KP v Minister for Mental Health

Case •

[2025] NSWCA 69

•

14 April 2025

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: KP v Minister for Mental Health [2025] NSWCA 69
Hearing dates: 17 March 2025
Date of orders: 14 April 2025
Decision date: 14 April 2025
Before: Basten AJA at [1];
Griffiths AJA at [17];
Price AJA at [18]
Decision:

(1)   Grant the applicant an extension of time within which to commence proceedings up to and including 23 September 2024.

(2)   Grant the applicant leave to appeal from the orders made by the Mental Health Review Tribunal on 9 January 2024.

(3)   Direct that the applicant file the draft notice of appeal contained in the White Folder within seven days.

(4)   Dismiss the appeal.

(5)   No order as to costs.

Catchwords:

COURTS AND TRIBUNALS – Mental Health Review Tribunal – whether Tribunal’s detention and revocation of conditional release were valid under ss 79 and 81 of the Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW)

MENTAL HEALTH – forensic patient – forensic patient scheduled under s 19 of the Mental Health Act 2007 (NSW) – whether extension of time and leave to appeal should be granted – where conditional release breached – whether s 109 of Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) provides a mandatory scheme where conditional release breached

STATUTORY INTERPRETATION – whether s 81 limited to detention orders – whether s 81 provides a general power to make orders as to detention of forensic patients – where orders being made after initial detention order – whether power to revoke conditional release implied from express power of detention in s 81 – Anthony Hordern principle of statutory construction considered – futility of order for apprehension under s 109 when forensic patient already detained – whether s 109 has a role to play

Legislation Cited:

Interpretation Act 1997 (NSW), s 35

Mental Health (Forensic Provisions) Act 1990 (NSW), ss 39, 47, 48 (repealed)

Mental Health Act 2007 (NSW), ss 14, 19, 27, 68, 162

Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW), ss 69, 70, 72, 74, 75, 78, 79, 81, 82, 85, 94, 109, 112, 147, 150, 152, Pt 5

Supreme Court Act 1970 (NSW), s 48

Uniform Civil Procedure Rules 2005 (NSW), r 51.13

Cases Cited:

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 3

Attorney General for the State of New South Wales v XY [2014] NSWCA 466

Australia Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3

Bird v DP(a pseudonym) [2024] HCA 41; (2024) 419 ALR 552

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33

Deputy Commissioner of Taxation v Huang (2021) 273 CLR 429; [2021] HCA 43

Director of Public Prosecutions (NSW) v Khoury [2014] NSWCA 15; (2014) 306 ALR 86

Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45

JKL v Justice Health and Forensic Mental Health Network (2021) 104 NSWLR 592; [2021] NSWCA 94

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26

Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50

O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19

Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32

PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

State of Queensland v Stradford (a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531; [2014] HCA 9

Winters v Attorney-General (NSW) [2008] NSWCA 33; (2008) 182 A Crim R 107

Z v Mental Health Review Tribunal (No 3) [2023] NSWCA 38

Texts Cited:

New South Wales Government Gazette, No 151, 26 November 2008

Category:Principal judgment
Parties: KP (Applicant)
Minister for Mental Health (Respondent)
Representation:

Counsel:
N Broadbent SC with C Brain (Applicant)
H Bennett SC with W Liu (Respondent)

Solicitors:
C Pittman, Legal Aid NSW (Applicant)
K Smith, Crown Solicitor (NSW) (Respondent)
File Number(s): 2024/357818
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Mental Health Review Tribunal
Date of Decision:
09 January 2024
Before:
G Still, Deputy President;
Dr J Miller, Psychiatrist;
V Robb, Social Worker
File Number(s):
F0984

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, KP, is a “forensic patient” within the meaning of s 72(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“MHCIFPA”). The applicant has been a forensic patient since 2011 when he was found not guilty for an offence by reason of mental illness pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“MHFP Act”) (repealed).

Following a review by the Mental Health Review Tribunal (“the Tribunal”) on 15 November 2023, the applicant was granted conditional release which allowed him to reside in supported accommodation in the community.

On 28 December 2023, concerns were raised about the applicant’s mental state and following breaches of his conditional release order, he was scheduled under s 19 of the Mental Health Act 2007 (NSW) (“MH Act”).

On 9 January 2024, a review by the Tribunal determined that the applicant’s conditional release be revoked and that he be detained at the Forensic Hospital. The Tribunal’s orders were made pursuant to ss 79, 81 and 94 of the MHCIFPA.

The applicant’s proposed ground of appeal is:

The Mental Health Review Tribunal (Tribunal) erred in revoking the applicant’s conditional release and ordering the applicant’s detention in reliance on s 81 of the [MHCIFPA].

The principal issue on appeal was whether the revocation and detention orders made by the Tribunal on 9 January 2024 (and its written reasons dated 19 January 2024) pursuant to ss 79 and 81 of the MHCIFPA were valid. The applicant submitted that s 109 of the MHCIFPA provided a mandatory scheme which must be followed when there has been a breach of a conditional release order and contended that it was necessary for an apprehension order to be issued by the Tribunal under s 109(1) for any step to be taken in respect of the applicant’s conditional release and detention.

The Court held (Price AJA, Basten AJA; Griffiths AJA agreeing) granting an extension of time and leave to appeal but dismissing the appeal with no order as to costs:

As to the extension of time and leave to appeal:

  1. The present appeal involved an important question of statutory construction in relation to ss 81 and 109 of the MHCIFPA and as such raised issues of principle and questions of general public importance. The respondent did not oppose granting an extension of time and leave to appeal, and therefore it should be granted: [13] (Basten AJA); [25] (Price AJA); [17] (Griffiths AJA).

PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48, cited

As to the ground of appeal:

  1. The applicant’s legal representative had accepted at the Tribunal hearing that the Tribunal had the power under s 81 of the MHCIFPA to deal with the matter. As a general rule, issues which were not raised at the hearing below should not be raised on appeal, but that rule is “not absolute” and the respondent did not object to the new issues being raised on appeal: [50] (Price AJA); [17] (Griffiths AJA).

O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33; Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33; Bird v DP(a pseudonym) [2024] HCA 41; (2024) 419 ALR 552, cited.

