Forensic Health Legislation (Amendment) Act 2002

i Forensic Health Legislation (Amendment) Act 2002 Act No. 7/2002 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1. Purpose 1 2. Commencement 2 PART 2—CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 3 3. Definitions and application 3 4. Mental impairment defence in the Magistrates' Court 4 5. New section 19A inserted 5 19A. Appeal against unconditional release 5 6. New section 24A inserted 6 24A. Appeal against unconditional release 6 7. Supervision orders 7 8. New section 28A inserted 8 28A. Appeal against supervision order 8 9. Non-compliance with non-custodial supervision order 10 10. New sections 30A and 30B inserted 10 30A. Warrant to arrest person breaching non-custodial supervision order who leaves Victoria 11 30B. Warrant to arrest person subject to custodial supervision order who leaves Victoria 12 11. Application for variation or revocation of supervision order 13 12. Review of supervision orders 13 13. New section 34 substituted and 34A inserted 14 34. Appeal against confirmation or variation of supervision orders 14 34A. Appeal against revocation of non-custodial supervision orders 16 14. Major reviews 17 15. Appearances at hearings and evidentiary provisions 18 16. New section 38 substituted 19 38. Rules of evidence not to apply in certain hearings 19 -- 1 of 83 -- Section Page ii 17. New sections 38A to 38F inserted 19 38A. Notice of hearings to persons subject to supervision orders 20 38B. Notice of hearings to DPP, Attorney-General and Secretary to Department of Human Services 20 38C. Notice of hearings to family members and victims 21 38D. Appointment of person to receive notice on behalf of child 23 38E. Provision of information to family members and victims 24 38F. List of family members 25 18. Principle to be applied by court 25 19. Matters to which the court is to have regard 26 20. Reports on mental condition of defendants 27 21. Reports of family members and victims 27 22. New section 44 substituted 28 44. Distribution of report 28 23. Special leave of absence for medical treatment 28 24. Limited off-ground leave 29 25. New section 54 substituted and sections 54A and 54B inserted 29 54. Granting of on-ground or limited off-ground leave 29 54A. Applicant profile 31 54B. Leave plan or statement 32 26. Suspension of leave 33 27. New section 57 substituted and sections 57A and 57B inserted 34 57. Granting of extended leave 34 57A. Leave plan for extended leave 35 57B. Appeals regarding extended leave 36 28. Suspension and revocation of extended leave 37 29. New section 58A inserted 37 58A. Appeals regarding revocation of extended leave 38 30. New Part 7A and Part 7B inserted 39 PART 7A—INTERSTATE TRANSFER OF PERSONS SUBJECT TO SUPERVISION ORDERS 39 73A. Definitions 39 73B. Corresponding laws and orders 40 73C. Informed consent 40 73D. Transfer of persons from Victoria to a participating State 41 73E. Transfer of persons from a participating State to Victoria 42 73F. Review of persons transferred to Victoria 44 73G. Nominal term of supervision order 45 73H. Appeal against unconditional release 47 -- 2 of 83 -- Section Page iii PART 7B—PERSONS ABSCONDING TO VICTORIA FROM INTERSTATE 49 73I. Definitions 49 73J. Warrant to arrest person who absconds to Victoria 50 73K. Interim disposition order 51 73L. Review of interim disposition order 53 73M. Nominal term of supervision order 54 73N. Appeal against unconditional release 55 31. New sections 76A and 76B inserted 58 76A. Directions 58 76B. Court rules for appeals 58 32. Repeal of delegation provision 58 33. Transitional provisions 59 PART 3—CONTROL OF WEAPONS ACT 1990 61 34. Forfeiture of weapons, dangerous articles or body armour 61 PART 4—INTELLECTUALLY DISABLED PERSONS' SERVICES ACT 1986 62 35. Definitions 62 PART 5—MENTAL HEALTH ACT 1986 63 36. Definitions 63 37. Hospital orders 63 38. Functions of Mental Health Review Board 63 39. New section 43A inserted 64 43A. Clinical guidelines for discharge of security patients 64 40. New sections 44 and 45 substituted 64 44. Board may order discharge 64 45. Chief psychiatrist may order discharge 64 41. New section 51 substituted 65 51. Leave of absence for security patients 65 42. Special leave of absence for security patients 67 43. New section 53AA inserted 67 53AA. Warrant to arrest security patient absent without leave who leaves Victoria 67 44. Application of Division 4 68 45. Interstate application of mental health provisions 68 46. New Part 5B inserted 70 PART 5B—INTERSTATE SECURITY PATIENTS ABSCONDING TO VICTORIA 70 93M. Definitions 70 93N. Warrant to arrest interstate security patient who absconds to Victoria 71 -- 3 of 83 -- Section Page iv 93O. Orders Magistrates' Court may make in respect of interstate security patients 72 93P. Translated sentence for interstate security patient 73 93Q. Provisions relating to translated sentences 74 47. Non-delegation of certain duties 75 48. New section 147 inserted 75 147. Transitional provisions—Forensic Health Legislation (Amendment) Act 2002 75 PART 6—STATUTE LAW REVISION 77 49. Community Visitors Legislation (Miscellaneous Amendments) Act 2001 77 50. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 78 51. Mental Health Act 1986 78 ═══════════════ ENDNOTES 79 -- 4 of 83 -- 1 Forensic Health Legislation (Amendment) Act 2002 † [Assented to 9 April 2002] The Parliament of Victoria enacts as follows: PART 1—PRELIMINARY 1. Purpose The main purpose of this Act is to amend the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Control of Weapons Act 1990, the Intellectually Disabled Persons' Services Act 1986 and the Mental Health Act 1986 with respect to security patients and persons subject to supervision. Victoria No. 7 of 2002 -- 5 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 2 2. Commencement (1) This Part and Part 6 come into operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to sub-section (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (3) If a provision referred to in sub-section (2) does not come into operation before 1 July 2002, it comes into operation on that day. _______________ s. 2 -- 6 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 3 PART 2—CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 3. Definitions and application (1) In section 3(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997— (a) in the definition of "court", after "County Court" insert "and in section 47 includes Magistrates' Court"; (b) in the definition of "forensic patient", after paragraph (a) insert— "(ab) a person detained in an approved mental health service under section 30(2) or 30A(3); or (ac) a person deemed to be a forensic patient by section 73E(4) or 73K(8); or"; (c) in the definition of "forensic resident", after paragraph (a) insert— "(ab) a person detained in a residential service under section 30(2) or 30A(3); or (ac) a person deemed to be a forensic resident by section 73E(4) or 73K(8); or"; (d) after the definition of "limited off-ground leave" insert— ' "major review" means a review under section 35;'; See: Act No. 65/1997. Reprint No. 1 as at 18 February 1999 and amending Act Nos 41/2000, 53/2000 and 72/2001. LawToday: www.dms. dpc.vic. gov.au s. 3 -- 7 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 4 (e) after the definition of "Panel" insert— ' "parent" of a child includes a person who has day to day care and control of the child and with whom the child is ordinarily resident;'. (2) In section 4 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "25(1)" insert "and Parts 7A and 7B". (3) At the end of section 4 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert— "(2) If an appeal is made under this Act to the Court of Appeal— (a) a reference in this Act to the court, in respect of the making or confirming of a supervision order by the Court of Appeal on the appeal, is a reference to the Court of Appeal; and (b) if the Court of Appeal makes or confirms a supervision order on the appeal, a reference in this Act to the court that made the supervision order is a reference to the court from which the appeal was made to the Court of Appeal. (3) Sub-section (2) does not apply so as to allow a person to appeal to the Court of Appeal against a supervision order made by the Court of Appeal.". 4. Mental impairment defence in the Magistrates' Court At the end of section 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert— s. 4 -- 8 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 5 "(2) If the Magistrates' Court finds a person not guilty because of mental impairment of a summary offence or an indictable offence tried summarily, the Magistrates' Court must discharge the person.". 5. New section 19A inserted (1) After section 19 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert— "19A. Appeal against unconditional release (1) The Director of Public Prosecutions may appeal to the Court of Appeal against an order for unconditional release under section 18(4)(b) if he or she considers that— (a) the order should not have been made; and (b) an appeal should be brought in the public interest. (2) On an appeal under sub-section (1), the Court of Appeal may— (a) confirm the order; or (b) quash the order and by order declare that the defendant is liable to supervision under Part 5. (3) If the Court of Appeal declares a defendant liable to supervision, the Court of Appeal may— (a) remit the matter, with or without directions, to the court that made the order for unconditional release; or (b) make a supervision order in respect of the defendant. s. 5 -- 9 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 6 (4) If the Court of Appeal remits a matter to a court under sub-section (3)(a), that court must make a supervision order in respect of the defendant in accordance with this Act and any directions given by the Court of Appeal. (5) The Court of Appeal may make any order that the judge could have made under section 19 pending the making of a supervision order in respect of the defendant.". 6. New section 24A inserted After section 24 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert— "24A. Appeal against unconditional release (1) The Director of Public Prosecutions may appeal to the Court of Appeal against an order for unconditional release under section 23(b) if he or she considers that— (a) the order should not have been made; and (b) an appeal should be brought in the public interest. (2) On an appeal under sub-section (1), the Court of Appeal may— (a) confirm the order; or (b) quash the order and by order declare that the defendant is liable to supervision under Part 5. (3) If the Court of Appeal declares a defendant liable to supervision, the Court of Appeal may— s. 6 -- 10 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 7 (a) remit the matter, with or without directions, to the court that made the order for unconditional release; or (b) make a supervision order in respect of the defendant. (4) If the Court of Appeal remits a matter to a court under sub-section (3)(a), that court must make a supervision order in respect of the defendant in accordance with this Act and any directions given by the Court of Appeal. (5) The Court of Appeal may make any order that the court could have made under section 24 pending the making of a supervision order in respect of the defendant.". 