Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Local Court and Bail Legislation Amendment Act 2025 No 61, Sch 2.64 (not commenced)
Victims Rights and Victims of Crime Commissioner Act 2025 No 64, Sch 4.19 (not commenced)
Statute Law (Miscellaneous Provisions) Bill (No 2) 2025
An Act with respect to criminal proceedings involving persons with a mental health impairment or cognitive impairment and the care, treatment and control of those persons; and for other purposes.
This Act is the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
This Act commences on a day or days to be appointed by proclamation.
In this Act—
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
Words and expressions used in this Act have the same meanings as in the Mental Health Act 2007.
For the purposes of the application of this Act to a person detained in, or transferred to or from, a detention centre—
(a) a reference to the Commissioner of Corrective Services is taken to be a reference to the Secretary of the Department of Communities and Justice, and
(b) a reference to a sentence of imprisonment is taken to include a reference to a term of detention under a detention order within the meaning of the Children (Detention Centres) Act 1987.
Notes included in this Act do not form part of this Act.
For the purposes of this Act, a
(a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and
(b) the disturbance would be regarded as significant for clinical diagnostic purposes, and
(c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.
A mental health impairment may arise from any of the following disorders but may also arise for other reasons—
(a) an anxiety disorder,
(b) an affective disorder, including clinical depression and bipolar disorder,
(c) a psychotic disorder,
(d) a substance induced mental disorder that is not temporary.
A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by—
(a) the temporary effect of ingesting a substance, or
(b) a substance use disorder.
For the purposes of this Act, a
(a) the person has an ongoing impairment in adaptive functioning, and
(b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
(c) the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.
A cognitive impairment may arise from any of the following conditions but may also arise for other reasons—
(a) intellectual disability,
(b) borderline intellectual functioning,
(c) dementia,
(d) an acquired brain injury,
(e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
(f) autism spectrum disorder.
In this Act (other than sections 29, 41, 56 and 58), a reference to a matter or question that is or is to be determined by a jury, or to another function of a jury, includes a reference to a judge in proceedings determined by a judge alone.
In this Part—
A reference to an order in a Division of this Part is a reference to an order made under that Division.
This Part applies to the following criminal proceedings before a Magistrate—
(a) summary proceedings for offences,
(b) indictable offences triable summarily,
(c) any related proceedings under the Bail Act 2013.
This Part does not apply to committal proceedings.
A Magistrate may make an order specified under this Part at the commencement of or at any other time during the course of proceedings before the Magistrate, whether or not the defendant has entered a plea.
(Repealed)
For the purposes of this Part, a Magistrate may inform himself or herself as the Magistrate thinks fit, but not so as to require a defendant to incriminate himself or herself.
A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under this Part.
A failure to comply with this section does not invalidate a decision of a Magistrate under this Part.
A Magistrate may make an order under this Division or adjourn proceedings if it appears to the Magistrate that the defendant has (or had at the time of the alleged commission of the offence to which the proceedings relate) a mental health impairment or a cognitive impairment, or both.
The Magistrate may take action under this Division only if it appears to the Magistrate, on an outline of the facts alleged in the proceedings or other evidence the Magistrate considers relevant, it would be more appropriate to deal with the defendant in accordance with this Division than otherwise in accordance with law.
This Division does not apply if the defendant is a mentally ill person or a mentally disordered person.
A Magistrate may, for the purposes of this Division—
(a) adjourn proceedings to enable—
(i) the defendant’s apparent mental health impairment or cognitive impairment to be assessed or diagnosed, or
(ii) the development of a treatment or support plan for the defendant for the purposes of an order, or
(iii) a responsible person to be identified for the purposes of an order, or
(iv) for any other reason the Magistrate considers appropriate in the circumstances, or
(b) make other interim orders that the Magistrate considers appropriate.
A Magistrate may make an order to dismiss a charge and discharge the defendant—
(a) into the care of a responsible person, unconditionally or subject to conditions, or
(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant’s mental health impairment or cognitive impairment, or
(c) unconditionally.
An order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise.
In deciding whether it would be more appropriate to deal with a defendant in accordance with this Division, the Magistrate may consider the following—
(a) the nature of the defendant’s apparent mental health impairment or cognitive impairment,
(b) the nature, seriousness and circumstances of the alleged offence,
(c) the suitability of the sentencing options available if the defendant is found guilty of the offence,
(d) relevant changes in the circumstances of the defendant since the alleged commission of the offence,
(e) the defendant’s criminal history,
(f) whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990,
(g) whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan,
(h) whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public,
(i) other relevant factors.
If a Magistrate suspects that a defendant has failed to comply with a condition of an order under section 14, the Magistrate may, within 12 months of the order being made, order the defendant to appear before the Magistrate.
If the defendant fails to appear, the Magistrate may—
(a) issue a warrant for the defendant’s arrest, or
(b) authorise an authorised officer to issue a warrant for the defendant’s arrest.
If at the time the Magistrate proposes to make an order under subsection (1) the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately—
(a) issue a warrant for the defendant’s arrest, or
(b) authorise an authorised officer to issue a warrant for the defendant’s arrest.
If a Magistrate discharges a defendant subject to a condition under an order, and the defendant fails to comply with the condition within 12 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.
Despite any law, a person who is, in accordance with an order under section 14, to assess another person’s mental condition or provide treatment to another person (a
(a) an officer of the Department of Communities and Justice,
(b) another person or body prescribed by the regulations.
A treatment provider may include in the report information that the treatment provider considers is relevant to the making of a decision in relation to the failure to comply with the condition.
The report is to be in the form approved for the time being by the Secretary of the Department of Communities and Justice.
A Magistrate may make an order under this Division if it appears to the Magistrate that the defendant is a mentally ill person or a mentally disordered person.
A Magistrate may make an order under this Division without affecting any other order the Magistrate may make in relation to the defendant, whether by way of adjournment, the granting of bail in accordance with the Bail Act 2013 or otherwise.
Certain orders by a Magistrate under this Division in relation to an offence are taken to be a decision to dispense with bail for the offence (see section 24).
A Magistrate may make one or more of the following orders—
(a) an order that the defendant be taken to, and detained in, a mental health facility for assessment,
(b) an order that the defendant be taken to, and detained in, a mental health facility for assessment and that, if the defendant is found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person, the defendant be brought back before a Magistrate as soon as practicable unless granted bail by a police officer at that facility,
(c) an order for the discharge of the defendant, unconditionally or subject to conditions, into the care of a responsible person.
Without limiting section 19(c), the Magistrate may make a community treatment order in accordance with the Mental Health Act 2007 for implementation by a declared mental health facility in relation to the defendant, if the Magistrate is satisfied that all of the requirements for the making of a community treatment order at a mental health inquiry under that Act (other than the holding of an inquiry) have been met in respect of the defendant.
The Mental Health Act 2007 (other than section 51(1) and (2)) applies to and in respect of the defendant and a community treatment order as if the order had been made by the Tribunal under that Act.
(Repealed)
An order by a Magistrate may provide that a defendant—
(a) in the case of a defendant who is under the age of 18 years, be taken to or from a place by a juvenile justice officer, or
(b) in the case of any defendant, be taken to or from a place by a person of a kind prescribed by the regulations for the purposes of this section.
A function conferred on a juvenile justice officer under an order is taken to be a function under the Children (Detention Centres) Act 1987 and the juvenile justice officer has the same functions in respect of the defendant as the officer has in respect of a detainee under that Act and the regulations under that Act.
If a correctional officer has power under an order to take a defendant to or from a place, that power is taken to be a function under the Crimes (Administration of Sentences) Act 1999 and the correctional officer has the same functions in respect of the defendant as the officer has in respect of an inmate under that Act and the regulations under that Act.
