FORENSIC HEALTH LEGISLATION (AMENDMENT) BILL 2001

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FORENSIC HEALTH LEGISLATION (AMENDMENT) BILL 2001

PARLIAMENT OF VICTORIA Forensic Health Legislation (Amendment) Act 2001 Act No. TABLE OF PROVISIONS Clause Page PART 1--PRELIMINARY 1 1. Purpose 1 2. Commencement 2 PART 2--CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 3 3. Definitions and application 3 4. Mental impairment defence in the Magistrates' Court 4 5. New section 19A inserted 4 19A. Appeal against unconditional release 4 6. New section 24A inserted 5 24A. Appeal against unconditional release 5 7. Supervision orders 6 8. New section 28A inserted 7 28A. Appeal against supervision order 7 9. Non-compliance with non-custodial supervision order 9 10. New sections 30A and 30B inserted 10 30A. Warrant to arrest person breaching non-custodial supervision order who leaves Victoria 10 30B. Warrant to arrest person subject to custodial supervision order who leaves Victoria 11 11. Application for variation or revocation of supervision order 12 12. Review of supervision orders 12 13. New section 34 substituted and 34A inserted 13 34. Appeal against confirmation or variation of supervision orders 13 34A. Appeal against revocation of non-custodial supervision orders 15 14. Major reviews 17 15. Appearances at hearings and evidentiary provisions 17 16. New section 38 substituted 18 38. Rules of evidence not to apply in certain hearings 18 17. New sections 38A to 38F inserted 19 i 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Clause Page 38A. Notice of hearings to persons subject to supervision orders 19 38B. Notice of hearings to DPP, Attorney-General and Secretary to Department of Human Services 20 38C. Notice of hearings to family members and victims 20 38D. Appointment of person to receive notice on behalf of child 23 38E. Provision of information to family members and victims 23 38F. List of family members 24 18. Principle to be applied by court 25 19. Matters to which the court is to have regard 25 20. Reports on mental condition of defendants 26 21. Reports of family members and victims 27 22. New section 44 substituted 28 44. Distribution of report 28 23. Special leave of absence for medical treatment 28 24. Limited off-ground leave 28 25. New section 54 substituted and sections 54A and 54B inserted 29 54. Granting of on-ground or limited off-ground leave 29 54A. Applicant profile 31 54B. Leave plan or statement 32 26. Suspension of leave 33 27. New section 57 substituted and sections 57A and 57B inserted 34 57. Granting of extended leave 34 57A. Leave plan for extended leave 35 57B. Appeals regarding extended leave 35 28. Suspension and revocation of extended leave 37 29. New section 58A inserted 37 58A. Appeals regarding revocation of extended leave 37 30. New Part 7A inserted 39 PART 7A--INTERSTATE TRANSFER OF PERSONS SUBJECT TO SUPERVISION ORDERS 39 73A. Definitions 39 73B. Corresponding laws and orders 40 73C. Informed consent 40 73D. Transfer of persons from Victoria to a participating State 40 73E. Transfer of persons from a participating State to Victoria 42 73F. Review of persons transferred to Victoria 44 73G. Nominal term of supervision order 45 73H. Appeal against unconditional release 46 31. New sections 76A and 76B inserted 48 76A. Directions 48 76B. Court rules for appeals 48 32. Transitional provisions 49 ii 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Clause Page PART 3--CONTROL OF WEAPONS ACT 1990 52 33. Forfeiture of weapons, dangerous articles or body armour 52 PART 4--INTELLECTUALLY DISABLED PERSONS' SERVICES ACT 1986 53 34. Definitions 53 PART 5--MENTAL HEALTH ACT 1986 54 35. Definitions 54 36. Hospital orders 54 37. Functions of Mental Health Review Board 54 38. New section 43A inserted 55 43A. Clinical guidelines for discharge of security patients 55 39. New sections 44 and 45 substituted 55 44. Board may order discharge 55 45. Chief psychiatrist may order discharge 55 40. New section 51 substituted 56 51. Leave of absence for security patients 56 41. Special leave of absence for security patients 58 42. Application of Division 4 58 43. Interstate apprehension 58 44. Non-delegation of certain duties 58 45. New section 147 inserted 58 147. Transitional provisions--Forensic Health Legislation (Amendment) Act 2001 58 PART 6--STATUTE LAW REVISION 60 46. Community Visitors Legislation (Miscellaneous Amendments) Act 2001 60 47. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 60 48. Mental Health Act 1986 61 ENDNOTES 62 iii 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

PARLIAMENT OF VICTORIA Initiated in Assembly 28 November 2001 A BILL to amend the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Control of Weapons Act 1990, the Intellectually Disabled Persons' Services Act 1986 and the Mental Health Act 1986 with respect to security patients and persons subject to supervision and for other purposes. Forensic Health Legislation (Amendment) Act 2001 The Parliament of Victoria enacts as follows: PART 1--PRELIMINARY 1. Purpose The main purpose of this Act is to amend the Crimes (Mental Impairment and Unfitness to 5 be Tried) Act 1997, the Control of Weapons Act 1 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 2 Act No. 1990, the Intellectually Disabled Persons' Services Act 1986 and the Mental Health Act 1986 with respect to security patients and persons subject to supervision. 5 2. Commencement (1) This Part and Part 6 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to sub-section (3), the remaining 10 provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in sub-section (2) does not come into operation before 1 July 2002, it comes into operation on that day. 15 _______________ 2 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 3 Act No. PART 2--CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 See: 3. Definitions and application Act No. 65/1997. (1) In section 3 of the Crimes (Mental Impairment Reprint No. 1 5 and Unfitness to be Tried) Act 1997-- as at 18 February (a) in the definition of "forensic patient", after 1999 and paragraph (a) insert-- amending Act Nos "(ab) a person detained in an approved 41/2000, mental health service under section 53/2000 and 72/2001. 10 30(2) or 30A(3); or"; LawToday: www.dms. (b) in the definition of "forensic resident", after dpc.vic. gov.au paragraph (a) insert-- "(ab) a person detained in a residential service under section 30(2) or 30A(3); 15 or"; (c) after the definition of "limited off-ground leave" insert-- ' "major review" means a review under section 35;'; 20 (d) after the definition of "Panel" insert-- ' "parent" of a child includes a person who has day to day care and control of the child and with whom the child is ordinarily resident;'. 25 (2) At the end of section 4 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert-- "(2) If an appeal is made under this Act to the Court of Appeal-- 30 (a) a reference in this Act to the court, in respect of the making or confirming of a supervision order by the Court of 3 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 4 Act No. Appeal on the appeal, is a reference to the Court of Appeal; and (b) if the Court of Appeal makes or confirms a supervision order on the 5 appeal, a reference in this Act to the court that made the supervision order is a reference to the court from which the appeal was made to the Court of Appeal. 10 (3) Sub-section (2) does not apply so as to allow a person to appeal to the Court of Appeal against a supervision order made by the Court of Appeal.". 4. Mental impairment defence in the Magistrates' Court 15 At the end of section 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert-- "(2) If the Magistrates' Court finds a person not guilty because of mental impairment of a 20 summary offence or an indictable offence tried summarily, the Magistrates' Court must discharge the person.". 5. New section 19A inserted (1) After section 19 of the Crimes (Mental 25 Impairment and Unfitness to be Tried) Act 1997 insert-- "19A. Appeal against unconditional release (1) The Director of Public Prosecutions may appeal to the Court of Appeal against an 30 order for unconditional release under section 18(4)(b) if he or she considers that-- (a) the order should not have been made; and 4 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 6 Act No. (b) an appeal should be brought in the public interest. (2) On an appeal under sub-section (1), the Court of Appeal may-- 5 (a) confirm the order; or (b) quash the order and by order declare that the defendant is liable to supervision under Part 5. (3) If the Court of Appeal declares a defendant 10 liable to supervision, the Court of Appeal may-- (a) remit the matter, with or without directions, to the court that made the order for unconditional release; or 15 (b) make a supervision order in respect of the defendant. (4) If the Court of Appeal remits a matter to a court under sub-section (3)(a), that court must make a supervision order in respect of 20 the defendant in accordance with this Act and any directions given by the Court of Appeal. (5) The Court of Appeal may make any order that the judge could have made under 25 section 19 pending the making of a supervision order in respect of the defendant.". 