7. Supervision orders (1) In section 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, sub- sections (5), (6) and (7) are repealed. (2) In section 27 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for sub- section (2) substitute— "(2) When making a supervision order, the court may direct that the matter be brought back to the court for review at the end of the period specified by the court. Note: The court's powers on review are contained in section 32 (for custodial supervision orders) and section 33 (for non-custodial supervision orders).". s. 7 -- 11 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 8 (3) In section 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after sub- section (3) insert— "(4) In setting a nominal term for a supervision order, the court must declare the day from which the nominal term runs. (5) For the purpose of declaring a day under sub-section (4), the court may take into account any period of time during which the person subject to the order was held in custody or detained in an appropriate place in relation to proceedings for the offence which led to the making of the supervision order or proceedings arising from those proceedings (including proceedings under this Act and appeals).". 8. New section 28A inserted After section 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert— "28A. Appeal against supervision order (1) A person in respect of whom a supervision order is made may appeal to the Court of Appeal against the supervision order. (2) The Director of Public Prosecutions, the Attorney-General or the Secretary to the Department of Human Services may appeal to the Court of Appeal against a supervision order if he or she considers that— (a) a different supervision order should have been made; and (b) an appeal should be brought in the public interest. s. 8 -- 12 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 9 (3) On an appeal under this section, the Court of Appeal may— (a) confirm the supervision order; or (b) quash the supervision order and make another supervision order in substitution for it; or (c) quash the supervision order and remit the matter, with or without directions, to the court that made it; or (d) quash the supervision order and order the defendant to be released unconditionally. (4) If the Court of Appeal remits a matter to a court under sub-section (3)(c), that court must make another supervision order in accordance with this Act and any directions given by the Court of Appeal. (5) The Court of Appeal may make any one or more of the following orders pending the making of a supervision order under this section— (a) an order granting the defendant bail; (b) subject to sub-section (6), an order remanding the defendant in custody in an appropriate place; (c) subject to sub-section (7), an order remanding the defendant in custody in a prison; (d) if it is of the opinion that it is in the interests of justice to do so, an order— (i) that the defendant undergo an examination by a registered s. 8 -- 13 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 10 medical practitioner or registered psychologist; and (ii) that the results of the examination be put before the court that is to make the supervision order; (e) any other order the court thinks appropriate. (6) The Court of Appeal must not make an order remanding a person in custody in an appropriate place unless the Court of Appeal has received a certificate under section 47 stating that the facilities or services necessary for that order are available. (7) The Court of Appeal must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.". 9. Non-compliance with non-custodial supervision order (1) In section 29 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for sub- sections (1) and (2) substitute— '(1) A person having the supervision of a person under a non-custodial supervision order ("the supervisor") or the Secretary to the Department of Human Services may apply to the court that made the order for a variation of the order if it appears to the supervisor or the Secretary that the person subject to the order has failed to comply with it.'. (2) In section 29 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, sub- section (6) is repealed. 10. New sections 30A and 30B inserted s. 9 -- 14 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 11 After section 30 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert— "30A. Warrant to arrest person breaching non- custodial supervision order who leaves Victoria (1) If, at any time, it appears to a person having the supervision of a person under a non- custodial supervision order or to the Secretary to the Department of Human Services that the person subject to the order— (a) has failed to comply with the order; and (b) is no longer in Victoria— the person having supervision or the Secretary may apply to the Supreme Court, County Court or Magistrates' Court for a warrant to arrest the person subject to the order. (2) If the court to which the application is made is satisfied by evidence on oath, whether orally or by affidavit, of the matters specified in paragraphs (a) and (b) of sub-section (1), the court may order that a warrant to arrest be issued against the person subject to the order. (3) When a person arrested under a warrant issued under this section is returned to Victoria, he or she is to be taken to and detained in an appropriate place and treated or provided with services, if necessary, for his or her condition. (4) However, the person must be released from detention within 48 hours unless, within that period, an application is made under s. 10 -- 15 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 12 section 29(1) for variation of the person's supervision order. (5) The court to which an application referred to in sub-section (4) is made must hear it as soon as possible. 30B. Warrant to arrest person subject to custodial supervision order who leaves Victoria (1) If at any time it appears to a person having the supervision of a person under a custodial supervision order or to the Secretary to the Department of Human Services that the person subject to the order— (a) is absent without leave from an approved mental health service or a residential service; and (b) is no longer in Victoria— the person having supervision or the Secretary may apply to the Supreme Court, County Court or Magistrates' Court for a warrant to arrest the person subject to the order. (2) If the court to which the application is made is satisfied by evidence on oath, whether orally or by affidavit, of the matters specified in paragraphs (a) and (b) of sub-section (1), the court may order that a warrant to arrest be issued against the person subject to the order. (3) When a person arrested under a warrant issued under this section is returned to Victoria, he or she is to be returned to the approved mental health service or residential service from which he or she was absent without leave.". s. 10 -- 16 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 13 11. Application for variation or revocation of supervision order In section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997— (a) in sub-section (1), after paragraph (c) insert— "(d) the Attorney-General."; (b) sub-sections (3), (4) and (5) are repealed. 12. Review of supervision orders (1) In section 32(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "supervision order" (where first occurring) insert "or on a review of a custodial supervision order directed under section 27(2) or on a further review of a custodial supervision order directed under sub-section (5) or section 33(2)". (2) In section 32 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for sub- section (5) substitute— "(5) Unless the court revokes the order, the court may direct that the matter be brought back to the court for further review at the end of the period specified by the court. (6) A direction may be given under sub- section (5) more than once.". (3) In section 33 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "on a review directed under section 27(2)" substitute "on a review of a non-custodial supervision order directed under section 27(2) or on a further review s. 11 -- 17 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 14 of a non-custodial supervision order directed under sub-section (2) or section 32(5)". (4) At the end of section 33 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert— "(2) Unless the court revokes the order, the court may direct that the matter be brought back to the court for further review at the end of the period specified by the court. (3) A direction may be given under sub- section (2) more than once.". 13. New section 34 substituted and 34A inserted For section 34 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 substitute— "34. Appeal against confirmation or variation of supervision orders (1) A person who is subject to a supervision order may appeal to the Court of Appeal against an order confirming or varying the supervision order. (2) The Secretary to the Department of Human Services may appeal to the Court of Appeal against an order confirming or varying a supervision order if he or she considers that— (a) the supervision order should not have been confirmed or varied; and (b) an appeal should be brought in the public interest. (3) The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal against an order confirming or varying a supervision order if he or she— s. 13 -- 18 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 15 (a) was a party to the proceeding in which the order confirming or varying the supervision order was made; and (b) considers that the supervision order should not have been confirmed or varied; and (c) considers that an appeal should be brought in the public interest. (4) On an appeal against a confirmation of a supervision order, the Court of Appeal may— (a) confirm the supervision order; or (b) quash the supervision order and make any order that the court could have made under section 29, 32, 33 or 35 (as the case requires); or (c) quash the supervision order and remit the matter, with or without directions, to the court that made it. (5) On an appeal against a variation of a supervision order, the Court of Appeal may— (a) confirm the order for variation; or (b) quash the order for variation and make any order that the court could have made under section 29, 32, 33 or 35 (as the case requires); or (c) quash the order for variation and remit the matter, with or without directions, to the court that made it. (6) If the Court of Appeal remits a matter to a court under sub-section (4)(c) or (5)(c), that court must hear and determine the matter in s. 13 -- 19 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 16 accordance with this Act and any directions given by the Court of Appeal. (7) If the Court of Appeal quashes a supervision order under this section, the Court of Appeal may make any order that it could make under section 28A(5) pending the making of another supervision order in respect of the defendant. 34A. Appeal against revocation of non-custodial supervision orders (1) The Secretary to the Department of Human Services may appeal to the Court of Appeal against the revocation of a non-custodial supervision order if he or she considers that— (a) the supervision order should not have been revoked; and (b) an appeal should be brought in the public interest. (2) The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal against the revocation of a non- custodial supervision order if he or she— (a) was a party to the proceeding in which the order for revocation was made; and (b) considers that the supervision order should not have been revoked; and (c) considers that an appeal should be brought in the public interest. (3) On an appeal under this section, the Court of Appeal may— s. 13 -- 20 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 17 (a) confirm the order revoking the supervision order; or (b) quash the order revoking the supervision order and, by order— (i) confirm the supervision order; or (ii) vary the conditions of the supervision order; or (iii) vary the supervision order to a custodial supervision order; or (c) quash the order for revoking the supervision order and remit the matter, with or without directions, to the court that made it. (4) If the Court of Appeal remits a matter to a court under sub-section (3)(c), that court must hear and determine the matter in accordance with this Act and any directions given by the Court of Appeal.". 