 181. Training of members
8 (1) The President and each Deputy President are responsible for
9 directing the education, training and professional development
10 of members.
11 (2) The Minister must ensure that appropriate provision is made for
12 the education, training and professional development of
13 members.
14 Division 5 -- General powers of the Tribunal
15 182. Exercise and performance of Tribunal's administrative
16 powers and duties
17 (1) A power or duty of the Tribunal that is of an administrative
18 nature may be exercised or performed, under an authorisation
19 given under subsection (2), by --
20 (a) a member; or
21 (b) the registrar; or
22 (c) a member of staff of the Tribunal.
23 (2) The power to give an authorisation is exercisable by --
24 (a) the President or a Deputy President; and
25 (b) 2 other members.
26 (3) An authorisation under this section must be in writing signed by
27 each person exercising the power to authorise.
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1 (4) A person authorised to exercise a power or perform a duty under
2 this section cannot delegate that power or duty.
3 (5) A person exercising a power or performing a duty under an
4 authorisation under this section is taken to do so in accordance
5 with the terms of the authorisation unless the contrary is shown.
6 183. Tribunal may use experts
7 The Tribunal may appoint a person with relevant knowledge or
8 experience to assist the Tribunal in performing its functions by
9 providing a report, advice or professional services or by giving
10 evidence in proceedings.
11 184. Tribunal may require examination of supervised person
12 (1) For the purposes of performing its functions, the Tribunal may
13 do any of the following --
14 (a) require a supervised person to be examined by a
15 psychiatrist, psychologist or other appropriate expert;
16 (b) require a psychiatrist, psychologist or other appropriate
17 expert to prepare and submit a report to the Tribunal;
18 (c) require a supervised person to appear before the
19 Tribunal.
20 (2) For the purposes of subsection (1)(c), the Tribunal may issue a
21 warrant to have the person arrested and brought before the
22 Tribunal.
23 185. Issue of warrants by Tribunal
24 (1) The power of the Tribunal to issue a warrant for the arrest of a
25 person is exercisable by the President or a Deputy President.
26 (2) A warrant must be signed by the person issuing it.
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s. 186
1 186. Power to obtain information and records
2 (1) For the purposes of performing its functions, the Tribunal may,
3 by written notice given to a person, require the person to do 1 or
4 both of the following --
5 (a) provide the Tribunal with a statement of information
6 specified in the notice;
7 (b) produce any record of information (however compiled,
8 recorded or stored) specified in the notice.
9 (2) A notice under subsection (1) must fix a time and date by which
10 the information must be provided or produced.
11 (3) The Tribunal may do either of the following in relation to a
12 record that is produced in accordance with a notice under
13 subsection (1) --
14 (a) take possession of and retain the record for the period
15 that is reasonably necessary for the performance of its
16 functions;
17 (b) inspect, and take a copy of the whole or any part of, the
18 record.
19 187. Extension of time in which to give report or other
20 information
21 (1) This section applies to a person who is required, under this Act,
22 to do 1 of the following within a specified time period or before
23 a certain time or event --
24 (a) give a report, record or other document to the Tribunal;
25 (b) otherwise give information to the Tribunal, other than at
26 a hearing.
27 (2) The Tribunal may grant the person an extension of time,
28 including after the time period has expired or the time or event
29 has passed.
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s. 188
1 Division 6 -- Registrar, staff and facilities of Tribunal
2 188. Registrar, staff and facilities to be made available
3 (1) There must be a registrar of the Tribunal.
4 (2) The registrar's functions include assisting the Tribunal generally
5 in the performance of its functions.
6 (3) The registrar performs their functions under the direction of the
7 President.
8 (4) The CEO must make an officer of the Department available to
9 perform the functions of the registrar.
10 (5) The CEO must make other officers of the Department available
11 to assist, under the direction of the registrar, the Tribunal in the
12 performance of its functions.
13 (6) The services and facilities of the Department may be used for
14 the purposes of the Tribunal on the terms agreed to by the
15 President and the CEO.
16 Division 7 -- Miscellaneous
17 189. Offences relating to information and records
18 (1) A person commits an offence if the person, without reasonable
19 excuse (proof of which is on the person), does not swear an oath
20 or make an affirmation when required to under section 164(3).
21 Penalty for this subsection: a fine of $6 000.
22 (2) A person commits an offence if the person, without reasonable
23 excuse (proof of which is on the person), does not answer a
24 question the person is required to answer under section 164(4).
25 Penalty for this subsection: a fine of $6 000.
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s. 189
1 (3) A person commits an offence if the person, without reasonable
2 excuse (proof of which is on the person), does not comply with
3 a summons under section 166.
4 Penalty for this subsection: a fine of $6 000.
5 (4) A person commits an offence if the person, without reasonable
6 excuse (proof of which is on the person), does not comply with
7 a notice under section 186(1).
8 Penalty for this subsection: a fine of $6 000.
9 (5) A person commits an offence if, in proceedings, the person
10 gives the Tribunal information that the person knows is false or
11 misleading in a material particular.
12 Penalty for this subsection: a fine of $6 000.
13 (6) A person commits an offence if the person, in purporting to
14 comply with a requirement under this Part to produce a
15 document or comply with a notice under section 186(1) to
16 provide or produce information, produces or provides a
17 document or other information that the person knows is false or
18 misleading in a material particular --
19 (a) without indicating that it is false or misleading and, to
20 the extent the person can, how it is false or misleading;
21 and
22 (b) if the person has or can reasonably obtain the correct
23 information -- without providing the correct
24 information.
25 Penalty for this subsection: a fine of $6 000.
26 (7) It is enough for a prosecution notice lodged against a person for
27 an offence under subsection (5) or (6) to state that the answer,
28 document or other information was false or misleading to the
29 person's knowledge without stating which.
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Miscellaneous Division 7
s. 190
1 190. Tribunal to notify Public Advocate of orders
2 (1) Within 2 working days after the Tribunal is notified, under
3 section 48 or 204(4), of the making of a custody order, a
4 community supervision order or an interim disposition, the
5 Tribunal must notify the Public Advocate of that, and give
6 them --
7 (a) the prescribed information; and
8 (b) any other information that the Tribunal and the Public
9 Advocate agree, from time to time, is to be given under
10 this section.
11 (2) As soon as practicable after exercising a power under
12 section 61(1), 78(3) or 85 in respect of a supervised person, the
13 Tribunal must give the Public Advocate any information within
14 its possession that it considers the Public Advocate may need in
15 order to carry out their functions under the Guardianship and
16 Administration Act 1990 section 97(1)(a) to (e) or 98.
17 191. Tribunal to report death of supervised person to coroner
18 The Tribunal must, upon being notified of the death of a
19 supervised person, immediately report the death to a coroner.
20 192. Tribunal may request information from SAT about
21 supervised person's guardian or administrator
22 (1) The Tribunal may, for the purposes of the performance of its
23 functions, request the State Administrative Tribunal for --
24 (a) information as to whether a guardianship or
25 administration order applies in respect of a supervised
26 person; and
27 (b) the name and contact details of a supervised person's
28 guardian or administrator; and
29 (c) a copy of a guardianship or administration order in
30 respect of a supervised person.
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s. 193
1 (2) The State Administrative Tribunal may comply with a request
2 under subsection (1) despite any other law.
3 193. Seal
4 The Tribunal must have a seal.
5 194. Orders
6 An order of the Tribunal must be authenticated in accordance
7 with the regulations.
8 195. President may issue practice notes
9 The President may from time to time issue, amend or revoke
10 practice notes for regulating the Tribunal's practice and
11 procedures.
12 196. Delegation by President
13 (1) The President may delegate to another member, the registrar or
14 a member of staff of the Tribunal any power or duty of the
15 President (other than under this section or section 182) that is of
16 an administrative nature.
17 (2) A delegation under this section must be in writing signed by the
18 President.
19 (3) A person to whom a power or duty is delegated under this
20 section cannot delegate that power or duty.
21 (4) A person exercising a power or performing a duty that has been
22 delegated to the person under this section, is taken to do so in
23 accordance with the terms of the delegation unless the contrary
24 is shown.
25 (5) This section does not limit the ability of the President to
26 perform a function through an officer or agent.
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Miscellaneous Division 7
s. 197
1 197. Judicial notice and evidence of certain matters
2 (1) A court or person or body acting judicially must take judicial
3 notice of the following --
4 (a) the fact that a person is or was a member or the registrar;
5 (b) the official signature of a person who is or was a
6 member or the registrar;
7 (c) a seal of the Tribunal affixed to a document.
8 (2) A court or person or body acting judicially must presume that
9 the seal of the Tribunal affixed to a document was properly
10 affixed unless the contrary is proved.
11 (3) Evidence of an order of the Tribunal may be given by producing
12 a copy of the order certified by the registrar to be a true copy.
13 198. Annual report
14 (1) Before 1 October in each year, the President must give a written
15 report to the Minister on --
16 (a) the performance of the Tribunal's functions during the
17 previous financial year; and
18 (b) matters relating to supervised persons; and
19 (c) the operation of this Act so far as it relates to supervised
20 persons.
21 (2) The Minister must cause a copy of the report to be laid before
22 each House of Parliament within 12 sitting days of the House
23 after receiving it.
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Part 11 Transfer into and out of the State
Division 1 Preliminary matters
s. 199
1 Part 11 -- Transfer into and out of the State
2 Division 1 -- Preliminary matters
3 199. Overview of Part
4 (1) This Part provides for the transfer of persons subject to a
5 supervision order or an interstate supervision order from or to
6 the State.
7 (2) Division 2 provides for the transfer of supervised persons to
8 another State or Territory in which a corresponding law is in
9 force.
10 (3) Division 3 provides for --
11 (a) the transfer to the State of persons subject to an
12 interstate supervision order; and
13 (b) the interim disposition of such persons under a
14 determination of the Minister; and
15 (c) the subsequent determination of the appropriate
16 disposition of such persons by the Supreme Court.
17 (4) Division 4 deals with the interaction between this Part and other
18 transfer related laws.
19 200. Terms used
20 In this Part --
21 corresponding law means a law of another State or a Territory
22 that is prescribed as a corresponding law for the purposes of this
23 Part;
24 identified person has the meaning given in the Mental Health
25 Act 2014 section 348;
26 interim disposition, in relation to a person, means an interim
27 disposition determined by the Minister under section 205(1) for
28 the person;
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Transfer of persons from Western Australia Division 2
s. 201
1 interstate supervision order means an order made under a
2 corresponding law that corresponds or substantially corresponds
3 to a supervision order;
4 participating jurisdiction means another State or a Territory in
5 which a corresponding law is in force.
6 201. Informed consent
7 For the purposes of this Part, a person gives informed consent to
8 a transfer only if the person gives written consent to the transfer
9 after --
10 (a) the person has been given an explanation of the process
11 involved in the transfer, the reasons for the transfer, and
12 sufficient information to enable the person to make a
13 balanced judgment; and
14 (b) any relevant questions asked by the person have been
15 answered and the person has understood the answers.
16 202. Nature of proceedings under this Part
17 Proceedings in the Supreme Court under this Part are civil
18 proceedings.
19 Division 2 -- Transfer of persons from Western Australia
20 203. Transfer of persons from Western Australia to a
21 participating jurisdiction
22 (1) A supervised person may be transferred to a participating
23 jurisdiction if --
24 (a) the transfer is permitted under a corresponding law of
25 the participating jurisdiction; and
26 (b) the Minister makes an order under subsection (2)
27 authorising the transfer.
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Division 3 Transfer of persons to Western Australia
s. 204
1 (2) The Minister may make an order authorising the transfer if --
2 (a) a relevant expert has certified that the transfer is for the
3 benefit of the supervised person; and
4 (b) the Minister is satisfied that the person or the person's
5 guardian has given informed consent to the transfer.
6 (3) For the purposes of subsection (2)(a), a relevant expert is either
7 of the following --
8 (a) in the case of an identified person -- the Chief
9 Psychiatrist;
10 (b) in any other case -- a psychiatrist, psychologist or other
11 appropriate expert.
12 (4) The effect of the supervision order to which the person is
13 subject is suspended while the person is subject to an interstate
14 supervision order.
15 Division 3 -- Transfer of persons to Western Australia
16 204. Transfer of persons from a participating jurisdiction to
17 Western Australia
18 (1) A person who is subject to an interstate supervision order may
19 be transferred to the State if --
20 (a) the transfer is permitted under a corresponding law of
21 the participating jurisdiction in which the interstate
22 supervision order was made; and
23 (b) the Minister --
24 (i) agrees to the transfer; and
25 (ii) determines an interim disposition for the person.
26 (2) The Minister must not agree to the transfer of a person, or
27 determine an interim disposition for the person, unless --
28 (a) a relevant expert has certified that the transfer is for the
29 benefit of the supervised person; and
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Transfer of persons to Western Australia Division 3
s. 204
1 (b) the Minister is satisfied that there are facilities or
2 services available for the custody, treatment, care and
3 support of the person in the State; and
4 (c) the Minister is satisfied that the transfer is necessary for
5 the maintenance or re-establishment of family
6 relationships or relationships with people who can assist
7 in supporting the person; and
8 (d) the Minister is satisfied that the person or the person's
9 guardian has given informed consent to the transfer.
10 (3) For the purposes of subsection (2)(a), a relevant expert is either
11 of the following --
12 (a) in the case of a person who, in the opinion of the Chief
13 Psychiatrist, would be likely to become an identified
14 person if the person were transferred to the State -- the
15 Chief Psychiatrist;
16 (b) in any other case -- a psychiatrist, psychologist or other
17 appropriate expert.
18 (4) If the Minister determines an interim disposition, the Minister
19 must immediately --
20 (a) notify the Tribunal and the Chief Mental Health
21 Advocate that the interim disposition has been
22 determined; and
23 (b) give the Tribunal and the Chief Mental Health Advocate
24 a copy of the interim disposition and the prescribed
25 information.
26 (5) Nothing in this section is to be taken to require the Minister to
27 agree to a transfer of a person to the State.
28 (6) The reference in subsection (2)(d) to the guardian of a person
29 subject to an interstate supervision order includes a reference to
30 a person who is acting or appointed under a law of the
31 participating jurisdiction as the person's guardian.
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Division 3 Transfer of persons to Western Australia
s. 205
1 205. Interim dispositions for persons transferred to Western
2 Australia
3 (1) The interim disposition that the Minister may determine for a
4 person, for the purposes of section 204(1)(b)(ii), is that --
5 (a) the person be detained at a place of custody as if the
6 person were subject to a custody order; or
7 (b) the person be released on conditions determined by the
8 Minister as if the person were subject to a community
9 supervision order.
10 (2) Before determining an interim disposition for the person, the
11 Minister must seek the Tribunal's advice about the most
12 appropriate interim disposition for the person.
13 (3) The Minister must not determine an interim disposition under
14 subsection (1)(a) for the person unless, immediately prior to
15 their transfer to the State, the interstate supervision order
16 requires the person to be detained in custody, regardless of
17 whether they are permitted to be on leave (however described)
18 at the time.
19 (4) If the interim disposition is that the person be detained then, on
20 the transfer of the person to the State --
21 (a) the person must be so detained; and
22 (b) Part 6, to the extent relevant, applies to and in relation to
23 the interim disposition as if it were a custody order.
24 (5) If the interim disposition is that the person be released subject to
25 conditions then, on the transfer of the person to the State --
26 (a) the person must be released subject to those conditions;
27 and
28 (b) Part 6, to the extent relevant, applies to and in relation to
29 the interim disposition as if it were a community
30 supervision order.
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Transfer of persons to Western Australia Division 3
s. 206
1 (6) Despite the application of Part 6 to and in relation to an interim
2 disposition --
3 (a) the Tribunal need not comply with a review requirement
4 under Part 6 Division 4 in relation to the interim
5 disposition, including when exercising a power under
6 section 73; and
7 (b) the Tribunal cannot cancel all conditions of the interim
8 disposition or a leave of absence order in respect of the
9 interim disposition.
10 206. Review of persons transferred to Western Australia
11 (1) Within 6 months after a person is transferred to the State under
12 this Division, the Minister must apply to the Supreme Court for
13 review of the interim disposition in respect of the person.
14 (2) The purpose of the review is to determine the appropriate
15 disposition for the person.
16 (3) The court must make 1 of the following orders in respect of the
17 person --
18 (a) a custody order;
19 (b) a community supervision order;
20 (c) an order that the person be released unconditionally.
21 (4) The court cannot make an order under subsection (3) that is
22 more restrictive on the person's freedom than the interstate
23 supervision order to which the person was subject, unless
24 satisfied, by acceptable and cogent evidence and to a high
25 degree of probability, that it is necessary to do so to ensure the
26 adequate protection of the community against an unacceptable
27 risk that the supervised person will commit a serious offence.
28 (5) Part 5, to the extent relevant, applies to the making of a custody
29 order or community supervision order under this section as if
30 the order were being made under Part 5.
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Division 3 Transfer of persons to Western Australia
s. 207
1 (6) For the purposes of subsection (4), a reference to the
2 commission of a serious offence includes a reference to --
3 (a) the doing of an act or the making of an omission in any
4 State or Territory that, if done within this State, would
5 constitute a serious offence; and
6 (b) the doing of an act or the making of an omission outside
7 Australia that, if done within this State, would constitute
8 a serious offence.
9 (7) For the purposes of this section, it makes no difference whether
10 a person doing an act or making an omission referred to in
11 subsection (6) --
12 (a) would be likely to be charged with an offence; or
13 (b) would, if charged with an offence, be found fit to stand
14 trial; or
15 (c) would, if tried for an offence, be convicted.
16 207. Limiting term for custody order
17 (1) This section applies if the Supreme Court makes a custody order
18 under section 206(3).
19 (2) When the court sets a limiting term for the custody order under
20 section 50, it is to do so as if --
21 (a) the offence that led to the interstate supervision order
22 being made in respect of the person had been committed
23 in the State; and
24 (b) the maximum penalty for that offence were the
25 maximum penalty attaching to that offence at the date of
26 the person's transfer to the State.
27 (3) If the offence referred to in subsection (2) no longer exists at the
28 date of the person's transfer to the State, the court must --
29 (a) determine whether there is an existing offence, as at that
30 date, with which the person could have been charged
31 had it existed at the time of the original charge; and
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Transfer of persons to Western Australia Division 3
s. 208
1 (b) either --
2 (i) if there is such an offence -- determine the
3 limiting term by reference to the maximum
4 penalty for that offence as at the date of the
5 person's transfer to the State; or
6 (ii) if there is no such offence -- determine the
7 limiting term as 5 years.
8 (4) If there is not, and was not, an equivalent offence in the State to
9 the offence that led to the interstate supervision order being
10 made in respect of the person, the court must set the limiting
11 term for the custody order as 5 years.