In this section—
If a defendant is dealt with by a Magistrate in accordance with this Division, the charge which gave rise to the proceedings, on the expiration of the period of 6 months after the date on which the defendant is so dealt with, is taken to have been dismissed unless, within that period, the defendant is brought before a Magistrate to be further dealt with in relation to the charge.
If a defendant is brought before a Magistrate to be further dealt with in relation to a charge, the Magistrate must, in dealing with the charge, take account of any period during which the defendant was detained in a mental health facility as a consequence of an order.
The fact that charges are taken to have been dismissed under subsection (1) does not constitute a finding that the charges against the defendant are proven or otherwise.
An order by a Magistrate under section 19(a) or (b) in relation to an offence is, for the purposes of the Bail Act 2013, taken to be a decision to dispense with bail for the offence.
An order under section 19(b) that a defendant be brought back before a Magistrate may be satisfied by taking the defendant to an appropriate police officer for the making of a bail decision in respect of the defendant.
An appropriate police officer may make a bail decision in respect of a defendant brought before the appropriate police officer under this section (despite section 43(3) of the Bail Act 2013).
In this section—
This section applies to a person who is awaiting committal for trial or trial for an offence or summary disposal of the person’s case.
If it appears to a Magistrate that it may be appropriate to transfer a person to whom this section applies from a correctional centre or detention centre to a mental health facility under section 86, the Magistrate may make an order directing—
(a) that the defendant be examined by 2 medical practitioners, 1 of whom is a psychiatrist, and
(b) that, if appropriate, the relevant certificates be given to the Secretary under section 86, and
(c) that the Chief Executive, Justice Health or, in the case of a person who is under the age of 18 years, the Secretary of the Department of Communities and Justice to ensure that the Magistrate is notified of the action, if any, taken under section 86.
The regulations may prescribe the form of an order under this Part.
This Part applies to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and the District Court.
A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person—
(a) did not know the nature and quality of the act, or
(b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).
The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.
Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect.
In this Part,
(a) an omission, and
(b) a series of acts or omissions.
The judge must explain the following matters to the jury if the question of whether the defendant had a mental health impairment or a cognitive impairment, or both, as referred to in section 28(1) is raised—
(a) the findings which may be made on the trial,
(b) the legal and practical consequences of those findings,
(c) the composition of the Tribunal and its relevant functions with respect to forensic patients,
(d) without limiting paragraph (b), that a defendant who is found to have committed the act constituting the offence but not to be criminally responsible because of a mental health impairment or cognitive impairment, or both, may be ordered to be released by the Tribunal only if the Tribunal is satisfied, on the evidence available to it, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant’s release,
(e) that the jury should not be influenced by the consequences of a special verdict of act proven but not criminally responsible in deciding a verdict.
A jury must return a special verdict of act proven but not criminally responsible if the jury is satisfied that the defence of mental health impairment or cognitive impairment has been established.
The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if—
(a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and
(b) the defendant is represented by an Australian legal practitioner, and
(c) the court, after considering that evidence, is satisfied that the defence is so established.
The fact that a court enters a special verdict of act proven but not criminally responsible in respect of an offence does not result in a requirement for the court to also enter a special verdict in respect of an offence available as an alternative to the offence.
On the return of a special verdict of act proven but not criminally responsible, the court may make one or more of the following orders—
(a) an order that the defendant be remanded in custody until a further order is made under this section,
(b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law,
(c) an order for the unconditional or conditional release of the defendant from custody,
(d) other orders that the court thinks appropriate.
Before making an order for the release of a defendant, the court may request a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the defendant, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public.
The court must not make an order for the release of a defendant unless it is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant’s release.
A person for whom a special verdict of act proven but not criminally responsible is entered is a forensic patient unless unconditionally released and is to be dealt with under Part 5.
The court must refer the defendant to the Tribunal if a special verdict of act proven but not criminally responsible is returned or entered and an order is not made for the unconditional release of the defendant.
This Part applies to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and the District Court.
For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following—
(a) understand the offence the subject of the proceedings,
(b) plead to the charge,
(c) exercise the right to challenge jurors,
(d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,
(e) follow the course of the proceedings so as to understand what is going on in a general sense,
(f) understand the substantial effect of any evidence given against the person,
(g) make a defence or answer to the charge,
(h) instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary,
(i) decide what defence the person will rely on and make that decision known to the person’s legal representative and the court.
This section does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence.
The question of a defendant’s unfitness to be tried for an offence is, so far as practicable, to be raised before the defendant is arraigned on a charge in respect of the offence but may be raised at any time during the course of the hearing of the proceedings in respect of the offence.
The question of a defendant’s unfitness to be tried for an offence may be raised on more than one occasion in the same proceedings.
The question of a defendant’s unfitness to be tried for an offence is to be determined on the balance of probabilities.
The court, the defendant or the prosecutor may raise the question of a defendant’s unfitness to be tried for an offence.
If the question of a defendant’s unfitness to be tried is raised before the defendant is arraigned on a charge in respect of the offence, the court must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence.
The court may, at any time before an inquiry is commenced, determine that there is no longer a need for the inquiry to be held.
If the question of a defendant’s unfitness to be tried is raised after the person is arraigned on a charge in respect of the offence, the court must hear any submissions relating to holding an inquiry in the absence of a jury which has been constituted for the purposes of the proceedings relating to the offence.
The court must conduct an inquiry to determine whether a defendant is unfit to be tried for an offence if—
(a) the court determines that an inquiry should be conducted before the defendant is arraigned on a charge in respect of the offence and does not subsequently determine that the inquiry is not needed, or
(b) the question of the defendant’s unfitness to be tried is raised after the defendant is arraigned on a charge in respect of the offence.
The inquiry is to be held as soon as practicable after the court makes the determination or the question is raised after arraignment.
Despite subsection (1), the court is not required to hold an inquiry unless it appears to the court that the question of the defendant’s unfitness to be tried for the offence has been raised in good faith.
Despite subsection (1), the court may determine not to hold an inquiry, dismiss the charge and order that the defendant be released if it is of the opinion, having regard to any of the following, that it is inappropriate to inflict any punishment—
(a) the trivial nature of the charge or offence,
(b) the nature of the defendant’s mental health impairment or cognitive impairment,
(c) any other matter the court thinks proper to consider.
The court may do one or more of the following before holding an inquiry—
(a) adjourn the proceedings,
(b) grant the defendant bail in accordance with the Bail Act 2013,
(c) order the defendant to be remanded in custody for a period not exceeding 28 days,
(d) order the defendant to undergo a psychiatric examination or other examination,
(e) order that a psychiatric report or other report relating to the defendant be obtained,
(f) discharge a jury constituted for the purpose of the proceedings,
(g) make other orders the court thinks appropriate.
The question of a defendant’s unfitness to be tried for an offence is to be determined by the judge alone.
At an inquiry, the defendant is to be represented by an Australian legal practitioner, unless the court otherwise allows.
An inquiry is not to be conducted in an adversarial manner.
The onus of proof of the question of a defendant’s unfitness to be tried for an offence does not rest on any particular party to the proceedings.
In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following—
(a) whether the trial process can be modified, or assistance provided, to facilitate the defendant’s understanding and effective participation in the trial,
(b) the likely length and complexity of the trial,
(c) whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner.
The test for determining whether or not a person is unfit to be tried for an offence is set out in section 36.
A determination by the judge must include the principles of law applied by the judge and the findings of fact on which the judge relied.
It is presumed—
(a) that a person who has, in accordance with this Part or on a review under Part 5, been found to be unfit to be tried for an offence continues to be unfit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case, and
(b) that a person who has, in accordance with this Part or on a review under Part 5, been found fit to be tried for an offence continues to be fit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case.