14. Major reviews (1) In section 35 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for sub- section (1) substitute— "(1) The court that made a supervision order must undertake a major review of the order— (a) at least 3 months before the end of the nominal term of the order; and (b) thereafter at intervals not exceeding 5 years for the duration of the order.". (2) In section 35 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after sub- section (3) insert— "(4) If the court confirms a custodial supervision order on a major review, the court may grant s. 14 -- 21 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 18 extended leave to the person subject to the order, without the need for a separate application for leave, if the court could have granted extended leave to the person on an application under section 57.". 15. Appearances at hearings and evidentiary provisions (1) In section 36 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for sub- section (1) substitute— "(1) Unless sub-section (4) applies, a person has the right to appear before the court in person at any hearing in which the court is considering— (a) making, varying or revoking a supervision order in respect of the person; or (b) granting extended leave to the person; or (c) revoking a grant of extended leave to the person.". (2) In section 37(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for paragraph (a) substitute— "(a) the Attorney-General and the Director of Public Prosecutions are entitled to appear before the court; and". (3) In section 37 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after sub- section (1) insert— "(1A) The person having the custody, care, control or supervision of a person who is subject to a supervision order is entitled to appear before s. 15 -- 22 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 19 the court at any hearing in which the court is considering— (a) varying or revoking the supervision order; or (b) granting extended leave to the person subject to the order; or (c) revoking a grant of extended leave to the person.". 16. New section 38 substituted For section 38 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 substitute— "38. Rules of evidence not to apply in certain hearings The court is not bound by rules or practice as to evidence but may inform itself in relation to any matter in such manner as it thinks fit in the hearing of— (a) a major review; (b) a review directed under section 27(2), 32(5) or 33(2); (c) an application for variation or revocation of a supervision order; (d) an application for extended leave or for revocation of extended leave; (e) an application for an order under section 38C(8); (f) an application under section 38D(1).". 17. New sections 38A to 38F inserted After section 38 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert— s. 16 -- 23 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 20 "38A. Notice of hearings to persons subject to supervision orders (1) Notice of any court hearing under this Act in relation to a person who is subject to a supervision order must be given to the person (unless the person is the applicant)— (a) in the case of a major review or a review directed by a court under section 27(2), 32(5) or 33(2)—as directed by the court; or (b) in any other case—by the applicant. (2) The notice must be given at least 14 days (or such lesser period as the court directs) before the day of the hearing. (3) Sub-section (1) does not require notice to be given of the hearing of an application for a warrant under section 30A or 30B. 38B. Notice of hearings to DPP, Attorney- General and Secretary to Department of Human Services (1) Notice of any court hearing under this Act in relation to a person who is subject to a supervision order must be given to— (a) the Director of Public Prosecutions; and (b) the Attorney-General; and (c) the Secretary to the Department of Human Services; and (d) the person having the custody, care, control or supervision of the person subject to the supervision order. (2) The notice must be given— s. 17 -- 24 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 21 (a) in the case of a major review or a review directed by a court under section 27(2), 32(5) or 33(2)—as directed by the court; or (b) in any other case—by the applicant. (3) The notice must be given at least 14 days (or such lesser period as the court directs) before the day of the hearing. (4) This section does not apply so as to require an applicant to give notice to themselves. 38C. Notice of hearings to family members and victims (1) The Director of Public Prosecutions must give notice of any court hearing referred to in sub-section (2) in relation to a person who is subject to a supervision order to— (a) each family member of the person; and (b) each victim of the offence with which the person was charged. (2) The hearings of which notice is required to be given under this section are hearings of— (a) a major review; (b) a review directed under section 27(2), 32(5) or 33(2); (c) an application under section 31 for variation or revocation of a supervision order; (d) an application for extended leave, if the granting of the application would significantly reduce the degree of supervision to which the person is subject. -- 25 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 22 (3) The notice must be given at least 14 days (or such lesser period as the court directs) before the day of the hearing. (4) Notice to a family member or victim who is under the age of 18 years is to be given to— (a) a parent or guardian of the person; or (b) if the court makes an order under section 38D, the person named in the order. (5) Notice is not to be given to a family member or victim who has given notice to the Director of Public Prosecutions that he or she does not wish to be notified of any hearing in relation to the person who is subject to the supervision order, and has not withdrawn that notice. (6) Notice to the Director of Public Prosecutions under sub-section (5) may be given on behalf of a family member or victim who is under the age of 18 years by— (a) a parent or guardian; or (b) if the court makes an order under section 38D, the person named in the order. (7) Notice of a hearing need not be given to a person— (a) whose whereabouts have not, after reasonable enquiry, been ascertained; or (b) if an order is made under sub- section (8) or (10). (8) On application by the Director of Public Prosecutions, the Attorney-General or the Secretary to the Department of Human s. 17 -- 26 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 23 Services, the court may order that notice of a particular hearing need not be given to a family member or victim if the court is satisfied that giving such notice to them would be detrimental to their mental or physical health. (9) If the court makes an order under sub- section (8), it may order that notice of the hearing be given to another person on their behalf. (10) If the court adjourns a hearing, the court may order that notice of the resumption of the hearing is not required to be given to a family member or victim. (11) If a person is both a family member and a victim, notice may be given to them in either of those capacities. 38D. Appointment of person to receive notice on behalf of child (1) The Director of Public Prosecutions may apply to the court for an order that notice under section 38C to a family member or victim under the age of 18 years be given to a person other than a parent or guardian if— (a) the Director of Public Prosecutions considers that the parents or guardians may not be acting in the best interests of the family member or victim; or (b) the only parents or guardians are persons who are liable to supervision or subject to a supervision order; or (c) there are no parents or guardians or their identity or whereabouts cannot, after reasonable enquiry, be ascertained. s. 17 -- 27 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 24 (2) On an application under sub-section (1), the court may order that notice under section 38C be given to a person named in the order on behalf of the family member or victim instead of to the parent or guardian. 38E. Provision of information to family members and victims (1) As soon as practicable after becoming aware that a hearing referred to in section 38C(2) is to be held in relation to a person who is subject to a supervision order, a person having the supervision of the person must give the following information to the Director of Public Prosecutions— (a) whether the supervision order is a custodial supervision order or a non- custodial supervision order; and (b) if it is a custodial supervision order, whether or not the person is on extended leave; and (c) if the person is on extended leave or is subject to a non-custodial supervision order, the person's current level of supervision. (2) The Director of Public Prosecutions must give the information to each family member and victim of the offence with which the person subject to the supervision order was charged, unless section 38C provides that notice of the hearing is not to be given, or need not be given, to the family member or victim. (3) If a family member or victim is under the age of 18 years, the information must be given to a parent or guardian or a person appointed s. 17 -- 28 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 25 under section 38D on behalf of the family member or victim. (4) The information must be given to a family member or victim a reasonable time before the hearing. 38F. List of family members (1) A person who is subject to a supervision order must give to the Director of Public Prosecutions a list of the person's family members, containing their names and, if known, their addresses. (2) The list may be given to the Director of Public Prosecutions at any time after the supervision order is made, but must be given— (a) on or before the making by the person subject to the order of an application referred to in section 38C(2)(c) or (d); or (b) not later than 14 days after the person subject to the order receives notice of a hearing referred to in section 38C(2)(a) or (b) or of an application referred to in section 38C(2)(c) or (d) made by another person— whichever first occurs. (3) Nothing in this section requires a list to be given more than once during the life of a supervision order.". 18. Principle to be applied by court In section 39 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for "or to remand a person in custody" substitute ", to remand a person in custody, to grant a person s. 17 s. 18 -- 29 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 26 extended leave or to revoke a grant of extended leave". 19. Matters to which the court is to have regard (1) In section 40(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after "a person" insert ", to grant extended leave to a person or to revoke a grant of extended leave". (2) In section 40(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997— (a) after paragraph (a) insert— "(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and"; (b) after paragraph (d) insert— "(da) in the case of an application for extended leave—has considered the leave plan filed under section 57A; and". (3) In section 40 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for sub- section (3) substitute— "(3) Sub-section (2)(c) does not apply if section 38C provides that notice is not to be given, or need not be given, to a family member or victim. (4) The court cannot make a further grant of extended leave for a person who is on extended leave at the time of the application s. 19 -- 30 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 27 unless the court has obtained and considered— (a) the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on— (i) the person's mental condition; and (ii) the possible effect of the proposed further grant on the person's behaviour; and (b) the leave plan filed under section 57A.". 