  1. The power for the Tribunal to revoke a forensic patient’s conditional release may be implied from the express power of detention conferred under s 81 of the MHCIFPA as it makes little sense that a detention order may be made but a conditional release order may not be revoked. Section 109 of the MHCIFPA does not either expressly, or by implication, restrict or qualify the general powers conferred on the Tribunal in the earlier Divisions of the Act: [4]-[10] (Basten AJA); [73]-[80] (Price AJA); [17] (Griffiths AJA).

Director of Public Prosecutions (NSW) v Khoury [2014] NSWCA 15; (2014) 306 ALR 86, distinguished.

JKL v Justice Health and Forensic Mental Health Network (2021) 104 NSWLR 592; [2021] NSWCA 94, considered.

Winters v Attorney-General (NSW) [2008] NSWCA 33; (2008) 182 A Crim R 107; Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531; [2014] HCA 9; Australia Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3, cited.

  1. There is no practical purpose or utility for the Tribunal to make an order under s 109 of the MHCIFPA for the apprehension of a forensic patient when that person is already detained in a mental health facility. In these circumstances, the Tribunal may move swiftly to review the forensic patient without the necessity of the President making an order for apprehension. Such a flexible approach is consistent with the objects of the MHCIFPA under Part 5: [9] (Basten AJA); [68], [81]-[83] (Price AJA); [17] (Griffiths AJA).

  2. The purpose of any review is to allow the Tribunal to consider whether the orders under which a forensic patient is currently detained remain apposite, or should be varied. It is inevitable that a varied order will be inconsistent with the previous order. An order for conditional release will be inconsistent with an existing order for detention. It does not follow that the previous order must be “revoked” whenever a new order is made: [10] (Basten AJA); [17] (Griffiths AJA).

  3. The principle of statutory construction in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 3 (“Anthony Hordern”), is to be weighed with other applicable principles of construction and “must be applied subject to the particular text, context and purpose of the statute to be construed”. Whilst having some initial attraction, the Anthony Hordern principle of construction does not give effect to the purpose and objects of Part 5 of the MHCIFPA nor does it cohere with the objects of the MH Act: [60]-[68], [72], [78]-[80], [85] (Price AJA); [17] (Griffiths AJA).

Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; [1932] HCA 3, distinguished.

Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50; State of Queensland v Mr Stradford(a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396, considered.

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32; Attorney General for the State of New South Wales v XY [2014] NSWCA 466; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34; JKL v Justice Health and Forensic Mental Health Network (2021) 104 NSWLR 592; [2021] NSWCA 94, cited.

  1. Section 109 of the MHCIFPA does not have no role to play. In such cases where the forensic patient is not detained and on conditional release, the President of the Tribunal may issue an apprehension order and accordingly, s 109 of the MHCIFPA applies not ss 79 and 81: [84] (Price AJA); [17] (Griffiths AJA).

JUDGMENT

  1. BASTEN AJA: The applicant, KP, [1] seeks leave to challenge a decision of the Mental Health Review Tribunal (Tribunal) revoking an order made by the Tribunal on 17 November 2023 which provided for his conditional release from Bloomfield Hospital, where he had been detained as a forensic patient. The proposed appeal is limited to a question of law which may be shortly identified as whether the Tribunal had power to revoke its release order for breach of a condition of release where it had not made an order for KP’s apprehension pursuant to s 109 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (Forensic Provisions Act).

    1. Name not used for reasons explained in Attorney General for the State of New South Wales v XY [2014] NSWCA 466 at [185]-[187].

  2. The applicant’s status as a forensic patient [2] resulted from a finding in August 2011 that he was not guilty of an offence of causing grievous bodily harm with intent, by reason of mental illness, pursuant to s 39 of the predecessor to the Forensic Provisions Act. He was initially detained pursuant to an order made by the District Court, and continued to be detained in mental health facilities from 2011 until his release in November 2023, pursuant to orders made by the Tribunal under the Forensic Provisions Act (and its predecessor). At the time that he came before the Tribunal on 9 January 2024, the applicant was in detention having been scheduled as a mentally ill person requiring inpatient management, under s 19 of the Mental Health Act 2007 (NSW).

    2. Forensic Provisions Act, s 72(1).

  3. There was no challenge to the factual premise of the revocation order, namely that there had been a material breach of the conditions of the applicant’s release. The circumstances are fully set out by Price AJA below. There was also no challenge to the following findings made by the Tribunal:

“i)   [KP] has a mental health condition …[;]

ii)   there are reasonable grounds for believing that care, treatment or control of [KP] is necessary for the person’s own protection from serious harm or/and the protection of others from serious harm …[;]

iii)   there are in the circumstances no less restrictive options consistent with his safe and effective care than detention and his conditional release is revoked[;]

iv)   [KP] is detained and to be transferred to the Forensic Hospital as soon as practicable.”

These findings reflected the matters to be considered, prescribed by s 75 of the Forensic Provisions Act. The only part the applicant challenged was the order at (iii) revoking his conditional release.

  1. As a matter of statutory construction, the proposition that the Tribunal has no power to revoke an order for release unless it has first made an order for the person’s apprehension is implausible. Such a reading of the statute has no practical purpose, provides no additional protection to the mentally ill person, and may have a detrimental effect by creating confusion and uncertainty. The reason why such a construction should not be adopted is apparent from the structure of the Forensic Provisions Act.

  2. Part 5 of the Forensic Provisions Act deals with forensic patients. Part 5 has 10 divisions, with the following headings, which are not merely descriptive, but form part of the Act [3] :

    3. Interpretation Act 1997 (NSW), s 35(1).

Division 1   General principles and concepts

(ss 69-74)

Division 2 General provisions relating to reviews by Tribunal

(ss 75-77)

Division 3   Reviews of forensic patients by Tribunal

(ss 78-85)

Division 4   Transfer of correctional patients, forensic patients and other persons in custody

(ss 86-90)

Division 5   Reviews of correctional patients

(ss 91-93)

Division 6   Leave of absence

(ss 94-98)

Division 7   Community treatment order

(ss 99-100)

Division 8    Termination of status as patient and other status changes

(ss 101-108)

Division 9 Enforcement

(ss 109-114)

Division 10    Miscellaneous

(ss 115-120).

  1. The structure of these divisions is to set out in an orderly fashion the functions, powers and matters to be considered when the Tribunal is dealing with forensic patients (and others). Division 9 confers additional powers; its purpose is not to limit the powers already conferred.