6. New section 24A inserted After section 24 of the Crimes (Mental 30 Impairment and Unfitness to be Tried) Act 1997 insert-- "24A. Appeal against unconditional release 5 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 6 7 Act No. (1) The Director of Public Prosecutions may appeal to the Court of Appeal against an order for unconditional release under section 23(b) if he or she considers that-- 5 (a) the order should not have been made; and (b) an appeal should be brought in the public interest. (2) On an appeal under sub-section (1), the 10 Court of Appeal may-- (a) confirm the order; or (b) quash the order and by order declare that the defendant is liable to supervision under Part 5. 15 (3) If the Court of Appeal declares a defendant liable to supervision, the Court of Appeal may-- (a) remit the matter, with or without directions, to the court that made the 20 order for unconditional release; or (b) make a supervision order in respect of the defendant. (4) If the Court of Appeal remits a matter to a court under sub-section (3)(a), that court 25 must make a supervision order in respect of the defendant in accordance with this Act and any directions given by the Court of Appeal. (5) The Court of Appeal may make any order 30 that the court could have made under section 24 pending the making of a supervision order in respect of the defendant.". 7. Supervision orders 6 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 Act No. (1) In section 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, sub- sections (5), (6) and (7) are repealed. (2) In section 27 of the Crimes (Mental Impairment 5 and Unfitness to be Tried) Act 1997, for sub- section (2) insert-- "(2) When making a supervision order, the court may direct that the matter be brought back to the court for review at the end of the period 10 specified by the court. Note: The court's powers on review are contained in section 32 (for custodial supervision orders) and section 33 (for non-custodial supervision orders).". 15 (3) In section 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after sub- section (3) substitute-- "(4) In setting a nominal term for a supervision order, the court must declare the day from 20 which the nominal term runs. (5) For the purpose of declaring a day under sub-section (4), the court may take into account any period of time during which the person subject to the order was held in 25 custody or detained in an appropriate place in relation to proceedings for the offence which led to the making of the supervision order or proceedings arising from those proceedings (including proceedings under 30 this Act and appeals).". 8. New section 28A inserted After section 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert-- 35 "28A. Appeal against supervision order 7 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 8 Act No. (1) A person in respect of whom a supervision order is made may appeal to the Court of Appeal against the supervision order. (2) The Director of Public Prosecutions, the 5 Attorney-General or the Secretary to the Department of Human Services may appeal to the Court of Appeal against a supervision order if he or she considers that-- (a) a different supervision order should 10 have been made; and (b) an appeal should be brought in the public interest. (3) On an appeal under this section, the Court of Appeal may-- 15 (a) confirm the supervision order; or (b) quash the supervision order and make another supervision order in substitution for it; or (c) quash the supervision order and remit 20 the matter, with or without directions, to the court that made it; or (d) quash the supervision order and order the defendant to be released unconditionally. 25 (4) If the Court of Appeal remits a matter to a court under sub-section (3)(c), that court must make another supervision order in accordance with this Act and any directions given by the Court of Appeal. 30 (5) The Court of Appeal may make any one or more of the following orders pending the 8 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 8 9 Act No. making of a supervision order under this section-- (a) an order granting the defendant bail; (b) subject to sub-section (6), an order 5 remanding the defendant in custody in an appropriate place; (c) subject to sub-section (7), an order remanding the defendant in custody in a prison; 10 (d) if it is of the opinion that it is in the interests of justice to do so, an order-- (i) that the defendant undergo an examination by a registered medical practitioner or registered 15 psychologist; and (ii) that the results of the examination be put before the court that is to make the supervision order; (e) any other order the court thinks 20 appropriate. (6) The Court of Appeal must not make an order remanding a person in custody in an appropriate place unless the Court of Appeal has received a certificate under section 47 25 stating that the facilities or services necessary for that order are available. (7) The Court of Appeal must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable 30 alternative in the circumstances.". 9. Non-compliance with non-custodial supervision order 9 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 Act No. (1) In section 29 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for sub- sections (1) and (2) substitute-- '(1) A person having the supervision of a person 5 under a non-custodial supervision order ("the supervisor") or the Secretary to the Department of Human Services may apply to the court that made the order for a variation of the order if it appears to the supervisor or 10 the Secretary that the person subject to the order has failed to comply with it.'. (2) In section 29 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, sub- section (6) is repealed. 15 10. New sections 30A and 30B inserted After section 30 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert-- "30A. Warrant to arrest person breaching non- 20 custodial supervision order who leaves Victoria (1) If, at any time, it appears to a person having the supervision of a person under a non- custodial supervision order or to the 25 Secretary to the Department of Human Services that the person subject to the order-- (a) has failed to comply with the order; and (b) is no longer in Victoria-- 30 the person having supervision or the Secretary may apply to the court that made the supervision order for a warrant to arrest the person subject to the order. 10 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 10 Act No. (2) If the court is satisfied by evidence on oath, whether orally or by affidavit, of the matters specified in paragraphs (a) and (b) of sub- section (1), the court may order that a 5 warrant to arrest be issued against the person subject to the order. (3) When a person arrested under a warrant issued under this section is returned to Victoria, he or she is to be taken to and 10 detained in an appropriate place and treated or provided with services, if necessary, for his or her condition. (4) However, the person must be released from detention within 48 hours unless, within that 15 period, an application is made under section 29(1) for variation of the person's supervision order. (5) The court must hear an application referred to in sub-section (4) as soon as possible. 20 30B. Warrant to arrest person subject to custodial supervision order who leaves Victoria (1) If at any time it appears to a person having the supervision of a person under a custodial 25 supervision order or to the Secretary to the Department of Human Services that the person subject to the order-- (a) is absent without leave from an approved mental health service or a 30 residential service; and (b) is no longer in Victoria-- the person having supervision or the Secretary may apply to the court that made the supervision order for a warrant to arrest 35 the person subject to the order. 11 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 11 Act No. (2) If the court is satisfied by evidence on oath, whether orally or by affidavit, of the matters specified in paragraphs (a) and (b) of sub- section (1), the court may order that a 5 warrant to arrest be issued against the person subject to the order. (3) When a person arrested under a warrant issued under this section is returned to Victoria, he or she is to be returned to the 10 approved mental health service or residential service from which he or she was absent without leave.". 11. Application for variation or revocation of supervision order 15 In section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997-- (a) in sub-section (1), after paragraph (c) insert-- "(d) the Attorney-General."; 20 (b) sub-sections (3), (4) and (5) are repealed. 12. Review of supervision orders (1) In section 32(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "supervision order" (where first 25 occurring) insert "or on a review of a custodial supervision order directed under section 27(2) or on a further review of a custodial supervision order directed under sub-section (5) or section 33(2)". 30 (2) In section 32 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for sub- section (5) substitute-- 12 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 13 Act No. "(5) Unless the court revokes the order, the court may direct that the matter be brought back to the court for further review at the end of the period specified by the court. 