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TASMANIA
__________
JUSTICE (AMENDMENT OF CUSTODY
LEGISLATION) BILL 2002
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
PART 2 CRIMINAL CODE ACT 1924 AMENDED
3. Principal Act
4. Schedule 1 amended (Criminal Code)
PART 3 CRIMINAL JUSTICE (MENTAL IMPAIRMENT)
ACT 1999 AMENDED
5. Principal Act
6. Section 41 amended (Arrest of person escaping from
detention or absent without leave)
PART 4 MENTAL HEALTH ACT 1996 AMENDED
7. Principal Act
8. Section 52 amended (Reviews of continuing care orders
and community treatment orders)
9. Part 12: Heading amended
10. Part 12, Division 1: Heading inserted
Division 1 Humanitarian transfer
[Bill 70]-III
11. Section 82 amended (Transfer agreements)
12. Section 83 amended (Effect of transfer agreements)
13. Part 12, Division 2 inserted
Division 2 Apprehension and return of absconding
involuntary patients
83A. Interpretation of Division
83B. Agreements for the return, &c., of absconding
involuntary patients
83C. Tasmanian officers may act under corresponding
laws
83D. Interstate officers may act in this State
83E. Apprehension, &c., of involuntary patients from
interstate
83F. Apprehension, &c., of involuntary patients found
interstate
PART 5 SENTENCING ACT 1997 AMENDED
14. Principal Act
15. Part 10: Heading amended
16. Sections 79A and 79B inserted
79A. Arrest of assessment order detainees who
abscond
79B. Arrest of detainees who flee the State
2
JUSTICE (AMENDMENT OF CUSTODY
LEGISLATION) BILL 2002
(Brought in by the Minister for Justice and Industrial
Relations, the Honourable Judith Louise Jackson)
A BILL FOR
An Act to amend the Criminal Code Act 1924, the
Criminal Justice (Mental Impairment) Act 1999, the
Mental Health Act 1996 and the Sentencing Act 1997
Be it enacted by His Excellency the Governor of Tasmania,
by and with the advice and consent of the Legislative
Council and House of Assembly, in Parliament assembled,
as follows:
PART 1 PRELIMINARY
Short title
1. This Act may be cited as the Justice (Amendment of
Custody Legislation) Act 2002.
Commencement
2. This Act commences on the day on which this Act
receives the Royal Assent.
[Bill 70] 3
s. 3 No. Justice (Amendment of Custody 2002
Legislation)
PART 2 CRIMINAL CODE ACT 1924 AMENDED
Principal Act
3. In this Part, the Criminal Code Act 1924* is referred to
as the Principal Act.
Schedule 1 amended (Criminal Code)
4. Schedule 1 to the Principal Act is amended as follows:
(a) by omitting from section 106 "pursuant to "
and substituting "pursuant to any of the
following:";
(b) by inserting in section 106 the following
paragraphs after paragraph (c):
(d) a restriction order made under
Part 4 of the Criminal Justice
(Mental Impairment) Act 1999;
(da) a continuing care order made
under section 23(d) or section 27(d)
of the Criminal Justice (Mental
Impairment) Act 1999;
(c) by omitting from paragraph (e) of section 106
"and";
(d) by omitting paragraph (f) from section 106 and
substituting the following paragraphs:
*No. 69 of 1924
4
2002 Justice (Amendment of Custody No. s. 4
Legislation)
(f) an assessment order made under
section 72 of the Sentencing Act
1997;
(g) a continuing care order made
under section 75(1) of the
Sentencing Act 1997;
(h) a restriction order made under
section 75(1) of the Sentencing Act
1997.
5
s. 5 No. Justice (Amendment of Custody 2002
Legislation)
PART 3 CRIMINAL JUSTICE (MENTAL
IMPAIRMENT) ACT 1999 AMENDED
Principal Act
5. In this Part, the Criminal Justice (Mental Impairment)
Act 1999* is referred to as the Principal Act.
Section 41 amended (Arrest of person escaping from
detention or absent without leave)
6. Section 41 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "under this
Act " and substituting "pursuant to a
restriction order made under this Act or the
Sentencing Act 1997 ";
(b) by inserting the following subsections after
subsection (1):
(1A) If a judge of a court by which a
person is committed to detention under this
Act is satisfied that there are proper grounds
to suspect that the person
(a) has escaped from the detention or
is absent, without proper
authority, from the place of
detention; and
(b) has left the State
the judge may issue a warrant for the arrest of
the person and for his or her return to the
place of detention.