12 (5) The limiting term is taken to have commenced when the
13 interstate supervision order was made unless the court, after
14 taking into account any time that the person had spent in
15 custody in relation to the offence before the order was made,
16 orders that the term be taken to have commenced on an earlier
17 day.
18 208. Court to make orders if person has been in custody longer
19 than limiting term
20 (1) This section applies to a person in respect of whom the Supreme
21 Court determines a limiting term under section 207.
22 (2) If the person has been subject to the interstate supervision order
23 and the interim disposition for a cumulative period equal to or
24 longer than the limiting term, the court must --
25 (a) make an order discharging the person from the custody
26 order; or
27 (b) make an order under Part 7 Division 5.
28 (3) The court must adjourn proceedings under subsection (2) until
29 the Minister --
30 (a) applies to the court for an extended custody order under
31 Part 7 Division 5; or
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Part 11 Transfer into and out of the State
Division 4 Interaction with other transfer related laws
s. 209
1 (b) informs the court that such an application will not be
2 made.
3 (4) The Minister may, for the purposes of subsection (3), require
4 the Tribunal to report, under section 103, on the need for an
5 extended custody order in respect of the person.
6 (5) The interim disposition in respect of the person continues until
7 an order is made under subsection (2).
8 Division 4 -- Interaction with other transfer related laws
9 209. Interaction with Mental Health Act 2014
10 (1) Effect may be given to an order under section 203(2) or an
11 agreement under section 204(1)(b) whether or not an
12 authorisation or approval is needed or given under the Mental
13 Health Act 2014 Part 24.
14 (2) A supervised person or a person subject to an interstate
15 supervision order cannot be transferred from or to the State
16 under the Mental Health Act 2014 Part 24 without the necessary
17 agreement or order under this Part.
18 (3) Subsections (1) and (2) have effect despite the Mental Health
19 Act 2014.
20 210. Interaction with Prisoners (Interstate Transfer) Act 1983
21 (1) A supervised person or a person subject to an interstate
22 supervision order cannot be transferred from or to the State
23 under the Prisoners (Interstate Transfer) Act 1983 without the
24 necessary agreement or order under this Part.
25 (2) Subsection (1) has effect despite the Prisoners (Interstate
26 Transfer) Act 1983.
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Interaction with other transfer related laws Division 4
s. 211
1 211. Persons subject to international supervision orders
2 (1) The purpose of this section is to ensure that a person subject to
3 an international supervision order who is transferred to the State
4 can be appropriately dealt with under this Act.
5 (2) In this section --
6 foreign jurisdiction means a jurisdiction outside Australia;
7 international supervision order means an order under a law of
8 a foreign jurisdiction determined under the regulations to
9 correspond, or sufficiently correspond, to a supervision order.
10 (3) The regulations may deal with the transfer to the State of
11 persons subject to an international supervision order, including
12 by --
13 (a) providing for the determination that an order under a
14 law of a foreign jurisdiction corresponds, or sufficiently
15 corresponds, to a supervision order;
16 (b) modifying this Part for the purposes of this section.
17 (4) This Part has effect with any other modifications necessary or
18 convenient to give effect to this section.
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Criminal Law (Mental Impairment) Bill 2022
Part 12 Appeals to Court of Appeal
Division 1 Preliminary matters
s. 212
1 Part 12 -- Appeals to Court of Appeal
2 Division 1 -- Preliminary matters
3 212. Overview of Part
4 This Part provides for appeals to the Court of Appeal against
5 decisions of a court (other than a court of summary jurisdiction)
6 relating to --
7 (a) making, cancelling or confirming a CO or CSO under
8 section 74 or 89; or
9 (b) making, reviewing, cancelling or confirming an
10 extended CO or CSO under Part 7; or
11 (c) determining the appropriate disposition of a person
12 transferred to the State under Part 11.
13 213. Term used: deciding court
14 In this Part --
15 deciding court means the court that made the decision against
16 which the appeal is made.
17 Division 2 -- Appeals to Court of Appeal
18 214. Appeals against certain decisions
19 (1) A supervised person may, with the leave of the Court of Appeal,
20 appeal to the court against the following --
21 (a) a decision of a court (other than a court of summary
22 jurisdiction) to confirm a custody order or community
23 supervision order under section 74;
24 (b) a decision of a court (other than a court of summary
25 jurisdiction) under section 89 --
26 (i) to make a custody order; or
27 (ii) determining the limiting term for a custody
28 order;
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Appeals to Court of Appeal Division 2
s. 214
1 (c) a decision under Part 7 --
2 (i) to make an extended order; or
3 (ii) determining the limiting term for an extended
4 custody order;
5 (d) a decision on an application for an extended custody
6 order under section 110 to make a community
7 supervision order;
8 (e) a decision on review of an extended custody order under
9 section 121 to --
10 (i) confirm the order; or
11 (ii) to make a community supervision order;
12 (f) a decision under Part 11 --
13 (i) to make a custody order; or
14 (ii) determining the limiting term for a custody
15 order; or
16 (iii) to make a community supervision order.
17 (2) The Minister may, with the leave of the Court of Appeal, appeal
18 to the court against the following --
19 (a) a decision of a court (other than a court of summary
20 jurisdiction) to cancel a custody order or community
21 supervision order under section 74;
22 (b) a decision of a court (other than a court of summary
23 jurisdiction) under section 89 to confirm a community
24 supervision order;
25 (c) a decision under Part 7 --
26 (i) to refuse to make an extended order; or
27 (ii) determining the limiting term for an extended
28 custody order;
29 (d) a decision on an application for an extended custody
30 order under section 110 to make a community
31 supervision order;
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Division 2 Appeals to Court of Appeal
s. 215
1 (e) a decision on review of an extended custody order under
2 section 121 to --
3 (i) cancel the order; or
4 (ii) make a community supervision order;
5 (f) a decision under Part 11 --
6 (i) determining the limiting term for a custody
7 order; or
8 (ii) to make a community supervision order; or
9 (iii) that a person be released unconditionally or
10 discharged from a custody order.
11 (3) Unless the Court of Appeal orders otherwise, an appeal against
12 a decision cannot be commenced later than 21 days after the day
13 on which the decision is made.
14 (4) An appeal is commenced by lodging with the Court of Appeal
15 an application for leave to appeal that sets out the grounds of the
16 appeal.
17 (5) The Court of Appeal may decide whether or not to give leave to
18 appeal --
19 (a) with or without written or oral submissions from the
20 parties to the appeal; and
21 (b) before or at the hearing of, or when giving judgment on,
22 the appeal.
23 215. Grounds of appeal
24 The grounds of an appeal are that the deciding court --
25 (a) made an error of law or of fact, or of both law and fact;
26 or
27 (b) acted without jurisdiction or in excess of its jurisdiction.
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Appeals to Court of Appeal Division 2
s. 216
1 216. Dealing with appeal
2 (1) An appeal is by way of rehearing.
3 (2) The Court of Appeal --
4 (a) has all the powers and duties of the deciding court; and
5 (b) may draw inferences of fact, not inconsistent with the
6 findings of the deciding court; and
7 (c) may, on special grounds, receive further evidence as to
8 questions of fact, either orally in court, by affidavit, or
9 in another way.
10 (3) When dealing with an appeal, the Court of Appeal may make
11 any order the court considers appropriate.
12 (4) The Court of Appeal, in deciding an appeal, may do 1 of the
13 following --
14 (a) confirm the decision;
15 (b) vary the decision;
16 (c) set aside the decision and make any decision that the
17 deciding court could have made in the proceeding;
18 (d) set aside the decision and send the matter back to the
19 deciding court for reconsideration, either with or without
20 the hearing of further evidence, in accordance with any
21 directions or recommendations that the court considers
22 appropriate.
23 (5) If the Court of Appeal sends the matter back to the deciding
24 court, it may give directions as to the constitution of the
25 deciding court.
26 217. Appeal does not stay decision
27 (1) An appeal against a decision does not affect the operation of the
28 decision or prevent the taking of action to implement the
29 decision unless the Court of Appeal orders otherwise.
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Division 2 Appeals to Court of Appeal
s. 218
1 (2) Without limiting subsection (1), the Court of Appeal may do
2 either or both of the following --
3 (a) by order, stay the operation of a decision pending the
4 determination of an application for leave to appeal
5 against the decision and of any appeal;
6 (b) if the final determination of the appeal might result in an
7 order that a supervised person be detained in custody --
8 order that the person be detained in custody until the
9 determination of the appeal.
10 218. Effect of decisions made on, or as a consequence of, appeal
11 (1) The fact that a decision is made on reconsideration as required
12 under section 216(4)(d), does not prevent the decision from
13 being open to appeal under this Part.
14 (2) The rest of this section applies to, or in relation to, a decision
15 (the original decision) described in section 214(1) or (2).
16 (3) The original decision as confirmed or varied by the Court of
17 Appeal under this Part, or a decision of the Court of Appeal
18 substituted under this Part for the original decision --
19 (a) is to be regarded as, and has effect as, a decision of the
20 deciding court; and
21 (b) unless the Court of Appeal orders otherwise, is to be
22 regarded as having effect, or having had effect, from the
23 time when the original decision would have, or would
24 have had, effect.
25 (4) Despite subsection (3)(a), the decision as confirmed, varied or
26 substituted is not again open to appeal under this Part.
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Miscellaneous Part 13
Preliminary matters Division 1
s. 219
1 Part 13 -- Miscellaneous
2 Division 1 -- Preliminary matters
3 219. Terms used
4 In this Part --
5 officer, of a supporting agency, means --
6 (a) an officer or employee in or of the agency; or
7 (b) if the agency is the Police Force of Western Australia --
8 a police officer; or
9 (c) if the agency is the police force of a participating
10 jurisdiction -- a member of that police force;
11 participating jurisdiction has the meaning given in section 200;
12 person covered by this Act means a person who is --
13 (a) an accused required to be detained at an authorised
14 hospital under a hospital order; or
15 (b) an unfit accused; or
16 (c) a supervised person;
17 public sector body has the meaning given in the Public Sector
18 Management Act 1994 section 3(1);
19 relevant function means a function under a written law that --
20 (a) is concerned with the assessment or management of, and
21 provision of services to or in relation to, persons covered
22 by this Act; or
23 (b) is necessary for, or otherwise supports, the performance
24 of a function referred to in paragraph (a);
25 supporting agency means any of the following --
26 (a) the Minister;
27 (b) the Department;
28 (c) the Office of the Director of Public Prosecutions;
29 (d) the Chief Mental Health Advocate;
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Division 1 Preliminary matters
s. 219
1 (e) the Chief Psychiatrist;
2 (f) the Public Advocate;
3 (g) the Public Trustee;
4 (h) the Tribunal;
5 (i) the Mental Health Tribunal established under the Mental
6 Health Act 2014;
7 (j) the Community Services Department;
8 (k) the department of the Public Service principally
9 assisting in the administration of the Disability Services
10 Act 1993;
11 (l) the department of the Public Service principally
12 assisting in the administration of the Health Services
13 Act 2016;
14 (m) the department of the Public Service principally
15 assisting in the administration of the Housing Act 1980;
16 (n) the department of the Public Service principally
17 assisting in the administration of the Mental Health
18 Act 2014;
19 (o) the department of the Public Service principally
20 assisting in the administration of the Police Act 1892;
21 (p) the Police Force of Western Australia provided for by
22 the Police Act 1892;
23 (q) the department of the Public Service principally
24 assisting in the administration of the Prisons Act 1981;
25 (r) the department of the Public Service principally
26 assisting in the administration of the Victims of Crime
27 Act 1994;
28 (s) the department of the Public Service principally
29 assisting in the administration of the Young Offenders
30 Act 1994;
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Miscellaneous Part 13
Electronic monitoring and curfew Division 2
s. 220
1 (t) a public sector body, or public office, prescribed for the
2 purposes of this definition;
3 (u) a body or public office of the Commonwealth, or of a
4 participating jurisdiction, prescribed for the purposes of
5 this definition.
6 Division 2 -- Electronic monitoring and curfew
7 220. Term used: approved electronic monitoring device
8 In this Division --
9 approved electronic monitoring device means --
10 (a) an electronic monitoring device that has been approved
11 by the CEO (Corrections) for the purposes of this
12 section; and
13 (b) any equipment, wires or other items associated with
14 such a device.
15 221. Electronic monitoring
16 (1) The purpose of electronic monitoring of a supervised person is
17 to enable the location of the person to be monitored.
18 (2) If a supervised person is subject to electronic monitoring, a
19 community corrections officer may do any of the following --
20 (a) direct the person to wear an approved electronic
21 monitoring device;
22 (b) direct the person to permit the installation of an
23 approved electronic monitoring device at the place
24 where the person resides or, if the person does not have
25 a place of residence, at any other place specified by the
26 community corrections officer;
27 (c) give any other reasonable direction to the person
28 necessary for the proper administration of the electronic
29 monitoring of the person.
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Part 13 Miscellaneous
Division 2 Electronic monitoring and curfew
s. 222
1 222. Curfew
2 (1) In this section --
3 specified means specified by a supervising officer from time to
4 time.
5 (2) The purpose of a curfew is to allow for the movements of a
6 supervised person to be restricted for the protection of the
7 community.
8 (3) The curfew is a requirement that the supervised person must
9 remain at a specified place for specified periods, except as
10 provided in subsection (5).
11 (4) The supervised person cannot be required by the curfew to
12 remain at the specified place for periods that amount to less than
13 2 or more than 12 hours in any 1 day.
14 (5) The supervised person may leave the specified place during a
15 specified period only --
16 (a) to obtain urgent medical or dental treatment for the
17 person; or
18 (b) for the purpose of averting or minimising a serious risk
19 of death or injury to the person or to another person; or
20 (c) to obey an order issued under a written law (such as a
21 summons) requiring the person's presence elsewhere; or
22 (d) for a purpose approved of by a supervising officer; or
23 (e) at the direction of a supervising officer.
24 (6) A supervising officer may give any reasonable direction to the
25 person necessary for the proper administration of the curfew
26 requirement.
27 (7) Without limiting subsection (6), if the supervised person is
28 authorised under subsection (5) to leave the specified place, a
29 supervising officer may give directions as to any of the
30 following --
31 (a) when the person may leave;
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Electronic monitoring and curfew Division 2
s. 223
1 (b) the period of the authorised absence;
2 (c) when the person must return;
3 (d) the route and method of travel to be used by the person
4 during the absence;
5 (e) the manner in which the person must report their
6 whereabouts.
7 223. Enforcement of electronic monitoring and curfew
8 (1) A community corrections officer may --
9 (a) direct the occupier of a place where an approved
10 electronic monitoring device has been installed to give
11 the device to a community corrections officer within a
12 time specified by the officer; and
13 (b) at any time, enter a place where an approved electronic
14 monitoring device has been installed and retrieve the
15 device.
16 (2) A person must not, without reasonable excuse, remove, or
17 interfere with, or interfere with the operation of, an approved
18 electronic monitoring device required to be worn or installed
19 under section 221(2) in such a way as to prevent or impede
20 monitoring of the person's location.
21 Penalty for this subsection: imprisonment for 12 months or a
22 fine of $12 000.
23 (3) To ascertain whether or not a supervised person who is subject
24 to a curfew is complying with the curfew, a supervising officer
25 may, at any time --
26 (a) enter or telephone a place specified under section 222(3)
27 in relation to the person; and
28 (b) enter or telephone the person's place of employment or
29 any other place where the person is authorised or
30 required to attend; and
31 (c) question any person at any place referred to in
32 paragraph (a) or (b).
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Part 13 Miscellaneous
Division 3 Protection of information
s. 224
1 (4) A person must not --
2 (a) fail to comply with a direction under subsection (1)(a);
3 or
4 (b) hinder a community corrections officer or supervising
5 officer exercising powers under subsection (1)(b) or (3);
6 or
7 (c) fail to answer a question put under subsection (3)(c); or
8 (d) give an answer to a question put under subsection (3)(c)
9 that the person knows is false or misleading in a material
10 particular.
11 Penalty for this subsection: imprisonment for 12 months or a
12 fine of $12 000.
13 (5) An act or omission of a supervised person subject to electronic
14 monitoring or a curfew that is a contravention of subsection (2)
15 or (4) --
16 (a) does not constitute an offence under this section; but
17 (b) is, for the purposes of this Act, taken to be a failure to
18 comply with a condition of the supervision order under
19 which the electronic monitoring or curfew is imposed (if
20 it is not otherwise).
21 Division 3 -- Protection of information
22 224. Protection of information about persons covered by this Act
23 (1) A person must not, directly or indirectly, record, use or disclose
24 information that relates to a person covered by this Act that was
25 obtained by the person when performing a function under this
26 Act, unless permitted to do so under subsection (2) or (4).
27 Penalty for this subsection: a fine of $2 500.
28 (2) The person may record, use or disclose the information --
29 (a) for the purpose of performing a function that the person
30 has under this Act; or
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Protection of information Division 3
s. 224
1 (b) as required or allowed under this Act or another written
2 law; or
3 (c) to assist a court in a proceeding involving or about a
4 person covered by this Act; or
5 (d) under the order of a court or person or body acting
6 judicially; or
7 (e) for the purposes of proceedings of the State
8 Administrative Tribunal commenced under the
9 Guardianship and Administration Act 1990; or
10 (f) for the purposes of proceedings of the Mental Health
11 Tribunal under the Mental Health Act 2014; or
12 (g) for the purpose of giving information to a law
13 enforcement body in connection with an offence
14 allegedly committed by or against a person covered by
15 this Act; or
16 (h) for the purposes of the investigation of a suspected
17 offence or disciplinary matter or the conduct of
18 proceedings against a person for an offence or
19 disciplinary matter; or
20 (i) to protect the safety of an individual; or
21 (j) if the information is personal information -- with the
22 consent of the person to whom it relates; or
23 (k) in prescribed circumstances.
24 (3) Subsection (1) does not apply to the recording, disclosure or use
25 of statistical or other information that could not reasonably be
26 expected to lead to the identification of a person to whom it
27 relates.
28 (4) If a supporting agency obtains information that relates to a
29 person covered by this Act when performing a relevant function
30 in relation to the person, the agency may record, use or disclose
31 the information for the purposes of the performance of another
32 relevant function the agency has in relation to the person,
33 including a relevant function under another written law.
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Part 13 Miscellaneous
Division 4 Cooperation and sharing of information between
supporting agencies
s. 225
1 Division 4 -- Cooperation and sharing of information between
2 supporting agencies
3 225. Cooperation between supporting agencies
4 (1) A supporting agency must cooperate with other supporting
5 agencies --
6 (a) in the performance of its own relevant functions; and
7 (b) in their performance of their relevant functions.
8 (2) The duty to cooperate includes a duty to provide reasonable
9 assistance and support to other supporting agencies in
10 connection with the exercise of their relevant functions.