5 (6) A direction may be given under sub- section (5) more than once.". (3) In section 33 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "on a review directed under section 27(2)" substitute 10 "on a review of a non-custodial supervision order directed under section 27(2) or on a further review of a non-custodial supervision order directed under sub-section (2) or section 32(5)". (4) At the end of section 33 of the Crimes (Mental 15 Impairment and Unfitness to be Tried) Act 1997 insert-- "(2) Unless the court revokes the order, the court may direct that the matter be brought back to the court for further review at the end of the 20 period specified by the court. (3) A direction may be given under sub- section (2) more than once.". 13. New section 34 substituted and 34A inserted For section 34 of the Crimes (Mental 25 Impairment and Unfitness to be Tried) Act 1997 substitute-- "34. Appeal against confirmation or variation of supervision orders (1) A person who is subject to a supervision 30 order may appeal to the Court of Appeal against an order confirming or varying the supervision order. 13 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 13 Act No. (2) The Secretary to the Department of Human Services may appeal to the Court of Appeal against an order confirming or varying a supervision order if he or she considers 5 that-- (a) the supervision order should not have been confirmed or varied; and (b) an appeal should be brought in the public interest. 10 (3) The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal against an order confirming or varying a supervision order if he or she-- (a) was a party to the proceeding in which 15 the order confirming or varying the supervision order was made; and (b) considers that the supervision order should not have been confirmed or varied; and 20 (c) considers that an appeal should be brought in the public interest. (4) On an appeal against a confirmation of a supervision order, the Court of Appeal may-- 25 (a) confirm the supervision order; or (b) quash the supervision order and make any order that the court could have made under section 29, 32, 33 or 35 (as the case requires); or 30 (c) quash the supervision order and remit the matter, with or without directions, to the court that made it. 14 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 13 Act No. (5) On an appeal against a variation of a supervision order, the Court of Appeal may-- (a) confirm the order for variation; or 5 (b) quash the order for variation and make any order that the court could have made under section 29, 32, 33 or 35 (as the case requires); or (c) quash the order for variation and remit 10 the matter, with or without directions, to the court that made it. (6) If the Court of Appeal remits a matter to a court under sub-section (4)(c) or (5)(c), that court must hear and determine the matter in 15 accordance with this Act and any directions given by the Court of Appeal. (7) If the Court of Appeal quashes a supervision order under this section, the Court of Appeal may make any order that it could make under 20 section 28A(5) pending the making of another supervision order in respect of the defendant. 34A. Appeal against revocation of non-custodial supervision orders 25 (1) The Secretary to the Department of Human Services may appeal to the Court of Appeal against the revocation of a non-custodial supervision order if he or she considers that-- 30 (a) the supervision order should not have been revoked; and (b) an appeal should be brought in the public interest. 15 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 13 Act No. (2) The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal against the revocation of a non- custodial supervision order if he or she-- 5 (a) was a party to the proceeding in which the order for revocation was made; and (b) considers that the supervision order should not have been revoked; and (c) considers that an appeal should be 10 brought in the public interest. (3) On an appeal under this section, the Court of Appeal may-- (a) confirm the order revoking the supervision order; or 15 (b) quash the order revoking the supervision order and, by order-- (i) confirm the supervision order; or (ii) vary the conditions of the supervision order; or 20 (iii) vary the supervision order to a custodial supervision order; or (c) quash the order for revoking the supervision order and remit the matter, with or without directions, to the court 25 that made it. (4) If the Court of Appeal remits a matter to a court under sub-section (3)(c), that court must hear and determine the matter in accordance with this Act and any directions 30 given by the Court of Appeal.". 16 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 14 Act No. 14. Major reviews (1) In section 35 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for sub- section (1) substitute-- 5 "(1) The court that made a supervision order must undertake a major review of the order-- (a) at least 3 months before the end of the nominal term of the order; and (b) thereafter at intervals not exceeding 10 5 years for the duration of the order.". (2) In section 35 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after sub- section (3) insert-- "(4) If the court confirms a custodial supervision 15 order on a major review, the court may grant extended leave to the person subject to the order, without the need for a separate application for leave, if the court could have granted extended leave to the person on an 20 application under section 57.". 15. Appearances at hearings and evidentiary provisions (1) In section 36 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for sub- section (1) substitute-- 25 "(1) Unless sub-section (4) applies, a person has the right to appear before the court in person at any hearing in which the court is considering-- (a) making, varying or revoking a 30 supervision order in respect of the person; or (b) granting extended leave to the person; or 17 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 16 Act No. (c) revoking a grant of extended leave to the person.". (2) In section 37(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 5 1997, for paragraph (a) substitute-- "(a) the Attorney-General and the Director of Public Prosecutions are entitled to appear before the court; and". (3) In section 37 of the Crimes (Mental Impairment 10 and Unfitness to be Tried) Act 1997, after sub- section (1) insert-- "(1A) The person having the custody, care, control or supervision of a person who is subject to a supervision order is entitled to appear before 15 the court at any hearing in which the court is considering-- (a) varying or revoking the supervision order; or (b) granting extended leave to the person 20 subject to the order; or (c) revoking a grant of extended leave to the person.". 16. New section 38 substituted For section 38 of the Crimes (Mental 25 Impairment and Unfitness to be Tried) Act 1997 substitute-- "38. Rules of evidence not to apply in certain hearings The court is not bound by rules or practice as 30 to evidence but may inform itself in relation to any matter in such manner as it thinks fit in the hearing of-- 18 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 17 Act No. (a) a major review; (b) a review directed under section 27(2), 32(5) or 33(2); (c) an application for variation or 5 revocation of a supervision order; (d) an application for extended leave or for revocation of extended leave; (e) an application for an order under section 38C(8); 10 (f) an application under section 38D(1).". 17. New sections 38A to 38F inserted After section 38 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert-- 15 "38A. Notice of hearings to persons subject to supervision orders (1) Notice of any court hearing under this Act in relation to a person who is subject to a supervision order must be given to the 20 person (unless the person is the applicant)-- (a) in the case of a major review or a review directed by a court under section 27(2), 32(5) or 33(2)--as directed by the court; or 25 (b) in any other case--by the applicant. (2) The notice must be given at least 14 days (or such lesser period as the court directs) before the day of the hearing. (3) Sub-section (1) does not require notice to be 30 given of the hearing of an application for a warrant under section 30A or 30B. 19 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 17 Act No. 38B. Notice of hearings to DPP, Attorney- General and Secretary to Department of Human Services (1) Notice of any court hearing under this Act in 5 relation to a person who is subject to a supervision order must be given to-- (a) the Director of Public Prosecutions; and (b) the Attorney-General; and (c) the Secretary to the Department of 10 Human Services; and (d) the person having the custody, care, control or supervision of the person subject to the supervision order. (2) The notice must be given-- 15 (a) in the case of a major review or a review directed by a court under section 27(2), 32(5) or 33(2)--as directed by the court; or (b) in any other case--by the applicant. 20 (3) The notice must be given at least 14 days (or such lesser period as the court directs) before the day of the hearing. (4) This section does not apply so as to require an applicant to give notice to themselves. 25 38C. Notice of hearings to family members and victims (1) The Director of Public Prosecutions must give notice of any court hearing referred to in sub-section (2) in relation to a person who 30 is subject to a supervision order to-- 20 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 17 Act No. (a) each family member of the person; and (b) each victim of the offence with which the person was charged. (2) The hearings of which notice is required to 5 be given under this section are hearings of-- (a) a major review; (b) a review directed under section 27(2), 32(5) or 33(2); (c) an application under section 31 for 10 variation or revocation of a supervision order; (d) an application for extended leave, if the granting of the application would significantly reduce the degree of 15 supervision to which the person is subject. (3) The notice must be given at least 14 days (or such lesser period as the court directs) before the day of the hearing. 