20. Reports on mental condition of defendants In section 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after sub- section (3) insert— "(3A) The purpose of a report under sub-section (3) is to assist the court in determining any application or undertaking any review in respect of the person to whom the report relates. Note: Section 40(2)(b) requires the court to consider the report before it can make certain orders or other determinations in respect of the person to whom it relates. (3B) The appropriate person must give the Attorney-General a copy of each report filed with the court under sub-section (3).". 21. Reports of family members and victims (1) In section 42 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997— (a) in sub-section (1)(b), for "against a person under this Act" substitute "in respect of a s. 20 -- 31 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 28 person under this Act or in determining whether or not to grant a person extended leave"; (b) in sub-section (2), after "family member" (wherever occurring) insert "or victim"; (c) sub-section (3) is repealed. (2) In section 43(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, at the end of paragraph (c) insert— "; or (d) whenever an application is made for extended leave which, if granted, would significantly reduce the degree of supervision to which the person is subject.". 22. New section 44 substituted For section 44 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 substitute— "44. Distribution of report (1) A person who makes a report under section 42 must give the report to the Director of Public Prosecutions a reasonable time before the hearing is to take place. (2) The Director of Public Prosecutions must, as soon as practicable— (a) file a copy of the report with the court; and (b) give a copy of the report to the person who is, or is to be made subject to, the order or his or her legal practitioner.". 23. Special leave of absence for medical treatment s. 22 -- 32 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 29 In section 50(6) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, for paragraph (a) substitute— "(a) cannot exceed— (i) 7 days in the case of special leave of absence for medical treatment; or (ii) 24 hours in any other case; and". 24. Limited off-ground leave In section 53 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997— (a) for paragraph (a) substitute— "(a) between the hours of 6.00 am and 9.00 pm; and"; (b) in paragraph (b), omit "consecutive". 25. New section 54 substituted and sections 54A and 54B inserted For section 54 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 substitute— "54. Granting of on-ground or limited off- ground leave (1) An application may be made to the Panel for on-ground leave or limited off-ground leave for a forensic patient or forensic resident, or for variation of that leave— (a) in the case of a forensic patient, by the forensic patient or the authorised psychiatrist for the approved mental health service; (b) in the case of a forensic resident, by the forensic resident or the Secretary to the Department of Human Services. s. 25 -- 33 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 30 (2) The Panel may grant an application for on- ground leave or limited off-ground leave if satisfied on the evidence available that— (a) the proposed leave will contribute to the person's rehabilitation; and (b) the safety of the person or members of the public will not be seriously endangered as a result of the person being allowed leave. (3) The Panel may grant an application for variation of on-ground leave or limited off- ground leave if satisfied on the evidence available that— (a) the proposed variation will contribute to the person's rehabilitation; and (b) the safety of the person or members of the public will not be seriously endangered as a result of the leave being varied; and (c) there has been a significant alteration in the person's circumstances since leave was granted or last varied. (4) In determining whether or not to grant an application for leave or variation of leave, the Panel must— (a) have regard primarily to the person's current mental condition or pattern of behaviour; and (b) consider the person's clinical history and social circumstances; and (c) have regard to the applicant profile provided under section 54A and the -- 34 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 31 leave plan or statement provided under section 54B. (5) The Panel may impose any conditions it considers appropriate on a grant or variation of on-ground leave or limited off-ground leave, including a condition that the person on leave comply with any direction of the authorised psychiatrist (in the case of a forensic patient) or the Secretary to the Department of Human Services (in the case of a forensic resident). (6) The maximum period for which on-ground or limited off-ground leave can be granted is 6 months. (7) An application for on-ground or limited off- ground leave can be made and granted under this section more than once, and that leave can be varied more than once, but only one grant or variation can be in force at any one time in respect of a forensic patient or forensic resident. 54A. Applicant profile (1) If an application is made for on-ground leave or limited off-ground leave, or for variation of that leave, an applicant profile must be provided to the Panel by— (a) the Clinical Director of the Victorian Institute of Forensic Mental Health, in the case of a forensic patient detained in that Institute; or (b) the authorised psychiatrist for the approved mental health service, in the case of a forensic patient detained in any other approved mental health service; or s. 25 -- 35 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 32 (c) the Secretary to the Department of Human Services, in the case of a forensic resident. (2) The applicant profile must include information concerning— (a) the person's impairment, condition or disability; and (b) the relationship between the impairment, condition or disability and the offending conduct; and (c) the person's clinical history and social circumstances; and (d) the person's current mental state or pattern of behaviour; and (e) the offence that led to the supervision order being made; and (f) the date of the supervision order, its nominal term and the day from which the nominal term had been declared to run. 54B. Leave plan or statement (1) If an application is made for on-ground leave or limited off-ground leave, or for variation of that leave, a leave plan must be provided to the Panel by— (a) the Clinical Director of the Victorian Institute of Forensic Mental Health, in the case of a forensic patient detained in that Institute; or (b) the authorised psychiatrist for the approved mental health service, in the s. 25 -- 36 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 33 case of a forensic patient detained in any other approved mental health service; or (c) the Secretary to the Department of Human Services, in the case of a forensic resident— unless the Clinical Director, authorised psychiatrist or Secretary considers that the application should not be granted. (2) The leave plan must include information concerning— (a) the purpose of the leave applied for and how it will contribute to the person's rehabilitation; and (b) any proposed conditions of leave; and (c) any other information the Clinical Director, authorised psychiatrist or Secretary considers relevant; and (d) any other information requested by the Panel. (3) If the Clinical Director, authorised psychiatrist or Secretary considers that the application should not be granted, he or she must provide a written statement to the Panel containing— (a) the reasons why the application should not be granted; and (b) any other information the Clinical Director, authorised psychiatrist or Secretary considers relevant; and (c) any other information requested by the Panel.". 26. Suspension of leave s. 25 s. 26 -- 37 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 34 (1) In section 55(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997— (a) after "suspended" (where first occurring) insert "wholly or partly"; (b) after "leave" (where last occurring) insert ", or part of the leave". (2) In section 55 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997— (a) in sub-section (2), for "person formerly on leave" substitute "person in respect of whom the leave is suspended"; (b) in sub-section (5), before "suspended" insert "wholly". (3) In section 55 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after sub- section (5) insert— "(6) A person whose leave is partly suspended under this section is deemed not to have the suspended part of the leave of absence during the period of suspension.". 27. New section 57 substituted and sections 57A and 57B inserted For section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 substitute— "57. Granting of extended leave (1) An application for extended leave for a forensic patient or forensic resident may be made to the court that made the supervision order to which they are subject by— s. 27 -- 38 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 35 (a) in the case of a forensic patient, by the forensic patient or the authorised psychiatrist for the approved mental health service; (b) in the case of a forensic resident, by the forensic resident or the Secretary to the Department of Human Services. (2) The court may grant an application under sub-section (1) if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave. Note: Sections 39 and 40 set out certain other principles and matters that the court must apply and have regard to in considering applications for extended leave. (3) An application for extended leave can be made and granted more than once. (4) This section does not apply to a forensic patient or forensic resident who is detained in an approved mental health service or a residential service under section 30(2) or 30A(3). 57A. Leave plan for extended leave If an application is made to the court for extended leave, a leave plan must be prepared and filed with the court by— (a) in the case of a forensic patient—the authorised psychiatrist for the approved mental health service; -- 39 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 36 (b) in the case of a forensic resident—the Secretary to the Department of Human Services. 57B. Appeals regarding extended leave (1) A person may appeal to the Court of Appeal against a refusal to grant the person extended leave. (2) The Secretary to the Department of Human Services may appeal to the Court of Appeal against a grant of extended leave if he or she considers that— (a) extended leave should not have been granted; and (b) an appeal should be brought in the public interest. (3) The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal against a grant of extended leave if he or she— (a) was a party to the proceeding in which extended leave was granted; and (b) considers that extended leave should not have been granted; and (c) considers that an appeal should be brought in the public interest. (4) On an appeal against a refusal to grant extended leave, the Court of Appeal may— (a) confirm the refusal to grant extended leave; or (b) grant extended leave in accordance with section 57; or s. 27 -- 40 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 37 (c) remit the matter, with or without directions, to the court that refused to grant extended leave. (5) On an appeal against a grant of extended leave, the Court of Appeal may— (a) confirm the grant of extended leave; or (b) quash the grant and order that extended leave be refused; or (c) quash the grant and remit the matter, with or without directions, to the court that made the grant. (6) If the Court of Appeal remits a matter to a court under sub-section (4)(c) or (5)(c), that court must hear and determine the matter in accordance with this Act and any directions given by the Court of Appeal.". 