*No. 21 of 1999
6
2002 Justice (Amendment of Custody No. s. 6
Legislation)
(1B) If a judge or magistrate of a court
by which a person is made the subject of a
continuing care order within the meaning of
the Mental Health Act 1996 is satisfied that
there are proper grounds to suspect that the
person
(a) has escaped or is absent without
leave of absence from an approved
hospital within the meaning of
that Act; and
(b) has left the State
the judge or magistrate may issue a warrant
for the arrest of the person and for his or her
return to the approved hospital.
(c) by omitting from subsection (2) "A" and
substituting "If a";
(d) by omitting from subsection (2) "may, if" and
substituting "is";
(e) by inserting in subsection (2) "the judge or
magistrate may" after "order,".
7
s. 7 No. Justice (Amendment of Custody 2002
Legislation)
PART 4 MENTAL HEALTH ACT 1996 AMENDED
Principal Act
7. In this Part, the Mental Health Act 1996* is referred to
as the Principal Act.
Section 52 amended (Reviews of continuing care
orders and community treatment orders)
8. Section 52(3) of the Principal Act is amended by
omitting "Part 12" and substituting "Division 1 of Part 12".
Part 12: Heading amended
9. Part 12 of the Principal Act is amended by omitting
"TRANSFER OF INVOLUNTARY PATIENTS
BETWEEN JURISDICTIONS" from the heading to that
Part and substituting "INTERGOVERNMENTAL
AGREEMENTS".
Part 12, Division 1: Heading inserted
10. Part 12 of the Principal Act is amended by inserting
the following heading before section 82:
Division 1 Humanitarian transfer
*No. 31 of 1996
8
2002 Justice (Amendment of Custody No. s. 11
Legislation)
Section 82 amended (Transfer agreements)
11. Section 82 of the Principal Act is amended by omitting
subsection (1) and substituting the following subsection:
(1) The Minister may enter into an agreement
with the Minister responsible for the administration
of a corresponding law providing for the transfer of
involuntary patients.
Section 83 amended (Effect of transfer agreements)
12. Section 83(1) of the Principal Act is amended by
omitting "Part" and substituting "Division".
Part 12, Division 2 inserted
13. After section 83 of the Principal Act, the following
Division is inserted in Part 12:
Division 2 Apprehension and return of
absconding involuntary patients
Interpretation of Division
83A. In this Division
"affected jurisdiction", in relation to a
corresponding law, means the State in
which that law is in force;
"continuing care order" includes any
continuing care order to which this Act
applies by virtue of section 5A;
"corresponding law" means a law of another
State that is prescribed as a
9
s. 13 No. Justice (Amendment of Custody 2002
Legislation)
corresponding law for the purposes of
this Division;
"involuntary patient" includes a person who
is subject to a continuing care order
within the meaning of this Division;
"mental health facility" means a hospital or
other facility at which, under a
corresponding law, persons with mental
illnesses may be detained involuntarily
and treated;
"State" includes Territory.
Agreements for the return, &c., of absconding
involuntary patients
83B. (1) The Minister may enter into an agreement
with the Minister responsible for the administration
of a corresponding law providing for either or both of
the following:
(a) the apprehension, detention and return
of involuntary patients who abscond or
are absent without leave of absence from
the approved hospital where they are
being lawfully detained in this State and
are found at large in the affected
jurisdiction;
(b) the apprehension, detention and return
of persons who abscond or are absent
without leave of absence from the
mental health facility at which they are
being detained under the corresponding
law and are found at large in this State.
10
2002 Justice (Amendment of Custody No. s. 13
Legislation)
(2) The Minister must give notice in the
Gazette of the making or amendment of an
agreement under this section and of the terms of the
agreement or amendment.
Tasmanian officers may act under
corresponding laws
83C. (1) An authorised officer may exercise a power
or perform a function conferred on the authorised
officer under a corresponding law.
(2) Subsection (1) has effect subject to the
provisions of any intergovernmental agreement
under this Division about the exercise of the power
or the performance of the function by the authorised
officer.