20 (4) Notice to a family member or victim who is under the age of 18 years is to be given to-- (a) a parent or guardian of the person; or (b) if the court makes an order under section 38D, the person named in the 25 order. (5) Notice is not to be given to a family member or victim who has given notice to the Director of Public Prosecutions that he or she does not wish to be notified of any 30 hearing in relation to the person who is subject to the supervision order, and has not withdrawn that notice. 21 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 17 Act No. (6) Notice to the Director of Public Prosecutions under sub-section (5) may be given on behalf of a family member or victim who is under the age of 18 years by-- 5 (a) a parent or guardian; or (b) if the court makes an order under section 38D, the person named in the order. (7) Notice of a hearing need not be given to a 10 person-- (a) whose whereabouts have not, after reasonable enquiry, been ascertained; or (b) if an order is made under sub- 15 section (8) or (10). (8) On application by the Director of Public Prosecutions, the Attorney-General or the Secretary to the Department of Human Services, the court may order that notice of a 20 particular hearing need not be given to a family member or victim if the court is satisfied that giving such notice to them would be detrimental to their mental or physical health. 25 (9) If the court makes an order under sub- section (8), it may order that notice of the hearing be given to another person on their behalf. (10) If the court adjourns a hearing, the court may 30 order that notice of the resumption of the hearing is not required to be given to a family member or victim. (11) If a person is both a family member and a victim, notice may be given to them in either 35 of those capacities. 22 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 17 Act No. 38D. Appointment of person to receive notice on behalf of child (1) The Director of Public Prosecutions may apply to the court for an order that notice 5 under section 38C to a family member or victim under the age of 18 years be given to a person other than a parent or guardian if-- (a) the Director of Public Prosecutions considers that the parents or guardians 10 may not be acting in the best interests of the family member or victim; or (b) the only parents or guardians are persons who are liable to supervision or subject to a supervision order; or 15 (c) there are no parents or guardians or their identity or whereabouts cannot, after reasonable enquiry, be ascertained. (2) On an application under sub-section (1), the 20 court may order that notice under section 38C be given to a person named in the order on behalf of the family member or victim instead of to the parent or guardian. 38E. Provision of information to family members 25 and victims (1) As soon as practicable after becoming aware that a hearing referred to in section 38C(2) is to be held in relation to a person who is subject to a supervision order, a person 30 having the supervision of the person must give the following information to the Director of Public Prosecutions-- (a) whether the supervision order is a custodial supervision order or a non- 35 custodial supervision order; and 23 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 17 Act No. (b) if it is a custodial supervision order, whether or not the person is on extended leave; and (c) if the person is on extended leave or is 5 subject to a non-custodial supervision order, the person's current level of supervision. (2) The Director of Public Prosecutions must give the information to each family member 10 and victim of the offence with which the person subject to the supervision order was charged, unless section 38C provides that notice of the hearing is not to be given, or need not be given, to the family member or 15 victim. (3) If a family member or victim is under the age of 18 years, the information must be given to a parent or guardian or a person appointed under section 38D on behalf of the family 20 member or victim. (4) The information must be given to a family member or victim a reasonable time before the hearing. 38F. List of family members 25 (1) A person who is subject to a supervision order must give to the Director of Public Prosecutions a list of the person's family members, containing their names and, if known, their addresses. 30 (2) The list may be given to the Director of Public Prosecutions at any time after the supervision order is made, but must be given-- 24 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 18 Act No. (a) on or before the making by the person subject to the order of an application referred to in section 38C(2)(c) or (d); or 5 (b) not later than 14 days after the person subject to the order receives notice of a hearing referred to in section 38C(2)(a) or (b) or of an application referred to in section 38C(2)(c) or (d) made by 10 another person-- whichever first occurs. (3) Nothing in this section requires a list to be given more than once during the life of a supervision order.". 15 18. Principle to be applied by court In section 39 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "or to remand a person in custody" substitute ", to remand a person in custody, to grant a person 20 extended leave or to revoke a grant of extended leave". 19. Matters to which the court is to have regard (1) In section 40(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 25 1997, after "a person" insert ", to grant extended leave to a person or to revoke a grant of extended leave". (2) In section 40(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 30 1997-- (a) after paragraph (a) insert-- "(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person 25 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 20 Act No. having the supervision of the person subject to the order; and"; (b) after paragraph (d) insert-- "(da) in the case of an application for 5 extended leave--has considered the leave plan filed under section 57A; and". (3) In section 40 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for sub- 10 section (3) substitute-- "(3) Sub-section (2)(c) does not apply if section 38C provides that notice is not to be given, or need not be given, to a family member or victim. 15 (4) The court cannot make a further grant of extended leave for a person who is on extended leave at the time of the application unless the court has obtained and considered-- 20 (a) the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on-- (i) the person's mental condition; and 25 (ii) the possible effect of the proposed further grant on the person's behaviour; and (b) the leave plan filed under section 57A.". 30 20. Reports on mental condition of defendants In section 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after sub- section (3) insert-- 26 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 21 Act No. "(3A) The purpose of a report under sub-section (3) is to assist the court in determining any application or undertaking any review in respect of the person to whom the report 5 relates. Note: Section 40(2)(b) requires the court to consider the report before it can make certain orders or other determinations in respect of the person to whom it relates. 10 (3B) The appropriate person must give the Attorney-General a copy of each report filed with the court under sub-section (3).". 21. Reports of family members and victims (1) In section 42 of the Crimes (Mental Impairment 15 and Unfitness to be Tried) Act 1997-- (a) in sub-section (1)(b), for "against a person under this Act" substitute "in respect of a person under this Act or in determining whether or not to grant a person extended 20 leave"; (b) in sub-section (2), after "family member" (wherever occurring) insert "or victim"; (c) sub-section (3) is repealed. (2) In section 43(1) of the Crimes (Mental 25 Impairment and Unfitness to be Tried) Act 1997, at the end of paragraph (c) insert-- "; or (d) whenever an application is made for extended leave which, if granted, would 30 significantly reduce the degree of supervision to which the person is subject.". 27 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 22 Act No. 22. New section 44 substituted For section 44 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 substitute-- 5 "44. Distribution of report (1) A person who makes a report under section 42 must give the report to the Director of Public Prosecutions a reasonable time before the hearing is to take place. 10 (2) The Director of Public Prosecutions must, as soon as practicable-- (a) file a copy of the report with the court; and (b) give a copy of the report to the person 15 who is, or is to be made subject to, the order or his or her legal practitioner.". 23. Special leave of absence for medical treatment In section 50(6) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 20 1997, for paragraph (a) substitute-- "(a) cannot exceed-- (i) 7 days in the case of special leave of absence for medical treatment; or (ii) 24 hours in any other case; and". 