11 (3) Cooperation between supporting agencies in the performance of
12 relevant functions may include --
13 (a) the development of multi-agency management plans for
14 persons covered by this Act; and
15 (b) providing assistance and support to persons covered by
16 this Act through joint programs.
17 226. Disclosure of information between supporting agencies
18 (1) For the purpose of cooperating under section 225, a supporting
19 agency (the disclosing agency) may disclose to another
20 supporting agency (the recipient agency) information about a
21 person covered by this Act in the possession or control of the
22 disclosing agency if the disclosure is, or could reasonably be
23 expected to be, necessary or conducive to the performance of a
24 relevant function of either agency in relation to the person.
25 (2) If an officer of a supporting agency discloses information in
26 good faith under subsection (1) --
27 (a) no civil or criminal liability is incurred in respect of the
28 disclosure; and
29 (b) the disclosure is not to be regarded as a breach of any
30 duty of confidentiality or secrecy imposed by law; and
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Interactions between supervision orders and sentences Division 5
s. 227
1 (c) the disclosure is not to be regarded as a breach of
2 professional ethics or standards or as unprofessional
3 conduct.
4 (3) Information disclosed under this section must be treated as
5 confidential by the recipient agency.
6 (4) An officer of the recipient agency must not, directly or
7 indirectly, record, use or disclose information disclosed to the
8 agency under this section other than --
9 (a) for the purposes of the performance of the relevant
10 function in relation to the person covered by this Act; or
11 (b) as required under a written law.
12 Penalty for this subsection: a fine of $2 500.
13 (5) Subsections (3) and (4) do not apply to the recording, disclosure
14 or use of statistical or other information that could not
15 reasonably be expected to lead to the identification of a person
16 to whom it relates.
17 Division 5 -- Interactions between supervision orders and
18 sentences
19 227. Interactions between supervision orders and sentences
20 (1) In this section --
21 custodial sentence means a sentence that requires that the
22 person subject to it be detained, other than where a parole order,
23 or a supervised release order, that is not suspended has effect in
24 relation to the person;
25 sentence means --
26 (a) a sentence imposed by a court of the State (including an
27 indefinite sentence imposed under the Sentencing
28 Act 1995 section 98(1)) or a sentence, direction or order
29 referred to in the definition of Governor's pleasure
30 detainee in the Sentence Administration Act 2003
31 section 4(2); and
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Part 13 Miscellaneous
Division 5 Interactions between supervision orders and sentences
s. 228
1 (b) a translated sentence as defined in the Prisoners
2 (Interstate Transfer) Act 1983 section 3(1); and
3 (c) a sentence of detention under the Young Offenders
4 Act 1994; and
5 (d) a restriction order or an interim supervision order under
6 the High Risk Serious Offenders Act 2020;
7 supervised release order has the meaning given in the Young
8 Offenders Act 1994 section 3.
9 (2) If a supervised person is subject to a sentence --
10 (a) the supervision order and the sentence have effect
11 concurrently; and
12 (b) subject to paragraph (c), the supervision order prevails
13 over the sentence to the extent of any inconsistency; and
14 (c) in the case of a custodial sentence -- the more
15 restrictive of the supervision order and the sentence
16 prevails to the extent of any inconsistency, unless a
17 court orders otherwise.
18 (3) For the purposes of subsection (2)(a), a court or the Tribunal
19 may disregard that the person is under a sentence when required
20 to be satisfied as to a matter or to take a matter into account in
21 relation to the person for the purposes of Part 6 or 7.
22 228. Interactions between supervision orders and
23 Commonwealth sentences
24 (1) If a supervised person is subject to a sentence imposed under a
25 law of the Commonwealth, the supervision order has effect
26 concurrently with the sentence to the extent not inconsistent
27 with the sentence or the law of the Commonwealth under which
28 it was imposed.
29 (2) For the purposes of subsection (1), a court or the Tribunal may
30 disregard that the person is under a Commonwealth sentence
31 when required to be satisfied as to a matter or to take a matter
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Criminal Law (Mental Impairment) Bill 2022
Miscellaneous Part 13
General Division 6
s. 229
1 into account in relation to the person for the purposes of Part 6
2 or 7.
3 Division 6 -- General
4 229. Giving notice, information, summonses and other
5 documents
6 (1) In this section --
7 electronic means includes an electronic database or document
8 system or the use of any other means by which a document can
9 be accessed electronically.
10 (2) The regulations may make provision for and in relation to the
11 following --
12 (a) the giving of notice or information or a summons or
13 other document required or permitted to be given under
14 this Act (including giving by electronic means);
15 (b) the time at which the notice, information, summons or
16 document is taken to have been given;
17 (c) means of satisfying a requirement under this Act in
18 relation to a document in writing (for example, a
19 requirement that the original of a document be given or
20 that a document be signed) if the document is given by
21 electronic means.
22 230. Issue and execution of warrants
23 (1) A warrant issued under this Act --
24 (a) must be in the prescribed form; and
25 (b) has effect according to its terms.
26 (2) In the absence of evidence to the contrary, it is to be presumed
27 that --
28 (a) the person who issued the warrant is empowered to do
29 so; and
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Part 13 Miscellaneous
Division 6 General
s. 231
1 (b) the signature on the warrant is that of the person who
2 issued it.
3 (3) A person to whom the warrant is directed must give effect to it
4 as soon as practicable.
5 (4) The warrant itself is sufficient authority for the person to whom
6 it is directed to arrest the person concerned and to hold that
7 person in custody for the purposes of taking them, as soon as
8 practicable, to the place specified in the warrant.
9 (5) For the purposes of arresting a person under the warrant, the
10 person to whom it is directed --
11 (a) may stop any aircraft, train, vehicle or vessel in which
12 the person is or is reasonably suspected to be by the
13 person to whom the warrant is directed; and
14 (b) may enter any place where the person is or is reasonably
15 suspected to be by the person to whom the warrant is
16 directed.
17 231. Protection from liability
18 (1) An action in tort does not lie against a person for anything that
19 the person has done, in good faith --
20 (a) in the performance or purported performance of a
21 function under this Act; or
22 (b) in assisting another person in the performance or
23 purported performance of a function under this Act.
24 (2) Despite subsection (1), the State is not relieved of any liability
25 that it might otherwise have had for another person having done
26 anything described in that subsection.
27 (3) The protection given by subsection (1) applies even though the
28 thing done as described in that subsection may have been
29 capable of being done whether or not this Act had been enacted.
30 (4) In this section, a reference to the doing of anything includes a
31 reference to the omission to do anything.
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Criminal Law (Mental Impairment) Bill 2022
Miscellaneous Part 13
General Division 6
s. 232
1 232. Regulations
2 The Governor may make regulations prescribing all matters that
3 are required or permitted by this Act to be prescribed, or are
4 necessary or convenient to be prescribed for giving effect to the
5 purposes of this Act.
6 233. Rules of court
7 A court may make rules of court in relation to any matter
8 necessary or convenient for giving effect to this Act.
9 234. Review of Act
10 (1) The Minister must review the operation and effectiveness of this
11 Act, and prepare a report based on the review, as soon as
12 practicable after the 5th anniversary of the day on which this
13 section comes into operation.
14 (2) The Minister must cause the report to be laid before each House
15 of Parliament as soon as practicable after it is prepared.
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Criminal Law (Mental Impairment) Bill 2022
Part 14 Repeals and transitional provisions
Division 1 Repeals
s. 235
1 Part 14 -- Repeals and transitional provisions
2 Division 1 -- Repeals
3 235. Criminal Law (Mentally Impaired Accused) Act 1996 repealed
4 The Criminal Law (Mentally Impaired Accused) Act 1996 is
5 repealed.
6 236. Criminal Law (Mentally Impaired Accused) Regulations 1997
7 repealed
8 The Criminal Law (Mentally Impaired Accused)
9 Regulations 1997 are repealed.
10 Division 2 -- Transitional provisions for Criminal Law (Mental
11 Impairment) Act 2022
12 Subdivision 1 -- Preliminary matters
13 237. Terms used
14 In this Division --
15 Board means the Mentally Impaired Accused Review Board
16 established under the repealed Act section 41;
17 commencement day means the day on which Part 2 comes into
18 operation;
19 existing custody order has the meaning given in section 254(1);
20 new provision means a provision of this Act;
21 old provision means a provision of the repealed Act;
22 repealed Act means the Criminal Law (Mentally Impaired
23 Accused) Act 1996.
24 238. Interpretation Act 1984 not affected
25 Except to the extent that this Division or regulations made for
26 the purposes of this Division provide differently, the
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Criminal Law (Mental Impairment) Bill 2022
Repeals and transitional provisions Part 14
Transitional provisions for Criminal Law (Mental Division 2
Impairment) Act 2022
s. 239
1 Interpretation Act 1984 applies to and in relation to the repeals
2 effected by sections 235 and 236.
3 Subdivision 2 -- General provisions
4 239. Completion of things commenced before commencement
5 day
6 Anything commenced by a person under or for the purposes of
7 an old provision before commencement day may, if there is a
8 new provision that corresponds to the old provision in relation
9 to that thing, be continued by the person on and after
10 commencement day under the new provision.
11 240. Continuing effect of things done before commencement day
12 (1) This section applies to an act, matter or thing done or omitted to
13 be done under or for the purposes of an old provision before
14 commencement day by a person, to the extent to which that act,
15 matter or thing has any force or significance on and after
16 commencement day.
17 (2) The act, matter or thing is, if there is a new provision that
18 corresponds to the old provision in relation to that act, matter or
19 thing, taken, on and after commencement day, to have been
20 done or omitted by the person under or for the purposes of the
21 new provision.
22 241. Continuation of duties of Board or registrar
23 A duty under a written law to do a thing that the Board or the
24 registrar of the Board had immediately before commencement
25 day becomes, on commencement day, a duty of the Tribunal or
26 the registrar of the Tribunal (as is relevant).
27 242. References to repealed Act and old provisions
28 (1) Unless the contrary intention appears, a reference in a written
29 law or other document or instrument to the repealed Act
30 includes a reference to this Act.
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Part 14 Repeals and transitional provisions
Division 2 Transitional provisions for Criminal Law (Mental
Impairment) Act 2022
s. 243
1 (2) Unless the contrary intention appears, a reference in a written
2 law or other document or instrument to an old provision
3 includes, if there is a new provision that corresponds to the old
4 provision in relation to a matter or thing, a reference to the new
5 provision.
6 243. Relationship of this Subdivision to other transitional
7 provisions
8 The provisions of Subdivisions 3 to 7 and of regulations made
9 for the purposes of this Division prevail over the provisions of
10 this Subdivision to the extent of any inconsistency.
11 Subdivision 3 -- Court proceedings
12 244. Proceedings generally
13 (1) This section applies to proceedings or a step in proceedings
14 before a court, under or for the purposes of an old provision,
15 immediately before commencement day.
16 (2) The proceedings or step may, if there is a new provision that
17 corresponds to the old provision in relation to the proceedings
18 or step, be continued under or for the purposes of the new
19 provision.
20 (3) The other provisions of this Subdivision and the provisions of
21 Subdivisions 4 and 5 and of regulations made for the purposes
22 of this Division prevail over this section to the extent of any
23 inconsistency.
24 245. Question of fitness raised under repealed Act s. 11
25 (1) This section applies if the question of whether a person is not
26 mentally fit to stand trial was raised under the repealed Act
27 section 11 but had not been decided before commencement day.
28 (2) The question is taken to have been raised under section 28.
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1 246. Inquiries and appeals under repealed Act s. 12
2 (1) This section applies to an inquiry by a judicial officer under the
3 repealed Act section 12 into the question of whether a person is
4 not mentally fit to stand trial if the inquiry was not completed
5 before commencement day.
6 (2) The inquiry may be continued as if it were an inquiry under
7 section 29.
8 (3) An order of a particular kind or an adjournment by the judicial
9 officer under the repealed Act section 12(2) has effect as if it
10 were an order of that kind or an adjournment under
11 section 29(3).
12 (4) For the purposes of section 30, the proceedings are taken to
13 have been adjourned on commencement day.
14 (5) If an appeal under the repealed Act section 12(4) against a
15 judicial officer's decision that a person is not mentally fit to
16 stand trial was commenced but not completed before
17 commencement day, the appeal may be completed as if it were
18 an appeal against a decision made by a court under section 29.
19 247. Adjournments and other matters under repealed Act s. 16
20 or s. 19
21 (1) Subsections (2) and (3) apply to proceedings adjourned under
22 the repealed Act section 16(2)(b) or 19(1)(b) if no order under
23 the repealed Act section 16(5) or 19(4) (as is relevant) had been
24 made before commencement day.
25 (2) The proceedings are taken to have been adjourned under
26 section 35(2).
27 (3) For the purposes of section 36, the proceedings are taken to
28 have been adjourned on commencement day.
29 (4) Subsection (5) applies if a court or judge was, immediately
30 before commencement day, required under the repealed Act
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1 section 16(2) or (4) or 19(1) or (3) to make an order in relation
2 to a person.
3 (5) The court or judge must make an order under section 37 in
4 relation to the person.
5 (6) Subsection (7) applies to a requirement under the repealed Act
6 section 16(7) or 19(6) that had not been fully complied with
7 before commencement day.
8 (7) The requirement, to the extent relevant and not fully complied
9 with, has effect as a requirement under section 47(3).
10 248. Previous finding of unfitness
11 (1) This section applies to an accused found, under the repealed
12 Act, not mentally fit to stand trial.
13 (2) The accused is taken to have been found unfit to stand trial
14 under Part 3 Division 2.
15 249. Requirement to make order under repealed Act s. 22
16 (1) This section applies if --
17 (a) before commencement day --
18 (i) under the repealed Act section 20 a person was
19 found not guilty of an offence on account of
20 unsoundness of mind; or
21 (ii) under the repealed Act section 21 a person was
22 acquitted of an offence on account of
23 unsoundness of mind;
24 and
25 (b) the court had not made an order under the repealed Act
26 section 22 in respect of the person before
27 commencement day.
28 (2) The court must make an order in respect of the person under
29 Part 5.
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1 Subdivision 4 -- Orders and other things to continue
2 250. Purpose of Subdivision
3 The purpose of this Subdivision is to ensure that orders and
4 other things to which it applies continue, subject to this Act, to
5 have effect on and after commencement day to the extent
6 necessary.
7 251. Hospital orders
8 (1) This section applies to a hospital order under the repealed Act
9 section 5 in effect immediately before commencement day.
10 (2) The hospital order has effect, according to its terms, as if it were
11 a hospital order made under section 19.
12 252. Bail and custody under repealed Act s. 14
13 (1) This section applies to a grant of bail, or the remanding of a
14 person in custody, under the repealed Act section 14 in effect
15 immediately before commencement day.
16 (2) The grant or remand has effect, according to its terms, as if it
17 were a grant or remand made under section 15.
18 253. Existing community orders
19 (1) In this section --
20 community order means a community based order, conditional
21 release order or intensive supervision order under the
22 Sentencing Act 1995.
23 (2) This section applies to and in relation to a community order
24 under the repealed Act (the existing community order) in effect
25 immediately before commencement day.
26 (3) The existing community order has effect, according to its terms,
27 as if it were a community supervision order made under Part 5,
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1 and section 54 has effect as if the order were made on
2 commencement day.
3 (4) As soon as practicable after commencement day --
4 (a) the court that made the existing community order must
5 comply with section 48 in respect of the order; and
6 (b) the Tribunal must review the existing community order
7 under Part 6 Division 4 and provide a report as if the
8 review had been requested by the Minister under
9 section 69(1).
10 (5) If the existing community order will expire within 3 months
11 after commencement day, the Tribunal must, under section 104,
12 consider and report to the Minister as soon as practicable on the
13 need for an extended community supervision order in respect of
14 the person.
15 254. Existing custody orders
16 (1) This section applies to and in relation to a custody order under
17 the repealed Act (the existing custody order) in effect
18 immediately before commencement day.
19 (2) The existing custody order has effect as if it were a custody
20 order made under Part 5.
21 (3) The Tribunal must, as soon as practicable after commencement
22 day --
23 (a) review the order under Part 6 Division 4 and provide a
24 report as if the review had been requested by the
25 Minister under section 69(1); and
26 (b) consider the need for an extended custody order in
27 respect of the person subject to the existing custody
28 order, unless they are a person described in
29 section 262(1).
30 (4) Section 103(3) and (4) apply for the purposes of
31 subsection (3)(b).
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1 (5) A report under the repealed Act section 33 in relation to a
2 person who was, immediately before commencement day,
3 subject to an existing custody order, has no effect on and after
4 commencement day.
5 255. Leave of absence orders
6 (1) This section applies to and in relation to a leave of absence
7 order (the existing leave of absence order) under the repealed
8 Act section 28 in effect immediately before commencement
9 day.
10 (2) If the existing leave of absence order provides for a continuous
11 period of absence of at least 7 days it --
12 (a) has effect, according to its terms, as a leave of absence
13 order under section 73(1)(b); and
14 (b) has effect, on and after commencement day, until the
15 earliest of the following --
16 (i) the Tribunal replaces the order with a leave of
17 absence order under section 73(1)(b);
18 (ii) the Tribunal cancels the order under
19 section 73(1)(d)(i);
20 (iii) the existing custody order underlying the order
21 ceases to have effect under section 265;
22 (iv) the expiry of the period of 2 months beginning
23 on commencement day.
24 (3) If the existing leave of absence order is covered by
25 subsection (2), the Tribunal must, as soon as practicable --
26 (a) designate a person under section 99 as the supervising
27 officer for the supervised person; and
28 (b) review the order, under Part 6 Division 4, and provide a
29 report as if the review had been requested by the
30 Minister under section 69(1).
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1 (4) If the existing leave of absence order is not covered by
2 subsection (2) it --
3 (a) has effect, according to its terms, as a leave of absence
4 order under section 73(1)(b); and
5 (b) has effect, on and after commencement day, until the
6 earliest of the following --
7 (i) the existing custody order underlying the order
8 ceases to have effect under section 265;
9 (ii) the order ceases to have effect according to its
10 terms;
11 (iii) the expiry of the period of 2 months beginning
12 on commencement day.
13 256. Absence without leave
14 A person who was apprehended under the repealed Act
15 section 31(3) before commencement day, but who, by the end of
16 the day before commencement day, had not been taken to the
17 place from which the person was absent, must be dealt with
18 under section 83(3).
19 257. Release orders
20 (1) This section applies to and in relation to a release order under
21 the repealed Act section 35 in effect immediately before
22 commencement day.
23 (2) If the release order is an order that the person be released
24 unconditionally on a day (the release day) that is or is after
25 commencement day, the person is, on release day, discharged
26 from the existing custody order.
27 (3) If the release order is an order that the person be released on
28 conditions on a day (the release day) that is or is after
29 commencement day, the order has effect, according to its terms,
30 on and after release day, as a leave of absence order under
31 section 73(1)(b).