28. Suspension and revocation of extended leave (1) Insert the following heading to section 58 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997— "Suspension and revocation of extended leave". (2) At the foot of section 58(6) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert— "Note: There are provisions for the apprehension of persons absent without leave in section 53AD of the Mental Health Act 1986 (for forensic patients) and section 43E of the Intellectually Disabled Persons' Services Act 1986 (for forensic residents). See also section 30B of this Act, which provides for warrants to be issued for the arrest of a person who is no longer in Victoria.". 29. New section 58A inserted s. 28 s. 29 -- 41 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 38 After section 58 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert— "58A. Appeals regarding revocation of extended leave (1) A person may appeal to the Court of Appeal against a revocation of that person's extended leave. (2) The Secretary to the Department of Human Services may appeal to the Court of Appeal against a refusal to revoke extended leave if he or she considers that— (a) the extended leave should have been revoked; and (b) an appeal should be brought in the public interest. (3) The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal against a refusal to revoke extended leave if he or she— (a) was a party to the proceeding for revocation of extended leave; and (b) considers that the extended leave should have been revoked; and (c) considers that an appeal should be brought in the public interest. (4) On an appeal against a revocation of extended leave, the Court of Appeal may— (a) confirm the revocation of extended leave; or (b) quash the revocation and restore the extended leave; or -- 42 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 39 (c) remit the matter, with or without directions, to the court that revoked the leave. (5) On an appeal against a refusal to revoke extended leave, the Court of Appeal may— (a) confirm the refusal to revoke extended leave; or (b) revoke the extended leave in accordance with section 58(4)(a); or (c) revoke the extended leave and remit the matter, with or without directions, to the court that made the grant. (6) If the Court of Appeal remits a matter to a court under sub-section (4)(c) or (5)(c), that court must hear and determine the matter in accordance with this Act and any directions given by the Court of Appeal.". 30. New Part 7A and Part 7B inserted After Part 7 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert— 'PART 7A—INTERSTATE TRANSFER OF PERSONS SUBJECT TO SUPERVISION ORDERS 73A. Definitions In this Part— "corresponding law" means a law that, under an order in force under section 73B, is declared to be a corresponding law for the purposes of this Part; "corresponding Minister", in relation to a participating State means the Minister or Ministers of that State who is or are s. 30 -- 43 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 40 responsible for the administration of the corresponding law of that State; "interstate supervision order" means an order of a type that is declared to be an interstate supervision order under an order in force under section 73B, for the purposes of this Part; "participating State" means a State in which a corresponding law is in force; "State" includes Territory; "Victorian Minister" means the Minister administering this Part or, if there is more than one Minister administering this Part, those Ministers acting jointly. 73B. Corresponding laws and orders The Governor in Council on the recommendation of the Victorian Minister, by Order published in the Government Gazette, may declare— (a) that a law of a State (other than this State) is a corresponding law for the purposes of this Part; (b) that a type of order under the law of a participating State is an interstate supervision order for the purposes of this Part. 73C. Informed consent For the purposes of this Part, a person is to be taken to have given informed consent to a transfer or interim disposition only if he or she gives written consent to the transfer or disposition (as the case requires) after— s. 30 s. 30 -- 44 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 41 (a) he or she has been given a clear explanation of the process involved in the transfer or disposition and the reasons for the transfer or disposition, containing sufficient information to enable him or her to make a balanced judgment; and (b) any relevant questions asked by him or her have been answered and he or she has understood the answers. 73D. Transfer of persons from Victoria to a participating State (1) A person who is subject to a supervision order may be transferred to a participating State if— (a) the transfer is permitted by or under a corresponding law in that participating State; and (b) the Victorian Minister makes an order under this section authorising the transfer. (2) The Victorian Minister may make an order under this section authorising a transfer if— (a) the chief psychiatrist has certified in writing that the transfer is for the benefit of the person subject to the supervision order; and (b) the Victorian Minister is satisfied that the transfer is permitted by or under a corresponding law in the participating State; and -- 45 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 42 (c) the Victorian Minister is satisfied that— (i) the person subject to the order has given informed consent to the transfer; or (ii) if the person is incapable of giving informed consent—his or her guardian has given informed consent to the transfer. (3) On the transfer of a person from Victoria in accordance with an order under this section, the supervision order to which the person is subject is in force only if the person returns to Victoria and while the person is in Victoria. 73E. Transfer of persons from a participating State to Victoria (1) A person who is subject to an interstate supervision order may be transferred to Victoria if— (a) the transfer is permitted by or under a corresponding law in the participating State in which the supervision order was made; and (b) the Victorian Minister has agreed to the transfer and determined an interim disposition for the person. (2) The Victorian Minister may agree to a transfer of a person to Victoria and determine an interim disposition if— s. 30 -- 46 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 43 (a) the chief psychiatrist has certified in writing that the transfer is for the benefit of the person and there are facilities or services available for the custody, care or treatment of the person (as the case requires); and (b) the Victorian Minister is satisfied that the transfer is necessary for the maintenance or re-establishment of family relationships or relationships with people who can assist in supporting the person; and (c) the Victorian Minister is satisfied that— (i) the person subject to the order has given informed consent to the transfer and interim disposition; or (ii) if the person is incapable of giving informed consent—his or her guardian has given informed consent to the transfer and interim disposition. (3) The interim dispositions that the Victorian Minister may determine under this section are— (a) that the person be detained in an appropriate place determined by the Victorian Minister as if the person were subject to a custodial supervision order; (b) that the person be absent on leave from an appropriate place determined by the Minister, on any conditions determined s. 30 -- 47 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 44 by the Minister, as if the person were subject to a custodial supervision order and had been granted extended leave. Note: An "appropriate place" is an approved mental health service or a residential service—see section 3. (4) On the transfer of a person to Victoria under this section— (a) if the interim disposition is that the person be detained in an approved mental health service—the person is to be so detained and is deemed to be a forensic patient; (b) if the interim disposition is that the person be detained in a residential service—the person is to be so detained and is deemed to be a forensic resident; (c) if the interim disposition is that the person be absent on leave from an approved mental health service—the person is deemed to be a forensic patient absent from the approved mental health service on extended leave; (d) if the interim disposition is that the person be absent on leave from a residential service—the person is deemed to be a forensic resident absent from the residential service on extended leave. (5) Nothing in this section is to be taken as requiring the Victorian Minister to agree to a transfer of a person to Victoria. 73F. Review of persons transferred to Victoria (1) Within 6 months after a person has been transferred to Victoria under section 73E, the s. 30 -- 48 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 45 Secretary to the Department of Human Services must apply to the Supreme Court for a review. (2) The purpose of the review is to determine the appropriate disposition for the person. (3) The Supreme Court may undertake the review itself or refer the matter to the County Court. (4) On a review, the court may— (a) make a supervision order in respect of the person as if the person had been declared to be liable to supervision under Part 5; or (b) order the person to be released unconditionally. (5) The court cannot make a supervision order that is more restrictive on the person's freedom and personal autonomy than the interstate supervision order to which the person was subject, unless satisfied that the safety of the person or members of the public would be seriously endangered if a more restrictive order is not made. (6) If the court makes a supervision order, the court must set a nominal term for the order in accordance with section 28 as modified by section 73G. (7) If the court makes a custodial supervision order, the court may grant extended leave to the person if the court could have granted them extended leave on an application under section 57. 