If a defendant is found fit to be tried following an inquiry, the proceedings brought against the person in respect of the offence are to recommence or to continue in accordance with the appropriate criminal procedures.
If a defendant is found unfit to be tried for an offence following an inquiry, the court must also determine whether, on the balance of probabilities, during the period of 12 months after the finding of unfitness, the defendant—
(a) may become fit to be tried for the offence, or
(b) will not become fit to be tried for the offence.
The court may do one or more of the following after a finding that a defendant is unfit to be tried for an offence—
(a) make an order discharging a jury constituted for the purpose of the proceedings,
(b) adjourn the proceedings,
(c) grant the defendant bail in accordance with the Bail Act 2013,
(d) make an order remanding the defendant in custody,
(e) make other orders that the court thinks appropriate.
If the court determines that a defendant will not, during the period of 12 months after a finding by a court that the person is unfit to be tried for an offence, become fit to be tried for the offence, the defendant is to be dealt with under Division 3.
This section does not apply if the court is required to order the release of the defendant because of advice under section 53 that further proceedings will not be taken against the defendant in respect of the offence.
The court must refer the defendant to the Tribunal for review if the court determines that the defendant is unfit to be tried for an offence and may become fit to be tried for the offence during the period of 12 months after the finding.
The court may grant the defendant bail in accordance with the Bail Act 2013 for a period not exceeding 12 months on being notified of a determination by the Tribunal under section 80 that the defendant has become fit to be tried for the offence.
As soon as practicable after an order is made or bail is granted under this section, the registrar of the court is to notify the Tribunal of the terms of the order or the grant of bail.
If the court is notified by the Tribunal following a review that a defendant has become fit to be tried for an offence, the proceedings brought against the defendant in respect of the offence are to recommence or to continue in accordance with the appropriate criminal procedures.
A court is not to hold a further inquiry into the fitness of a defendant to be tried for an offence merely because the Tribunal notifies the court that the defendant has become fit to be tried for an offence.
Subsection (1) does not apply if the court is required to order the release of the defendant because of advice under section 53 that further proceedings will not be taken against the defendant in respect of the offence.
If the court is notified by the Tribunal following a review that a defendant has not and will not, during the period of 12 months after a finding by a court that the defendant is unfit to be tried for an offence, become fit to be tried for the offence, the defendant is to be dealt with under Division 3.
This section does not apply if the court is required to order the release of the defendant because of advice under section 53 that further proceedings will not be taken against the defendant in respect of the offence.
This section applies to a defendant who was committed for trial for an offence under Division 7 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986.
The court may, on the application of the defendant or on its own motion, make an order remitting the matter to a Magistrate for the holding of a case conference under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, if the defendant has, following an inquiry, been found fit to be tried for an offence.
The court must make the order on the application of the defendant unless it is satisfied that it is not in the interests of justice to do so or that the offence is not an offence in relation to which a case conference is required to be held under that Division.
The court may, on its own motion, make an order remitting the matter to a Magistrate for the holding of a case conference under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 at any time, if it is satisfied that the question of the defendant’s unfitness to be tried for an offence is not going to be raised in proceedings for the offence.
If a matter is remitted to a Magistrate, the matter is to be dealt with as if the defendant had not been committed for trial and the proceedings are taken to be a continuation of the original committal proceedings.
If no application is made or the matter is not remitted to a Magistrate, the matter is to be dealt with in accordance with section 50.
This section applies if—
(a) the court determines that a defendant will not, during the period of 12 months after a finding by a court that the person is unfit to be tried for an offence, become fit to be tried for an offence, or
(b) the Tribunal determines that a defendant has not become fit to be tried for an offence and will not become fit to be tried for an offence during the period of 12 months after a finding by a court that the person is unfit to be tried for an offence, or
(c) the Tribunal determines that a defendant or a forensic patient has become fit to be tried for an offence after a finding by a court that the person is unfit to be tried for an offence or a special hearing has been held for an offence.
The court must obtain advice from the Director of Public Prosecutions as to whether or not further proceedings will be taken by the Director in respect of the offence.
The court must order the release of the defendant if the Director of Public Prosecutions advises that further proceedings will not be taken by the Director in respect of the offence.
This does not prevent the admission of the defendant as a voluntary or an involuntary patient under the Mental Health Act 2007.
The Director of Public Prosecutions must notify the Minister for Police and Emergency Services and the Minister for Health of a decision by the Director that no further proceedings will be taken by the Director in respect of the offences.
In this Act, a
A court must hold a special hearing as soon as practicable after the court or the Tribunal determines that a defendant will not, during the period of 12 months after a finding that the person is unfit to be tried for an offence, become fit to be tried for the offence.
This section does not apply if the court is required to order the release of the defendant because of advice under section 53 that further proceedings will not be taken against the defendant in respect of the offence.
This does not prevent the admission of the defendant as a voluntary or an involuntary patient under the Mental Health Act 2007.
A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.
The court may, if it thinks it appropriate in the circumstances of the case, modify court processes to facilitate the effective participation by the defendant in the special hearing.
At a special hearing, the defendant must, unless the court otherwise allows, be represented by an Australian legal practitioner.
The fact that the defendant has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person’s representation.
The defendant is taken to have pleaded not guilty in respect of the offence charged.
The defendant may raise any defence that could properly be raised if the special hearing were an ordinary trial of criminal proceedings.
The defendant is entitled to give evidence.
The court may permit the defendant not to appear, or exclude the defendant from appearing, at a special hearing if the court thinks it appropriate in the circumstances and the defendant or the defendant’s Australian legal practitioner agrees.
The question of whether the defendant at a special hearing has committed an offence charged or another offence available as an alternative is to be determined by the judge alone unless an election to have the matter determined by a jury is made by—
(a) the defendant and the court is satisfied that the defendant sought and received advice about the election from an Australian legal practitioner and the defendant understood the advice, or
(b) an Australian legal practitioner representing the defendant, or
(c) the prosecutor.
If a jury is to be constituted, the Australian legal practitioner (if any) representing the defendant may exercise the defendant’s rights to challenge the jurors or jury.
The court must explain the following matters to a jury constituted for the purposes of a special hearing—
(a) the fact that the defendant is unfit to be tried in accordance with the normal procedures,
(b) the meaning of unfitness to be tried,
(c) the purpose of the special hearing,
(d) the verdicts that are available to the jury,
(e) the legal and practical consequences of the verdicts.
The Director of Public Prosecutions may, with the leave of the court or the consent of an Australian legal practitioner representing the defendant, amend an indictment to which a special hearing relates.
The provisions of the Criminal Procedure Act 1986 apply to the amendment of an indictment under this section in the same way as they apply to the amendment of an indictment in ordinary criminal proceedings, subject to any modifications that the court considers appropriate in the circumstances.
An election to have a special hearing determined by a jury must be made—
(a) on a day before the day fixed for the special hearing, if the election is made by the defendant, or
(b) at least 7 days before the day fixed for the special hearing, if the election is made by the prosecutor.
The defendant, or an Australian legal practitioner for the defendant, may subsequently elect to have the special hearing determined by a judge instead of a jury.
The Jury Act 1977 applies to the constitution of a jury, and to a jury constituted, for a special hearing in the same way as it applies to the constitution of a jury, and to a jury constituted, for a trial of criminal proceedings.
A member of a jury otherwise constituted for the purpose of a proceeding related to the same defendant and the same offence is not eligible to be a member of a jury constituted for the purposes of a special hearing.
Rules of court may be made with respect to elections to have a special hearing determined by a jury.
The verdicts available at a special hearing include the following—
(a) not guilty of the offence charged,
(b) a special verdict of act proven but not criminally responsible,
(c) that on the limited evidence available, the defendant committed the offence charged,
(d) that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged.