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1 (4) If the release order is an order that the person be released on
2 conditions on a day that was before commencement day, the
3 order has effect, according to its terms, on and after
4 commencement day, as a leave of absence order under
5 section 73(1)(b).
6 (5) If the release order has effect under this section as a leave of
7 absence order, the Tribunal must, as soon as practicable --
8 (a) designate a person under section 99 as the supervising
9 officer for the supervised person; and
10 (b) review the order, under Part 6 Division 4, and provide a
11 report as if the review had been requested by the
12 Minister under section 69(1).
13 (6) If, immediately before commencement day the Board was
14 required under the repealed Act section 36 to give a copy of a
15 release order to a person, the Tribunal must, as soon as
16 practicable after commencement day, give a copy of the order to
17 each person referred to in section 76.
18 258. Breaches of conditions of release orders
19 (1) Subsection (2) applies if --
20 (a) before commencement day a person is suspected of
21 breaching a condition of a release order under the
22 repealed Act section 35; and
23 (b) the Board had not dealt with the suspected breach under
24 the repealed Act section 37 before commencement day;
25 and
26 (c) the release order has effect under section 257 as a leave
27 of absence order.
28 (2) The Tribunal must deal with the suspected breach under
29 section 81.
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1 259. Warrants
2 (1) This section applies to a warrant under the repealed Act
3 section 37(2)(b) or 40(2) in effect (that is, a power under it may
4 or must be exercised) immediately before commencement day.
5 (2) The warrant has effect as if it were a warrant issued by the
6 Tribunal under section 82(1)(a) or 184(2) (as is relevant).
7 Subdivision 5 -- Setting limiting term for existing custody orders
8 260. Application of this Subdivision
9 This Subdivision applies to and in relation to an existing
10 custody order.
11 261. Application to set limiting term
12 (1) As soon as practicable after commencement day, the Director of
13 Public Prosecutions must apply to the court that made the
14 existing custody order for the court to set a limiting term for the
15 order.
16 (2) The court must hear and determine the application as soon as
17 practicable.
18 (3) The Director of Public Prosecutions need not comply with
19 subsection (1) while the person subject to the existing custody
20 order is not a resident of the State.
21 (4) This section does not apply if section 262 applies to the existing
22 custody order.
23 262. Limiting term in cases of murder and manslaughter
24 (1) If the person subject to the existing custody order is subject to it
25 because they were acquitted, on account of unsoundness of
26 mind, of murder or manslaughter, the limiting term for the order
27 is the duration of the life of the person, and that term has effect
28 as if set by a court under section 50.
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1 (2) The person or the Director of Public Prosecutions may apply to
2 the court that made the existing custody order for the court to
3 set a limiting term for the order.
4 263. Procedural matters
5 (1) If an application is made under section 261 or 262, the court
6 must give the person subject to the existing custody order, the
7 Director of Public Prosecutions, the CEO and the Tribunal --
8 (a) a copy of the application; and
9 (b) written notice of the date, time and place of the hearing
10 of the application.
11 (2) If the person subject to the existing custody order or the
12 Director of Public Prosecutions is given notice under
13 subsection (1)(b) but does not attend the hearing, the court may,
14 as it considers appropriate --
15 (a) proceed with the hearing; or
16 (b) adjourn the hearing.
17 (3) As soon as practicable after receiving notice under
18 subsection (1), the CEO must give written notice of the
19 application to each victim of the offence in respect of which the
20 existing custody order was made (the offence) who has notified
21 the CEO that they wish to receive notice of such applications or
22 review proceedings in relation to the person subject to the
23 existing custody order.
24 (4) A victim may nominate a person to receive notice on their
25 behalf.
26 (5) Notice to a victim who is a child must be given to a parent of
27 the child and any guardian of the child.
28 (6) A victim of the offence may do 1 or both of the following --
29 (a) give a victim impact statement to the court of the kind
30 described in Part 9 Division 2;
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1 (b) make a submission to the court of the kind described in
2 Part 9 Division 4.
3 (7) Part 9, with the necessary modifications, applies, for the
4 purposes of proceedings under this Division, to a statement or
5 submission under subsection (6).
6 (8) A close family member or carer of the person subject to the
7 existing custody order may make a submission to the court in
8 relation to the treatment, care and support of the person, and
9 section 22(3) to (5) apply in relation to the submission as if it
10 were made under that section.
11 (9) The validity of a decision of a court is not affected by a failure
12 to notify a victim in accordance with this section.
13 264. Court to set limiting term
14 (1) If an application is made under section 261, the court must set a
15 limiting term for the existing custody order under section 50.
16 (2) If an application is made under section 262, the court may set a
17 limiting term for the existing custody order under section 50
18 that is not the duration of the life of the person if satisfied
19 that --
20 (a) a life term would be clearly unjust given the
21 circumstances of the offence and the person; and
22 (b) the person is unlikely to be a threat to the safety of the
23 community when released from custody.
24 (3) The limiting term is taken to have commenced on the day on
25 which the existing custody order was made unless the court,
26 after taking into account any time that the person had spent in
27 custody in relation to the offence before the order was made,
28 orders that the term be taken to have commenced on an earlier
29 day.
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1 265. Where person subject to existing custody order has been, or
2 soon will have been, in custody longer than limiting term
3 (1) This section applies to and in relation to an existing custody
4 order for which a limiting term is set under section 264 if the
5 limiting term --
6 (a) expires on or before the day on which the limiting term
7 is set; or
8 (b) will expire within 6 months after the day on which the
9 limiting term is set.
10 (2) If the limiting term of the existing custody order expires on a
11 day that is earlier than the day on which the limiting term is set,
12 the existing custody order continues, on and after the day on
13 which the limiting term expires (whether that day is before, or is
14 or is after commencement day), until an order is made under
15 subsection (4)(a) or (6).
16 (3) If the limiting term of the existing custody order expires on the
17 day on which the limiting term is set, or after that day but before
18 an order is made under subsection (4)(a) or (6), the existing
19 custody order continues, on and after the day on which the
20 limiting term expires, until an order is made under
21 subsection (4)(a) or (6).
22 (4) If the proceedings under section 264 are in a court other than the
23 Supreme Court, the court must --
24 (a) make an order discharging the person from the existing
25 custody order; or
26 (b) make an order referring the matter to the Supreme Court
27 to be dealt with under subsection (6).
28 (5) The court must adjourn proceedings under subsection (4) until
29 the Minister informs the court that --
30 (a) the Minister intends to apply to the Supreme Court for
31 an extended custody order under Part 7 Division 5; or
32 (b) such an application will not be made.
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1 (6) If the proceedings under section 264 are in the Supreme Court,
2 or the matter is referred to it under subsection (4), the Supreme
3 Court must --
4 (a) make an order discharging the person from the existing
5 custody order; or
6 (b) make an order under Part 7 Division 5.
7 (7) The court must adjourn proceedings under subsection (6) until
8 the Minister --
9 (a) applies to the court for an extended custody order under
10 Part 7 Division 5; or
11 (b) informs the court that such an application will not be
12 made.
13 (8) The Minister may, for the purposes of subsection (7), require
14 the Tribunal to report, under section 103, on the need for an
15 extended custody order in respect of the person subject to the
16 existing custody order.
17 (9) An order under subsection (4)(a) or (6) has effect --
18 (a) unless paragraph (b) applies -- on the day on which the
19 order is made; or
20 (b) if the limiting term for the existing custody order expires
21 after the day on which the order is made -- when the
22 limiting term for the existing custody order expires.
23 (10) Part 12 has effect as if the list of decisions in section 214(2)
24 included a decision under subsection (4)(a) or (6)(a) to
25 discharge a person from an existing custody order.
26 266. Legal representation of person subject to existing custody
27 order
28 (1) If it appears to the court that a person subject to the existing
29 custody order should have legal representation for the purposes
30 of proceedings under this Subdivision, the court may (on
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1 application or its own initiative) adjourn proceedings until the
2 person is represented by a legal practitioner.
3 (2) If the person is unable to instruct their legal practitioner, the
4 legal practitioner may exercise an independent discretion and, in
5 doing so, must act in a way that they reasonably believe to be in
6 the person's best interests.
7 (3) If there is a question as to the extent to which the person is able
8 to instruct a legal practitioner or is able to make admissions, the
9 question must be determined by the court.
10 267. Functions of the Director of Public Prosecutions
11 It is a function of the Director of Public Prosecutions to make
12 applications under this Subdivision.
13 Subdivision 6 -- Matters relating to Board and its functions
14 268. Proceedings generally
15 (1) This section applies to proceedings or a step in proceedings
16 before the Board, under or for the purposes of an old provision,
17 immediately before commencement day.
18 (2) The proceedings or step may, if there is a new provision that
19 corresponds to the old provision for the purposes of the
20 proceedings or step, be continued before the Tribunal under or
21 for the purposes of the new provision.
22 (3) The other provisions of this Subdivision and the provisions of
23 Subdivisions 4 and 5 and of regulations made for the purposes
24 of this Division prevail over this section to the extent of any
25 inconsistency.
26 269. Places of custody
27 (1) Subsection (2) applies if, immediately before commencement
28 day, the Board was required under the repealed Act
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1 section 25(1)(b) to determine the place where a person is to be
2 detained.
3 (2) The Tribunal must, within 5 working days after commencement
4 day, determine under Part 6 Division 3 the place where the
5 person is to be detained.
6 (3) If, immediately before commencement day, a person was
7 detained at a place under the repealed Act section 25(2), the
8 person is taken to be detained at that place under section 61(3).
9 (4) The determination of a place where a person is to be detained
10 under the repealed Act section 25 in effect immediately before
11 commencement day has effect as if it were a determination by
12 the Tribunal under Part 6 Division 3.
13 270. Supervising officers
14 (1) Subsection (2) applies to the designation of a person (the
15 supervising officer) under the repealed Act section 45(1) in
16 effect immediately before commencement day.
17 (2) The designation --
18 (a) has effect as if it were a designation under section 99
19 until it is cancelled or replaced by a designation under
20 section 99, or is otherwise of no effect; and
21 (b) is taken to be for each person in relation to whom the
22 supervising officer was authorised to give directions
23 under the repealed Act section 28(4)(c) or 35(4)(c).
24 (3) Subsection (4) applies to an arrangement made by the Board
25 under the repealed Act section 45(3) in effect immediately
26 before commencement day.
27 (4) The arrangement continues to have effect, according to its
28 terms, as if it were an arrangement made by the Tribunal under
29 section 99(4).
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1 271. Examination required by Board
2 (1) This section applies if a requirement of the Board under the
3 repealed Act section 40(1) had not been fully complied with
4 before commencement day.
5 (2) The requirement, to the extent relevant and not fully complied
6 with, has effect as if it were a requirement of the Tribunal under
7 section 184(1).
8 272. Members of Board
9 (1) The person who held office immediately before commencement
10 day as the chairperson of the Board holds office as the President
11 of the Tribunal, subject to this Act, until the earliest of the
12 following --
13 (a) their current term of office as chairperson of the
14 Prisoners Review Board under the Sentence
15 Administration Act 2003 section 103(1)(a) expires;
16 (b) they otherwise cease to hold that office;
17 (c) a person is appointed as the President of the Tribunal
18 under section 171(1)(a).
19 (2) Subject to subsection (1), the President holds office on the same
20 terms and conditions, including as to remuneration, as those on
21 which they held office immediately before commencement day.
22 (3) The person who, immediately before commencement day, held
23 office under the repealed Act section 42(1)(ba) as the deputy
24 chairperson of the Board is taken to have been appointed to be a
25 Deputy President of the Tribunal under section 171(1)(b).
26 (4) The person who, immediately before commencement day, held
27 office under the repealed Act section 42(1)(bb) as a member of
28 the Board is taken to have been appointed to be a member of the
29 Tribunal under section 171(1)(f).
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1 (5) Subsection (6) applies to a person who, immediately before
2 commencement day --
3 (a) held office under the repealed Act section 42(1)(c) or (d)
4 as a member of the Board; or
5 (b) was a deputy, under the repealed Act section 42(2), of a
6 member referred to in paragraph (a).
7 (6) The person is taken to have been appointed to be a member of
8 the Tribunal under section 171(1)(d) or (e) (as is relevant).
9 (7) A person who is a member of the Tribunal under this section,
10 other than subsection (1), holds office, subject to this Act --
11 (a) for the remainder of the person's term of office under
12 the repealed Act; and
13 (b) otherwise on the same terms and conditions, including
14 as to remuneration, as those on which the person held
15 office immediately before commencement day.
16 273. Registrar
17 The person who held office immediately before commencement
18 day as the registrar of the Board (the existing registrar)
19 continues as the registrar of the Tribunal, subject to this Act,
20 until an officer is made available under section 188(4) to
21 perform the functions of the registrar of the Tribunal.
22 Subdivision 7 -- Miscellaneous
23 274. Final annual report to Minister
24 Despite the repeal of the repealed Act, the person who held
25 office immediately before commencement day as the
26 chairperson of the Board must prepare and give the Minister a
27 report under the repealed Act section 48 for the period
28 beginning on the 1 July immediately before commencement day
29 and ending on the day before commencement day.
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1 275. Records of Board
2 The records of the Board become the records of the Tribunal.
3 276. Tribunal to provide Chief Mental Health Advocate with
4 details of supervised persons
5 (1) Within 7 working days after commencement day the Tribunal
6 must, for each supervised person, provide the Chief Mental
7 Health Advocate with details of --
8 (a) any order under the repealed Act or this Act that has
9 effect in respect of the supervised person; and
10 (b) if applicable, the place where the supervised person is
11 detained; and
12 (c) the prescribed information.
13 (2) The Chief Mental Health Advocate must comply with
14 section 128(2) as if it referred to notification under
15 subsection (1), except in relation to a supervised person who is
16 detained in a DSC declared place or at an authorised hospital.
17 277. Notice to Public Advocate
18 A notice that was, immediately before commencement day,
19 required to be given under the Guardianship and Administration
20 Act 1990 section 98 (as in force before commencement day)
21 must be given to the Public Advocate by the Tribunal within
22 5 working days after commencement day, and when given is
23 taken to have been given under section 190(1) of this Act.
24 278. Declared places
25 (1) This section applies to a place that, immediately before
26 commencement day, was a DSC declared place as defined in the
27 repealed Act section 24(5A).
28 (2) A declaration is taken to have been made under section 60, on
29 commencement day, in relation to the place and the declaration
30 is taken to specify that the place is to be controlled and managed
page 179
Criminal Law (Mental Impairment) Bill 2022
Part 14 Repeals and transitional provisions
Division 2 Transitional provisions for Criminal Law (Mental
Impairment) Act 2022
s. 279
1 by or on behalf of the Disability Services Commission under the
2 Declared Places (Mental Impairment) Act 2015.
3 Subdivision 8 -- Transitional regulations
4 279. Transitional regulations
5 (1) The regulations may deal with all matters of a savings or
6 transitional nature arising as a result of the enactment of this
7 Act.
8 (2) Regulations made for the purposes of this section may --
9 (a) clarify or vary the application of the provisions of this
10 Division; and
11 (b) be expressed to have effect despite another written law;
12 and
13 (c) provide that a specified provision of a written law does
14 not apply, or applies with specified modifications, to or
15 in relation to a matter.
16 (3) Regulations made for the purposes of this section may provide
17 that a specified state of affairs is taken to have existed, or not to
18 have existed, on and after a day that is earlier than the day on
19 which the regulations are published in the Gazette.
20 (4) The provisions of the regulations made for the purposes of this
21 section prevail over the provisions of Subdivisions 3 to 7 to the
22 extent of any inconsistency.
23 (5) If the regulations contain a provision referred to in
24 subsection (3), the provision does not operate so as to --
25 (a) affect in a manner prejudicial to any person (other than
26 the State or a public authority), the rights of that person
27 existing before the day of publication of those
28 regulations; or
page 180
Criminal Law (Mental Impairment) Bill 2022
Repeals and transitional provisions Part 14
Transitional provisions for Criminal Law (Mental Division 2
Impairment) Act 2022
s. 279
1 (b) impose liabilities on any person (other than the State or
2 a public authority) in respect of anything done or
3 omitted to be done before the day of publication of those
4 regulations.
5 (6) Regulations made for the purposes of this section must be made
6 within the period that is reasonably necessary to deal with the
7 savings and transitional matters that arise as a result of the
8 enactment of this Act.
page 181
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 1 Bail Act 1982 amended
s. 280
1 Part 15 -- Consequential amendments to other Acts
2 Division 1 -- Bail Act 1982 amended
3 280. Bail Act 1982 amended
4 This Division amends the Bail Act 1982.
5 281. Schedule 1 Part C amended
6 (1) In Schedule 1 Part C clause 3B(4)(b) delete "to refuse bail and
7 make a hospital order under section 5 of the Criminal Law (Mentally
8 Impaired Accused) Act 1996; and" and insert:
9
10 for bail to be refused and a hospital order under the Criminal Law
11 (Mental Impairment) Act 2022 section 19 to be made; and
12
13 (2) In Schedule 1 Part C clause 3D(4)(b) delete "to refuse bail and
14 make a hospital order under the Criminal Law (Mentally Impaired
15 Accused) Act 1996 section 5; and" and insert:
16
17 for bail to be refused and a hospital order under the Criminal Law
18 (Mental Impairment) Act 2022 section 19 to be made; and
19
20 (3) In Schedule 1 Part C clause 3E(3)(c) delete "to refuse bail and
21 make a hospital order under the Criminal Law (Mentally Impaired
22 Accused) Act 1996 section 5; and" and insert:
23
24 for bail to be refused and a hospital order under the Criminal Law
25 (Mental Impairment) Act 2022 section 19 to be made; and
26
page 182
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Children's Court of Western Australia Act 1988 amended Division 2
s. 282
1 Division 2 -- Children's Court of Western Australia Act 1988
2 amended
3 282. Children's Court of Western Australia Act 1988 amended
4 This Division amends the Children's Court of Western
5 Australia Act 1988.
6 283. Section 21 amended
7 (1) In section 21(4):
8 (a) in paragraph (b) delete "protection." and insert:
9
10 protection; or
11
12 (b) after paragraph (b) insert:
13
14 (c) exercise jurisdiction under the Criminal Law
15 (Mental Impairment) Act 2022.
16
17 (2) After section 21(4) insert:
18
19 (4A) If the question of whether the accused is unfit to stand
20 trial is raised during criminal proceedings before the
21 Court when constituted by JPs only, the Court must
22 refer the question to the Court constituted by a judge or
23 magistrate.
24 (4B) Subsection (4A) has effect subject to the Criminal Law
25 (Mental Impairment) Act 2022 section 31.