  2. Section 109, in Div 9, reads as follows:

109   Breach of orders for release

(1)   The President of the Tribunal may make an order for the apprehension of a person if it appears to the President that—

(a)   the person has breached a condition of an order for the person’s conditional release under this Part, or

(b)   the person has committed a breach of an order releasing the person from custody made by a court after a special verdict of act proven but not criminally responsible, or

(c)   the person has breached a condition of leave of absence granted under this Part, or

(d)   the person has been granted conditional release or leave of absence and has suffered a deterioration of mental condition and is at risk of causing serious harm to himself or herself or to any member of the public because of the person’s condition.

(2)   An apprehension order authorises the detention of the person at the mental health facility, correctional centre, detention centre or other place specified in the order.

(3)   The President of the Tribunal may, pending a review of a person who is apprehended, make one or more of the following orders—

(a)   an order that the person continue to be given treatment in accordance with the order for the person’s conditional release,

(b)   an order that the person be assessed by a medical practitioner,

(c)   an order that the person be detained in a mental health facility for assessment and treatment.

(4)   The Tribunal must review the case of a person apprehended under this section and may—

(a)   order the person’s temporary detention, care or treatment in a mental health facility, correctional centre, detention centre or other place in the manner, specified in the order, or

(b)   confirm the person’s release or leave, either unconditionally or subject to conditions, or

(c)   revoke the order for release and order the person’s detention, care or treatment in a mental health facility, correctional centre, detention centre or other place in the manner, specified in the order.

Note:   The Tribunal may also make a community treatment order under Division 7.

  1. The note, which is not part of the section, [4] confirms that the section does not restrict other powers. The purpose of Div 9 generally, and s 109 specifically, is self-evident: it provides power to apprehend a person who has been released (or escaped) from detention and, where the person is apprehended, requires the Tribunal to review the person’s case. Without such express statutory power, there would be no mechanism for apprehending such persons and bringing them before the Tribunal for review. Nothing in s 109 expressly, or by implication, restricts or qualifies the general powers conferred on the Tribunal in earlier divisions.

    4. Interpretation Act, s 35(4).

  2. Further, there is no need to apprehend a person who is already detained in a mental health facility. For someone who is so detained (and possibly for someone who is not), there is nothing in s 109 which limits the power of the Tribunal under s 79 to “carry out a review of a forensic patient at any time”. Section 81 provides the powers of the Tribunal carrying out such a review:

81   Orders that may be made on reviews generally

On a review of a forensic patient under this Act, the Tribunal may make an order as to—

(a)   the patient’s detention, care or treatment in a mental health facility, correctional centre, detention centre or other place, or

(b)   the patient’s release (either unconditionally or subject to conditions).

  1. These powers are not restricted to some reviews and disapplied from others. The purpose of any review is to allow the Tribunal to consider whether the orders under which a forensic patient is currently detained remain apposite, or should be varied. KP’s conditions have been changed from time to time over the last 15 years, pursuant to reviews which must be carried out at least on a six-monthly basis: s 78(d). It is inevitable that a varied order will be inconsistent with the previous order. An order for conditional release will be inconsistent with an existing order for detention. It does not follow that the previous order must be “revoked” whenever a new order is made. As the Tribunal found, the only appropriate order available in the circumstances before the Tribunal as of 9 January 2024 was some form of detention order. That order was made. It would have been effective whether or not the previous order was formally revoked.

  1. It is not clear why the Tribunal thought it was necessary to revoke the earlier order, but two possibilities may be noted. First, clarity and transparency may have persuaded the Tribunal to take that step, which, in a practical sense, was clearly desirable. Secondly, the Tribunal may have perceived that there was an inconsistency with the status of the applicant as a person who had been involuntarily admitted as a mentally ill person under the Mental Health Act, whilst subject to an order for conditional release under the Forensic Provisions Act.

  2. This reasoning is partly reflected in s 109(4). Thus, it is only under par (c) that the section provides for the Tribunal to “revoke the order for release and order the person’s detention …”. Orders for temporary detention, for release or for leave, conditionally or unconditionally, pursuant to pars (a) and (b) may well be inconsistent with the terms of the previous order, but do not require its revocation. It is not clear why the distinction in relation to revocation should be drawn between temporary detention and detention. In short, the reference to “revok[ing] the order” in s 109(4)(c) does not suggest that revocation cannot be made in other cases, nor that it necessarily need be made when imposing a further detention order.

  3. Whilst, as a matter of statutory construction, the applicant’s submissions must be rejected, I accept that it is an appropriate case in which to grant leave to appeal.

  4. It is also appropriate to express a significant level of disquiet as to the time taken for this matter to come before the Court. For 15 months, everyone has proceeded on the basis that there was no invalidity in the order made on 9 January 2024. Indeed, there is a real sense in which the present application appears to lack utility. As noted above, forensic patients are reviewed every six months. The chronology suggests that two statutory reviews were adjourned whilst the applicant was taking steps to appeal the January 2024 decision. Whether that course was either lawful or desirable is not a matter for this Court, but it is one to which proper consideration should be given in future matters.

  5. The chronology demonstrates that it took more than eight months for the proceedings to be commenced in this Court. Although an explanation of the delay has been provided in support of the need for an extension of time, the delay was not justifiable. There was a further six months before the matter was listed for hearing. That is partly the fault of the Court, but legal representatives on both sides of the record should have taken steps to ensure an earlier listing, which would undoubtedly have happened if someone had noted that the matter was properly one of urgency.

  6. I agree with the orders proposed by Price AJA. The Minister, appropriately, sought that, if the appeal were dismissed, there should be no order as to costs.

  7. GRIFFITHS AJA: I agree with Price AJA and the orders he proposes. I also agree with the additional reasons by Basten AJA.

  8. PRICE AJA: These proceedings arise from a determination made by the Mental Health Review Tribunal (“the Tribunal”) on 9 January 2024 which revoked the applicant’s conditional release and ordered his detention at the “Forensic Hospital” [5] in Malabar for care and treatment with escorted day care leave.

    5. New South Wales Government Gazette, No 151, 26 November 2008, at 11319.

  9. There is no dispute that the applicant is a “forensic patient” within the meaning of s 72(1)(c) and for the purposes of s 150 of the Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW) (“MHCIFPA”).

  10. The applicant (by his tutor) seeks leave pursuant to s 150(1)(a) of the MHCIFPA to appeal the Tribunal’s determination (“the Determination”) on a question of law alone. The proposed ground of appeal in the applicant’s further amended draft notice of appeal is:

“The Mental Health Review Tribunal (Tribunal) erred in revoking the applicant’s conditional release and ordering the applicant’s detention in reliance on s 81 of the [MHCIFPA].”