A judge who determines a special hearing must include in the determination the principles of law applied by the judge and the findings of fact on which the judge relied.
A special verdict of act proven but not criminally responsible may only be entered under this section if the judge is satisfied that the requirements of section 28(1) and (2) are met.
A defendant who is found not guilty of an offence at a special hearing is to be dealt with as if the defendant had been found not guilty of the offence at an ordinary trial of criminal proceedings.
A special verdict of act proven but not criminally responsible at a special hearing is taken for all purposes to be a verdict reached at an ordinary trial of criminal proceedings.
Without limiting subsection (1), the court may make any order or take any action in respect of the defendant that a court could make on reaching the same verdict under Part 3.
A verdict at a special hearing that on the limited evidence available the defendant committed the offence charged or an offence available as an alternative to the offence charged—
(a) constitutes a qualified finding of guilt and does not constitute a basis in law for a conviction for the offence to which the finding relates, and
(b) is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings, and
(c) is taken to be a conviction for the purpose of enabling a victim of the offence to make a claim for compensation.
This section applies if a court finds at a special hearing that on the limited evidence available the defendant committed the offence charged or an offence available as an alternative to the offence charged.
If the court would have imposed a sentence of imprisonment for the offence if the special hearing had been an ordinary trial of criminal proceedings and the person had been fit to be tried for the offence, the court must nominate a term (a
If the court determines that it would not have imposed a sentence of imprisonment, the court may impose any other penalty or make any order it might have imposed or made if the defendant had been found guilty of the offence in an ordinary trial of criminal proceedings.
The penalty or order is to be subject to appeal in the same manner as a penalty or order in an ordinary trial of criminal proceedings.
Without limiting subsection (2) or (3), in determining a limiting term or other penalty, the court—
(a) must take into account that, because of the defendant’s mental health impairment or cognitive impairment, or both, the person may not be able to demonstrate mitigating factors for sentencing or make a guilty plea for the purposes of obtaining a sentencing discount, and
(b) may apply a discount of a kind that represents part or all of the sentencing discounts that are capable of applying to a sentence because of those factors or a guilty plea, and
(c) must take into account periods of the defendant’s custody or detention before, during and after the special hearing that related to the offence.
If the court indicates that it would not have imposed a sentence of imprisonment in respect of a defendant, the court must notify the Tribunal that a limiting term is not to be nominated in respect of the person.
A limiting term takes effect from when it is nominated unless—
(a) the court determines it is taken to have effect from an earlier time, after taking into account periods of the defendant’s custody or detention before, during and after the special hearing that related to the offence, or
(b) the court directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated for the person or sentence of imprisonment imposed on the person.
Before making a direction that the term commence at a later time, the court is to take into account the following—
(a) a sentence of imprisonment imposed in an ordinary trial of criminal proceedings may be subject to a non-parole period but a limiting term is not,
(b) in an ordinary trial of criminal proceedings, consecutive sentences of imprisonment are to be imposed with regard to non-parole periods.
The court must refer the defendant to the Tribunal if it nominates a limiting term for the defendant and must notify the Tribunal of orders it makes under this section.
The court may order that the defendant be detained in a mental health facility, correctional centre, detention centre or other place pending the review of the defendant by the Tribunal.
The court may, following a verdict being reached at a special hearing and on its own motion, request a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the defendant, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public.
The court may consider the report, and any other report of an expert that is tendered to the court for the purposes of this section, before determining what orders to make about the defendant.
The court must refer the defendant to the Tribunal if there is a special verdict of act proven but not criminally responsible at a special hearing and an order is not made for the unconditional release of the defendant.
A verdict at a special hearing that on the limited evidence available the defendant committed the offence charged or an offence available as an alternative to the offence charged constitutes a bar to any other criminal proceedings for the same offence or substantially the same offence.
Despite subsection (1), criminal proceedings for the same offence or substantially the same offence may be commenced against a defendant if—
(a) a limiting term has been nominated at the special hearing for the defendant, and
(b) the limiting term has not expired, and
(c) the defendant has not been released from custody as an inmate or discharged from detention as a forensic patient.
Despite subsection (1), criminal proceedings for the same offence or substantially the same offence may be commenced against a defendant if the defendant is subject to an extension order or interim extension order.
A defendant who has been released from custody under a conditional release order or leave order made by the Tribunal is not a person who has been released from custody for the purposes of subsection (2)(c).
A court must, in sentencing a defendant found guilty in ordinary criminal proceedings of the same offence or substantially the same offence, fully take into account periods of the defendant’s custody or detention before, during and after the special hearing that related to the offence.
The objects of this Part are as follows—
(a) to protect the safety of members of the public,
(b) to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment,
(c) to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through community treatment orders,
(d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment,
(e) to give an opportunity for those persons to have access to appropriate care,
(f) to protect the safety of victims of forensic patients and acknowledge the harm done to victims.
The objects of this Part extend to the provisions of Part 6.
The principles set out in section 68 of the Mental Health Act 2007 apply to the administration of this Act with respect to forensic patients and correctional patients.
A forensic patient who is ordered to be detained in a mental health facility should, so far as practicable, be detained in a mental health facility or other facility that is appropriate to the patient’s needs and appropriate having regard to the safety of the patient and other persons.
The following provisions of the Mental Health Act 2007 apply with respect to forensic patients and correctional patients—
(a1) section 69A prohibiting the use of spit hoods,
(a) section 70 for a medical examination of a person for the purposes of this Part,
(b) sections 71–72A relating to carers,
(c) section 73 if the patient is detained in a mental health facility.
The following persons are
(a) a person who is found unfit to be tried for an offence and who is detained in a mental health facility, correctional centre, detention centre or other place,
(b) a person for whom a limiting term has been nominated after a special hearing (including a person who is subsequently subject to an extension order or an interim extension order) and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by the Tribunal,
(c) a person who is the subject of a special verdict of act proven but not criminally responsible and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by a court or the Tribunal,
(d) a person who is a member of a class of persons prescribed by the regulations for the purposes of this section.
To avoid doubt, a person is not a forensic patient if the person has been found unfit to be tried for an offence and has been released on bail.
A person is a
(a) the person has been transferred from a correctional centre or detention centre to a mental health facility while—
(i) serving a sentence of imprisonment, or
(ii) on remand, or
(iii) subject to a high risk offender detention order, and
(b) the person is not a forensic patient and has not ceased to be a correctional patient under section 104 or been classified as an involuntary patient under this Part.
The provisions of sections 69 and 70 are intended to give guidance in the administration of this Act and do not create, or confer on any person, any right or entitlement enforceable at law.
On a review or other proceedings under this Act relating to a person, the Tribunal must have regard to the following matters when determining what order to make about the person—
(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.
The Tribunal is not required to review the case of a person during a period in which the person is unlawfully absent from a mental health facility or other place in which the person has been detained under this Act.
The period within which the following reviews must be held may, on the motion of the Tribunal or on the application of the forensic patient or correctional patient or a designated carer or the principal care provider of the patient, be extended by the Tribunal to a maximum of 12 months—
(a) a mandatory review of a forensic patient under section 78(d), (e), (f) or (g),
(b) a mandatory review of a correctional patient under section 91(b),
(c) a review under section 100 of a person in custody who is subject to a community treatment order.
The Tribunal may grant an application to extend the review period if it is satisfied that—
(a) there are reasonable grounds to grant the application, or
(b) an earlier review is not required because—
(i) there has been no change since the last review in the patient’s condition and there is no apparent need for any change in existing orders relating to the patient, or
(ii) there has been no change since the last review in the patient’s condition and an earlier review may be detrimental to the condition of the patient.
This section does not apply to the first review of a forensic patient or to a review of a forensic patient who is subject to an extension order.
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.
The Tribunal may carry out a review of a forensic patient at any time.