26
page 183
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 3 Community Protection (Offender Reporting) Act 2004
amended
s. 284
1 Division 3 -- Community Protection (Offender Reporting)
2 Act 2004 amended
3 284. Community Protection (Offender Reporting) Act 2004
4 amended
5 This Division amends the Community Protection (Offender
6 Reporting) Act 2004.
7 285. Section 3 amended
8 (1) In section 3 delete the definition of mentally impaired accused.
9 (2) In section 3 insert in alphabetical order:
10
11 detainee under the CLMI Act means a person subject
12 to a custody order or an interim or extended custody
13 order under the Criminal Law (Mental Impairment)
14 Act 2022, or an interim disposition under
15 section 205(1)(a) of that Act;
16
17 (3) In section 3 in the definition of community order:
18 (a) in paragraph (b) delete "1994;" and insert:
19
20 1994; or
21
22 (b) after paragraph (b) insert:
23
24 (c) a community supervision order or an interim or
25 extended community supervision order under
26 the Criminal Law (Mental Impairment)
27 Act 2022, or an interim disposition under
28 section 205(1)(b) of that Act;
29
page 184
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Community Protection (Offender Reporting) Act 2004 Division 3
amended
s. 286
1 (4) In section 3 in the definition of government custody delete
2 paragraph (a) and insert:
3
4 (a) custody as a prisoner, detainee or detainee
5 under the CLMI Act; or
6
7 (5) In section 3 in the definition of sentence delete paragraph (d)
8 and insert:
9
10 (d) a custody order or an interim or extended
11 custody order under the Criminal Law (Mental
12 Impairment) Act 2022, or an interim disposition
13 under section 205(1)(a) of that Act; and
14
15 (6) In section 3 in the definition of strict government custody delete
16 "mentally impaired accused," and insert:
17
18 detainee under the CLMI Act,
19
20 286. Section 4 amended
21 After section 4(1)(c) insert:
22
23 (ca) a finding under the Criminal Law (Mental
24 Impairment) Act 2022 section 41(2)(c) or an
25 equivalent finding under provisions of the laws
26 of a foreign jurisdiction;
27
page 185
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 4 Coroners Act 1996 amended
s. 287
1 287. Section 70 amended
2 Delete section 70(1)(c) and insert:
3
4 (c) ceases to be subject to a custody order or an
5 interim or extended custody order under the
6 Criminal Law (Mental Impairment) Act 2022,
7 or an interim disposition under
8 section 205(1)(a) of that Act, and is not
9 immediately made subject to another of those
10 orders; or
11
12 288. Section 85A amended
13 In section 85A in the definition of serious sexual offence:
14 (a) in paragraph (d) delete "paragraph (a) or (c)." and insert:
15
16 paragraph (a) or (c); or
17
18 (b) in paragraph (e) delete "(c) the offence" and insert:
19
20 (iii) the offence
21
22 Division 4 -- Coroners Act 1996 amended
23 289. Coroners Act 1996 amended
24 This Division amends the Coroners Act 1996.
25 290. Section 3 amended
26 In section 3 in the definition of person held in care:
27 (a) in paragraph (ca) delete "section 3;" and insert:
28
29 section 3; or
30
page 186
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Court Security and Custodial Services Act 1999 amended Division 5
s. 291
1 (b) in paragraph (d) delete "1994;" and insert:
2
3 1994; or
4
5 (c) after paragraph (d) insert:
6
7 (e) a person subject to a hospital order under the
8 Criminal Law (Mental Impairment) Act 2022;
9 or
10 (f) a person subject to a supervision order under
11 the Criminal Law (Mental Impairment)
12 Act 2022;
13
14 Division 5 -- Court Security and Custodial Services Act 1999
15 amended
16 291. Court Security and Custodial Services Act 1999 amended
17 This Division amends the Court Security and Custodial Services
18 Act 1999.
19 292. Section 3 amended
20 In section 3 in the definition of custodial place in paragraph (f)
21 delete "section 23 of the Criminal Law (Mentally Impaired
22 Accused) Act 1996;" and insert:
23
24 the Criminal Law (Mental Impairment) Act 2022 section 9;
25
page 187
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 5 Court Security and Custodial Services Act 1999 amended
s. 293
1 293. Section 4 amended
2 In section 4(1) delete "section 23 of the Criminal Law (Mentally
3 Impaired Accused) Act 1996." and insert:
4
5 the Criminal Law (Mental Impairment) Act 2022 section 9.
6
7 294. Section 16 amended
8 In section 16(2)(b) delete "Criminal Law (Mentally Impaired
9 Accused) Act 1996, the Declared Places (Mentally Impaired
10 Accused) Act 2015" and insert:
11
12 Criminal Law (Mental Impairment) Act 2022, the Declared
13 Places (Mental Impairment) Act 2015
14
15 295. Section 96 amended
16 In section 96(1) delete "Declared Places (Mentally Impaired
17 Accused) Act 2015" and insert:
18
19 Declared Places (Mental Impairment) Act 2015
20
21 296. Schedule 2 amended
22 In Schedule 2 Division 1 clause 5 delete "hospital order or a
23 custody order under the Criminal Law (Mentally Impaired Accused)
24 Act 1996" and insert:
25
26 hospital order, custody order, interim custody order or extended
27 custody order under the Criminal Law (Mental Impairment) Act 2022,
28 or an interim disposition under section 205(1)(a) of that Act,
29
page 188
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Criminal Appeals Act 2004 amended Division 6
s. 297
1 Note: The heading to amended Schedule 2 Division 1 clause 5 is to read:
2 Power to move persons with mental impairment
3 Division 6 -- Criminal Appeals Act 2004 amended
4 297. Criminal Appeals Act 2004 amended
5 This Division amends the Criminal Appeals Act 2004.
6 298. Section 4 amended
7 In section 4(2) insert in alphabetical order --
8
9 limiting term has the meaning given in the Criminal
10 Law (Mental Impairment) Act 2022 section 9(1);
11
12 299. Section 6 amended
13 In section 6 in the definition of decision after paragraph (e)
14 insert:
15
16 (ea) a decision under the Criminal Law (Mental
17 Impairment) Act 2022 section 29 that an
18 accused is fit, or unfit, to stand trial;
19 (eb) an order under the Criminal Law (Mental
20 Impairment) Act 2022 section 37(2)(a)
21 discharging an accused from a charge or a
22 refusal to make such an order;
23 (ec) a finding under the Criminal Law (Mental
24 Impairment) Act 2022 section 41(2)(c);
25 (ed) an order under the Criminal Law (Mental
26 Impairment) Act 2022 Part 5 or a refusal to
27 make such an order;
page 189
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 6 Criminal Appeals Act 2004 amended
s. 300
1 (ee) the setting of a limiting term under the
2 Criminal Law (Mental Impairment) Act 2022
3 section 50(2);
4
5 300. Section 8 amended
6 In section 8(1)(a)(iii) delete "sentence" and insert:
7
8 sentence, or set a limiting term,
9
10 301. Section 11 amended
11 In section 11(6):
12 (a) in paragraph (c) delete "forfeiture." and insert:
13
14 forfeiture; and
15
16 (b) after paragraph (c) insert:
17
18 (d) a custody order or a community supervision
19 order under the Criminal Law (Mental
20 Impairment) Act 2022.
21
22 302. Section 12 amended
23 After section 12(5) insert:
24
25 (5A) Despite subsections (1) and (2), if an appellant or
26 respondent is subject to a custody order or community
27 supervision order under the Criminal Law (Mental
28 Impairment) Act 2022, the order must not be suspended
29 under this section.
30
page 190
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Criminal Appeals Act 2004 amended Division 6
s. 303
1 303. Section 14 amended
2 In section 14(1):
3 (a) in paragraph (g) delete "unsoundness of mind or to
4 make or refuse to make an order under Criminal Law
5 (Mentally Impaired Accused) Act 1996, exercise" and
6 insert:
7
8 mental impairment -- exercise
9
10 (b) after paragraph (g) insert:
11
12 (ga) if the appeal is against a decision or finding
13 referred to in section 6(ea) or (ec) -- exercise
14 any power that the Court of Appeal may
15 exercise under section 32A;
16 (gb) if the appeal is against an order, refusal or
17 decision referred to in section 6(ed) or (ee) --
18 exercise any power that the Court of Appeal
19 may exercise under section 32B;
20
21 304. Section 24 amended
22 In section 24(2):
23 (a) in paragraph (da) delete "(other than a judgment of
24 acquittal on account of unsoundness of mind)" and
25 insert:
26
27 (other than on account of mental impairment)
28
page 191
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 6 Criminal Appeals Act 2004 amended
s. 305
1 (b) in paragraph (e) delete "(other than a judgment of
2 acquittal on account of unsoundness of mind) -- " and
3 insert:
4
5 (other than on account of mental impairment) --
6
7 305. Section 25 amended
8 (1) Delete section 25(2) and insert:
9
10 (2) The accused may appeal to the Court of Appeal against
11 the acquittal.
12
13 (2) In section 25(3):
14 (a) delete "any or all of the following decisions -- " and
15 insert:
16
17 the acquittal if --
18
19 (b) in paragraphs (a) and (aa) delete "the acquittal if";
20 (c) delete paragraphs (b) and (c) and insert:
21
22 (b) it was entered after a finding under the
23 Criminal Law (Mental Impairment) Act 2022
24 section 41(2)(b).
25
26 (3) In section 25(3) after each of paragraphs (a) and (aa) insert:
27
28 or
29
30 Note: The heading to amended section 25 is to read:
31 Rights of appeal if acquittal on account of mental impairment
page 192
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Criminal Appeals Act 2004 amended Division 6
s. 306
1 306. Section 25A inserted
2 After section 25 insert:
3
4 25A. Rights of appeal relating to Criminal Law (Mental
5 Impairment) Act 2022
6 An accused or the prosecutor may appeal to the Court
7 of Appeal against 1 or more of the following decisions
8 by a judge of a superior court in relation to a charge of
9 an indictable offence --
10 (a) a decision under the Criminal Law (Mental
11 Impairment) Act 2022 section 29 that the
12 accused is fit, or unfit, to stand trial;
13 (b) a finding under the Criminal Law (Mental
14 Impairment) Act 2022 section 41(2)(c);
15 (c) an order under the Criminal Law (Mental
16 Impairment) Act 2022 Part 5 or a refusal to
17 make such an order;
18 (d) the setting of a limiting term under the
19 Criminal Law (Mental Impairment) Act 2022
20 section 50(2).
21
22 307. Section 30 amended
23 In section 30(5):
24 (a) in paragraph (d) delete "Criminal Law (Mentally
25 Impaired Accused) Act 1996; or" and insert:
26
27 Criminal Law (Mental Impairment) Act 2022; or
28
page 193
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 6 Criminal Appeals Act 2004 amended
s. 308
1 (b) in paragraph (e) delete "Criminal Law (Mentally
2 Impaired Accused) Act 1996." and insert:
3
4 Criminal Law (Mental Impairment) Act 2022.
5
6 308. Section 31 amended
7 (1) In section 31(4)(a) delete "imposed; or" and insert:
8
9 imposed or a different order made; or
10
11 (2) In section 31(5):
12 (a) delete "sentence and --" and insert:
13
14 sentence or order and --
15
16 (b) in paragraph (a) delete "severe; or" and insert:
17
18 severe or make a new order; or
19
20 (c) in paragraph (b) after "sentence" insert:
21
22 or made the order
23
24 Note: The heading to amended section 31 is to read:
25 Decision on appeal against sentence or order
26 309. Section 32 amended
27 (1) In section 32(1) delete "unsoundness of mind under The
28 Criminal Code section 27." and insert:
29
30 mental impairment.
31
page 194
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Criminal Appeals Act 2004 amended Division 6
s. 309
1 (2) In section 32(2):
2 (a) in paragraph (b) delete "(the section 27 finding); or"
3 and insert:
4
5 (the mental impairment finding); or
6
7 (b) in paragraph (c) delete "section 27 finding," and insert:
8
9 mental impairment finding,
10
11 (3) In section 32(4) delete "section 27 finding" and insert:
12
13 mental impairment finding
14
15 (4) In section 32(6):
16 (a) delete "section 27 finding" and insert:
17
18 mental impairment finding
19
20 (b) in paragraph (c) delete "offender" (each occurrence) and
21 insert:
22
23 accused
24
25 (5) In section 32(7):
26 (a) delete "section 27 finding" and insert:
27
28 mental impairment finding
29
page 195
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 6 Criminal Appeals Act 2004 amended
s. 310
1 (b) in paragraph (c) delete "offender" (each occurrence) and
2 insert:
3
4 accused
5
6 (c) in paragraph (c) delete "Criminal Law (Mentally
7 Impaired Accused) Act 1996." and insert:
8
9 Criminal Law (Mental Impairment) Act 2022.
10
11 (6) In section 32(8):
12 (a) delete "section 27 finding" and insert:
13
14 mental impairment finding
15
16 (b) in paragraph (a) delete "section 27 finding," and insert:
17
18 mental impairment finding,
19
20 (7) Delete section 32(9).
21 310. Sections 32A and 32B inserted
22 After section 32 insert:
23
24 32A. Decision on appeal under s. 25A(a) or (b)
25 (1) This section applies in the case of an appeal
26 commenced under section 25A against a decision or
27 finding referred to in paragraph (a) or (b) of that
28 section.
page 196
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Criminal Appeals Act 2004 amended Division 6
s. 310
1 (2) Unless under subsection (3) the Court of Appeal allows
2 the appeal, it must dismiss the appeal.
3 (3) The Court of Appeal may allow the appeal if, in its
4 opinion --
5 (a) the decision or finding should be set aside
6 because, having regard to the evidence, it is
7 unreasonable or cannot be supported; or
8 (b) the decision or finding should be set aside
9 because of a wrong decision on a question of
10 law by the judge; or
11 (c) there was a miscarriage of justice.
12 (4) Despite subsection (3), even if a ground of appeal
13 might be decided in favour of the appellant, the Court
14 of Appeal may dismiss an appeal if it considers that no
15 substantial miscarriage of justice has occurred.
16 (5) If an appeal against a decision referred to in
17 section 25A(a) is allowed, the Court of Appeal must set
18 aside the decision as to fitness and must do 1 or more
19 of the following --
20 (a) order that the question of fitness be dealt with
21 again by the court that made the decision, with
22 or without orders to that court --
23 (i) as to how or by whom it is to be
24 constituted; and
25 (ii) as to how it must deal with the question;
26 (b) decide the question of fitness;
27 (c) order a trial or a new trial;
28 (d) order that a special proceeding take place under
29 the Criminal Law (Mental Impairment)
30 Act 2022 Part 3 Division 3.
page 197
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 6 Criminal Appeals Act 2004 amended
s. 310
1 (6) If an appeal against a finding referred to in
2 section 25A(b) is allowed, the Court of Appeal must
3 set aside the finding that the accused committed the
4 offence (offence A) and must --
5 (a) enter a judgment of acquittal (other than on
6 account of mental impairment) of offence A; or
7 (b) order that a special proceeding take place under
8 the Criminal Law (Mental Impairment)
9 Act 2022 Part 3 Division 3; or
10 (c) if --
11 (i) the accused could have been found to
12 have committed some other offence
13 (offence B) instead of offence A; and
14 (ii) the court is satisfied that the judge must
15 have been satisfied, on the evidence
16 available, of facts that prove the accused
17 did the acts or made the omissions that
18 constitute offence B,
19 make a finding under the Criminal Law (Mental
20 Impairment) Act 2022 section 41(2)(c) that the
21 accused committed offence B and deal with the
22 accused under the Criminal Law (Mental
23 Impairment) Act 2022; or
24 (d) if the court is satisfied that the accused should
25 have been found not guilty of offence A on
26 account of mental impairment -- enter a
27 judgment of acquittal of offence A on account
28 of mental impairment and deal with the accused
29 under the Criminal Law (Mental Impairment)
30 Act 2022; or
31 (e) if --
32 (i) the accused could have been found to
33 have committed some other offence
34 (offence B) instead of offence A; and
page 198
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Criminal Appeals Act 2004 amended Division 6
s. 310
1 (ii) the court is satisfied that the judge must
2 have been satisfied, on the evidence
3 available, of facts that prove the accused
4 did the acts or made the omissions that
5 constitute offence B; and
6 (iii) the court is satisfied that the accused
7 should have been found not guilty of
8 offence B on account of mental
9 impairment,
10 enter a judgment of acquittal of offence B on
11 account of mental impairment and deal with the
12 accused under the Criminal Law (Mental
13 Impairment) Act 2022.
14 32B. Decision on appeal under s. 25A(c) or (d)
15 (1) This section applies in the case of an appeal
16 commenced under section 25A, against --
17 (a) an order or decision referred to in paragraph (c)
18 or (d) of that section; or
19 (b) a refusal referred to in paragraph (c) of that
20 section.
21 (2) Unless under subsection (3) the Court of Appeal allows
22 the appeal, it must dismiss the appeal.
23 (3) The Court of Appeal may allow the appeal if, in its
24 opinion --
25 (a) in the case of an appeal referred to in
26 subsection (1)(a), a different order should have
27 been made or a different limiting term set; or
28 (b) in the case of an appeal referred to in
29 subsection (1)(b), an order should have been
30 made.
page 199
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 6 Criminal Appeals Act 2004 amended
s. 311
1 (4) If the Court of Appeal allows an appeal referred to in
2 subsection (1)(a), it must set aside the order or limiting
3 term and --
4 (a) may instead make a new order, or set a new
5 limiting term that is either longer or shorter
6 than the term set aside; or
7 (b) may send the charge back to the court that
8 made the order or set the limiting term to be
9 dealt with further.
10 (5) If the Court of Appeal allows an appeal referred to in
11 subsection (1)(b), it --
12 (a) may make any order that should have been
13 made; or
14 (b) may send the charge back to the court that
15 refused to make the order to be dealt with
16 further.
17
18 311. Section 41A inserted
19 After section 41 insert:
20
21 41A. Custody orders under Criminal Law (Mental
22 Impairment) Act 2022
23 (1) In this section --
24 custody order means a custody order under the
25 Criminal Law (Mental Impairment) Act 2022;
26 Tribunal means the Mental Impairment Review
27 Tribunal under the Criminal Law (Mental Impairment)
28 Act 2022.
29 (2) This section applies if under this Act an appeal court
30 decides to --
31 (a) make a custody order; or
page 200
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Criminal Appeals Act 2004 amended Division 6
s. 312
1 (b) confirm, vary or set aside a custody order.
2 (3) The appeal court must give a memorandum setting out
3 the effect of its decision to the Tribunal.
4 (4) If the appeal court sets aside a custody order in relation
5 to a person and does not replace it with another, the
6 person who was subject to the custody order must be
7 released as soon as practicable after the Tribunal
8 receives the memorandum, unless the person is
9 required to be held in custody or detained for some
10 other reason.
11 (5) The memorandum is part of the records of the Tribunal
12 and is evidence of the matters stated in it.