  1. The applicant seeks the following orders:

“1    Appeal allowed.

2    The determination of the Tribunal (comprising its orders of the Tribunal dated 9 January 2024 and the decision of the Tribunal dated 19  January 2024) be set aside.

3    The proceedings be remitted to the Tribunal.

4    Order 2 is stayed for a period of 48 hours.

5    The respondent pay the [applicant’s] costs.

6    Such other or further orders the Honourable Court thinks fit.”

  1. The applicant requires an extension of time for filing the summons for leave to appeal pursuant to s 152(2) of the MHCIFPA.

  2. As the Deputy President of the Tribunal which made the determination is a Judge of the Drug Court of NSW and an Acting Judge of the District Court of NSW, the appeal is from a “specified tribunal” within the meaning of s 48(1) of the Supreme Court Act 1970 (NSW) (“SCA”) and these proceedings are assigned to be heard in this Court pursuant to s 48(2)(f) of the SCA.

Extension of time and leave to appeal should be granted

  1. The questions of law raised by the applicant are:

“a. whether s 81 of the [MHCIFPA] empowers the Tribunal to (a) detain a forensic patient who has been granted conditional release by the Tribunal, or (b) revoke a forensic patient’s conditional release following a review conducted under s 79 of the [MHCIFPA] where the forensic patient has not been the subject of an order for apprehension under s 109; and

b. in the applicant’s case, whether it was necessary for a review to be conducted under s 109(4) for the Tribunal to make the order for his detention.”

  1. The present appeal involves an important question of statutory construction in relation to ss 81 and 109 of the MHCIFPA, and as such raises issues of principle and questions of general public importance: PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6] (Bell P and Simpson AJA) and the authorities there cited. The respondent does not oppose the granting of leave and extension of time, nor does it oppose hearing the leave application and appeal concurrently under the Uniform Civil Procedure Rules 2005 (NSW) r 51.13(2)(b)(iv). Accordingly, leave should be granted and time extended.

Background to the hearing before the Tribunal

  1. The applicant has been a forensic patient pursuant to s 72(1)(c) of the MHCIFPA. On 23 August 2011, Blanch CJ DC in the District Court of New South Wales found the applicant not guilty by reason of mental illness pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“MHFP Act”) (repealed) for an offence of causing grievous bodily harm with intent to do so, being occasioned by an assault of a City Rail employee at Central Station in May 2010. The applicant has a long history of schizophrenia, substance use disorder, attention deficit hyperactivity disorder (“ADHD”), antisocial and narcissistic personality traits.

  2. Between that date and November 2023, the applicant was detained in different mental health facilities pursuant to orders made by the Tribunal.

  3. Following a review by the Tribunal on 15 November 2023, the applicant was granted conditional release from Bloomfield Hospital which allowed him to reside in a supported high-intensity transitional residential accommodation in the community in Carlingford (“HASI Plus”). The relevant conditions included his acceptance of Dr Basson as his treating psychiatrist and Ms Miller as his case manager and obligations not to “engage in … conduct that could give rise to a reasonable apprehension that the safety of himself or of any member of the public is, or could be seriously endangered”. The applicant was also not to take any illegal drugs or substances and not to consume alcohol. The Tribunal made these orders under ss 78, 81 and 85 of the MHCIFPA.

  4. On 28 December 2023, Ms Miller directed the applicant to attend the Emergency Department of Westmead Hospital as concerns had been raised by the applicant’s family about his mental state. The applicant had also admitted to Ms Miller that he had ceased taking his schizophrenia medication and injected an illicit drug. In a subsequent search of his HASI Plus accommodation, a standard size axe and hammer were discovered.

  5. Following the applicant’s voluntary compliance with Ms Miller’s direction he was scheduled under s 19 of the Mental Health Act 2007 (NSW) (“MH Act”) after certification by two psychiatric registrars at Westmead Hospital that he was a “mentally ill person” within the meaning of the MH Act requiring inpatient management: MH Act ss 14, 19.

  6. The applicant was transferred from Westmead Hospital to Blacktown Hospital the following day where he was detained as an involuntary patient in the “B22 ward”, which is an acute mental health ward.

  7. On 2 January 2024, Ms Miller submitted a form entitled “Notice of Potential Breach or Deterioration in Mental Conditions” (“Notice of Potential Breach”) to the Tribunal. The reason provided by Ms Miller for the Notice of Potential Breach was “to seek an apprehension order”. On that same day, the Mental Health Advocacy Service (“MHAS”) received an email from the Senior Forensic Officer of the Tribunal advising that the applicant was detained as an involuntary patient at Blacktown Hospital and that he would be the subject of an early review by the Tribunal on 9 January 2024.

  8. On the following day, Ms Miller submitted a form to the Tribunal entitled “Forensic Patient Review Notice of Intent” (“Notice of Intent”). The Notice of Intent contained a “Note” which included: “[t]he Tribunal must give notice of applications to the Minister for Health and Medical Research and to the Attorney General who have a right to appear and/or make submissions to the Tribunal in relation to the possible release or grant of leave of absence of a forensic patient”. The orders sought by Ms Miller included: “[the applicant] to remain in hospital due to breach of conditional release order”. The Notice of Intent was emailed by the Senior Forensic Officer of the Tribunal to the MHAS.

  9. The applicant was detained at Yaralla Mental Health Unit at Cumberland Hospital, which is a high dependency mental health unit. He remained detained at the Yaralla Unit at the time of the Tribunal’s review on 9 January 2024.

Summary of reports before the Tribunal

Report of Dr Basson

  1. Dr Basson provided a medical report dated 5 January 2024 to the Tribunal assessing the applicant’s mental state and risk factors, appropriateness of mental health facilities and transition back into the community. In discussing his mental health and treatment, the applicant was “dismissive of concerns” and “minimises the seriousness of circumstance[s] or actions”, noting that Dr Basson’s impression was that “personality features were more in play than psychosis”. In Dr Basson’s view, the applicant was unsuitable and not appropriate to be considered for transfer to any Medium Security Unit (“MSU”) facilities with a mix of civil and forensic patients and acute psychiatric units.