25 24. Limited off-ground leave In section 53 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997-- (a) for paragraph (a) substitute-- "(a) between the hours of 6.00 am and 30 9.00 pm; and"; (b) in paragraph (b), omit "consecutive". 28 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 25 Act No. 25. New section 54 substituted and sections 54A and 54B inserted For section 54 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 5 1997 substitute-- "54. Granting of on-ground or limited off- ground leave (1) An application may be made to the Panel for on-ground leave or limited off-ground leave 10 for a forensic patient or forensic resident, or for variation of that leave-- (a) in the case of a forensic patient, by the forensic patient or the authorised psychiatrist for the approved mental 15 health service; (b) in the case of a forensic resident, by the forensic resident or the Secretary to the Department of Human Services. (2) The Panel may grant an application for on- 20 ground leave or limited off-ground leave if satisfied on the evidence available that-- (a) the proposed leave will contribute to the person's rehabilitation; and (b) the safety of the person or members of 25 the public will not be seriously endangered as a result of the person being allowed leave. (3) The Panel may grant an application for variation of on-ground leave or limited off- 30 ground leave if satisfied on the evidence available that-- (a) the proposed variation will contribute to the person's rehabilitation; and 29 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 25 Act No. (b) the safety of the person or members of the public will not be seriously endangered as a result of the leave being varied; and 5 (c) there has been a significant alteration in the person's circumstances since leave was granted or last varied. (4) In determining whether or not to grant an application for leave or variation of leave, 10 the Panel must-- (a) have regard primarily to the person's current mental condition or pattern of behaviour; and (b) consider the person's clinical history 15 and social circumstances; and (c) have regard to the applicant profile provided under section 54A and the leave plan or statement provided under section 54B. 20 (5) The Panel may impose any conditions it considers appropriate on a grant or variation of on-ground leave or limited off-ground leave, including a condition that the person on leave comply with any direction of the 25 authorised psychiatrist (in the case of a forensic patient) or the Secretary to the Department of Human Services (in the case of a forensic resident). (6) The maximum period for which on-ground 30 or limited off-ground leave can be granted is 6 months. (7) An application for on-ground or limited off- ground leave can be made and granted under this section more than once, and that leave 35 can be varied more than once, but only one 30 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 25 Act No. grant or variation can be in force at any one time in respect of a forensic patient or forensic resident. 54A. Applicant profile 5 (1) If an application is made for on-ground leave or limited off-ground leave, or for variation of that leave, an applicant profile must be provided to the Panel by-- (a) the Clinical Director of the Victorian 10 Institute of Forensic Mental Health, in the case of a forensic patient detained in that Institute; or (b) the authorised psychiatrist for the approved mental health service, in the 15 case of a forensic patient detained in any other approved mental health service; or (c) the Secretary to the Department of Human Services, in the case of a 20 forensic resident. (2) The applicant profile must include information concerning-- (a) the person's impairment, condition or disability; and 25 (b) the relationship between the impairment, condition or disability and the offending conduct; and (c) the person's clinical history and social circumstances; and 30 (d) the person's current mental state or pattern of behaviour; and (e) the offence that led to the supervision order being made; and 31 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 25 Act No. (f) the date of the supervision order, its nominal term and the day from which the nominal term had been declared to run. 5 54B. Leave plan or statement (1) If an application is made for on-ground leave or limited off-ground leave, or for variation of that leave, a leave plan must be provided to the Panel by-- 10 (a) the Clinical Director of the Victorian Institute of Forensic Mental Health, in the case of a forensic patient detained in that Institute; or (b) the authorised psychiatrist for the 15 approved mental health service, in the case of a forensic patient detained in any other approved mental health service; or (c) the Secretary to the Department of 20 Human Services, in the case of a forensic resident-- unless the Clinical Director, authorised psychiatrist or Secretary considers that the application should not be granted. 25 (2) The leave plan must include information concerning-- (a) the purpose of the leave applied for and how it will contribute to the person's rehabilitation; and 30 (b) any proposed conditions of leave; and (c) any other information the Clinical Director, authorised psychiatrist or Secretary considers relevant; and 32 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 26 Act No. (d) any other information requested by the Panel. (3) If the Clinical Director, authorised psychiatrist or Secretary considers that the 5 application should not be granted, he or she must provide a written statement to the Panel containing-- (a) the reasons why the application should not be granted; and 10 (b) any other information the Clinical Director, authorised psychiatrist or Secretary considers relevant; and (c) any other information requested by the Panel.". 15 26. Suspension of leave (1) In section 55(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997-- (a) after "suspended" (where first occurring) 20 insert "wholly or partly"; (b) after "leave" (where last occurring) insert ", or part of the leave". (2) In section 55 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997-- 25 (a) in sub-section (2), for "person formerly on leave" substitute "person in respect of whom the leave is suspended"; (b) in sub-section (5), before "suspended" insert "wholly". 33 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 27 Act No. (3) In section 55 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after sub- section (5) insert-- "(6) A person whose leave is partly suspended 5 under this section is deemed not to have the suspended part of the leave of absence during the period of suspension.". 27. New section 57 substituted and sections 57A and 57B inserted 10 For section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 substitute-- "57. Granting of extended leave (1) An application for extended leave for a 15 forensic patient or forensic resident may be made to the court that made the supervision order to which they are subject by-- (a) in the case of a forensic patient, by the forensic patient or the authorised 20 psychiatrist for the approved mental health service; (b) in the case of a forensic resident, by the forensic resident or the Secretary to the Department of Human Services. 25 (2) The court may grant an application under sub-section (1) if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered 30 as a result of the forensic patient or forensic resident being allowed extended leave. Note: Sections 39 and 40 set out certain other principles and matters that the court must apply and have regard to in considering applications 35 for extended leave. 34 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 27 Act No. (3) An application for extended leave can be made and granted more than once. (4) This section does not apply to a forensic patient or forensic resident who is detained 5 in an approved mental health service or a residential service under section 30(2) or 30A(3). 57A. Leave plan for extended leave If an application is made to the court for 10 extended leave, a leave plan must be prepared and filed with the court by-- (a) in the case of a forensic patient--the authorised psychiatrist for the approved mental health service; 15 (b) in the case of a forensic resident--the Secretary to the Department of Human Services. 57B. Appeals regarding extended leave (1) A person may appeal to the Court of Appeal 20 against a refusal to grant the person extended leave. (2) The Secretary to the Department of Human Services may appeal to the Court of Appeal against a grant of extended leave if he or she 25 considers that-- (a) extended leave should not have been granted; and (b) an appeal should be brought in the public interest. 30 (3) The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal against a grant of extended leave if he or she-- 35 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 27 Act No. (a) was a party to the proceeding in which extended leave was granted; and (b) considers that extended leave should not have been granted; and 5 (c) considers that an appeal should be brought in the public interest. (4) On an appeal against a refusal to grant extended leave, the Court of Appeal may-- (a) confirm the refusal to grant extended 10 leave; or (b) grant extended leave in accordance with section 57; or (c) remit the matter, with or without directions, to the court that refused to 15 grant extended leave. (5) On an appeal against a grant of extended leave, the Court of Appeal may-- (a) confirm the grant of extended leave; or (b) quash the grant and order that extended 20 leave be refused; or (c) quash the grant and remit the matter, with or without directions, to the court that made the grant. (6) If the Court of Appeal remits a matter to a 25 court under sub-section (4)(c) or (5)(c), that court must hear and determine the matter in accordance with this Act and any directions given by the Court of Appeal.". 