73G. Nominal term of supervision order s. 30 -- 49 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 46 (1) The court must set the nominal term of a supervision order made under section 73F in accordance with section 28 as if— (a) the offence that led to the person being made subject to the interstate supervision order had been committed in Victoria; and (b) the maximum penalty for that offence were the maximum penalty attaching to that offence at the date of the person's transfer to Victoria. (2) If the offence referred to in sub-section (1) no longer exists at the date referred to in sub- section (1)(b)— (a) the court must determine whether there is an existing offence, as at that date, with which the person could have been charged had it existed at the time of the original charge; (b) if there is such an offence, the nominal term is to be determined by reference to the maximum penalty for that offence as at the date referred to in sub- section (1)(b); (c) if there is no such offence, the court must set the nominal term as 5 years. (3) If there never was an equivalent offence in Victoria to the offence that led to the person being made subject to the interstate supervision order, the court must set the nominal term of the supervision order as 5 years. s. 30 -- 50 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 47 (4) Despite section 28(4), the nominal term of the supervision order runs from the day on which the person was first made subject to the interstate supervision order. (5) If the nominal term of the supervision order has expired, the first major review must be undertaken within 12 months after the review under section 73F. 73H. Appeal against unconditional release (1) The Attorney-General may appeal to the Court of Appeal against an order for unconditional release under section 73F(4)(b) if he or she considers that— (a) the order should not have been made; and (b) an appeal should be brought in the public interest. (2) On an appeal under sub-section (1), the Court of Appeal may— (a) confirm the order; or (b) quash the order and make a supervision order in respect of the person as if the person had been declared to be liable to supervision under Part 5; or (c) quash the order and remit the matter, with or without directions, to the court that made the order for unconditional release. (3) If the Court of Appeal remits a matter to a court under sub-section (2)(c), that court must make a supervision order in respect of the person in accordance with this Act and any directions given by the Court of Appeal. s. 30 -- 51 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 48 (4) The Court of Appeal may make any one or more of the following orders pending the making of a supervision order under this section— (a) an order granting the person bail; (b) subject to sub-section (5), an order remanding the person in custody in an appropriate place; (c) subject to sub-section (6), an order remanding the person in custody in a prison; (d) if it is of the opinion that it is in the interests of justice to do so, an order— (i) that the person undergo an examination by a registered medical practitioner or registered psychologist; and (ii) that the results of the examination be put before the court that is to make the supervision order; (e) any other order the court thinks appropriate. (5) The Court of Appeal must not make an order remanding a person in custody in an appropriate place unless the Court of Appeal has received a certificate under section 47 stating that the facilities or services necessary for that order are available. (6) The Court of Appeal must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances. s. 30 -- 52 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 49 PART 7B—PERSONS ABSCONDING TO VICTORIA FROM INTERSTATE 73I. Definitions In this Part— "interstate supervision order" means— (a) an order under the law of another State of a similar nature to a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or (b) an order under the law of another State that a person be kept in custody during the Governor's pleasure; "mental health facility" means a facility for the detention and treatment of persons who are mentally ill; "relevant offence", in relation to a person found unfit to stand trial or not guilty because of mental impairment or other mental condition in another State, means the offence with which the person was charged that led to that finding; "relevant State", in relation to a person found unfit to stand trial or not guilty because of mental impairment or other mental condition in another State, means the State in which they were subject to an interstate supervision order or in which they were on remand awaiting the making of an interstate supervision order; "State" includes Territory. s. 30 -- 53 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 50 73J. Warrant to arrest person who absconds to Victoria (1) The Secretary may apply to the Magistrates' Court for a warrant to arrest a person if the Secretary reasonably believes that— (a) the person— (i) has, in another State, been found unfit to stand trial for, or not guilty because of mental impairment or other mental condition of, an offence that, if committed in Victoria, would be an indictable offence; and (ii) is subject to an interstate supervision order or on remand awaiting the making of such an order; and (b) the person is in Victoria; and (c) the person could be apprehended in the relevant State, if the person were still in that State, because he or she— (i) is absent without leave or other lawful authority from a mental health facility in the relevant State; or (ii) is in breach of an interstate supervision order that is non- custodial in nature; and (d) one of the following applies— (i) the person cannot be lawfully apprehended in Victoria because a warrant to apprehend or arrest the person has not been or cannot be issued in the relevant State, or s. 30 -- 54 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 51 such a warrant cannot be executed in Victoria; or (ii) the person cannot be lawfully apprehended in Victoria under section 93K of the Mental Health Act 1986; or (iii) although the person could be lawfully apprehended in Victoria, the person would not be able to be returned to the relevant State following the apprehension. (2) For the purposes of sub-section (1)(c)(i), a person is taken to be absent without lawful authority from a mental health facility in a relevant State if the person did not return to the facility when required to do so under a law of that State. (3) If the Magistrates' Court is satisfied by evidence on oath, whether orally or by affidavit, of the matters specified in paragraphs (a) to (d) of sub-section (1), the court may order that a warrant to arrest be issued against the person who is the subject of the application. (4) Despite section 64(2)(a) of the Magistrates' Court Act 1989, a person arrested under a warrant issued under this section must be brought before the Magistrates' Court on the day of his or her arrest or on the next sitting day of the court. 73K. Interim disposition order (1) When a person arrested under a warrant issued under section 73J is brought before the Magistrates' Court, the court must make an interim disposition order in respect of him or her in accordance with this section, unless s. 30 -- 55 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 52 the court is satisfied that the matters specified in paragraphs (a) to (d) of section 73J(1) are not made out. (2) The interim disposition orders that the court may make in respect of a person are— (a) that the person be granted bail; or (b) that the person be detained in an appropriate place determined by the court as if he or she were subject to a custodial supervision order; or (c) that the person be remanded in custody in a prison. (3) The court may, from time to time, adjourn a proceeding in which it is considering making an interim disposition order for any reasonable period not exceeding 7 days on each occasion and remand the person on bail or in custody in an appropriate place or a prison during any period of adjournment. (4) The court must not make an order under sub- section (2)(b), or an order under sub-section (3) remanding a person in custody in an appropriate place, unless it has received a certificate under section 47 stating that the facilities or services necessary for that order are available. (5) The court must not make an order under sub- section (2)(c), or an order under sub-section (3) remanding a person in custody in a prison, unless satisfied that there is no practicable alternative in the circumstances. (6) If the court is satisfied that any of the matters specified in paragraphs (a) to (c) of section 73J(1) is not made out, the court must discharge the person. s. 30 -- 56 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 53 (7) If the court is satisfied that the matters specified in paragraphs (a) to (c) of section 73J(1) are made out, but that the person can be returned to the relevant State, the court must order the person to be released into the custody of a person who is authorised to escort the person to the relevant State. (8) On the making of an interim disposition order under sub-section (2)(b) in respect of a person or an order under sub-section (3) remanding a person in custody in an appropriate place— (a) if the appropriate place is an approved mental health service—the person is deemed to be a forensic patient; (b) if the appropriate place is a residential service—the person is deemed to be a forensic resident. 73L. Review of interim disposition order (1) Within 7 days after an interim disposition order has been made in respect of a person, the Secretary to the Department of Human Services must apply to the Supreme Court for a review. (2) The purpose of the review is to determine the appropriate disposition for the person. (3) The Supreme Court may undertake the review itself or refer the matter to the County Court. (4) On a review, the court may— (a) make a supervision order in respect of the person as if the person had been declared to be liable to supervision under Part 5; or s. 30 -- 57 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 54 (b) order the person to be released unconditionally— unless the court is satisfied that the person can be returned to the relevant State. (5) If the court is satisfied that the person can be returned to the relevant State, the court must order the person to be released into the custody of a person who is authorised to escort the person to the relevant State. (6) If the court makes a supervision order, the court must set a nominal term for the order in accordance with section 28 as modified by section 73M. (7) If the court makes a custodial supervision order, the court may grant extended leave to the person if the court could have granted them extended leave on an application under section 57. 73M. Nominal term of supervision order (1) The court must set the nominal term of a supervision order made under section 73L in accordance with section 28 as if— (a) the relevant offence had been committed in Victoria; and (b) the maximum penalty for that offence were the maximum penalty attaching to that offence at the date the person was arrested in Victoria; and (c) sub-section (2) of this section applied instead of section 28(5). (2) For the purpose of declaring a day under section 28(4), the court may take into account— s. 30 -- 58 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 55 (a) any period of time during which the person was held in custody, or detained in a mental health facility, in the relevant State in relation to proceedings for the relevant offence; and (b) any period of time during which the person was held in custody, or detained in a mental health facility, in the relevant State under an interstate supervision order; and (c) any period of time during which the person was held in custody, or detained in an appropriate place, since the person was arrested under a warrant issued under section 73J. (3) If the nominal term of the supervision order has expired, the first major review must be undertaken within 12 months after the review under section 73L. 73N. Appeal against unconditional release (1) The Attorney-General may appeal to the Court of Appeal against an order for unconditional release under section 73L(4)(b) if he or she considers that— (a) the order should not have been made; and (b) an appeal should be brought in the public interest. (2) On an appeal under sub-section (1), the Court of Appeal may— (a) confirm the order; or s. 30 -- 59 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 56 (b) quash the order and make a supervision order in respect of the person as if the person had been declared to be liable to supervision under Part 5; or (c) quash the order and remit the matter, with or without directions, to the court that made the order for unconditional release; or (d) quash the order and, if satisfied that the person can be returned to the relevant State, order the person to be released into the custody of a person who is authorised to escort the person to the relevant State. (3) If the Court of Appeal remits a matter to a court under sub-section (2)(c), that court must— (a) make a supervision order in respect of the person in accordance with this Act and any directions given by the Court of Appeal; or (b) if satisfied that the person can be returned to the relevant State, order the person to be released into the custody of a person who is authorised to escort the person to the relevant State. (4) The Court of Appeal may make any one or more of the following orders pending the making of a supervision order under this section— (a) an order granting the person bail; (b) subject to sub-section (5), an order remanding the person in custody in an appropriate place; s. 30 -- 60 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 57 (c) subject to sub-section (6), an order remanding the person in custody in a prison; (d) if it is of the opinion that it is in the interests of justice to do so, an order— (i) that the person undergo an examination by a registered medical practitioner or registered psychologist; and (ii) that the results of the examination be put before the court that is to make the supervision order; (e) any other order the court thinks appropriate. (5) The Court of Appeal must not make an order remanding a person in custody in an appropriate place unless the Court of Appeal has received a certificate under section 47 stating that the facilities or services necessary for that order are available. (6) The Court of Appeal must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances. (7) Any rules of court that apply to an appeal against a conviction apply to an appeal under this section, subject to any necessary modification, as if that appeal were an appeal against a conviction. (8) Sub-section (7) does not apply to the extent that the rules of court provide otherwise and nothing in this section affects the power of the court to make rules for or with respect to appeals under this section.'