On a review of a person who has been found unfit to be tried for an offence, the Tribunal must determine whether the person has become fit to be tried for an offence.
The Tribunal must notify the court that made the finding of unfitness, the Director of Public Prosecutions and the person’s legal representative if, on a review, it is of the opinion that the person reviewed—
(a) has become fit to be tried for an offence, or
(b) has not become fit to be tried for an offence and will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence.
The Tribunal must make a determination as to the fitness of a person to be tried for an offence on the balance of probabilities.
The presumptions in section 45 apply to the person.
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).
On a review under this Part, the Tribunal may make an order for the transfer of a forensic patient to a mental health facility, correctional centre, detention centre or other place.
An order for release of a forensic patient under this Division may be made despite any other provision of this Act or any order of a court under this Act.
Despite subsection (1), the Tribunal must not order the release of a forensic patient if the patient is a person who has been remanded in custody pending the person’s return to court but may make a recommendation to the court as to the person’s release.
Despite subsection (1), the Tribunal must not make an order as to the unconditional release of a forensic patient who is subject to an extension order or interim extension order but may make a recommendation to the Supreme Court as to the variation or revocation of the extension order.
The Tribunal must not make an order for the release (including the conditional release) of a forensic patient unless it has considered the following matters—
(a) whether or not other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care,
(b) a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the patient, as to the condition of the patient and whether the safety of the patient or any member of the public will be seriously endangered by the patient’s release,
(c) in the case of the proposed release of a forensic patient subject to a limiting term, whether or not the patient has spent sufficient time in custody.
The Tribunal is also required to consider the matters set out in section 75.
The Tribunal must not make an order for the release (including the conditional release) of a forensic patient unless it is satisfied that the safety of the patient or any member of the public will not be seriously endangered by the patient’s release.
The Tribunal may impose conditions relating to the following matters on orders for release made by it in relation to a forensic patient—
(a) the appointment of a case manager, psychiatrist or other health care professional to assist in the care and treatment of the patient,
(b) the care, treatment and review of the patient by persons referred to in paragraph (a), including home visits to the patient,
(c) medication,
(d) accommodation and living conditions,
(e) enrolment and participation in educational, training, rehabilitation, recreational, therapeutic or other programs,
(f) the use or non-use of alcohol and other drugs,
(g) drug testing and other medical tests,
(h) agreements as to conduct,
(h1) prohibitions or restrictions on the use of social media or other forms of online communication,
(i) association or non-association with victims or members of victims’ families,
(j) prohibitions or restrictions on frequenting or visiting places,
(k) overseas or interstate travel,
(l) requirements for the purposes of monitoring (including by electronic means) compliance with the conditions of release.
This section does not limit the matters in relation to which a condition may be imposed.
The Secretary may, by order in writing, direct that a person imprisoned in, or a forensic patient detained in, a correctional centre or detention centre be transferred to a mental health facility.
The Secretary may make a transfer order on the basis of 2 certificates about the person’s condition issued by 2 medical practitioners, 1 of whom is a psychiatrist.
The certificates are to be in the form set out in Schedule 1.
A transfer order may be made without the person’s consent if it appears to the Secretary, on the basis of the certificates, that the person is a mentally ill person.
A transfer order may be made with the person’s consent if it appears to the Secretary, on the basis of the certificates, that the person has a mental health impairment or other condition for which treatment is available in a mental health facility.
The Secretary may revoke a transfer order.
The Secretary must notify the Tribunal in writing if the Secretary makes or revokes a transfer order.
This section applies to a person transferred from a correctional centre or detention centre to a mental health facility under a provision of this Division.
The person must be transferred back to the correctional centre or detention centre within 7 days unless the Secretary is of the opinion that—
(a) the person is a mentally ill person or has a mental health impairment or other condition for which treatment is available in a mental health facility, and
(b) other care of an appropriate kind would not be reasonably available to the person in the correctional centre or detention centre.
The person may be transferred back to the correctional centre or detention centre at any time if the Secretary is of the opinion that—
(a) the person has ceased to be a mentally ill person or to have a mental health impairment or other condition for which treatment is available in a mental health facility, or
(b) other care of an appropriate kind would be reasonably available to the person in a correctional centre or detention centre.
Nothing in this section affects the powers of the Tribunal in respect of a person transferred to a mental health facility from a correctional centre or detention centre.
A correctional patient or forensic patient who is detained in a mental health facility may, at any time, request the Tribunal to make an order that the patient be transferred to a correctional centre or detention centre.
The Tribunal, after considering the request, may make the order requested by the patient or may refuse to make that order.
The Tribunal must make the order if it is satisfied that the person is not a mentally ill person.
The Tribunal must conduct a limited review of the case of a person who is subject to an order for transfer to a mental health facility under this Division but who is not transferred within the period prescribed by the regulations for the purposes of this section.
The Tribunal must carry out a limited review each month until the person is transferred to a mental health facility or the Tribunal or the Secretary revokes the order.
On a limited review, the Tribunal may make an order as to the person’s detention, care or treatment in a mental health facility or other place.
For the purposes of a limited review, a report as to the person’s condition and the reason for the delay in transfer is to be provided to the Tribunal by the Secretary and the Commissioner of Corrective Services.
In the case of a person under the age of 18 years, the report is to be provided by the Secretary of the Department of Communities and Justice (see section 3(3)).
The Tribunal must carry out a review of a correctional patient or forensic patient as soon as practicable after the patient is transferred to a mental health facility under this Division.
If a person is transferred under this Division from a correctional centre to a mental health facility, the Tribunal may, at any time, make an order that the person be transferred to a correctional centre.
The Tribunal must carry out reviews of correctional patients at the following times—
(a) as soon as practicable after a correctional patient is transferred to a mental health facility under this Act,
(b) at intervals of 6 months during the period that a person is a correctional patient,
(c) as soon as practicable after being requested to carry out a review of a correctional 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,
(d) as soon as practicable after being requested to carry out a review of a correctional patient by the medical superintendent of the mental health facility in which the patient is detained.
On the first review of a correctional patient after the patient is transferred to a mental health facility, the Tribunal is to determine whether the patient is a mentally ill person who should continue to be detained in a mental health facility or has a condition for which treatment is available in a mental health facility.
On any review of a correctional patient, the Tribunal may make an order as to the patient’s continued detention, care or treatment in, or transfer to, a mental health facility, correctional centre, detention centre or other place.
The Tribunal may carry out a review of a correctional patient at any time.
The Tribunal may make an order allowing a forensic patient to be absent from a mental health facility, correctional centre, detention centre or other place for a period and subject to any terms and conditions that the Tribunal thinks fit.
An order may be made on the application of the patient or on the motion of the Tribunal.
The Tribunal must not make an order allowing a forensic patient to be absent from a mental health facility, correctional centre, detention centre or other place unless it is satisfied, on the evidence available to it, that the safety of the patient, a registered victim of the patient or any other member of the public will not be seriously endangered if the leave of absence is granted.
The Tribunal may impose any condition on an order granting leave of absence that it may impose on an order releasing a forensic patient.
This section does not prevent leave of absence being granted to a forensic patient detained in a correctional centre or detention centre under any other Act or law.
This section has effect despite the Crimes (Administration of Sentences) Act 1999.
The Commissioner of Corrective Services may allow a correctional patient to be absent from a mental health facility for the period and subject to any terms and conditions that the Commissioner of Corrective Services thinks fit.
The Tribunal may, on a review of a correctional patient, make recommendations to the Commissioner of Corrective Services as to the granting of leave to the patient.
In determining whether to grant leave to a correctional patient to be absent from a mental health facility, the Commissioner of Corrective Services must have regard to recommendations made by the Tribunal on a review of the patient as to the granting of leave.