36 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 28 Act No. 28. Suspension and revocation of extended leave (1) Insert the following heading to section 58 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997-- 5 "Suspension and revocation of extended leave". (2) At the foot of section 58(6) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert-- "Note: There are provisions for the apprehension of persons 10 absent without leave in section 53AD of the Mental Health Act 1986 (for forensic patients) and section 43E of the Intellectually Disabled Persons' Services Act 1986 (for forensic residents). See also section 30B of this Act, which provides for warrants 15 to be issued for the arrest of a person who is no longer in Victoria.". 29. New section 58A inserted After section 58 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 20 1997 insert-- "58A. Appeals regarding revocation of extended leave (1) A person may appeal to the Court of Appeal against a revocation of that person's 25 extended leave. (2) The Secretary to the Department of Human Services may appeal to the Court of Appeal against a refusal to revoke extended leave if he or she considers that-- 30 (a) the extended leave should have been revoked; and (b) an appeal should be brought in the public interest. 37 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 29 Act No. (3) The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal against a refusal to revoke extended leave if he or she-- 5 (a) was a party to the proceeding for revocation of extended leave; and (b) considers that the extended leave should have been revoked; and (c) considers that an appeal should be 10 brought in the public interest. (4) On an appeal against a revocation of extended leave, the Court of Appeal may-- (a) confirm the revocation of extended leave; or 15 (b) quash the revocation and restore the extended leave; or (c) remit the matter, with or without directions, to the court that revoked the leave. 20 (5) On an appeal against a refusal to revoke extended leave, the Court of Appeal may-- (a) confirm the refusal to revoke extended leave; or (b) revoke the extended leave in 25 accordance with section 58(4)(a); or (c) revoke the extended leave and remit the matter, with or without directions, to the court that made the grant. (6) If the Court of Appeal remits a matter to a 30 court under sub-section (4)(c) or (5)(c), that court must hear and determine the matter in accordance with this Act and any directions given by the Court of Appeal.". 38 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 30 Act No. 30. New Part 7A inserted After Part 7 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert-- 'PART 7A--INTERSTATE TRANSFER OF 5 PERSONS SUBJECT TO SUPERVISION ORDERS 73A. Definitions In this Part-- "corresponding law" means a law that, 10 under an order in force under section 73B, is declared to be a corresponding law for the purposes of this Part; "corresponding Minister", in relation to a 15 participating State means the Minister or Ministers of that State who is or are responsible for the administration of the corresponding law of that State; "interstate supervision order" means an 20 order of a type that is declared to be an interstate supervision order under an order in force under section 73B, for the purposes of this Part; "participating State" means a State in 25 which a corresponding law is in force; "State" includes Territory; "Victorian Minister" means the Minister administering this Part or, if there is more than one Minister administering 30 this Part, those Ministers acting jointly. 39 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 30 Act No. 73B. Corresponding laws and orders The Governor in Council on the recommendation of the Victorian Minister, by Order published in the Government 5 Gazette, may declare-- (a) that a law of a State (other than this State) is a corresponding law for the purposes of this Part; (b) that a type of order under the law of a 10 participating State is an interstate supervision order for the purposes of this Part. 73C. Informed consent For the purposes of this Part, a person is to 15 be taken to have given informed consent to a transfer or interim disposition only if he or she gives written consent to the transfer or disposition (as the case requires) after-- (a) he or she has been given a clear 20 explanation of the process involved in the transfer or disposition and the reasons for the transfer or disposition, containing sufficient information to enable him or her to make a balanced 25 judgment; and (b) any relevant questions asked by him or her have been answered and he or she has understood the answers. 73D. Transfer of persons from Victoria to a 30 participating State (1) A person who is subject to a supervision order may be transferred to a participating State if-- 40 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 30 Act No. (a) the transfer is permitted by or under a corresponding law in that participating State; and (b) the Victorian Minister makes an order 5 under this section authorising the transfer. (2) The Victorian Minister may make an order under this section authorising a transfer if-- (a) the chief psychiatrist has certified in 10 writing that the transfer is for the benefit of the person subject to the supervision order; and (b) the Victorian Minister is satisfied that the transfer is permitted by or under a 15 corresponding law in the participating State; and (c) the Victorian Minister is satisfied that-- (i) the person subject to the order has 20 given informed consent to the transfer; or (ii) if the person is incapable of giving informed consent--his or her guardian has given informed 25 consent to the transfer. (3) On the transfer of a person from Victoria in accordance with an order under this section, the supervision order to which the person is subject is in force only if the person returns 30 to Victoria and while the person is in Victoria. 41 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 30 Act No. 73E. Transfer of persons from a participating State to Victoria (1) A person who is subject to an interstate supervision order may be transferred to 5 Victoria if-- (a) the transfer is permitted by or under a corresponding law in the participating State in which the supervision order was made; and 10 (b) the Victorian Minister has agreed to the transfer and determined an interim disposition for the person. (2) The Victorian Minister may agree to a transfer of a person to Victoria and 15 determine an interim disposition if-- (a) the chief psychiatrist has certified in writing that the transfer is for the benefit of the person and there are facilities or services available for the 20 custody, care or treatment of the person (as the case requires); and (b) the Victorian Minister is satisfied that the transfer is necessary for the maintenance or re-establishment of 25 family relationships or relationships with people who can assist in supporting the person; and (c) the Victorian Minister is satisfied that-- 30 (i) the person subject to the order has given informed consent to the transfer and interim disposition; or 42 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 30 Act No. (ii) if the person is incapable of giving informed consent--his or her guardian has given informed consent to the transfer and interim 5 disposition. (3) The interim dispositions that the Victorian Minister may determine under this section are-- (a) that the person be detained in an 10 appropriate place determined by the Victorian Minister as if the person were subject to a custodial supervision order; (b) that the person be absent on leave from an appropriate place determined by the 15 Minister, on any conditions determined by the Minister, as if the person were subject to a custodial supervision order and had been granted extended leave. Note: An "appropriate place" is an approved mental 20 health service or a residential service--see section 3. (4) On the transfer of a person to Victoria under this section-- (a) if the interim disposition is that the 25 person be detained in an approved mental health service--the person is to be so detained and is deemed to be a forensic patient; (b) if the interim disposition is that the 30 person be detained in a residential service--the person is to be so detained and is deemed to be a forensic resident; 43 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 30 Act No. (c) if the interim disposition is that the person be absent on leave from an approved mental health service--the person is deemed to be a forensic 5 patient absent from the approved mental health service on extended leave; (d) if the interim disposition is that the person be absent on leave from a 10 residential service--the person is deemed to be a forensic resident absent from the residential service on extended leave. 73F. Review of persons transferred to Victoria 15 (1) Within 6 months after a person has been transferred to Victoria under section 73E, the Secretary to the Department of Human Services must apply to the Supreme Court for a review. 