. s. 30 -- 61 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 58 31. New sections 76A and 76B inserted After section 76 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert— "76A. Directions (1) The court may give directions at any time in a proceeding under this Act and hold any hearings it considers necessary for the purpose of giving directions. (2) The directions may include a direction that the Director of Public Prosecutions file an outline of the case with the court within the time specified in the direction. 76B. Court rules for appeals (1) Any rules of court that apply to an appeal against a conviction apply to an appeal under section 19A, 24A or 73H, subject to any necessary modification, as if that appeal were an appeal against a conviction. (2) Any rules of court that apply to an appeal against a sentence apply to an appeal under section 28A, 34, 34A, 57B or 58A, subject to any necessary modification, as if that appeal were an appeal against a sentence. (3) This section does not apply to the extent that the rules of court provide otherwise and nothing in this section affects the power of the court to make rules for or with respect to appeals under this Act.". 32. Repeal of delegation provision Section 77 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 is repealed. s. 31 -- 62 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 59 33. Transitional provisions (1) In Schedule 3 to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, in clause 3, after sub-clause (3) insert— "(4) Sections 53 and 54, as in force immediately before the commencement of sections 24 and 25 of the Forensic Health Legislation (Amendment) Act 2002, continue to apply in relation to any limited off-ground leave granted before that commencement, until the expiry of that leave.". (2) In Schedule 3 to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, after clause 7 insert— "8. Periodic major reviews Section 35, as amended by section 14 of the Forensic Health Legislation (Amendment) Act 2002, applies to a supervision order made before, on or after the commencement of that section 14. 9. Notification requirements Sections 38A, 38B, 38C and 38E, as inserted by section 17 of the Forensic Health Legislation (Amendment) Act 2002, apply to— (a) applications that are made after the commencement of that section 17; and (b) reviews that are listed by the court after the commencement of that section 17. 10. Appeals (1) An order for unconditional release can be appealed under section 19A or 24A (as the case may be) whether the order was made before or after the commencement of that section, unless— (a) the order had been appealed before that commencement; or (b) any time limit for appealing the order had expired before that commencement. (2) A supervision order can be appealed under section 28A whether the order was made before or after the commencement of that section, unless— s. 33 -- 63 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 60 (a) the order had been appealed before that commencement; or (b) any time limit for appealing the order had expired before that commencement. (3) An order confirming, varying or revoking a supervision order can be appealed under section 34 (as substituted by section 13 of the Forensic Health Legislation (Amendment) Act 2002) or section 34A (as the case may be) whether the order was made before or after the commencement of that section, unless— (a) the order had been appealed before that commencement; or (b) any time limit for appealing the order had expired before that commencement. (4) A refusal to grant extended leave or a grant of extended leave can be appealed under section 57B whether the refusal or grant was made before or after the commencement of that section. (5) A revocation of extended leave or a refusal to revoke extended leave can be appealed under section 58A whether the revocation or refusal was made before or after the commencement of that section. (6) Any appeal referred to in sub-clause (1)(a), (2)(a) or (3)(a) that has not been determined before the commencement referred to in that sub-clause is to be determined in accordance with this Act as in force immediately before that commencement.". _______________ s. 33 -- 64 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 61 PART 3—CONTROL OF WEAPONS ACT 1990 34. Forfeiture of weapons, dangerous articles or body armour In section 9(1) of the Control of Weapons Act 1990, after "guilty" insert "or not guilty because of mental impairment". _______________ See: Act No. 24/1990. Reprint No. 3 as at 17 December 2000. LawToday: www.dms. dpc.vic. gov.au s. 34 -- 65 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 62 PART 4—INTELLECTUALLY DISABLED PERSONS' SERVICES ACT 1986 35. Definitions (1) In section 3(1) of the Intellectually Disabled Persons' Services Act 1986, in the definition of "forensic resident", after paragraph (a) insert— "(ab) a person detained in a residential service under section 30(2) or 30A(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or". (2) In section 3(1) of the Intellectually Disabled Persons' Services Act 1986, in the definition of "forensic resident", before paragraph (b) insert— "(ac) a person deemed to be a forensic resident by section 73E(4) or 73K(8) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or". _______________ See: Act No. 53/1986. Reprint No. 4 as at 8 October 1998 and amending Act Nos 46/1998 (as amended by No. 12/1999), 12/1999, 19/2000, 2/2001, 11/2001, 45/2001 and 51/2001. LawToday: www.dms. dpc.vic. gov.au s. 35 -- 66 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 63 PART 5—MENTAL HEALTH ACT 1986 36. Definitions (1) In section 3(1) of the Mental Health Act 1986, after the definition of "community visitor" insert— ' "Correctional Services Commissioner" means the Commissioner referred to in section 8A of the Corrections Act 1986;'. (2) In section 3(1) of the Mental Health Act 1986, in the definition of "forensic patient", after paragraph (a) insert— "(ab) a person detained in an approved mental health service under section 30(2) or 30A(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or". (3) In section 3(1) of the Mental Health Act 1986, in the definition of "forensic patient", before paragraph (b) insert— "(ac) a person deemed to be a forensic patient by section 73E(4) or 73K(8) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; or". 37. Hospital orders In section 16(2)(a)(i) of the Mental Health Act 1986, for "treatment" substitute "immediate treatment". 38. Functions of Mental Health Review Board In section 22(1)(c) of the Mental Health Act 1986, for "leave" substitute "special leave". See: Act No. 59/1986. Reprint No. 6 as at 1 June 2000 and amending Act Nos 67/1998, 39/2000, 2/2001, 11/2001, 27/2001, 44/2001, 45/2001 and 51/2001. LawToday: www.dms. dpc.vic. gov.au s. 36 -- 67 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 64 39. New section 43A inserted After the heading to Division 4 of Part 4 of the Mental Health Act 1986 insert— "43A. Clinical guidelines for discharge of security patients (1) The chief psychiatrist may, from time to time, issue, vary and revoke clinical guidelines relating to the discharge of security patients. (2) Before issuing, varying or revoking any guidelines under this section, the chief psychiatrist must consult the Correctional Services Commissioner and the Board.". 40. New sections 44 and 45 substituted For sections 44 and 45 of the Mental Health Act 1986 substitute— "44. Board may order discharge On hearing an appeal or review, the Board may order that a person be discharged as a security patient and returned to a prison if the Board is not satisfied that the continued detention of the person as a security patient is necessary, having regard to— (a) the criteria specified in section 16(2)(a) and (4); and (b) the clinical guidelines (if any) under section 43A. 45. Chief psychiatrist may order discharge (1) The chief psychiatrist may order that a person be discharged as a security patient and returned to a prison if the chief psychiatrist is satisfied that the continued detention of the person as a security patient is not necessary, having regard to— s. 39 -- 68 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 65 (a) the criteria specified in section 16(2)(a) and (4); and (b) the clinical guidelines (if any) under section 43A. (2) In exercising his or her power to discharge a person as a security patient, the chief psychiatrist must have regard primarily to the person's current mental condition and consider the patient's medical and psychiatric history and social circumstances.". 41. New section 51 substituted For section 51 of the Mental Health Act 1986 substitute— "51. Leave of absence for security patients (1) An application for leave of absence for a security patient may be made to the Secretary to the Department of Justice by— (a) the security patient; or (b) the authorised psychiatrist for the approved mental health service in which he or she is detained. (2) The Secretary to the Department of Justice may grant an application for leave of absence— (a) for the period, not exceeding 6 months; and (b) subject to any conditions— that the Secretary to the Department of Justice considers appropriate. (3) The Secretary to the Department of Justice must not grant an application for leave of absence unless— s. 41 -- 69 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 66 (a) he or she is satisfied on the evidence available that the safety of the security patient or members of the public will not be seriously endangered as a result of the security patient being allowed leave of absence; and (b) the chief psychiatrist has been consulted; and (c) the Secretary has been consulted in the case of an application for leave of absence for a security patient who, before his or her transfer under section 16, was detained in a remand centre, youth residential centre or youth training centre within the meaning of the Children and Young Persons Act 1989; and (d) the Chief Commissioner of Police has been consulted in the case of an application for leave of absence for a security patient who, before his or her transfer under section 16, was serving a sentence of imprisonment in a police gaol within the meaning of the Corrections Act 1986 or being held in police custody on the order of a court. (4) The Secretary to the Department of Justice may— (a) from time to time extend the period of leave of absence allowed under sub- section (2) for a period not exceeding 6 months; or (b) revoke the leave of absence and require the security patient to return to the approved mental health service.". s. 41 -- 70 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 67 42. Special leave of absence for security patients In section 52(1) of the Mental Health Act 1986, after "patient" insert ", or a person on their behalf,". 