13
14 312. Section 46A amended
15 After section 46A(2) insert:
16
17 (3) In this Part, unless the contrary intention appears, a
18 reference to a conviction of, or to being convicted of,
19 an offence includes (respectively) a reference to a
20 finding of having committed, or to being found to have
21 committed, the offence under the Criminal Law
22 (Mental Impairment) Act 2022 section 41(2)(c).
23
24 313. Various references to "unsoundness of mind" amended
25 In the provisions listed in the Table delete "unsoundness of
26 mind" (each occurrence) and insert:
27
28 mental impairment
29
page 201
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 7 Criminal Injuries Compensation Act 2003 amended
s. 314
1 Table
s. 6 def. of decision par. (e) s. 25(1)
s. 30(5)(d) and (e) s. 32(2), (6), (7) and (8)
s. 46B(1)(b) s. 46C(1) def. of relevant
offence par. (a)
s. 46C(4)(a)(i) s. 46J(b)
2 Division 7 -- Criminal Injuries Compensation Act 2003 amended
3 314. Criminal Injuries Compensation Act 2003 amended
4 This Division amends the Criminal Injuries Compensation
5 Act 2003.
6 315. Section 15 amended
7 In section 15(1)(b) delete "mentally".
8 Note: The heading to amended section 15 is to read:
9 Alleged offence: accused unfit to stand trial
10 Division 8 -- Criminal Investigation (Identifying People)
11 Act 2002 amended
12 316. Criminal Investigation (Identifying People) Act 2002
13 amended
14 This Division amends the Criminal Investigation (Identifying
15 People) Act 2002.
16 317. Section 67 amended
17 In section 67(3)(a) delete "not mentally fit" and insert:
18
19 unfit
20
page 202
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Criminal Procedure Act 2004 amended Division 9
s. 318
1 Division 9 -- Criminal Procedure Act 2004 amended
2 318. Criminal Procedure Act 2004 amended
3 This Division amends the Criminal Procedure Act 2004.
4 319. Section 126 amended
5 In section 126(5)(e) delete "not mentally fit" and insert:
6
7 unfit
8
9 320. Section 130 amended
10 In section 130 delete "mental".
11 Note: The heading to amended section 130 is to read:
12 Fitness of accused to stand trial
13 Division 10 -- Cross-border Justice Act 2008 amended
14 321. Cross-border Justice Act 2008 amended
15 This Division amends the Cross-border Justice Act 2008.
16 322. Part 9 heading replaced
17 Delete the heading to Part 9 and insert:
18
19 Part 9 -- Persons with mental impairment
20
page 203
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 11 Declared Places (Mentally Impaired Accused) Act 2015
amended
s. 323
1 Division 11 -- Declared Places (Mentally Impaired Accused)
2 Act 2015 amended
3 323. Declared Places (Mentally Impaired Accused) Act 2015
4 amended
5 This Division amends the Declared Places (Mentally Impaired
6 Accused) Act 2015.
7 324. Long title replaced
8 Delete the long title and insert:
9
10 An Act to make provision for matters relating to places
11 established by the Disability Services Commission for the
12 detention, habilitation and rehabilitation of supervised
13 persons required to be detained under the Criminal Law
14 (Mental Impairment) Act 2022.
15
16 325. Section 1 amended
17 In section 1 delete "(Mentally Impaired Accused)" and insert:
18
19 (Mental Impairment)
20
21 326. Section 3 amended
22 (1) In section 3 delete the definitions of:
23 Board
24 mentally impaired accused
25 MIA Act
26 resident
page 204
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Declared Places (Mentally Impaired Accused) Act 2015 Division 11
amended
s. 326
1 (2) In section 3 insert in alphabetical order:
2
3 CLMI Act means the Criminal Law (Mental
4 Impairment) Act 2022;
5 resident means a supervised person who is required
6 under the CLMI Act to be detained in a declared place;
7 supervised person has the meaning given in the CLMI
8 Act section 9(1);
9 Tribunal has the meaning given in the CLMI Act
10 section 9(1).
11
12 (3) In section 3 in the definition of authorised hospital delete "MIA
13 Act section 23;" and insert:
14
15 CLMI Act section 9(1);
16
17 (4) In section 3 in the definition of declared place (1st occurrence)
18 paragraph (a) delete "as defined in the MIA Act section 23;
19 and" and insert:
20
21 under the CLMI Act section 60; and
22
23 (5) In section 3 in the definition of declared place (2nd occurrence)
24 delete "in which the resident is detained under a determination
25 made by the Board under the MIA Act Part 5;" and insert:
26
27 in which the resident is required to be detained;
28
page 205
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 11 Declared Places (Mentally Impaired Accused) Act 2015
amended
s. 327
1 (6) In section 3 in the definition of subcontractor delete
2 "contracts." and insert:
3
4 contracts;
5
6 327. Section 18 replaced
7 Delete section 18 and insert:
8
9 18. CEO's functions as to residents
10 While a person is required under the CLMI Act to be
11 detained in a declared place --
12 (a) the person is taken to be in the custody of the
13 CEO; and
14 (b) the CEO is responsible for the person's welfare
15 and safe custody.
16
17 328. Section 19 amended
18 (1) In section 19(2) delete "Board" and insert:
19
20 Tribunal
21
22 (2) In section 19(3):
23 (a) in paragraph (a) delete "without having been given leave
24 of absence by the Board under the MIA Act section 28;
25 or" and insert:
26
27 other than under a leave of absence order as defined in
28 the CLMI Act section 9(1); or
29
page 206
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Declared Places (Mentally Impaired Accused) Act 2015 Division 11
amended
s. 329
1 (b) delete paragraph (b) and insert:
2
3 (b) having been away from the place under a leave
4 of absence order, fails to return to the place or
5 another place in which the resident is required
6 to be detained when the leave of absence order
7 expires or is cancelled.
8
9 329. Section 20 amended
10 In section 20(6) in the Table in the row relating to section 57(1),
11 (2) delete "Board" and insert:
12
13 Tribunal
14
15 330. Section 53 amended
16 In section 53(l) delete "enduring guardian or guardian;" and
17 insert:
18
19 enduring guardian, guardian or administrator (as defined in the
20 CLMI Act section 9(1));
21
22 331. Section 57 amended
23 (1) In section 57(1) delete "Board" and insert:
24
25 Tribunal
26
page 207
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 11 Declared Places (Mentally Impaired Accused) Act 2015
amended
s. 332
1 (2) In section 57(2):
2 (a) delete "Board, prepare and give the Board" and insert:
3
4 Tribunal, prepare and give the Tribunal
5
6 (b) in paragraph (b) delete "Board has under the MIA Act
7 Part 5" and insert:
8
9 Tribunal has under the CLMI Act
10
11 Note: The heading to amended section 57 is to read:
12 Provision of information about residents: Tribunal and CEO
13 332. Part 12 replaced
14 Delete Part 12 and insert:
15
16 Part 12 -- Transitional provisions for Criminal
17 Law (Mental Impairment) Act 2022
18 65. Terms used
19 In this Part --
20 Board means the Mentally Impaired Accused Review
21 Board established under the Criminal Law (Mentally
22 Impaired Accused) Act 1996 section 41;
23 commencement day means the day on which the CLMI
24 Act Part 2 comes into operation.
25 66. Provision of information about residents
26 (1) Subsection (2) applies if the CEO --
27 (a) was required to prepare and give a report to the
28 Board under section 57(2) as in force before
29 commencement day; and
page 208
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Disability Services Act 1993 amended Division 12
s. 333
1 (b) did not give the report to the Board before
2 commencement day.
3 (2) The CEO must prepare and give the report to the
4 Tribunal.
5
6 Division 12 -- Disability Services Act 1993 amended
7 333. Disability Services Act 1993 amended
8 This Division amends the Disability Services Act 1993.
9 334. Section 3 amended
10 In section 3 in the definition of Declared Places Act delete
11 "Declared Places (Mentally Impaired Accused) Act 2015;" and
12 insert:
13
14 Declared Places (Mental Impairment) Act 2015;
15
16 335. Section 12 amended
17 In section 12(1)(m) delete "declared place, as defined in the
18 Criminal Law (Mentally Impaired Accused) Act 1996
19 section 23, that is for the detention of those mentally impaired
20 accused who are mentioned in section 24(5A) of that Act." and
21 insert:
22
23 place declared under the Criminal Law (Mental Impairment)
24 Act 2022 section 60 to be a declared place and specified in that
25 declaration as a place that is to be controlled and managed by or
26 on behalf of the Disability Services Commission under the
27 Declared Places Act.
28
page 209
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 13 Electoral Act 1907 amended
s. 336
1 336. Section 21 amended
2 In section 21(5A) delete "Declared Places (Mentally Impaired
3 Accused) Act 2015" and insert:
4
5 Declared Places Act
6
7 Division 13 -- Electoral Act 1907 amended
8 337. Electoral Act 1907 amended
9 This Division amends the Electoral Act 1907.
10 338. Section 18 amended
11 Delete section 18(1)(cd) and insert:
12
13 (cd) is a supervised person as defined in the
14 Criminal Law (Mental Impairment) Act 2022
15 section 9(1); or
16
17 339. Section 59 amended
18 (1) In section 59(1) delete the definition of registrar, MIARB.
19 (2) In section 59(1) insert in alphabetical order:
20
21 Mental Impairment Review Tribunal registrar means
22 the registrar of the Mental Impairment Review
23 Tribunal under the Criminal Law (Mental Impairment)
24 Act 2022 section 188(1);
25 supervised person has the meaning given in the
26 Criminal Law (Mental Impairment) Act 2022
27 section 9(1).
28
page 210
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Electoral Act 1907 amended Division 13
s. 339
1 (3) In section 59(1) in the definition of required information delete
2 "sex." and insert:
3
4 sex;
5
6 (4) In section 59(2):
7 (a) in paragraph (b) delete "registrar, MIARB" and insert:
8
9 Mental Impairment Review Tribunal registrar
10
11 (b) in paragraph (b)(i) and (ii) delete "mentally impaired
12 accused" and insert:
13
14 supervised person
15
16 (5) In section 59(3):
17 (a) in paragraph (b) delete "registrar, MIARB" and insert:
18
19 Mental Impairment Review Tribunal registrar
20
21 (b) in paragraph (b)(i) and (ii) delete "mentally impaired
22 accused" and insert:
23
24 supervised person
25
26 (6) After section 59(4) insert:
27
28 (5) The references in subsections (2)(b) and (3)(b) to a
29 supervised person include a reference to a mentally
30 impaired accused.
31
page 211
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 14 Evidence Act 1906 amended
s. 340
1 (7) Subsections (8) and (9) of this section do not have effect until
2 the end of the period of 1 month commencing on the day after
3 the day on which this section comes into operation.
4 (8) In section 59(1) delete the definition of mentally impaired
5 accused.
6 (9) Delete section 59(5).
7 Division 14 -- Evidence Act 1906 amended
8 340. Evidence Act 1906 amended
9 This Division amends the Evidence Act 1906.
10 341. Section 100A amended
11 In section 100A(8) delete "mental impairment, as that term is
12 defined by section 8 of the Criminal Law (Mentally Impaired
13 Accused) Act 1996." and insert:
14
15 mental impairment as defined in the Criminal Law (Mental
16 Impairment) Act 2022 section 9(1).
17
18 342. Section 106A amended
19 In section 106A in the definition of mental impairment delete
20 "to that term by section 8 of the Criminal Law (Mentally
21 Impaired Accused) Act 1996;" and insert:
22
23 in the Criminal Law (Mental Impairment) Act 2022 section 9(1);
24
page 212
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Fines, Penalties and Infringement Notices Enforcement Division 15
Act 1994 amended
s. 343
1 Division 15 -- Fines, Penalties and Infringement Notices
2 Enforcement Act 1994 amended
3 343. Fines, Penalties and Infringement Notices Enforcement
4 Act 1994 amended
5 This Division amends the Fines, Penalties and Infringement
6 Notices Enforcement Act 1994.
7 344. Section 52C amended
8 Delete section 52C(1)(f) and insert:
9
10 (f) detained under a custody order or an interim or
11 extended custody order under the Criminal Law
12 (Mental Impairment) Act 2022 or an interim
13 disposition under section 205(1)(a) of that Act.
14
15 Division 16 -- Guardianship and Administration Act 1990
16 amended
17 345. Guardianship and Administration Act 1990 amended
18 This Division amends the Guardianship and Administration
19 Act 1990.
20 346. Section 98 replaced
21 Delete section 98 and insert:
22
23 98. Supervised persons under Criminal Law (Mental
24 Impairment) Act 2022
25 On receipt of notice under the Criminal Law (Mental
26 Impairment) Act 2022 section 190, the Public Advocate
27 must investigate whether the person the subject of the
28 notice is in need of a guardian or an administrator and
page 213
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 17 High Risk Serious Offenders Act 2020 amended
s. 347
1 take any other action as the Public Advocate considers
2 appropriate.
3
4 Division 17 -- High Risk Serious Offenders Act 2020 amended
5 347. High Risk Serious Offenders Act 2020 amended
6 This Division amends the High Risk Serious Offenders
7 Act 2020.
8 348. Section 6 amended
9 In section 6(b) delete "not mentally fit" and insert:
10
11 unfit
12
13 349. Section 79 amended
14 (1) Delete section 79(1) and insert:
15
16 (1) In this section --
17 unfit to stand trial means found unfit to stand trial
18 under the Criminal Law (Mental Impairment)
19 Act 2022.
20
21 (2) In section 79(2):
22 (a) in paragraph (a) delete "not mentally fit; or" and insert:
23
24 unfit to stand trial; or
25
26 (b) in paragraph (b) delete "not mentally fit." and insert:
27
28 unfit to stand trial.
29
page 214
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Juries Act 1957 amended Division 18
s. 350
1 Note: The heading to amended section 79 is to read:
2 Offender unfit to stand trial
3 Division 18 -- Juries Act 1957 amended
4 350. Juries Act 1957 amended
5 This Division amends the Juries Act 1957.
6 351. Section 5 amended
7 (1) In section 5(1) insert in alphabetical order:
8
9 CLMI Act means the Criminal Law (Mental
10 Impairment) Act 2022;
11 person covered by the CLMI Act means a person who
12 is --
13 (a) an accused required under the CLMI Act
14 section 19 to be detained at an authorised
15 hospital; or
16 (b) an unfit accused, as defined in the CLMI Act
17 section 9(1); or
18 (c) a supervised person, as defined in the CLMI
19 Act section 9(1);
20
21 (2) Delete section 5(3)(d)(iii) and (iv) and insert:
22
23 (iii) a person covered by the CLMI Act.
24
25 Division 19 -- Magistrates Court Act 2004 amended
26 352. Magistrates Court Act 2004 amended
27 This Division amends the Magistrates Court Act 2004.
page 215
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 20 Mental Health Act 2014 amended
s. 353
1 353. Section 11A inserted
2 After section 11 insert:
3
4 11A. Limitations on exercise of certain jurisdiction
5 (1) When constituted by 1 or more JPs only, the Court
6 cannot exercise jurisdiction under the Criminal Law
7 (Mental Impairment) Act 2022.
8 (2) If the question of whether the accused is unfit to stand
9 trial is raised during criminal proceedings before the
10 Court when constituted by 1 or more JPs only, the
11 Court must refer the question to the Court constituted
12 by a magistrate.
13 (3) Subsection (2) has effect subject to the Criminal Law
14 (Mental Impairment) Act 2022 section 31.
15
16 Division 20 -- Mental Health Act 2014 amended
17 354. Mental Health Act 2014 amended
18 This Division amends the Mental Health Act 2014.
19 355. Section 4 amended
20 (1) In section 4 delete the definitions of:
21 mentally impaired accused
22 Mentally Impaired Accused Review Board
23 MIA Act
24 (2) In section 4 insert in alphabetical order:
25
26 CLMI Act means the Criminal Law (Mental
27 Impairment) Act 2022;
page 216
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Mental Health Act 2014 amended Division 20
s. 355
1 Mental Impairment Review Tribunal means the
2 Mental Impairment Review Tribunal established by the
3 CLMI Act section 156;
4 supervised person has the meaning given in the CLMI
5 Act section 9(1);
6
7 (3) In section 4 in the definition of mental health service delete
8 paragraph (b)(ii) and insert:
9
10 (ii) a DSC declared place as defined in the
11 CLMI Act section 9(1);
12
13 (4) In section 4 in the definition of patient delete paragraph (b) and
14 insert:
15
16 (b) a supervised person required under the CLMI
17 Act to be detained at an authorised hospital; or
18
19 (5) In section 4 in the definition of patient's psychiatrist delete
20 paragraph (d) and insert:
21
22 (d) if the patient is a supervised person required
23 under the CLMI Act to be detained at an
24 authorised hospital -- the treating psychiatrist;
25
26 (6) In section 4 in the definition of voluntary patient delete
27 paragraph (b) and insert:
28
29 (b) a supervised person required under the CLMI
30 Act to be detained at an authorised hospital.
31
page 217
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 20 Mental Health Act 2014 amended
s. 356
1 Note:
2 The note in section 4 for the definition of voluntary patient is to be
3 altered by deleting paragraph (b) and inserting:
4 (b) a supervised person who is released from an
5 authorised hospital under a leave of absence order
6 under the CLMI Act.
7 356. Section 82 replaced
8 Delete section 82 and insert:
9
10 82. Application of this Part
11 This Part does not apply in relation to a supervised
12 person required under the CLMI Act to be detained at
13 an authorised hospital, whether or not the person was
14 required under this Act to be detained at the authorised
15 hospital immediately before the person was required
16 under the CLMI Act to be detained at the authorised
17 hospital.
18
19 357. Section 105 amended
20 In section 105(2):
21 (a) delete "these people" and insert:
22
23 the following
24
25 (b) in paragraph (e) delete "consulted." and insert:
26
27 consulted;
28
page 218
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Mental Health Act 2014 amended Division 20
s. 358
1 (c) after paragraph (e) insert:
2
3 (f) if the involuntary inpatient is a supervised
4 person -- the Mental Impairment Review
5 Tribunal.
6
7 358. Section 127 amended
8 In section 127(2):
9 (a) in paragraph (b) delete "patient." and insert:
10
11 patient; and
12
13 (b) after paragraph (b) insert:
14
15 (c) if the involuntary community patient is a
16 supervised person -- give notice of the breach
17 to the Mental Impairment Review Tribunal.