20 (2) The purpose of the review is to determine the appropriate disposition for the person. (3) The Supreme Court may undertake the review itself or refer the matter to the County Court. 25 (4) On a review, the court may-- (a) make a supervision order in respect of the person as if the person had been declared to be liable to supervision under Part 5; or 30 (b) order the person to be released unconditionally. (5) The court cannot make a supervision order that is more restrictive on the person's freedom and personal autonomy than the 35 interstate supervision order to which the 44 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 30 Act No. person was subject, unless satisfied that the safety of the person or members of the public would be seriously endangered if a more restrictive order is not made. 5 (6) If the court makes a custodial supervision order-- (a) the court must set a nominal term for the order in accordance with section 28 as modified by section 73G; and 10 (b) the court may grant extended leave to the person if the court could have granted them extended leave on an application under section 57. 73G. Nominal term of supervision order 15 (1) The court must set the nominal term of a supervision order made under section 73F in accordance with section 28 as if-- (a) the offence that led to the person being made subject to the interstate 20 supervision order had been committed in Victoria; and (b) the maximum penalty for that offence were the maximum penalty attaching to that offence at the date of the person's 25 transfer to Victoria. (2) If the offence referred to in sub-section (1) no longer exists at the date referred to in sub- section (1)(b)-- (a) the court must determine whether there 30 is an existing offence, as at that date, with which the person could have been charged had it existed at the time of the original charge; 45 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 30 Act No. (b) if there is such an offence, the nominal term is to be determined by reference to the maximum penalty for that offence as at the date referred to in sub- 5 section (1)(b); (c) if there is no such offence, the court must set the nominal term as 5 years. (3) If there never was an equivalent offence in Victoria to the offence that led to the person 10 being made subject to the interstate supervision order, the court must set the nominal term of the supervision order as 5 years. (4) Despite section 28(4), the nominal term of 15 the supervision order runs from the day on which the person was first made subject to the interstate supervision order. (5) If the nominal term of the supervision order has expired, the first major review must be 20 undertaken within 12 months after the review under section 73F. 73H. Appeal against unconditional release (1) The Attorney-General may appeal to the Court of Appeal against an order for 25 unconditional release under section 73F(4)(b) if he or she considers that-- (a) the order should not have been made; and 30 (b) an appeal should be brought in the public interest. 46 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 30 Act No. (2) On an appeal under sub-section (1), the Court of Appeal may-- (a) confirm the order; or (b) quash the order and make a supervision 5 order in respect of the person as if the person had been declared to be liable to supervision under Part 5; or (c) quash the order and remit the matter, with or without directions, to the court 10 that made the order for unconditional release. (3) If the Court of Appeal remits a matter to a court under sub-section (2)(c), that court must make a supervision order in respect of 15 the defendant in accordance with this Act and any directions given by the Court of Appeal. (4) The Court of Appeal may make any one or more of the following orders pending the 20 making of a supervision order under this section-- (a) an order granting the person bail; (b) subject to sub-section (5), an order remanding the person in custody in an 25 appropriate place; (c) subject to sub-section (6), an order remanding the person in custody in a prison; (d) if it is of the opinion that it is in the 30 interests of justice to do so, an order-- (i) that the person undergo an examination by a registered medical practitioner or registered psychologist; and 47 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 31 Act No. (ii) that the results of the examination be put before the court that is to make the supervision order; (e) any other order the court thinks 5 appropriate. (5) The Court of Appeal must not make an order remanding a person in custody in an appropriate place unless the Court of Appeal has received a certificate under section 47 10 stating that the facilities or services necessary for that order are available. (6) The Court of Appeal must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable 15 alternative in the circumstances.'. 31. New sections 76A and 76B inserted After section 76 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert-- 20 "76A. Directions (1) The court may give directions at any time in a proceeding under this Act and hold any hearings it considers necessary for the purpose of giving directions. 25 (2) The directions may include a direction that the Director of Public Prosecutions file an outline of the case with the court within the time specified in the direction. 76B. Court rules for appeals 30 (1) Any rules of court that apply to an appeal against a conviction apply to an appeal under section 19A, 24A or 73H, subject to any necessary modification, as if that appeal were an appeal against a conviction. 48 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 32 Act No. (2) Any rules of court that apply to an appeal against a sentence apply to an appeal under section 28A, 34, 34A, 57B or 58A, subject to any necessary modification, as if that appeal 5 were an appeal against a sentence. (3) This section does not apply to the extent that the rules of court provide otherwise and nothing in this section affects the power of the court to make rules for or with respect to 10 appeals under this Act.". 32. Transitional provisions (1) In Schedule 3 to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, in clause 3, after sub-clause (3) insert-- 15 "(4) Sections 53 and 54, as in force immediately before the commencement of sections 24 and 25 of the Forensic Health Legislation (Amendment) Act 2001, continue to apply in relation to any limited off-ground leave granted before that commencement, until the 20 expiry of that leave.". (2) In Schedule 3 to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after clause 7 insert-- "8. Periodic major reviews 25 Section 35, as amended by section 14 of the Forensic Health Legislation (Amendment) Act 2001, applies to a supervision order made before, on or after the commencement of that section 14. 9. Notification requirements 30 Sections 38A, 38B, 38C and 38E, as inserted by section 17 of the Forensic Health Legislation (Amendment) Act 2001, apply to-- (a) applications that are made after the commencement of that section 17; and 35 (b) reviews that are listed by the court after the commencement of that section 17. 49 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 32 Act No. 10. Appeals (1) An order for unconditional release can be appealed under section 19A or 24A (as the case may be) whether the order was made before or after the 5 commencement of that section, unless-- (a) the order had been appealed before that commencement; or (b) any time limit for appealing the order had expired before that commencement. 10 (2) A supervision order can be appealed under section 28A whether the order was made before or after the commencement of that section, unless-- (a) the order had been appealed before that commencement; or 15 (b) any time limit for appealing the order had expired before that commencement. (3) An order confirming, varying or revoking a supervision order can be appealed under section 34 (as substituted by section 13 of the Forensic Health 20 Legislation (Amendment) Act 2001) or section 34A (as the case may be) whether the order was made before or after the commencement of that section, unless-- (a) the order had been appealed before that 25 commencement; or (b) any time limit for appealing the order had expired before that commencement. (4) A refusal to grant extended leave or a grant of extended leave can be appealed under section 57B 30 whether the refusal or grant was made before or after the commencement of that section. (5) A revocation of extended leave or a refusal to revoke extended leave can be appealed under section 58A whether the revocation or refusal was made before or 35 after the commencement of that section. 