Interstate officers may act in this State
83D. (1) A person who is authorised to exercise a
power or perform a function under a corresponding
law may exercise the power or perform the function
in this State.
(2) Subsection (1) has effect subject to the
provisions of any intergovernmental agreement
under this Division about the exercise of the power
or the performance of the function by the person
referred to in that subsection.
Apprehension, &c., of involuntary patients
from interstate
83E. (1) If a person
11
s. 13 No. Justice (Amendment of Custody 2002
Legislation)
(a) absconds or is absent without leave of
absence from the mental health facility
at which the person is being detained
under a corresponding law or
contravenes a condition subject to which
the person has been granted leave of
absence from that facility; and
(b) is found at large in this State
the person may be apprehended by
(c) an authorised officer; or
(d) a person who, under the corresponding
law, would be authorised to apprehend
the person at large had that person been
found at large in the affected
jurisdiction.
(2) For the purposes of subsection (1), a
warrant or other instrument that, under the
corresponding law, would authorise the
apprehension of the person at large if he or she were
found at large in the affected jurisdiction also
authorises that person's apprehension in this State.
(3) A person who is apprehended under
subsection (1)
(a) is to be taken to a mental health facility
of the affected jurisdiction; but
(b) may be admitted to and detained in an
approved hospital pending his or her
return to that jurisdiction.
(4) For the purpose of apprehending a person
under subsection (1)
12
2002 Justice (Amendment of Custody No. s. 13
Legislation)
(a) an authorised officer may exercise any
powers that he or she may exercise
under section 15 in relation to persons
being taken into protective custody; and
(b) a person referred to in subsection (1)(d)
has the same powers as an authorised
officer.
Apprehension, &c., of involuntary patients
found interstate
83F. If an involuntary patient
(a) absconds or is absent without leave of
absence from the approved hospital
where he or she is being detained or
contravenes a condition subject to which
he or she has been granted leave of
absence from that approved hospital;
and
(b) is found at large in another State
he or she may be apprehended and returned to that
approved hospital by
(c) an authorised officer; or
(d) a person who, under the law of the
affected jurisdiction, is authorised to
take the involuntary patient to a mental
health facility in that jurisdiction.
13
s. 14 No. Justice (Amendment of Custody 2002
Legislation)
PART 5 SENTENCING ACT 1997 AMENDED
Principal Act
14. In this Part, the Sentencing Act 1997* is referred to as
the Principal Act.
Part 10: Heading amended
15. Part 10 of the Principal Act is amended by omitting
"HOSPITAL" from the heading to that Part and
substituting "CONTINUING CARE".
Sections 79A and 79B inserted
16. After section 79 of the Principal Act, the following
sections are inserted in Part 10:
Arrest of assessment order detainees who
abscond
79A. (1) If a court by which a person is made the
subject of an assessment order is satisfied that there
are proper grounds to suspect that the person has
escaped or is absent without proper authority from
the institution in which he or she has been detained
under the order, the court may issue a warrant for
the arrest of the person and for his or her return to
the court.
(2) When the person is returned under the
warrant, the court may make a new assessment
order in respect of the person if the court is satisfied
*No. 59 of 1997
14
2002 Justice (Amendment of Custody No. s. 16
Legislation)
that, because of the escape or unauthorised absence,
its original assessment order
(a) expired before the person's assessment
under that order could be completed; or
(b) will expire before the person's
assessment under that order is
completed.
Arrest of detainees who flee the State
79B. (1) In this section, "approved hospital"
means an approved hospital within the meaning of
the Mental Health Act 1996.
(2) If a court by which a person is made the
subject of a continuing care order is satisfied that
there are proper grounds to suspect that the
person
(a) has escaped or is absent without leave of
absence from an approved hospital; and
(b) has left the State
the court may issue a warrant for the arrest of the
person and for his or her return to the approved
hospital.
(3) If a court by which a person is committed
to detention under a restriction order is satisfied
that there are proper grounds to suspect that the
person
(a) has escaped or is absent without proper
authority from the place of detention;
and
(b) has left the State
15
s. 16 No. Justice (Amendment of Custody 2002
Legislation)
the court may issue a warrant for the arrest of that
person and for his or her return to the place of
detention.
16 Government Printer, Tasmania