The Secretary may allow a forensic patient or a correctional patient to be absent from a mental health facility for the period, and subject to any conditions that the Secretary thinks fit, in circumstances constituting an emergency or in other special circumstances as the Secretary thinks fit.
The Secretary must not allow a patient to be absent from a mental health facility (otherwise than in a medical emergency) under this section unless the Secretary is satisfied, on the evidence available to the Secretary, that the safety of the patient or any member of the public will not be seriously endangered if the leave of absence is granted.
The Secretary must not allow a patient to be absent from a mental health facility if, in the same or similar circumstances—
(a) for a forensic patient—the Tribunal has refused to make an order allowing the patient to be absent from a mental health facility, or
(b) for a correctional patient—the Commissioner of Corrective Services has refused to make an order allowing the patient to be absent from a mental health facility.
This section has effect despite the Crimes (Administration of Sentences) Act 1999.
See section 117 for security conditions relating to correctional patients who are absent on leave from mental health facilities.
A forensic patient or a correctional patient may appeal to the Tribunal against a failure or refusal by the Secretary to grant the patient leave of absence under this Part.
An appeal may be made orally or in writing and is to be made in accordance with the regulations.
An oral appeal is to be recorded in accordance with the regulations.
The Secretary must provide the Tribunal with a report about the patient, including the Secretary’s reasons for refusing or failing to grant leave of absence.
For the purpose of determining an appeal, the Tribunal has and may exercise the functions of the Secretary with respect to the granting of leave and may make an order accordingly.
In addition, the Tribunal may determine that no further right of appeal may be exercised under this section before the date on which the person is next reviewed by the Tribunal under this Act, if it thinks it appropriate to do so.
The grant of leave of absence to a forensic patient or a correctional patient under this Part does not affect the operation of a limiting term or sentence of imprisonment imposed in respect of the patient concerned.
On a review under this Part or at any other time, the Tribunal may make a community treatment order in relation to—
(a) a forensic patient, or
(b) a correctional patient ordered to be transferred to a correctional centre or detention centre, or
(c) a person who is subject to an order for transfer to a mental health facility from a correctional centre or detention centre but who has not been transferred, or
(d) an inmate in a correctional centre or a detention centre.
Part 3 of Chapter 3 of the Mental Health Act 2007 applies to the making of a community treatment order under this section, subject to any modifications prescribed by the regulations under that Act or under this Act.
Without limiting subsection (2), the regulations may modify that Part for the purpose of consistency with the operation of the Crimes (Administration of Sentences) Act 1999 and regulations under that Act with respect to correctional patients, inmates of correctional centres or detention centres and persons subject to parole.
A community treatment order made in respect of a person detained in a correctional centre, detention centre or other place continues in force if the person is released from the centre or place, subject to the terms of the order or the variation or revocation of the order.
A community treatment order may be made in respect of a forensic patient who is to be released unconditionally in accordance with an order of the Tribunal.
On and from the release of the forensic patient unconditionally in accordance with the order of the Tribunal, the community treatment order is taken to have been made under the Mental Health Act 2007.
The Tribunal must carry out reviews of persons (other than forensic patients) who are subject to community treatment orders and who are detained in correctional centres or detention centres no later than 3 months after the community treatment orders are made and at least once every 6 months during the term of each order.
A person ceases to be a forensic patient if one of the following circumstances occurs—
(a) the person is released unconditionally in accordance with an order made by the Tribunal or by a court,
(b) the person is released conditionally in accordance with an order made by the Tribunal and the conditions expire,
(c) the person has been found unfit to be tried for an offence and is found not guilty of an offence at a special hearing,
(d) the person has been found unfit to be tried for an offence and is found guilty at a special hearing and no limiting term is imposed on the person,
(e) a limiting term imposed on the person expires and no extension order or interim extension order is made against the person,
(f) an extension order or interim extension order made against the person expires and no further order is made,
(g) the person was found unfit to be tried for an offence and is later found fit to be tried for the offence, and the Director of Public Prosecutions has provided advice to the court under section 53(2),
(h) the relevant charges against the person are dismissed or the Director of Public Prosecutions notifies the court that the person will not be further proceeded with for the relevant charges,
(i) the Tribunal classifies the patient as an involuntary patient,
(j) in any other circumstances prescribed by the regulations for the purposes of this section.
For the purposes of calculating whether a limiting term has expired, a period during which the person on whom the term was imposed was unlawfully absent from a mental health facility or other place in which the person was detained under this Act is not to be counted as part of the limiting term.
In this section, a person is
The Tribunal must notify a person who is apprehended under an order made under section 109 or 111 in writing of the effect of this section and the new expiry date of the person’s limiting term, if the Tribunal is notified that the person has been so apprehended.
A person’s status as a forensic patient may be extended in accordance with Part 6.
A correctional patient ceases to be a correctional patient if one of the following circumstances occurs—
(a) the person is transferred to a correctional centre, detention centre or other place (other than another mental health facility) from the mental health facility,
(b) a sentence of imprisonment expires and no high risk offender detention order is made against the person,
(c) a high risk offender detention order made against the person expires and no further high risk offender detention order is made,
(d) the person is ordered to be released on parole,
(e) the person is otherwise released on the order of a court,
(f) the relevant charges against the person are dismissed,
(g) the Director of Public Prosecutions notifies the court or the Tribunal that the person will not be further proceeded against in respect of the relevant charges.
The Tribunal may, on a review under this Part, classify a patient detained in a mental health facility, correctional centre, detention centre or other place as an involuntary patient if—
(a) the patient is a forensic patient detained following a special hearing and is to cease to be a forensic patient within 6 months after the date of the review, or
(b) the patient is a correctional patient who is to cease to be a correctional patient within 6 months after the date of the review.
The Tribunal may order that a patient classified as an involuntary patient be transferred from a correctional centre or detention centre to a mental health facility.
The Tribunal may only classify a forensic patient who is subject to a limiting term or an extension order as an involuntary patient if—
(a) each Minister entitled to apply for an extension of the patient’s forensic status has notified the Tribunal that an application for an extension is not proposed to be made, or
(b) the Supreme Court has dismissed an application under Part 6 for extension of the patient’s forensic status.
The Tribunal may ask a Minister to provide advice about whether the Minister proposes to make an application under Part 6.
A Minister entitled to make an application under Part 6 for extension of a patient’s forensic status is to notify the Tribunal as soon as practicable of a decision to apply for, or not to apply for, the extension.
A person who ceases to be a forensic patient must be discharged from the mental health facility, correctional centre, detention centre or other place in which the person is detained.
A person who ceases to be a correctional patient must be discharged from the mental health facility in which the person is detained.
The Tribunal or a member of the Tribunal is not liable for any costs relating to a determination of the Tribunal, or the failure or refusal of the Tribunal to make a determination, in respect of which an appeal is made under this Act, or of the appeal.
There is to be a Victims Register.
The following matters are to be included in the Victims Register—
(a) the names of victims of forensic patients who have requested that they be given notice of the review by the Tribunal of those patients,
(b) any other matter prescribed by the regulations.
The Victims Register may only include the name of a victim of a forensic patient if—
(a) there is a special verdict of act proven but not criminally responsible for the offence against the victim entered in respect of the forensic patient (whether or not following a special hearing), or
(b) a limiting term has been imposed on the forensic patient following a verdict in a special hearing in respect of the offence against the victim.
The Victims Register is to be kept by the Commissioner of Victims Rights and is to be in the form determined by the Commissioner.
The regulations may make provision for or with respect to the following matters—
(a) applications to register as a victim,
(b) the verification by the Commissioner of the identity of persons applying to register as victims, and the circumstances under which they became victims,
(c) the use and disclosure of information contained in the Victims Register,
(d) notifications to victims by the Tribunal or the Commissioner,
(e) the operation and administration of the Victims Register.