18
19 359. Section 145 amended
20 Delete section 145(4)(c) and insert:
21
22 (c) if the involuntary patient is a supervised
23 person -- the Mental Impairment Review
24 Tribunal.
25
page 219
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 20 Mental Health Act 2014 amended
s. 360
1 360. Part 9 Division 4 inserted
2 At the end of Part 9 insert:
3
4 Division 4 -- Notification of Mental Impairment Review
5 Tribunal about absence of supervised persons
6 145A. Notification about absence of supervised persons
7 (1) This section applies in relation to the following
8 events --
9 (a) a supervised person is absent without leave in
10 accordance with section 97;
11 (b) a leave of absence order is made in respect of a
12 supervised person under section 105;
13 (c) a leave of absence applying in relation to a
14 supervised person is extended, or the conditions
15 of such an order are varied, under section 106;
16 (d) a leave of absence order applying to a
17 supervised person is cancelled under
18 section 110.
19 (2) If an event occurs, the person responsible under this
20 Part for notification of the event must also notify the
21 Mental Impairment Review Tribunal of the event.
22
23 361. Section 177 amended
24 Delete section 177(b) and insert:
25
26 (b) a patient who is a supervised person required
27 under the CLMI Act to be detained at an
28 authorised hospital.
29
page 220
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Mental Health Act 2014 amended Division 20
s. 362
1 362. Section 185 amended
2 Delete section 185(b) and insert:
3
4 (b) a patient who is admitted to an authorised
5 hospital as a supervised person required under
6 the CLMI Act to be detained at the hospital; or
7
8 363. Section 196 amended
9 Delete section 196(1)(b) and insert:
10
11 (b) a patient who is a supervised person required
12 under the CLMI Act to be detained at an
13 authorised hospital.
14
15 Note: The heading to amended section 196 is to read:
16 ECT on child over 14 years who is involuntary patient or
17 supervised person
18 364. Section 198 amended
19 Delete section 198(1)(b) and insert:
20
21 (b) a patient who is a supervised person required
22 under the CLMI Act to be detained at an
23 authorised hospital.
24
25 Note: The heading to amended section 198 is to read:
26 ECT on adult involuntary patient or supervised person
page 221
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 20 Mental Health Act 2014 amended
s. 365
1 365. Section 199 amended
2 Delete section 199(1)(b) and insert:
3
4 (b) a patient who is a supervised person required
5 under the CLMI Act to be detained at an
6 authorised hospital.
7
8 Note: The heading to amended section 199 is to read:
9 Emergency ECT on adult involuntary patient or supervised
10 person
11 366. Section 200 amended
12 (1) Delete section 200(1) and insert:
13
14 (1) This section applies in relation to a patient who is a
15 supervised person required under the CLMI Act to be
16 detained at an authorised hospital.
17
18 (2) In section 200(2) delete "Mentally Impaired Accused Review
19 Board." and insert:
20
21 Mental Impairment Review Tribunal.
22
23 Note: The heading to amended section 200 is to read:
24 Report to Mental Impairment Review Tribunal
25 367. Section 201 amended
26 Delete section 201(3)(g) and (h) and insert:
27
28 (g) the number of those people who were
29 supervised persons required under the CLMI
30 Act to be detained at an authorised hospital;
page 222
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Mental Health Act 2014 amended Division 20
s. 368
1 (h) the number of those supervised persons referred
2 to in paragraph (g) who were children;
3 (ha) the number of those people who were
4 supervised persons required to undergo
5 treatment (as defined in section 4 of this Act) as
6 a condition of one of the following under the
7 CLMI Act --
8 (i) a community supervision order;
9 (ii) an interim community supervision
10 order;
11 (iii) an extended community supervision
12 order;
13 (iv) a leave of absence order;
14 (v) an interim disposition under the CLMI
15 Act section 205(1)(b);
16 (hb) the number of those supervised persons referred
17 to in paragraph (ha) who were children;
18
19 368. Section 204 amended
20 In section 204(1)(b):
21 (a) delete "these people -- " and insert:
22
23 the following --
24
25 (b) delete subparagraph (iii) and insert:
26
27 (iii) if the person is a supervised person --
28 the Mental Impairment Review
29 Tribunal.
30
page 223
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 20 Mental Health Act 2014 amended
s. 369
1 369. Section 209 amended
2 Delete section 209(1)(b) and insert:
3
4 (b) if the patient is a supervised person -- the
5 Mental Impairment Review Tribunal.
6
7 Note: The heading to amended section 209 is to read:
8 Report to Chief Psychiatrist and Mental Impairment Review
9 Tribunal
10 370. Section 224 amended
11 Delete section 224(2)(b) and insert:
12
13 (b) if the person is a supervised person -- the
14 Mental Impairment Review Tribunal.
15
16 Note: The heading to amended section 224 is to read:
17 Report to Chief Psychiatrist and Mental Impairment Review
18 Tribunal
19 371. Section 240 amended
20 Delete section 240(2)(b) and insert:
21
22 (b) if the person is a supervised person -- the
23 Mental Impairment Review Tribunal.
24
25 Note: The heading to amended section 240 is to read:
26 Report to Chief Psychiatrist and Mental Impairment Review
27 Tribunal
page 224
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Mental Health Act 2014 amended Division 20
s. 372
1 372. Section 241 amended
2 Delete section 241(1)(a)(iii) and insert:
3
4 (iii) by an authorised hospital as a
5 supervised person required under the
6 CLMI Act to be detained at the
7 authorised hospital;
8
9 373. Section 242 amended
10 (1) Delete section 242(1)(b) and insert:
11
12 (b) an accused required under the CLMI Act
13 section 19 to be detained at an authorised
14 hospital; or
15 (c) a supervised person required under the CLMI
16 Act to be detained at an authorised hospital.
17
18 (2) Delete section 242(3)(b) and insert:
19
20 (b) if the patient is a supervised person -- the
21 Mental Impairment Review Tribunal.
22
23 374. Section 243 amended
24 Delete section 243(a)(iii) and insert:
25
26 (iii) by an authorised hospital as a
27 supervised person required under the
28 CLMI Act to be detained at the
29 authorised hospital;
30
page 225
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 20 Mental Health Act 2014 amended
s. 375
1 375. Section 249 amended
2 (1) In section 249(3):
3 (a) delete "if the person --" and insert:
4
5 if --
6
7 (b) delete paragraph (a) and insert:
8
9 (a) the person is or was a supervised person
10 required under the CLMI Act to be detained at
11 an authorised hospital; and
12
13 (c) in paragraph (b) delete "1981." and insert:
14
15 1981 or the Young Offenders Act 1994.
16
17 (2) After section 249(3) insert:
18
19 (4) If a relevant document relating to a supervised person
20 that is in the possession or control of the person in
21 charge of, or a staff member of, a mental health service
22 is to be provided to the Mental Impairment Review
23 Tribunal under the CLMI Act and the supervised
24 person is not entitled to have access under
25 section 248(1) to the document, the person in charge of
26 the mental health service must ensure that the Tribunal
27 is notified that the supervised person is not so entitled.
28
page 226
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Mental Health Act 2014 amended Division 20
s. 376
1 376. Section 258 amended
2 Delete section 258(c) and insert:
3
4 (c) a supervised person required under the CLMI
5 Act to be detained at an authorised hospital.
6
7 377. Section 288 amended
8 Delete section 288(1)(a)(ii) and insert:
9
10 (ii) a supervised person required under the
11 CLMI Act to be detained at an
12 authorised hospital;
13
14 Note: The heading to amended section 288 is to read:
15 Involuntary patient or supervised person with capacity to consent
16 378. Section 289 amended
17 Delete section 289(1)(a)(ii) and insert:
18
19 (ii) a supervised person required under the
20 CLMI Act to be detained at an
21 authorised hospital;
22
23 Note: The heading to amended section 289 is to read:
24 Involuntary patient or supervised person with no capacity to
25 consent
page 227
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 20 Mental Health Act 2014 amended
s. 379
1 379. Section 348 amended
2 (1) In section 348 insert in alphabetical order:
3
4 accused has the meaning given in the CLMI Act
5 section 9(1);
6
7 (2) In section 348 in the definition of identified person:
8 (a) delete paragraphs (e) to (g) and insert:
9
10 (e) an accused required under the CLMI Act
11 section 19 to be detained at an authorised
12 hospital;
13 (f) a supervised person required under the CLMI
14 Act to be detained at an authorised hospital;
15 (g) a supervised person required to undergo
16 treatment (as defined in section 4 of this Act) as
17 a condition of one of the following under the
18 CLMI Act --
19 (i) a community supervision order;
20 (ii) an interim community supervision
21 order;
22 (iii) an extended community supervision
23 order;
24 (iv) a leave of absence order of the kind
25 described in the CLMI Act
26 section 79(2);
27 (v) an interim disposition under the CLMI
28 Act section 205(1)(b);
29
page 228
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Mental Health Act 2014 amended Division 20
s. 380
1 (b) in paragraph (j) delete "paragraphs (a) to (e) or
2 paragraph (h) or (i)," and insert:
3
4 paragraph (a), (b), (c), (e), (g), (h) or (i),
5
6 Note:
7 In section 348 after the definition of identified person the following
8 note is to be inserted:
9 Note for this definition:
10 Mental health advocacy services can also be provided
11 under the Criminal Law (Mental Impairment) Act 2022
12 Part 8. The Criminal Law (Mental Impairment) Act 2022
13 section 139 provides for continuity of the provision of
14 advocacy services between that Act and this Act.
15 380. Section 357 amended
16 (1) In section 357(1) delete "(b) or (c)" and insert:
17
18 (b), (c) or (e)
19
20 (2) Delete section 357(4) and (5) and insert:
21
22 (4) An identified person under paragraph (f) of the
23 definition of identified person in section 348 must be
24 visited or otherwise contacted by a mental health
25 advocate --
26 (a) if, when detained, the person is an adult --
27 within 7 days after the day on which the person
28 is detained; or
29 (b) if, when detained, the person is a child --
30 within 24 hours after the person is detained.
page 229
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 20 Mental Health Act 2014 amended
s. 381
1 (5) An identified person under paragraph (g) of the
2 definition of identified person in section 348 must be
3 visited or otherwise contacted by a mental health
4 advocate within 7 days (or 24 hours if the person is a
5 child) after the day on which the Chief Mental Health
6 Advocate --
7 (a) receives a request for the person to be contacted
8 under section 356(2)(b); or
9 (b) is notified of a request for the person to be
10 contacted under section 356(3).
11
12 (3) In section 357(6) and (8) delete "(e), (g),".
13 381. Section 409 amended
14 In section 409(b) and (c) delete "mentally impaired accused
15 required under the MIA Act to be detained at an authorised
16 hospital," and insert:
17
18 a supervised person required under the CLMI Act to be detained
19 at an authorised hospital,
20
21 382. Section 423 amended
22 In section 423(3) delete "a compliance notice with a service
23 provider," and insert:
24
25 a service provider with a compliance notice,
26
page 230
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Mental Health Act 2014 amended Division 20
s. 383
1 383. Section 515 amended
2 Delete section 515(1)(c) and insert:
3
4 (c) all supervised persons required under the CLMI
5 Act to be detained at an authorised hospital;
6 (ca) a patient who is a person required to undergo
7 treatment (as defined in section 4 of this Act) as
8 a condition of one of the following under the
9 CLMI Act --
10 (i) a community supervision order;
11 (ii) an interim community supervision
12 order;
13 (iii) an extended community supervision
14 order;
15 (iv) a leave of absence order;
16 (v) an interim disposition under the CLMI
17 Act section 205(1)(b);
18
19 384. Section 520 amended
20 (1) Delete section 520(1)(b) and insert:
21
22 (b) a patient who is a supervised person required
23 under the CLMI Act to be detained at an
24 authorised hospital; or
25 (c) a patient who is a supervised person required to
26 undergo treatment (as defined in section 4 of
27 this Act) as a condition of one of the following
28 under the CLMI Act --
29 (i) a community supervision order;
30 (ii) an interim community supervision
31 order;
page 231
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 20 Mental Health Act 2014 amended
s. 385
1 (iii) an extended community supervision
2 order;
3 (iv) a leave of absence order;
4 (v) an interim disposition under the CLMI
5 Act section 205(1)(b).
6
7 (2) Delete section 520(7)(b) and insert:
8
9 (b) a patient who is a supervised person required
10 under the CLMI Act to be detained at an
11 authorised hospital.
12
13 385. Section 527 amended
14 After section 527(1)(b)(ii) insert:
15
16 (iia) if the incident involves a supervised
17 person -- the chief executive officer of
18 the department of the Public Service
19 principally assisting in the
20 administration of the CLMI Act;
21 (iib) if the incident involves a resident (as
22 defined in the Declared Places (Mental
23 Impairment) Act 2015 section 3) -- the
24 chief executive officer of the
25 department of the Public Service
26 principally assisting in the
27 administration of the Disability Services
28 Act 1993;
29
page 232
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Mental Health Act 2014 amended Division 20
s. 386
1 386. Section 536 amended
2 (1) Delete section 536(1) and insert:
3
4 (1) The Chief Psychiatrist may request the Mental
5 Impairment Review Tribunal in writing to give to the
6 Chief Psychiatrist a list of --
7 (a) all supervised persons required under the CLMI
8 Act to be detained at an authorised hospital;
9 and
10 (b) all supervised persons required to undergo
11 treatment (as defined in section 4 of this Act) as
12 a condition of one of the following under the
13 CLMI Act --
14 (i) a community supervision order;
15 (ii) an interim community supervision
16 order;
17 (iii) an extended community supervision
18 order;
19 (iv) a leave of absence order;
20 (v) an interim disposition under the CLMI
21 Act section 205(1)(b).
22
23 (2) In section 536(2) delete "Mentally Impaired Accused Review
24 Board" and insert:
25
26 Mental Impairment Review Tribunal
27
28 Note: The heading to amended section 536 is to read:
29 Request for list of certain supervised persons
page 233
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 20 Mental Health Act 2014 amended
s. 387
1 387. Part 30 inserted
2 After section 677 insert:
3
4 Part 30 -- Transitional matters for Criminal
5 Law (Mental Impairment) Act 2022
6 678. Terms used
7 In this Part --
8 Board means the Mentally Impaired Accused Review
9 Board established under the Criminal Law (Mentally
10 Impaired Accused) Act 1996 section 41;
11 commencement day means the day on which the CLMI
12 Act Part 2 comes into operation.
13 679. Functions in respect of the Board
14 (1) Subsection (2) applies if a person was, immediately
15 before commencement day, required to perform a
16 function in respect of the Board under section 145, 200,
17 204, 209, 224, 240 or 242.
18 (2) The person must perform the function in respect of the
19 Mental Impairment Review Tribunal as soon as
20 practicable after commencement day.
21 680. Duty to contact identified person
22 (1) Subsection (2) applies if, immediately before
23 commencement day, a person who was an identified
24 person under paragraph (e), (f) or (g) of the definition
25 of identified person in section 348 was required, under
26 section 357, to be visited or otherwise contacted by a
27 mental health advocate within a specified time.
page 234
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
National Disability Insurance Scheme (Worker Screening) Division 21
Act 2020 amended
s. 388
1 (2) A mental health advocate must visit or otherwise
2 contact the identified person within that time.
3
4 388. Various headings amended
5 (1) In the heading to Part 13 Division 2 delete "mentally
6 impaired accused" and insert:
7
8 supervised persons
9
10 (2) In the heading to Part 15 Division 2 delete "mentally
11 impaired accused" and insert:
12
13 supervised persons
14
15 Division 21 -- National Disability Insurance Scheme (Worker
16 Screening) Act 2020 amended
17 389. National Disability Insurance Scheme (Worker Screening)
18 Act 2020 amended
19 This Division amends the National Disability Insurance Scheme
20 (Worker Screening) Act 2020.
21 390. Section 7 amended
22 In section 7(1):
23 (a) in paragraph (d) delete "jurisdiction." and insert:
24
25 jurisdiction;
26
page 235
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 22 Parliamentary Commissioner Act 1971 amended
s. 391
1 (b) after paragraph (d) insert:
2
3 (e) a finding under the Criminal Law (Mental
4 Impairment) Act 2022 section 41(2)(c) or an
5 equivalent finding under a law of another
6 jurisdiction.
7
8 Division 22 -- Parliamentary Commissioner Act 1971 amended
9 391. Parliamentary Commissioner Act 1971 amended
10 This Division amends the Parliamentary Commissioner
11 Act 1971.
12 392. Section 19H amended
13 In section 19H(2):
14 (a) in paragraph (d) delete "Commonwealth." and insert:
15
16 Commonwealth;
17
18 (b) after paragraph (d) insert:
19
20 (e) a finding under the Criminal Law (Mental
21 Impairment) Act 2022 section 41(2)(c) or an
22 equivalent finding under a law of another State,
23 a Territory or the Commonwealth.
24
page 236
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Prisoners (Release for Deportation) Act 1989 amended Division 23
s. 393
1 Division 23 -- Prisoners (Release for Deportation) Act 1989
2 amended
3 393. Prisoners (Release for Deportation) Act 1989 amended
4 This Division amends the Prisoners (Release for Deportation)
5 Act 1989.
6 394. Section 6A inserted
7 After section 6 insert:
8
9 6A. Persons under custody orders under Criminal Law
10 (Mental Impairment) Act 2022
11 (1) This section applies to a person required to be detained
12 under a custody order under the Criminal Law (Mental
13 Impairment) Act 2022 (a CLMI Act person) who is not
14 otherwise a prisoner under this Act.
15 (2) This Act has effect in relation to CLMI Act persons as
16 if --
17 (a) a reference to a prisoner included a reference to
18 a CLMI Act person; and
19 (b) a reference to a prison, in relation to a CLMI
20 Act person, were a reference to the place where
21 the person is required to be detained under the
22 custody order; and
23 (c) a reference to the Prisoners Review Board, in
24 relation to a CLMI Act person, were a reference
25 to the Mental Impairment Review Tribunal
26 established under the Criminal Law (Mental
27 Impairment) Act 2022; and
page 237
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 24 Prisons Act 1981 amended
s. 395
1 (d) a reference to detention during the Governor's
2 pleasure, in relation to a CLMI Act person,
3 were a reference to being required to be
4 detained under the custody order.
5
6 Division 24 -- Prisons Act 1981 amended
7 395. Prisons Act 1981 amended
8 This Division amends the Prisons Act 1981.
9 396. Section 67 amended
10 In section 67(1):
11 (a) in paragraph (d) delete "Ombudsman," and insert:
12
13 Ombudsman; or
14
15 (b) after paragraph (d) insert:
16
17 (e) the Chief Mental Health Advocate or the
18 Mental Health Advocacy Service,
19
20 397. Section 113 amended
21 (1) In section 113(1) insert in alphabetical order:
22
23 Chief Mental Health Advocate has the meaning given
24 in the Mental Health Act 2014 section 4;
25 CLMI identified person has the meaning given in the
26 Criminal Law (Mental Impairment) Act 2022
27 section 127;
page 238
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Restraining Orders Act 1997 amended Division 25
s. 398
1 mental health advocate has the meaning given in the
2 Mental Health Act 2014 section 4;
3
4 (2) After section 113(6) insert:
5
6 (6A) The chief executive officer may disclose information
7 regarding prisoners who are CLMI identified persons
8 to the Chief Mental Health Advocate or a mental health
9 advocate for the purposes of the performance of their
10 respective functions under the Criminal Law (Mental
11 Impairment) Act 2022.
12
13 (3) In section 113(8) delete "subsection (2) or (6)." and insert:
14
15 subsection (2), (6) or (6A).