50 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 32 Act No. (6) Any appeal referred to in sub-clause (1)(a), (2)(a) or (3)(a) that has not been determined before the commencement referred to in that sub-clause is to be determined in accordance with this Act as in force 5 immediately before that commencement.". _______________ 51 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 33 Act No. PART 3--CONTROL OF WEAPONS ACT 1990 See: 33. Forfeiture of weapons, dangerous articles or body Act No. armour 24/1990. Reprint No. 3 In section 9(1) of the Control of Weapons Act as at 17 December 5 1990, after "guilty" insert "or not guilty because 2000. of mental impairment". LawToday: www.dms. dpc.vic. gov.au _______________ 52 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 34 Act No. PART 4--INTELLECTUALLY DISABLED PERSONS' SERVICES ACT 1986 See: 34. Definitions Act No. 53/1986. (1) In section 3(1) of the Intellectually Disabled Reprint No. 4 5 Persons' Services Act 1986, in the definition of as at 8 October "forensic resident", after paragraph (a) insert-- 1998 and "(ab) a person detained in a residential service amending under section 30(2) or 30A(3) of the Crimes Act Nos 46/1998 (as (Mental Impairment and Unfitness to be amended by 10 Tried) Act 1997; or". No. 12/1999), 12/1999, 19/2000, (2) In section 3(1) of the Intellectually Disabled 2/2001, Persons' Services Act 1986, in the definition of 11/2001, 45/2001 and "forensic resident", before paragraph (b) insert-- 51/2001. LawToday: "(ac) a person deemed to be a forensic resident by www.dms. 15 section 73E(4) of the Crimes (Mental dpc.vic. gov.au Impairment and Unfitness to be Tried) Act 1997; or". _______________ 53 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 35 Act No. PART 5--MENTAL HEALTH ACT 1986 See: 35. Definitions Act No. 59/1986. (1) In section 3(1) of the Mental Health Act 1986, Reprint No. 6 after the definition of "community visitor" as at 1 June 2000 5 insert-- and amending ' "Correctional Services Commissioner" means Act Nos the Commissioner referred to in section 8A 67/1998, 39/2000, of the Corrections Act 1986;'. 2/2001, 11/2001, (2) In section 3(1) of the Mental Health Act 1986, in 27/2001, 10 44/2001, the definition of "forensic patient", after 45/2001 and paragraph (a) insert-- 51/2001. LawToday: "(ab) a person detained in an approved mental www.dms. dpc.vic. health service under section 30(2) or 30A(3) gov.au of the Crimes (Mental Impairment and 15 Unfitness to be Tried) Act 1997; or". (3) In section 3(1) of the Mental Health Act 1986, in the definition of "forensic patient", before paragraph (b) insert-- "(ac) a person deemed to be a forensic patient by 20 section 73E(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or". 36. Hospital orders In section 16(2)(a)(i) of the Mental Health Act 25 1986, for "treatment" substitute "immediate treatment". 37. Functions of Mental Health Review Board In section 22(1)(c) of the Mental Health Act 1986, for "leave" substitute "special leave". 54 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 38 Act No. 38. New section 43A inserted After the heading to Division 4 of Part 4 of the Mental Health Act 1986 insert-- "43A. Clinical guidelines for discharge of security 5 patients (1) The chief psychiatrist may, from time to time, issue, vary and revoke clinical guidelines relating to the discharge of security patients. 10 (2) Before issuing, varying or revoking any guidelines under this section, the chief psychiatrist must consult the Correctional Services Commissioner and the Board.". 39. New sections 44 and 45 substituted 15 For sections 44 and 45 of the Mental Health Act 1986 substitute-- "44. Board may order discharge On hearing an appeal or review, the Board may order that a person be discharged as a 20 security patient and returned to a prison if the Board is not satisfied that the continued detention of the person as a security patient is necessary, having regard to-- (a) the criteria specified in section 16(2)(a) 25 and (4); and (b) the clinical guidelines (if any) under section 43A. 45. Chief psychiatrist may order discharge (1) The chief psychiatrist may order that a 30 person be discharged as a security patient and returned to a prison if the chief psychiatrist is satisfied that the continued 55 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 40 Act No. detention of the person as a security patient is not necessary, having regard to-- (a) the criteria specified in section 16(2)(a) and (4); and 5 (b) the clinical guidelines (if any) under section 43A. (2) In exercising his or her power to discharge a person as a security patient, the chief psychiatrist must have regard primarily to 10 the person's current mental condition and consider the patient's medical and psychiatric history and social circumstances.". 40. New section 51 substituted For section 51 of the Mental Health Act 1986 15 substitute-- "51. Leave of absence for security patients (1) An application for leave of absence for a security patient may be made to the Secretary to the Department of Justice by-- 20 (a) the security patient; or (b) the authorised psychiatrist for the approved mental health service in which he or she is detained. (2) The Secretary to the Department of Justice 25 may grant an application for leave of absence-- (a) for the period, not exceeding 6 months; and (b) subject to any conditions-- 30 that the Secretary to the Department of Justice considers appropriate. 56 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 40 Act No. (3) The Secretary to the Department of Justice must not grant an application for leave of absence unless-- 5 (a) he or she is satisfied on the evidence available that the safety of the security patient or members of the public will not be seriously endangered as a result of the security patient being allowed 10 leave of absence; and (b) the chief psychiatrist has been consulted; and (c) the Secretary has been consulted in the case of an application for leave of 15 absence for a security patient who, before his or her transfer under section 16, was detained in a remand centre, youth residential centre or youth training centre within the meaning of 20 the Children and Young Persons Act 1989; and (d) the Chief Commissioner of Police has been consulted in the case of an application for leave of absence for a 25 security patient who, before his or her transfer under section 16, was serving a sentence of imprisonment in a police gaol within the meaning of the Corrections Act 1986 or being held in 30 police custody on the order of a court. (4) The Secretary to the Department of Justice may-- (a) from time to time extend the period of leave of absence allowed under sub- 57 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 41 Act No. section (2) for a period not exceeding 6 months; or (b) revoke the leave of absence and require the security patient to return to the 5 approved mental health service.". 41. Special leave of absence for security patients In section 52(1) of the Mental Health Act 1986, after "patient" insert ", or a person on their behalf,". 10 42. Application of Division 4 In section 53A of the Mental Health Act 1986, after "In this Division and Division 3" insert "(except in section 51)". 43. Interstate apprehension 15 In section 93L(b) of the Mental Health Act 1986, after "section 43" insert ", 53 or 53AD". 44. Non-delegation of certain duties In section 96(4) of the Mental Health Act 1986, after "delegation" (where secondly occurring) 20 insert "or the duty to provide the Forensic Leave Panel with an applicant profile under section 54A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and a leave plan or statement under section 54B of that Act". 25 45. New section 147 inserted At the end of Division 3 of Part 7 of the Mental Health Act 1986 insert-- "147. Transitional provisions--Forensic Health Legislation (Amendment) Act 2001 30 (1) Sub-sections (4), (5) and (6) of section 51, as in force immediately before the commencement of section 40 of the Forensic Health Legislation (Amendment) 58 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 45 Act No. Act 2001, continue to apply in respect of a refusal to grant or extend leave or a revocation of leave that occurred before that commencement. 5 (2) Any appeal under section 51(4), as in force immediately before the commencement of section 40 of the Forensic Health Legislation (Amendment) Act 2001, that had not been determined before that 10 commencement is to be determined as if that section 40 had not come into operation.". _______________ 59 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 s. 46 47 Act No. PART 6--STATUTE LAW REVISION 46. Community Visitors Legislation (Miscellaneous Amendments) Act 2001 (1) In the Community Visitors Legislation 5 (Miscellaneous Amendments) Act 2001-- (a) in section 1 for "Disability Services (Amendment) Act 2000" substitute "Disability Services Act 1991"; (b) in the heading to Part 2, for "DISABILITY 10 SERVICES (AMENDMENT) ACT 2000" substitute "DISABILITY SERVICES ACT 1991"; (c) in section 3, for "section 5 of the Disability Services (Amendment) Act 2000 in the 15 proposed" substitute "section 3 of the Disability Services Act 1991 in the"; (d) in the heading to section 4, for "Amendment to section 6" substitute "New section 12 inserted"; 20 (e) in section 4, for "In section 6 of the Disability Services (Amendment) Act 2000 after the proposed section 11" substitute "After section 11 of the Disability Services Act 1991". 25 (2) After section 2(2) of the Community Visitors Legislation (Miscellaneous Amendments) Act 2001 insert-- "(3) This Act is deemed to have been enacted as amended by section 46 of the Forensic 30 Health Legislation (Amendment) Act 2001.". 47. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 60 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 Act No. Part 9 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 is repealed. 48. Mental Health Act 1986 In section 65(e) of the Mental Health Act 1986, 5 for "pychosurgery" substitute "psychosurgery". 61 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

Forensic Health Legislation (Amendment) Act 2001 Endnotes Act No. ENDNOTES By Authority. Government Printer for the State of Victoria. 62 541237B.I1-30/11/2001 BILL LA CIRCULATION 30/11/2001

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