As soon as practicable after becoming aware of an eligible victim, the Commissioner of Victims Rights must notify the eligible victim of the following matters—
(a) that the Commissioner keeps the Victims Register,
(b) that the person is, on request, eligible to be included in the Victims Register in relation to the forensic patient and the offence,
(c) other matters prescribed by the regulations for this section about the following—
(i) eligibility for being included in the Victims Register,
(ii) the process for being included in the Victims Register,
(iii) the effect of being included in the Victims Register.
However, if the eligible victim is under an incapacity or is less than 18 years of age, the Commissioner of Victims Rights must give notice of the matters under subsection (1) to at least 1 notifiable family member of the eligible victim known to a prosecuting authority instead of the eligible victim.
Despite subsection (2), if the eligible victim is 16 or 17 years old, the Commissioner of Victims Rights may direct that notice under subsection (1) be given to the eligible victim instead of a notifiable family member of the eligible victim.
In deciding whether to give a direction under subsection (3), the Commissioner of Victims Rights must consider the eligible victim’s individual circumstances.
The Commissioner of Victims Rights is not required to notify the person of a matter under this section if—
(a) the Commissioner does not have sufficient information to enable the Commissioner to notify the person of the matter despite having taken reasonable steps to ascertain the information from a prosecuting authority, or
Example— The Commissioner does not know, and cannot reasonably ascertain, the person’s identity or the person’s full or correct contact details.
(b) the Commissioner is aware, on reasonable grounds, the person does not wish to be included in or contacted about the Victims Register in relation to the forensic patient and the offence, or
Examples of reasonable grounds— The Commissioner has been informed of the fact by the person or a representative of the person, or has been informed by a prosecuting authority that the person or a representative of the person has informed the prosecuting authority of the fact.
(c) the person is already included in the Victims Register as a victim of the forensic patient in relation to the offence, or
(d) the Commissioner is aware the person has already been notified of the matter, including because the matter has been included in another notice already given to the person by the Commissioner or another government agency under this Act or another Act.
In this section—
A victim of a forensic patient means a primary victim, or a family victim, of an act of violence, within the meaning of the Victims Rights and Support Act 2013, committed by the forensic patient—see section 3, definition of
(a) the eligible victim’s spouse,
(b) the eligible victim’s de facto partner who has cohabited with the eligible victim for at least 2 years,
(c) a parent or legal guardian of the eligible victim,
(d) a child or step-child of the eligible victim, or some other child of whom the eligible victim is the guardian,
(e) a sibling or half-sibling of the eligible victim,
(f) another person approved by the Commissioner of Victims Rights as being an appropriate person to notify instead of the eligible victim, having regard to the eligible victim’s individual circumstances.
(a) the Office of the Director of Public Prosecutions, or
(b) the NSW Police Force.
The Commissioner of Victims Rights must give notice to a victim of a forensic patient whose name is recorded in the Victims Register if—
(a) the forensic patient is due for a mandatory review by the Tribunal, or
(b) an application is made by or for the forensic patient for a review by the Tribunal, or an application is made by or for the forensic patient to the Tribunal, in relation to release or leave of absence, or
(c) the Tribunal makes an order for the release (including the conditional release) of, or granting leave of absence to, the forensic patient or refuses to make an order of that kind, or
(d) the forensic patient ceases to be a forensic patient, or
(e) the forensic patient is unlawfully absent from a mental health facility or other place of detention, or
(f) the forensic patient appeals against a decision of the Tribunal, or
(g) notice is required to be given of a specified matter by regulations made for the purposes of this paragraph.
The notice is to be given subject to and in accordance with the regulations.
Without limiting subsection (2), the notice must contain the following information—
(a) the matter being notified,
(b) that the victim may make a submission to the Tribunal in review proceedings involving the forensic patient,
(c) the form that a submission may take,
(d) the period within which a submission must be made.
The Commissioner is not required to give notice of a matter under this section if—
(a) the matter required to be notified to the victim is included in any other requirement to give notice to the victim under this Act, or
(b) the victim has notified the Commissioner that the victim does not require notice of the matter.
A failure by the Commissioner to comply with this section does not affect the validity of any decision or order made by the Tribunal.
At least 6 months before the expiry of a limiting term or extension order to which a forensic patient is subject, the Tribunal must inform each Minister administering this Act of the date on which the limiting term or extension order is due to expire.
The following must use their best endeavours to comply with a request made to them under this Act by the Tribunal if the request is consistent with the discharge of their responsibilities and does not unduly prejudice the discharge of their functions—
(a) the Secretary of the Ministry of Health,
(b) the Commissioner of Corrective Services,
(c) the Secretary of the Department of Communities and Justice,
(d) the Commissioner of Victims Rights,
(e) the Executive Director, Juvenile Justice, Department of Communities and Justice,
(f) any other government Department or agency responsible for the detention, care or treatment of a forensic patient or correctional patient.
A court or the Director of Public Prosecutions must notify the Tribunal if the relevant charges against a forensic patient or correctional patient are dismissed or the person is not to be further proceeded against in respect of the relevant charges.
The Secretary of the Ministry of Health, the Commissioner of Corrective Services and the Secretary of the Department of Communities and Justice may enter into arrangements (
The information to which an information sharing protocol may relate is limited to the following—
(a) information concerning forensic patients and correctional patients,
(b) other information that may be prescribed by the regulations.
The Commissioner of Victims Rights and the President of the Tribunal may enter into arrangements with each other to exchange information held by the Department of Communities and Justice, the Commissioner or the Tribunal for the purposes of the Victims Register and notifications under Part 8.
Under an information sharing protocol or other arrangement under this section, each Department and associated agency the subject of the arrangement is authorised, without obtaining the consent of any person whose consent would otherwise be required—
(a) to request and receive information held by another Department or associated agency the subject of the arrangement, and
(b) to disclose information to any of those Departments or associated agencies.
The authority conferred by this section relates only to information that is reasonably necessary—
(a) in the case of information exchanged under an information sharing protocol, to assist in the exercise of functions under this Act or the functions of the relevant Departments or associated agencies concerned, or
(b) in the case of information exchanged under an arrangement under subsection (3), for the purposes of the Victims Register and notifications under Part 8.
This section does not limit the operation of an Act under which the Department or associated agency concerned is authorised or required to disclose information to another person or body.
This section has effect despite the Crimes (Administration of Sentences) Act 1999 or the Children (Detention Centres) Act 1987.
The provision of information under this section does not constitute a contravention of the Health Records and Information Privacy Act 2002 or the Privacy and Personal Information Protection Act 1998.
In this section—
(a) a local health district (within the meaning of the Health Services Act 1997),
(b) a statutory health corporation (within the meaning of the Health Services Act 1997),
(c) the Tribunal,
(d) the Commissioner of Victims Rights.
Despite any provision of this Act or any order made under this Act, the Commissioner of Corrective Services and the Secretary of the Department of Communities and Justice may exercise any of their functions in relation to a forensic patient or correctional patient who is detained in a correctional centre or detention centre if the function is exercised for the purpose of maintaining the security, good order or safety, in any way, of the correctional centre or detention centre or its inmates.
The Secretary of the Department of Communities and Justice may delegate any of the Secretary’s functions under this Part (other than this power of delegation) to the Executive Director, Juvenile Justice, Department of Communities and Justice.
Proceedings for an offence against this Act are to be dealt with summarily before the Local Court.
Proceedings for an offence under section 113 may be dealt with on indictment.
A Minister administering this Act may, by instrument in writing, delegate the exercise of any function of the Minister under this Act (other than this power of delegation)—
(a) to any person employed in a Department responsible to the Minister, or
(b) to any person, or any class of persons, authorised for the purposes of this section by the regulations.