16
17 Division 25 -- Restraining Orders Act 1997 amended
18 398. Restraining Orders Act 1997 amended
19 This Division amends the Restraining Orders Act 1997.
20 399. Section 44E amended
21 In section 44E(3)(c) delete "(as defined in the Criminal Law
22 (Mentally Impaired Accused) Act 1996 section 8)" and insert:
23
24 (as defined in the Criminal Law (Mental Impairment) Act 2022
25 section 9(1))
26
page 239
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 26 Security and Related Activities (Control) Act 1996
amended
s. 400
1 Division 26 -- Security and Related Activities (Control) Act 1996
2 amended
3 400. Security and Related Activities (Control) Act 1996 amended
4 This Division amends the Security and Related Activities
5 (Control) Act 1996.
6 401. Section 4B amended
7 In section 4B(1):
8 (a) in paragraph (d) delete "jurisdiction." and insert:
9
10 jurisdiction;
11
12 (b) after paragraph (d) insert:
13
14 (e) a finding under the Criminal Law (Mental
15 Impairment) Act 2022 section 41(2)(c) or an
16 equivalent finding under provisions of the laws
17 of another jurisdiction.
18
19 Division 27 -- Sentence Administration Act 2003 amended
20 402. Sentence Administration Act 2003 amended
21 This Division amends the Sentence Administration Act 2003.
22 403. Section 98 amended
23 In section 98(1) delete "1995 and Part VIA of the Bail
24 Act 1982 -- " and insert:
25
26 1995, the Criminal Law (Mental Impairment) Act 2022 and the
27 Bail Act 1982 Part VIA --
28
page 240
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Working with Children (Criminal Record Checking) Act Division 28
2004 amended
s. 404
1 404. Section 119 amended
2 After section 119(1)(ba) insert:
3
4 (bb) under the Criminal Law (Mental Impairment)
5 Act 2022 section 224(4) or 226(1); or
6
7 Division 28 -- Working with Children (Criminal Record
8 Checking) Act 2004 amended
9 405. Working with Children (Criminal Record Checking) Act 2004
10 amended
11 This Division amends the Working with Children (Criminal
12 Record Checking) Act 2004.
13 406. Section 8 amended
14 In section 8(1):
15 (a) in paragraph (d) delete "jurisdiction." and insert:
16
17 jurisdiction;
18
19 (b) after paragraph (d) insert:
20
21 (e) a finding under the Criminal Law (Mental
22 Impairment) Act 2022 section 41(2)(c) or an
23 equivalent finding under the laws of another
24 jurisdiction.
25
page 241
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 29 Young Offenders Act 1994 amended
s. 407
1 Division 29 -- Young Offenders Act 1994 amended
2 407. Young Offenders Act 1994 amended
3 This Division amends the Young Offenders Act 1994.
4 408. Section 16 amended
5 (1) In section 16(1) insert in alphabetical order:
6
7 Chief Mental Health Advocate has the meaning given
8 in the Mental Health Act 2014 section 4;
9 CLMI identified person has the meaning given in the
10 Criminal Law (Mental Impairment) Act 2022
11 section 127;
12 mental health advocate has the meaning given in the
13 Mental Health Act 2014 section 4;
14
15 (2) After section 16(5) insert:
16
17 (5A) The chief executive officer may disclose information
18 regarding detainees who are CLMI identified persons
19 to the Chief Mental Health Advocate or a mental health
20 advocate for the purposes of the performance of their
21 respective functions under the Criminal Law (Mental
22 Impairment) Act 2022.
23
24 (3) In section 16(7) delete "subsection (5)." and insert:
25
26 subsection (5) or (5A).
27
page 242
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Various Acts amended Division 30
s. 409
1 Division 30 -- Various Acts amended
2 409. Various references to Criminal Law (Mentally Impaired
3 Accused) Act 1996 amended
4 (1) This section amends the Acts listed in the Table.
5 (2) In the provisions listed in the Table delete "Criminal Law
6 (Mentally Impaired Accused) Act 1996" and insert:
7
8 Criminal Law (Mental Impairment) Act 2022
9
10 Table
Courts and Tribunals s. 6(1)(f)
(Electronic Processes
Facilitation) Act 2013
Criminal Investigation s. 67(3)(a)
(Identifying People) Act 2002
Criminal Procedure Act 2004 s. 126(5)(e)
s. 130
s. 149(1)
Spent Convictions Act 1988 Sch. 3 cl. 1(1) Table it. 1B
Young Offenders Act 1994 s. 15A(3)
11 410. Various references to Declared Places (Mentally Impaired
12 Accused) Act 2015 amended
13 (1) This section amends the Acts listed in the Table.
page 243
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 30 Various Acts amended
s. 410
1 (2) In the provisions listed in the Table delete "Declared Places
2 (Mentally Impaired Accused) Act 2015" and insert:
3
4 Declared Places (Mental Impairment) Act 2015
5
6 Table
Coroners Act 1996 s. 3 def. of person held in care
par. (ca)
Corruption, Crime and s. 3(1) def. of contractor
Misconduct Act 2003 s. 3(1) def. of subcontractor
s. 31(a)
Court Security and Custodial s. 3 def. of custodial place
Services Act 1999 par. (m)
Freedom of Information s. 63(3)(aa)
Act 1992 Glossary cl. 1 def. of contractor
Glossary cl. 1 def. of
subcontractor
Parliamentary Commissioner s. 4 def. of contractor
Act 1971 s. 4 def. of responsible Minister
par. (b)
s. 4 def. of subcontractor
s. 17A(4)
s. 19(7)(b)
page 244
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Various Acts amended Division 30
s. 411
Prisons Act 1981 s. 113(1) def. of contractor
par. (b)
Young Offenders Act 1994 s. 16(1) def. of contractor
par. (b)
1 411. Various references to "Mentally Impaired Accused Review
2 Board" amended
3 (1) This section amends the Acts listed in the Table.
4 (2) In the provisions listed in the Table delete "Mentally Impaired
5 Accused Review Board" and insert:
6
7 Mental Impairment Review Tribunal
8
9 Table
Spent Convictions Act 1988 Sch. 3 cl. 1(1) Table it. 1B
Victims of Crime Act 1994 s. 2 def. of public officers and
bodies par. (fa)
Young Offenders Act 1994 s. 15A(3)
10 412. Various references to "unsoundness of mind" amended
11 (1) This section amends the Acts listed in the Table.
12 (2) In the provisions listed in the Table delete "unsoundness of
13 mind" (each occurrence) and insert:
14
15 mental impairment
16
page 245
Criminal Law (Mental Impairment) Bill 2022
Part 15 Consequential amendments to other Acts
Division 30 Various Acts amended
s. 412
1 Table
Community Protection (Offender s. 4(1)(d)
Reporting) Act 2004
Criminal Injuries Compensation s. 13(1)
Act 2003 s. 14(1)
Criminal Investigation s. 52A def. of serious offender
(Identifying People) Act 2002 par. (b)
s. 67(3)(b)
Criminal Procedure Act 2004 s. 3(2)(b)(i)
s. 93(1)
s. 113(1) and (2)(b)
s. 126(1)(d)
s. 146
s. 147(2) and (3)
s. 149(1)
National Disability Insurance s. 7(1)(d)
Scheme (Worker Screening)
Act 2020
Official Prosecutions (Accused's s. 4(2)(a)(i)
Costs) Act 1973
Parliamentary Commissioner s. 19H(2)(d)
Act 1971
Security and Related Activities s. 4B(1)(d)
(Control) Act 1996
page 246
Criminal Law (Mental Impairment) Bill 2022
Consequential amendments to other Acts Part 15
Various Acts amended Division 30
s. 412
The Criminal Code s. 27(1)
Working with Children s. 8(1)(d)
(Criminal Record Checking)
Act 2004
1 Note: In the Acts listed in the Table, the headings to the amended sections
2 listed in the Table are to read as set out in the Table.
3 Table
Amended section Section heading
1. Criminal Injuries Compensation Act 2003
s. 14 Alleged offence: acquittal due to mental
impairment
2. Criminal Procedure Act 2004
s. 93 Dealing with plea of not guilty on account of
mental impairment
s. 146 Acquittal on account of mental impairment
4
page 247
Criminal Law (Mental Impairment) Bill 2022
Schedule 1 Serious offences
Division 1 Offences that are serious offences in all circumstances
1 Schedule 1 -- Serious offences
2 [s. 9]
3 Division 1 -- Offences that are serious offences in all circumstances
4 Subdivision 1 -- Offence under the Bush Fires Act 1954
Item Provision Description of offence
1. s. 32 Lighting or attempting to light fire likely to injure
5 Subdivision 2 -- Offence under the Children and Community Services
6 Act 2004
Item Provision Description of offence
1. s. 192 Employing child to perform in indecent, obscene or
pornographic manner
7 Subdivision 3 -- Offences under The Criminal Code
Item Provision Description of offence
1. s. 186 Occupier or owner allowing young person to be on
premises for unlawful carnal knowledge
2. s. 187 Facilitating sexual offence against child outside
WA
3. s. 204A Showing offensive material to child under 16
4. s. 204B Using electronic communication to procure, or
expose to indecent matter, child under 16
5. s. 217 Involving child in child exploitation
6. s. 218 Producing child exploitation material
7. s. 219 Distributing child exploitation material
page 248
Criminal Law (Mental Impairment) Bill 2022
Serious offences Schedule 1
Offences that are serious offences in all circumstances Division 1
Item Provision Description of offence
8. s. 220 Possession of child exploitation material
9. s. 279 Murder
10. s. 280 Manslaughter
11. s. 281 Unlawful assault causing death
12. s. 283 Attempt to unlawfully kill
13. s. 294 Act intended to cause grievous bodily harm or
prevent arrest
14. s. 297 Grievous bodily harm
15. s. 304(2) Act or omission causing bodily harm or danger,
done with intent to harm
16. s. 320 Sexual offence against child under 13
17. s. 321 Sexual offence against child of or over 13 and
under 16
18. s. 321A Persistent sexual conduct with child under 16
19. s. 322 Sexual offence against child of or over 16 by person
in authority
20. s. 324 Aggravated indecent assault
21. s. 325 Sexual penetration without consent
22. s. 326 Aggravated sexual penetration without consent
23. s. 327 Sexual coercion
24. s. 328 Aggravated sexual coercion
page 249
Criminal Law (Mental Impairment) Bill 2022
Schedule 1 Serious offences
Division 1 Offences that are serious offences in all circumstances
Item Provision Description of offence
25. s. 329 Sexual offence by relative or the like
26. s. 330 Sexual offence against incapable person
27. s. 331B Sexual servitude
28. s. 331C Conducting business involving sexual servitude
29. s. 331D Deceptive recruiting for commercial sexual service
30. s. 332 Kidnapping
31. s. 333 Deprivation of liberty
32. s. 338E Stalking
33. s. 343 Child stealing
34. s. 392 Robbery
35. s. 393 Assault with intent to rob
36. s. 445A Breach of duty of person in control of ignition
source or fire
1 Subdivision 4 -- Offences under the Prostitution Act 2000
Item Provision Description of offence
1. s. 7 Seeking to induce person to act as prostitute
2. s. 16 Causing, permitting, or seeking to induce child to
act as prostitute
3. s. 17 Obtaining payment for prostitution by child
4. s. 18 Agreement for prostitution by child
page 250
Criminal Law (Mental Impairment) Bill 2022
Serious offences Schedule 1
Offences that are serious offences if committed in specified Division 2
circumstances
1 Subdivision 5 -- Offence under the Road Traffic Act 1974
Item Provision Description of offence
1. s. 59 Dangerous driving causing death or grievous bodily
harm
2 Division 2 -- Offences that are serious offences if committed in
3 specified circumstances
4 Subdivision 1 -- Offence under The Criminal Code
Item Provision Description Circumstances in which a serious
offence
1. s. 444 Criminal If within s. 444(1)(a) (criminal
damage damage by fire)
5 Subdivision 2 -- Offence under the Prostitution Act 2000
Item Provision Description Circumstances in which a serious
offence
1. s. 5 Seeking If within s. 5(2) (seeking a child)
prostitute in
or near
public place
page 251
Criminal Law (Mental Impairment) Bill 2022
Defined terms
Defined terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined term Provision(s)
accused ............................................................................................................. 9(1)
administrator .................................................................................................... 9(1)
advocacy services officer ................................................................................. 9(1)
approved electronic monitoring device ............................................................. 220
audio link ......................................................................................................... 9(1)
authorised hospital ........................................................................................... 9(1)
Board................................................................................................................. 237
carer ................................................................................................................. 9(1)
CEO ................................................................................................................. 9(1)
CEO (Community Services) .......................................................................... 65(1)
CEO (Corrections) ........................................................................................... 9(1)
CEO (Young Offenders) .................................................................................. 9(1)
charge ............................................................................................................... 9(1)
Chief Mental Health Advocate ........................................................................ 9(1)
Chief Psychiatrist ............................................................................................. 9(1)
child ................................................................................................................. 9(1)
child-specific considerations ............................................................................ 9(1)
CLMI identified person..................................................................................... 127
close family member ........................................................................................ 9(1)
commencement day .......................................................................................... 237
communication partner .................................................................................. 21(1)
community ....................................................................................................... 9(1)
community corrections officer ......................................................................... 9(1)
community member .......................................................................................... 155
community order .......................................................................................... 253(1)
Community Services Department .................................................................... 9(1)
community supervision order (CSO) ............................................................... 9(1)
confidentiality order ..................................................................................... 169(1)
contractor ..................................................................................................... 140(1)
corresponding law ............................................................................................. 200
custodial order................................................................................................ 17(1)
custodial sentence ........................................................................................ 227(1)
custody order (CO) .......................................................................................... 9(1)
deciding court ................................................................................................... 213
declared place .................................................................................................. 9(1)
Department....................................................................................................... 9(1)
Deputy President .............................................................................................. 9(1)
detention centre ................................................................................................ 9(1)
Disability Services Commission ...................................................................... 9(1)
disclosing agency ......................................................................................... 226(1)
page 252
Criminal Law (Mental Impairment) Bill 2022
Defined terms
DSC declared place .......................................................................................... 9(1)
electronic means .......................................................................................... 229(1)
enduring guardian ............................................................................................ 9(1)
existing community order ............................................................................ 253(2)
existing custody order .......................................................................... 237, 254(1)
existing leave of absence order .................................................................... 255(1)
existing registrar ............................................................................................... 273
experienced lawyer .................................................................................. 9(1), 155
extended community supervision order ........................................................... 9(1)
extended custody order .................................................................................... 9(1)
extended order.................................................................................................. 9(1)
finding of unfitness ........................................................................................ 35(1)
foreign jurisdiction ....................................................................................... 211(2)
guardian ........................................................................................................... 9(1)
health professional ........................................................................................... 9(1)
hospital order ........................................................................................ 9(1), 19(2)
identified person ............................................................................................... 200
inpatient treatment order .................................................................................. 9(1)
interim community supervision order .............................................................. 9(1)
interim custody order ....................................................................................... 9(1)
interim disposition ................................................................................... 9(1), 200
international supervision order..................................................................... 211(2)
interstate supervision order ............................................................................... 200
involuntary inpatient ........................................................................................ 9(1)
involuntary patient ........................................................................................... 9(1)
leave of absence order ........................................................................... 9(1), 77(1)
limiting term .................................................................................................... 9(1)
mandatory service ............................................................................................. 127
medical practitioner .......................................................................................... 127
member ............................................................................................................ 9(1)
member of staff ................................................................................................. 155
member of the immediate family of the deceased ........................................ 142(1)
mental health advocate ..................................................................................... 9(1)
mental health practitioner ................................................................................. 127
mental illness ................................................................................................... 9(1)
mental impairment ........................................................................................... 9(1)
MHA identified person ................................................................................ 139(2)
Minister for Corrective Services ...................................................................... 9(1)
new provision .................................................................................................... 237
offence ......................................................................................................... 263(3)
officer ................................................................................................................ 219
old provision ..................................................................................................... 237
original decision ................................................................................ 98(2), 218(2)
parent ............................................................................................................... 9(1)
participating jurisdiction ........................................................................... 200, 219
page 253
Criminal Law (Mental Impairment) Bill 2022
Defined terms
personal information ........................................................................................ 9(1)
person covered by this Act ................................................................................ 219
prescribed ......................................................................................................... 9(1)
President .......................................................................................................... 9(1)
prison ............................................................................................................... 9(1)
proceedings ....................................................................................................... 155
psychiatrist ....................................................................................................... 9(1)
psychologist ..................................................................................................... 9(1)
Public Advocate ............................................................................................... 9(1)
public sector body ............................................................................................. 219
public service member ...................................................................................... 155
question of law .................................................................................................. 155
recipient agency ........................................................................................... 226(1)
registrar ............................................................................................................. 155
release day........................................................................................ 257(2) and (3)
relevant court ................................................................................................. 88(3)
relevant decision ............................................................................................ 70(1)
relevant function ............................................................................................... 219
relevant proceeding ...................................................................................... 123(1)
remuneration .................................................................................................... 9(1)
repealed Act ...................................................................................................... 237
representative ................................................................................................... 9(1)
responsible person............................................................................ 139(3) and (5)
reviewable decision ............................................................................................. 90
reviewable order ............................................................................................ 65(1)
safety of the community................................................................................... 9(1)
sentence ........................................................................................................ 227(1)
serious offence ................................................................................................. 9(1)
special proceeding............................................................................................ 9(1)
specified .............................................................................................. 9(1), 222(1)
statutory penalty ............................................................................................... 9(1)
supervised person ............................................................................................. 9(1)
supervised release order ............................................................................... 227(1)
supervising officer .............................................................................. 9(1), 270(1)
supervision order.............................................................................................. 9(1)
supporting agency .................................................................................... 9(1), 219
support measure ............................................................................................... 9(1)
term of detention ............................................................................................ 50(1)
term of imprisonment ..................................................................................... 50(1)
trial ................................................................................................................... 9(1)
Tribunal ............................................................................................................ 9(1)
unable to act ................................................................................................. 175(1)
underlying custody order ................................................................................. 9(1)
unfit accused .................................................................................................... 9(1)
victim .................................................................................................. 9(1), 142(1)
page 254
Criminal Law (Mental Impairment) Bill 2022
Defined terms
victim impact statement .................................................................................... 143
video link ......................................................................................................... 9(1)
violent personal offence ............................................................................... 142(1)
working day ..................................................................................................... 9(1)
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