  2. Dr Basson concluded that the applicant “should return to the Forensic Hospital for further stay and then when [his] medication regime is clearly established, and behaviour settled, he can … endeavour to transition back to the [c]ommunity”.

Report of Ms Miller

  1. A similar opinion was expressed by Ms Miller in her report dated 4 January 2024 provided to the Tribunal. In her report, Ms Miller assessed the applicant’s risk of reactive aggression and violence as “increased” but acknowledged it was “currently mitigated by inpatient admission”. Ms Miller opined that the applicant would “benefit from continued hospitalisation”, and support for this view was identified by salient factors such as “multiple breaches of his forensic conditional release order, continued mental health deterioration, nil stability of medication regime or satisfactory risk mitigation”.

  2. Ultimately, Ms Miller concluded that the applicant should “remain detained in hospital due to breaching the conditions of release” and “pharmaceutical and therapeutic intervention” should be recommenced to minimise risks to others and himself.

The hearing before the Tribunal

  1. On 9 January 2024, the Tribunal constituted by three members determined that the applicant’s conditional release should be revoked and that he be detained at the Forensic Hospital. In the Tribunal’s written reasons for its decision (dated 19 January 2024), the Tribunal referred to ss 75, 81 and 94 of the MHCIFPA.

  2. During the hearing, the applicant’s legal representative submitted that “the Tribunal would not make a breach order on the basis that currently … [the applicant] is detained under [MH Act] in a civil setting”. [6] He further submitted that “… if the Tribunal were to make a breach order we would then argue in the alternative that the Tribunal only make … an order for temporary detention at the civil hospital given that he’s already there where he is and he seems to be quite content where he is”. [7]

    6. Tcpt, 9 January 2024, p 4 (8-10).

    7. Tcpt, 9 January 2024, p 4 (16-20).

  3. At a later stage in the proceedings, the following exchange took place between the Deputy President and the applicant’s legal representative:

“[Applicant’s legal representative]: … It is our submission that the Tribunal would not make a breach order on the basis that currently he is detained under Mental Health Act in a civil setting and we believe that he is able to be – is sufficiently detained in that setting. The hospital would not be able to discharge him regardless and if he did go, we would submit given that he has a continuing condition and I think a Tribunal would discharge him prematurely.

If the Tribunal were to find that he, if the Tribunal were to make a breach order we would then argue in the alternative that the Tribunal only make a temporary, an order for temporary detention at the civil hospital given that he’s already there where he is and he seems to be quite content where he is. It’s our understanding that he is soon to be stepped down from the Yaralla ward that I’m sure that he would correct me if I were wrong and that setting would be appropriate for [KP] in his current state.

…

[Applicant’s legal representative]: It would be too soon to make any decision, the Tribunal to make any order in relation to his release, conditional release, sorry and the revocation of it or any order for detention anywhere else other than where he currently is.

…

DEPUTY PRESIDENT STILL: I’m sorry. Are you saying his conditional release should remain [sic] cause he’s not going anywhere.

[Applicant’s legal representative]: Essentially, it’s the case that because he is currently detained under the [MH Act], it would be premature given that he’s still recovering from the breach, that the Tribunal make an order for the revocation of his conditional release. But I should also note that the …

DEPUTY PRESIDENT STILL: There is no breach at the moment though.

[Applicant’s legal representative]: Exactly.

…

DEPUTY PRESIDENT STILL: He hasn’t been breached under [section] 115 [of the MHCIFPA]. That’s true.

[Applicant’s legal representative]: Yes. [Section] 114 [of the MHCIFPA].

DEPUTY PRESIDENT STILL: But the Tribunals have powers under [section] 81 [of the MHCIFPA] to deal with the matter.

[Applicant’s legal representative]: Yes.” [8]

(Emphasis added)

8. Tcpt, 9 January 2024, p 4-5.

  1. The Deputy President in discussion with Dr Basson, the applicant’s treating psychiatrist, relevantly said:

“DEPUTY PRESIDENT STILL: And I think your evidence was … that will mean he’s going to be unstable for a period of time and he’s evidenced already today before the Tribunal an instability. So, we are going to revoke his conditional release. We will under section 81 [of the MHCIFPA] make an order for his detention at the forensic hospital. We don’t make that decision lightly ...

…

We will also make an order for escorted day leave just to give the forensic hospital something to work with.”

The Tribunal’s written reasons

  1. The Tribunal relevantly noted at [4]-[7] that:

“4. The Tribunal may make orders for the patient’s detention, care or treatment, or release, either unconditionally or subject to conditions – s 81 MHCIFPA.

5. The Tribunal may grant leave for forensic patients – s 94 MHCIFPA.

6. The treating team requested an order for detention.

7. The Tribunal determined that conditional release should be revoked and he be detained at the Forensic Hospital.”

  1. The Tribunal at [13] referred to the applicant’s non-compliance with his medication; his illicit drug use; his appearance to his family members of being drug affected, paranoid and voicing persecutory delusions; the discovery of the axe and hammer; and his diagnosis of schizophrenia, substance use disorder, ADHD, antisocial and narcissistic personality traits and his positive symptoms of schizophrenia.

  2. The Tribunal acknowledged the seriousness of revoking the applicant’s conditional release and the lack of options for his placement. The Tribunal stated at [15]:

“The Tribunal was of the view, confirmed by [the applicant’s] belligerent presentation and then leaving the review hearing, that he was a significant risk to himself and others, including staff and other patients. The finding of an axe and a hammer in his accommodation was most alarming.”

  1. The Tribunal made the following determinations at [17]:

“i) [the applicant] has a mental health condition as set out at paragraph 13.

ii) there are reasonable grounds for believing that care, treatment or control of [the applicant] is necessary for the person’s own protection from serious harm or/and the protection of others from serious harm noting the report of Dr Basson.

iii) There are in the circumstances no less restrictive options consistent with his safe and effective care than detention and his conditional release is revoked.

iv) [the applicant] is detained and to be transferred to the Forensic Hospital as soon as practicable.”

  1. The Tribunal’s sealed orders dated 9 January 2024, included the applicant’s detention but surprisingly did not contain an explicit order for revocation of his conditional release. The applicant did not contend that anything turns on this omission. The Tribunal’s sealed orders were noted as having been made under ss 79, 81 and 94 of the MHCIFPA.

Were the determinations by the Tribunal revoking the applicant’s conditional release and ordering his detention invalid?