The Secretary of the Department of Communities and Justice may delegate the exercise of any function of the Secretary under this Act (other than this power of delegation)—
(a) to any person employed in the Department of Communities and Justice, or
(b) to any person, or any class of persons, authorised for the purposes of this section by the regulations.
Nothing in this section limits the operation of section 21 of the Health Administration Act 1982.
If an order is made by a court, the Tribunal or the Secretary of the Ministry of Health specifying that a forensic patient is to be detained in or transferred to a specified correctional centre or detention centre, the Commissioner of Corrective Services or the Secretary of the Department of Communities and Justice may cause that patient to be detained in any correctional centre or detention centre.
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(Repealed)
(Section 86(3))
I, [
I have formed this opinion on the following grounds—
(1) Facts indicating *mental illness/condition observed by myself.
(2) Other relevant information (if any) communicated to me by others (state name and address of each informant).
Made and signed this [
[
*Delete whichever does not apply.
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.
Any such provision—
(a) may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date, and
(b) has effect despite anything to the contrary in this Schedule.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication on the NSW legislation website, the provision does not operate so as—
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Without limiting subclauses (1) and (2), regulations made for the purposes of this clause may amend this Schedule to provide for additional or different savings and transitional provisions instead of including provisions in the regulations.
In this Part—
An act, matter or thing done or omitted to be done under a provision of the former Act and having force or effect immediately before the commencement of a provision of this Act that replaces that provision is, on that commencement, taken to have been done or omitted to be done under the provision of this Act.
This clause does not apply—
(a) to the extent to which its application is inconsistent with another provision of this Schedule or a provision of a regulation made under this Schedule, or
(b) to the extent that its application would be inappropriate in a particular case.
The information contained in the register of victims of forensic patients kept under the former Act immediately before the commencement of this Act is taken to form part of the Victims Register for the purposes of this Act.
This clause applies to a defendant in proceedings for offences commenced before the commencement of Part 3 of this Act where a question has been raised before that commencement as to whether the defendant was, at the time of commission of the offence, mentally ill as referred to in section 38 of the former Act.
The former Act continues to apply to the defendant until a determination is made as to whether a special verdict should be entered or the defence is no longer being raised.
In circumstances where the court would have found the special verdict of not guilty by reason of mental illness the court must instead find the special verdict of act proven but not criminally responsible.
A special verdict that a person was not guilty of an offence by reason of mental illness is taken, for all purposes, to be a special verdict against the person of act proven but not criminally responsible for the offence.
This Act extends to proceedings for offences commenced and not completed before the commencement of Part 4 of this Act if the question of the defendant’s unfitness to be tried was raised before that commencement.
Without limiting subclause (1), an inquiry or a special hearing commenced under the former Act and not completed before that commencement is to be continued in accordance with this Act.
Part 2 of the former Act is to continue to apply to existing proceedings as if the former Act had not been repealed.
In this clause—
(a) in which the court has, before the commencement of this Act, nominated a limiting term in respect of a person, and
(b) in which the court has not made an order under section 27 of the former Act in relation to the person.
Part 3 of the former Act is to continue to apply to existing proceedings as if the former Act had not been repealed.
In this clause—
A person who, immediately before the commencement of Part 5 of this Act, was a forensic patient or a correctional patient under the former Act is taken to be a forensic patient or a correctional patient within the meaning of this Act and this Act applies accordingly.
A decision made under this Act by an authorised justice about bail that is in force immediately before the commencement continues in force as if the amendment Act had not commenced.
In this clause—
(Repealed)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 No 12. Assented to 23.6.2020. Date of commencement, 27.3.2021, sec 2 and 2021 (116) LW 19.3.2021. This Act has been amended as follows—
No 26 | Stronger Communities Legislation Amendment (Crimes) Act 2020. Assented to 28.9.2020. Date of commencement, assent, sec 2. | |
No 31 | Stronger Communities Legislation Amendment (Miscellaneous) Act 2020. Assented to 27.10.2020. Date of commencement of Sch 2.5, assent, sec 2(1). | |
No 4 | COVID-19 Legislation Amendment (Stronger Communities and Health) Act 2021. Assented to 24.3.2021. Date of commencement of Sch 2, assent, sec 2(1). | |
No 6 | Health Legislation (Miscellaneous) Amendment Act 2022. Assented to 24.3.2022. Date of commencement, assent, sec 2. | |
No 41 | Health Legislation (Miscellaneous) Amendment Act (No 2) 2022. Assented to 4.10.2022. Date of commencement of Sch 7, assent, sec 2(b). | |
No 7 | Statute Law (Miscellaneous Provisions) Act 2023. Assented to 3.7.2023. Date of commencement, 14.7.2023, sec 2. | |
No 35 | Statute Law (Miscellaneous Provisions) Act (No 2) 2023. Assented to 30.10.2023. Date of commencement of Sch 2.9, assent, sec 2(c). | |
No 5 | Detention Legislation Amendment (Prohibition on Spit Hoods) Act 2024. Assented to 19.2.2024. Date of commencement, assent, sec 2. | |
No 5 | Mental Health Legislation Amendment Act 2025. Assented to 2.3.2025. Date of commencement, 2.5.2025, sec 2 and 2025 (183) LW 24.4.2025. | |
No 27 | Victims Legislation Amendment (Victims Registers) Act 2025. Assented to 11.6.2025. Date of commencement, 1.9.2025, sec 2 and 2025 (445) LW 29.8.2025. | |
No 61 | Local Court and Bail Legislation Amendment Act 2025. Assented to 28.10.2025. Date of commencement of Sch 2: not in force; date of commencement of Sch 3, assent, sec 2(a). |
This Act has been amended by sec 30C of the Interpretation Act 1987 No 15.
Sec 7 | Am 2025 No 61, Sch 3.11[1]. |
Sec 9 | Am 2021 No 4, Sch 2[1]. |
Sec 18 | Am 2025 No 61, Sch 3.11[2]. |
Sec 19 | Am 2025 No 61, Sch 3.11[3]. |
Sec 21 | Am 2025 No 61, Sch 3.11[4]. |
Sec 22 | Am 2025 No 61, Sch 3.11[2]. |
Sec 23 | Am 2025 No 61, Sch 3.11[2]. |
Sec 24 | Am 2025 No 61, Sch 3.11[2] [5] [6]. |
Sec 53 | Am 2023 No 35, Sch 2.9. |
Sec 69 | Am 2022 No 41, Sch 7[1]. |
Sec 71 | Am 2024 No 5, Sch 6. |
Sec 77 | Am 2021 No 4, Sch 2[2]. |
Sec 78 | Am 2023 No 35, Sch 2.9. |
Sec 85 | Am 2025 No 5, Sch 1[1]. |
Sec 91 | Am 2023 No 35, Sch 2.9. |
Sec 96 | Am 2023 No 7, Sch 1.14. |
Sec 101 | Am 2022 No 41, Sch 7[2]. |
Sec 147 | Am 2023 No 35, Sch 2.9. |
Sec 148 | Am 2025 No 5, Sch 1[2] [3]. |
Sec 150 | Am 2023 No 35, Sch 2.9. |
Sec 151 | Am 2023 No 35, Sch 2.9. |
Sec 152 | Am 2023 No 35, Sch 2.9. |
Sec 156 | Ins 2025 No 27, Sch 3. |
Sec 167 | Rep 1987 No 15, sec 30C. |
Sch 1 | Am 2022 No 6, Sch 1.4. |
Sch 2 | Am 2021 No 4, Sch 2[3] [4]; 2025 No 61, Sch 3.11[7]. |
Sch 3 | Am 2020 No 26, Sch 1.12[1]–[3]; 2020 No 31, Sch 2.5. Rep 1987 No 15, sec 30C. |
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