  1. The issue that arises on the appeal is whether the revocation order and detention order made by the Tribunal pursuant to ss 79 and 81 of the MHCIFPA were valid. If they were invalid, the applicant’s detention is unlawful.

  2. The applicant’s case is that s 109 of the MHCIFPA provides a mandatory scheme which must be followed when there has been a breach of a conditional release order. The applicant argued that it did not matter that at the time of the Tribunal’s review, he had been scheduled under s 19 of the MH Act. He contends it was necessary for an apprehension order to be issued under s 109(1) of the MHCIFPA for any step to be taken in respect of the applicant’s conditional release or his further continuing detention. The applicant submitted that s 81 of the MHCIFPA did not permit the Tribunal to make such orders.

  3. These arguments were not advanced on the applicant’s behalf before the Tribunal. As seen from [41] above, the applicant’s legal representative accepted that the Tribunal had the power under s 81 of the MHCIFPA to hear the matter. As a general rule, issues which were not raised at the hearing below, should not be raised on appeal: Bird v DP(a pseudonym) [2024] HCA 41; (2024) 419 ALR 552 at [39] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ) (“Bird”). However, the plurality in Bird mentioned that rule is “not absolute” and as the respondent does not object to the new issues being raised on appeal accepting that it involves an important question of statutory construction “it is expedient in the interests of justice” that it be determined: O’Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J); [1982] HCA 33; Coulton v Holcombe (1986) 162 CLR 1 at 7-9 (Gibbs CJ, Wilson, Brennan and Dawson JJ); [1986] HCA 33.

  1. Section 81 of the MHCIFPA which is found in Division 3 of Part 5 is as follows:

“81    Orders that may be made on reviews generally

On a review of a forensic patient under this Act, the Tribunal may make an order as to—

(a)   the patient’s detention, care or treatment in a mental health facility, correctional centre, detention centre or other place, or

(b)    the patient’s release (either unconditionally or subject to conditions).”

  1. Section 81 is relevantly preceded by ss 78 and 79 which are as follows:

“78    Mandatory reviews of forensic patients

The Tribunal must carry out reviews of forensic patients at the following times—

(a)    as soon as practicable after a limiting term is nominated by a court for a forensic patient,

(b)    as soon as practicable after a court finds at an inquiry that a defendant is unfit to be tried for an offence and may become fit to be tried for an offence within 12 months and the proceedings are adjourned,

(c)    in the case of a person for whom a court enters a special verdict of act proven but not criminally responsible, as soon as practicable after the court enters the verdict,

(d)    at intervals of 6 months during the period that a person is a forensic patient,

(e)    if a forensic patient is detained in a correctional centre or detention centre and is subject to a community treatment order, no later than 3 months after the community treatment order is made and at least once every 6 months during the term of the order,

(f)    as soon as practicable after being requested to carry out a review of a forensic patient by the Minister for Health, the Attorney General and Minister for the Prevention of Domestic Violence, the Minister for Counter Terrorism and Corrections or the Secretary,

(g)    as soon as practicable after being requested to carry out a review of a forensic patient by the medical superintendent of the mental health facility in which the patient is detained.

79    Tribunal may review patient at any time

The Tribunal may carry out a review of a forensic patient at any time.”

  1. Section 109 of the MHCIFPA is found in Division 9 of Part 5. The chapeau to Division 9 is “Enforcement”. Section 109 is as follows:

“109    Breach of orders for release

(1)    The President of the Tribunal may make an order for the apprehension of a person if it appears to the President that—

(a)    the person has breached a condition of an order for the person’s conditional release under this Part, or

(b)   the person has committed a breach of an order releasing the person from custody made by a court after a special verdict of act proven but not criminally responsible, or

(c)    the person has breached a condition of leave of absence granted under this Part, or

(d)    the person has been granted conditional release or leave of absence and has suffered a deterioration of mental condition and is at risk of causing serious harm to himself or herself or to any member of the public because of the person’s condition.

(2)    An apprehension order authorises the detention of the person at the mental health facility, correctional centre, detention centre or other place specified in the order.

(3)    The President of the Tribunal may, pending a review of a person who is apprehended, make one or more of the following orders—

(a)   an order that the person continue to be given treatment in accordance with the order for the person’s conditional release,

(b)    an order that the person be assessed by a medical practitioner,

(c)    an order that the person be detained in a mental health facility for assessment and treatment.

(4)    The Tribunal must review the case of a person apprehended under this section and may—

(a)    order the person’s temporary detention, care or treatment in a mental health facility, correctional centre, detention centre or other place in the manner, specified in the order, or

(b)    confirm the person’s release or leave, either unconditionally or subject to conditions, or

(c)    revoke the order for release and order the person’s detention, care or treatment in a mental health facility, correctional centre, detention centre or other place in the manner, specified in the order.”

  1. The applicant submitted that Division 9 of Part 5 of the MHCIFPA contains a comprehensive suite of provisions aimed specifically at the situation in which the applicant has found himself. Section 109, in particular, is targeted to cases where a person is suspected to have breached a condition of their release, or it is otherwise necessary to reconsider that release because of a suspected deterioration in their mental health condition. The applicant argued that the MHCIFPA should be interpreted in a way which gives s 109 some meaningful purpose distinct from ss 78 and 81. The purpose of s 109 is to provide the means by which an order for conditional release is enforced. That was submitted to be consistent with the structure of the MHCIFPA.

  2. The applicant referred to the additional safeguards which are intended to apply where a forensic patient is at risk of having their conditional release revoked. These safeguards include the issue of the apprehension order in s 109(1) of the MHCIFPA being vested in the President of the Tribunal; the two-step process whereby the President of the Tribunal makes an initial determination which is followed by a further review by the Tribunal; the availability under s 112 for a person who is “apprehended” to seek “reconsideration” by the Tribunal of an apprehension order; and the entitlement in s 147(2)(c) for the Minister for Mental Health and the Attorney General to be heard on a review of a person the subject of an apprehension order (although not on a review conducted under s 79).

  3. The applicant submitted that it is unlikely that the legislation intended that those safeguards could be bypassed by reliance on the general powers under ss 79 and 81 of the MHCIFPA.

  4. Section 112 of the MHCIFPA is as follows:

“112    Apprehended person may seek reconsideration by Tribunal

(1)    A person who is apprehended under this Division may request the Tribunal to investigate the evidence on which the order for the person’s apprehension was made and may adduce other evidence for the consideration of the Tribunal.

(2)    On a reconsideration under this section, the Tribunal may make any order it thinks fit concerning the detention or release of the person.”

  1. Section 147 of the MHCIFPA is as follows:

“147    General matters relating to Tribunal functions

(1)    For the purposes of a review of a patient, the Tribunal may communicate with any persons, take any action and make any recommendations it thinks fit.

(2) The Minister for Health and the Attorney General may appear before the Tribunal, or make submissions to the Tribunal, in relation to any of the following—

(a)    the possible release of or grant of leave of absence to a forensic patient,

(b)    a recommendation to revoke an extension order in respect of a forensic patient,

(c)    the review of a patient who has been apprehended following an order by the President of the Tribunal under this Act.

(3)    A review of the case of a forensic patient or a correctional patient under this Act may be conducted at the same time as any other review of the patient under this Act.

(4)    An order by the Tribunal under this Act must be in writing.

(5)    The Tribunal must inform the Minister for Police and Emergency Services, the Minister for Health and the Attorney General of an order it makes for the release of a person and of the date of the person’s release.”

  1. It is to be accepted that s 81 of the MHCIFPA provides a general power for the Tribunal to make orders as to the forensic patient’s detention, care or treatment, or the patient’s release. However, the section does not mention the revocation of an order for release which is expressly found in s 109(4)(c).

  2. The applicant’s case is, to an extent, based on the line of authority which began with the statement enunciated by Gavan Duffy CJ and Dixon J in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 3 (“Anthony Hordern”):

“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”

  1. In Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26, Mason J referred to the statement of principle discussed by Gavan Duffy CJ and Dixon J in Anthony Hordern and said at 678:

“It is accepted that when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power.”

  1. In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 (“Nystrom”), Gummow and Hayne JJ considered the principle stated in Anthony Hordern and explained at [59]:

“Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the “same power”, or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.” (footnotes omitted)

  1. Their Honours had earlier observed at [54]:

“But, whilst “rules” or principles of construction may offer reassurance, they are no substitute for consideration of the whole of the particular text, the construction of which is disputed, and of its subject, scope and purpose.”

  1. At first blush, there appears to be some strength in the applicant’s argument based upon the principle of statutory construction as applied in Anthony Hordern. It might be said that s 109 of the MHCIFPA contains a special power for the enforcement of orders for release that are breached. That special power is subject to the limitations in ss 109(1) and 109(3)-(4). As a consequence, the general power in s 81 cannot be exercised when a person has breached a conditional release order.

  2. Recently, in State of Queensland v Mr Stradford (a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396 (“Stradford”), the plurality of the High Court observed at [64] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ):

“In any event, Anthony Hordern is a principle of construction which, even when applicable, is to be weighed with other applicable principles of construction. [9] Generally, provisions granting powers to courts should not be read down by making implications or imposing limitations which are not found in the express words of the legislation.” [10]

9. Nystrom at 586-587 [54], 589 [59].

10. Deputy Commissioner of Taxation v Huang (2021) 273 CLR 429; [2021] HCA 43 at [23].

  1. Accordingly, the principle of construction in Anthony Hordern, is to be weighed with other applicable principles of construction and “like all such principles … must be applied subject to the particular text, context and purpose of the statute to be construed”: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 at [50] (French CJ); see also SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ).

  2. Sections 79, 81 and 109 of the MHCIFPA should not be considered in isolation but the Act should be read as a whole and these specific provisions are to be construed in the context of the Act and cognate legislation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ); JKL v Justice Health and Forensic Mental Health Network (2021) 104 NSWLR 592; [2021] NSWCA 94 at [47] (Bell P, Macfarlan and Meagher JJA agreeing) (“JKL”); Attorney General for the State of New South Wales v XY [2014] NSWCA 466 at [90] (Beazley P) (“XY”).

  3. Section 69 of the MHCIFPA sets out the objects of Part 5 which includes “to protect the safety of members of the public” (s 69(1)(a)); “to provide for the care, treatment and control” of any forensic patients (s 69(1)(b)); “to give an opportunity for [forensic patients] to have access to appropriate care” (s 69(1)(e)) and “to protect the safety of victims of forensic patients and acknowledge the harm done to victims” (s 69(1)(f)).

  4. Section 70 of the MHCIFPA relates to the treatment, care and detention of forensic patients and relevantly provides that “the principles set out in s 68 of the [MH Act] apply to the administration of this Act with respect to forensic patients and correctional patients” (s 70(1)) and “forensic patients, who are detained should, so far as practicable, be detained in a mental health facility that is appropriate to the forensic patient’s needs and safety, and the safety of other persons” (s 70(2)).

  5. Section 74 of the MHCIFPA identifies that ss 69 and 70 are intended “to give guidance in the administration” and “do not create, or confer on any person, any right or entitlement enforceable at law”.

  6. Section 75 of the MHCIFPA sets out the matters on any review which the Tribunal “must have regard to … when determining what orders to make about the person” as the following:

“(a)    whether the person has a mental health impairment or cognitive impairment,

(b)    whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person’s own protection from serious harm or the protection of others from serious harm,

(c)    the continuing condition of the person, including any likely deterioration in the person’s condition and the likely effects of that deterioration.”

  1. The general principles for care and treatment of people with a mental illness or mental disorder are set out in s 68 of the MH Act and relevantly include receipt of “the best possible care and treatment in the least restrictive environment” (s 68(a)); provision “with timely and high quality treatment and care” (s 68(b)); “the provision of care and treatment … designed to assist people with a mental illness … wherever possible, to live, work and participate in the community” (s 68(c)) and “any restriction on the liberty of patients … with a mental illness … and any interference with their rights, dignity and self-respect … to be kept to the minimum necessary in the circumstances” (s 68(f)).

  2. The applicant submitted that s 81 of the MHCIFPA does not confer a power on the Tribunal to order a person’s detention but only to make orders after initial detention orders have been made by a court. The applicant relied on what was said by Simpson J (in dissent) at [132] in Director of Public Prosecutions (NSW) v Khoury [2014] NSWCA 15; (2014) 306 ALR 86 (“Khoury”). The applicant contended that a conferral of the power in s 109(1) on the President or their delegate, and the right of review that s 109 brings with it in s 112, reflects the fact that the Tribunal applying s 109 is exercising a power which would ordinarily be considered a quintessentially judicial function as expressed by Simpson J in Khoury at [132].

  3. The applicant’s reliance on Khoury is misconceived. Khoury concerned the construction of Part 2 of the MHFP Act. Section 47 of the MHFP Act authorised the Tribunal after reviewing the case of a forensic patient to make an order as to the patient’s “continued detention” or release. Section 81 of the MHCIFPA is not in the same terms as s 47 of the MHFP Act. Section 81 makes no mention of “continued detention”. As the High Court observed in Stradford (at [65] above), generally provisions granting powers should not be read down by imposing limitations not found in the express words of the legislation. This is not a case of a “simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision”: Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38] (French CJ, Crennan and Bell JJ). There is no justification for the additional words proposed by the applicant.

  4. It is clear that under s 81 of the MHCIFPA the Tribunal is given a broad discretionary power to make orders “as to” a forensic patient’s detention, care or treatment in a mental health facility, correctional centre, detention centre or other place. There is no express limitation placed on the Tribunal’s power to make a detention order. This is to be contrasted with the Tribunal’s power to make a release order (either conditionally or unconditionally) which is subject to limitations imposed under ss 82(2) and 82(3).

  5. In JKL, Bell P (as the Chief Justice then was) considered the power of the Tribunal to order a transfer of a forensic patient under s 48 of the MHFP Act. His Honour observed at [50]:

“The conferral of that express power carried with it an implied incidental power to do everything necessary to give effect to, or facilitate the exercise of, the express statutory power.”

  1. After reviewing the following High Court authorities of Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45, Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19, Australia Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 (“CFMEU”) and Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, Bell P found at [54]-[55] that the principle of statutory construction identified in these cases applied to tribunals. His Honour said at [56]:

“The proposition that a grant of power carries with it everything that is reasonably necessary for its effective exercise has been described as ‘an aspect of the presumption that legislatures intend to enact legislation that is not futile’: see P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [9.210]. Consonant with the cognate notion that courts and tribunals ‘should not make orders knowing that they are likely to be futile’ (Winters [11] at [62] per Giles JA), there may readily be attributed to the legislature an intention that a court or tribunal invested with powers to make certain orders should, by implication, also be invested with the power to craft or express its orders so as to ensure their efficacy.”

11. Winters v Attorney-General (NSW) [2008] NSWCA 33; (2008) 182 A Crim R 107 (“Winters”).

  1. In my opinion, the power to revoke a forensic patient’s conditional release may be implied from the express power of detention as it makes little sense that a detention order may be made but a conditional release order may not be revoked.

  2. The applicant’s argument that s 109 of the MHCIFPA provides a mandatory scheme which must be followed gives rise to the making of an order for the apprehension of a forensic patient by the President which is known to be unnecessary and to be futile in the applicant’s case as he had been scheduled under s 19 of the MH Act and was detained as an involuntary patient: Winters at [62]. The inflexibility of the applicant’s approach does not sit comfortably with the intent of s 68 of the MH Act, embodied by s 70 in the MHCIFPA to ensure that the interference with the rights, dignity and self-respect of the forensic patient is kept to a minimum. The service of an order for apprehension on a mentally ill person who is already detained is no small matter and is likely to lead to confusion and agitation. Such a person is often in a very vulnerable position.

  1. The power to revoke a forensic patient’s conditional release which may be implied from the express power of detention conferred by s 81 of the MHCIFPA coheres with the statutory scheme of which that conferral forms part: CFMEU at [56] (Gageler J); JKL at [53] (Bell P).

  2. When a forensic patient is already in detention and is alleged to have breached a conditional release order the Tribunal may move swiftly to review the forensic patient without the necessity of the President making an order for apprehension which is inutile. Such a flexible approach is consistent with the protection of the safety of members of the public and the victims of forensic patients, and the care, treatment and control of the forensic patient themselves. Notwithstanding the forms used by the applicant’s case officer (see [32]-[33] above) the Tribunal adopted the sensible approach of conducting an early Review.

  3. What was said to be a safeguard under s 112 of the MHCIFPA applies to an order of apprehension made by the President. Such a review has no use when a forensic patient has been already detained under s 19 of the MH Act. A forensic patient who is detained under the MH Act must be presented for a mental health inquiry as soon as practicable after admission under s 27 of the MH Act or the Tribunal may conduct a review at any time under s 79 of the MHCIFPA.

  4. Section 147(2) of the MHCIFPA is not confined to a review conducted by the Tribunal under s 109(4). The Minister for Health and the Attorney General may appear or make submissions to the Tribunal in relation to “the possible release of a forensic patient”. In the present case, it was open to the Tribunal to notify the Minister of the review of the applicant under ss 79 and 81 and for the Minister to appear or to make submissions as to the applicant’s possible release.

  5. It does not follow that s 109 of the MHCIFPA has no role to play. Where the forensic patient is not detained and is on conditional release, the President may issue an apprehension order authorising the detention of the forensic patient at the mental health facility, correctional centre, detention centre or other place specified in the order and the Tribunal must conduct the review under s 109(4). In such a case, s 109 applies and not ss 79 and 81.

  6. Whilst having some initial attraction (see [64] above), the Anthony Hordern principle of construction does not give effect to the purpose and objects of Part 5 of the MHCIFPA nor does it cohere with the objects of the MH Act.

  7. At the hearing, the parties mentioned but did not express a position on whether pursuant to s 162 of the MH Act this judgment should not use the applicant’s name. It is appropriate that the applicant’s name be anonymised to “KP” in this judgment for the reasons provided by Basten JA in XY at [185]-[187] (see also Z v Mental Health Review Tribunal (No 3) [2023] NSWCA 38).

Conclusion

  1. The Tribunal had the power to make the revocation order and detention order under ss 79 and 81 of the MHCIFPA. The orders were valid and the applicant’s detention is not unlawful.

  2. Time should be extended to file the summons seeking leave to appeal and leave to appeal should be granted. But the appeal must be dismissed. The respondent appropriately sought that if the appeal were dismissed there should be no order as to costs. Accordingly, the orders I propose are:

  1. Grant the applicant an extension of time within which to commence proceedings up to and including 23 September 2024.

  2. Grant the applicant leave to appeal from the orders made by the Mental Health Review Tribunal on 9 January 2024.

  3. Direct that the applicant file the draft notice of appeal contained in the White Folder within seven days.

  4. Dismiss the appeal.

  5. No order as to costs.

**********

Endnotes

Decision last updated: 14 April 2025

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