43. New section 53AA inserted After section 53 of the Mental Health Act 1986 insert— '53AA. Warrant to arrest security patient absent without leave who leaves Victoria (1) If at any time it appears to an appropriate person that a security patient— (a) is absent from an approved mental health service without leave of absence or special leave of absence; and (b) is no longer in Victoria— the appropriate person may apply to the Supreme Court, the County Court or the Magistrates' Court for a warrant to arrest the security patient. (2) If the court to which the application is made is satisfied by evidence on oath, whether orally or by affidavit, of the matters specified in paragraphs (a) and (b) of sub-section (1), the court may order that a warrant to arrest be issued against the security patient. Note: Under the Service and Execution of Process Act 1992 of the Commonwealth, a person who is apprehended interstate under a warrant issued in Victoria is to be taken before a magistrate in the place where the person is apprehended. That Act provides for the magistrate to specify the place in Victoria to which the person is then to be taken. s. 42 -- 71 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 68 (3) In this section— "appropriate person" means— (a) the authorized psychiatrist or any person authorized by the authorized psychiatrist; or (b) the Secretary; or (c) the Secretary to the Department of Justice; or (d) the chief psychiatrist or any person authorized by the chief psychiatrist.'. 44. Application of Division 4 In section 53A of the Mental Health Act 1986, after "In this Division and Division 3" insert "(except in section 51)". 45. Interstate application of mental health provisions (1) In section 93G(7) of the Mental Health Act 1986, for paragraphs (a) and (b) substitute— "(a) a prescribed person within the meaning of section 9; or (b) an authorized psychiatrist or any person authorized by an authorized psychiatrist; or (c) an employee of the Department authorized by the chief psychiatrist; or (d) a person who, under the corresponding law, is authorized to take the person to the interstate mental health facility.". (2) In section 93H(2) of the Mental Health Act 1986, for paragraphs (a) and (b) substitute— "(a) a prescribed person within the meaning of section 9; or s. 44 -- 72 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 69 (b) an authorized psychiatrist or any person authorized by an authorized psychiatrist; or (c) an employee of the Department authorized by the chief psychiatrist; or (d) a person who, under the corresponding law, is authorized to take the person to the approved mental health service.". (3) In section 93K(1) of the Mental Health Act 1986— (a) after "leave" (where first occurring) insert "or other lawful authority"; (b) for paragraph (b) substitute— "(b) a prescribed person within the meaning of section 9; or (c) an authorized psychiatrist or any person authorized by an authorized psychiatrist; or (d) an employee of the Department authorized by the chief psychiatrist.". (4) In section 93K(3) of the Mental Health Act 1986, omit ", unless they are admitted to an approved mental health service under this Act". (5) In section 93K of the Mental Health Act 1986, after sub-section (4) insert— "(5) Despite sub-section (3), a person who is apprehended under sub-section (1) may be admitted to and detained in an approved mental health service under Division 2 of Part 3 pending his or her return to the participating State. (6) For the purposes of this section, a person is taken to be absent without lawful authority from an interstate mental health facility if the person did not return to the facility when s. 45 -- 73 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 70 required to do so under a corresponding law.". (6) In section 93L of the Mental Health Act 1986, for paragraph (b) substitute— "(b) a prescribed person within the meaning of section 9; or (c) the authorized psychiatrist or any person authorized by the authorized psychiatrist; or (d) an employee of the Department authorized by the chief psychiatrist.". 46. New Part 5B inserted After Part 5A of the Mental Health Act 1986 insert— 'PART 5B—INTERSTATE SECURITY PATIENTS ABSCONDING TO VICTORIA 93M. Definitions In this Part— "interstate security patient" means a person who— (a) has been convicted of an offence in another State that would be an offence if committed in Victoria; and (b) is serving a sentence of imprisonment in any State (other than Victoria) for that offence (whether in a prison or otherwise); and (c) is required to take involuntary treatment for mental illness in the State in which they are serving their sentence; s. 46 -- 74 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 71 "mental health facility" means a facility for the detention and treatment of persons who are mentally ill; "relevant State", in relation to an interstate security patient, means the State in which they are serving their sentence of imprisonment; "State" includes Territory. 93N. Warrant to arrest interstate security patient who absconds to Victoria (1) The Secretary may apply to the Magistrates' Court for a warrant to arrest a person if the Secretary reasonably believes that— (a) the person is an interstate security patient; and (b) the person is in Victoria; and (c) the person could be apprehended in the relevant State, if the person were still in that State, because he or she is absent without leave or other lawful authority from a mental health facility in the relevant State; and (d) one of the following applies— (i) the person cannot be lawfully apprehended in Victoria because a warrant to apprehend or arrest the person has not been or cannot be issued in the relevant State, or such a warrant cannot be executed in Victoria; or (ii) the person cannot be lawfully apprehended in Victoria under section 93K of the Mental Health Act 1986; or s. 46 -- 75 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 72 (iii) although the person could be lawfully apprehended in Victoria, the person would not be able to be returned to the relevant State following the apprehension. (2) For the purposes of sub-section (1)(c), a person is taken to be absent without lawful authority from a mental health facility in a relevant State if the person did not return to the facility when required to do so under a law of that State. (3) If the Magistrates' Court is satisfied by evidence on oath, whether orally or by affidavit, of the matters specified in paragraphs (a) to (d) of sub-section (1), the court may order that a warrant to arrest be issued against the person who is the subject of the application. (4) Despite section 64(2)(a) of the Magistrates' Court Act 1989, a person arrested under a warrant issued under this section must be brought before the Magistrates' Court on the day of his or her arrest or on the next sitting day of the court. 93O. Orders Magistrates' Court may make in respect of interstate security patients (1) When a person arrested under a warrant issued under section 93N is brought before the Magistrates' Court, the court must make— (a) an order granting the person bail; or s. 46 -- 76 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 73 (b) an order remanding the person in custody in a prison— unless the court is satisfied that the matters specified in paragraphs (a) to (d) of section 93N(1) are not made out. (2) If the court is satisfied that any of the matters specified in paragraphs (a) to (c) of section 93N(1) is not made out, the court must discharge the person. (3) If the court is satisfied that the matters specified in paragraphs (a) to (c) of section 93N(1) are made out, but that the person can be returned to the relevant State, the court must order the person to be released into the custody of a person who is authorised to escort the person to the relevant State. 93P. Translated sentence for interstate security patient (1) Within 7 days after an interstate security patient is granted bail or remanded in custody in a prison under section 93O(1), the Secretary must apply to the Supreme Court for a translated sentence to be imposed on the interstate security patient. (2) The Supreme Court may deal with the application itself or refer it to the County Court. (3) On an application under sub-section (1), the court must, by order, impose a translated sentence on the interstate security patient and determine the period of that sentence already served, unless the court is satisfied that the interstate security patient can be returned to the relevant State. (4) If the court is satisfied that the interstate security patient can be returned to the s. 46 -- 77 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 74 relevant State, the court must order them to be released into the custody of a person who is authorised to escort them to the relevant State. (5) The translated sentence must be a sentence of the same duration as that imposed on the interstate security patient in the relevant State in respect of the offence that resulted in them becoming an interstate security patient. (6) In determining the period of the translated sentence already served, the court must take into account— (a) the period of the sentence already served in the relevant State; and (b) the period since the interstate security patient was first arrested in Victoria under a warrant issued under section 93N. 93Q. Provisions relating to translated sentences (1) Subject to this section, a translated sentence imposed on an interstate security patient under section 93P has the same effect as if it had been imposed on the interstate security patient under the Sentencing Act 1991 on conviction for an offence in Victoria. (2) If, under the law of the relevant State, a court has fixed a non-parole period in respect of a sentence imposed on the interstate security patient, that non-parole period is taken to have been fixed by the court in Victoria in respect of the translated sentence. (3) If the sentence imposed on an interstate security patient, or any non-parole period in respect of that sentence— s. 46 -- 78 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 75 (a) is varied or quashed on a review by or appeal to a court in the relevant State, the translated sentence or non-parole period is taken to have been varied to the same extent, or to have been quashed, by a corresponding court in Victoria; or (b) otherwise is varied or ceases to have effect as a result of action taken by any person or authority in the relevant State, the translated sentence is taken to have been varied to the same extent, or to have ceased to have effect, as a result of action taken by an appropriate person or authority in Victoria.'. 47. Non-delegation of certain duties In section 96(4) of the Mental Health Act 1986, after "delegation" (where secondly occurring) insert "or the duty to provide the Forensic Leave Panel with an applicant profile under section 54A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and a leave plan or statement under section 54B of that Act". 48. New section 147 inserted At the end of Division 3 of Part 7 of the Mental Health Act 1986 insert— "147. Transitional provisions—Forensic Health Legislation (Amendment) Act 2002 (1) Sub-sections (4), (5) and (6) of section 51, as in force immediately before the commencement of section 41 of the Forensic Health Legislation (Amendment) Act 2002, continue to apply in respect of a refusal to grant or extend leave or a revocation of leave that occurred before that commencement. s. 47 -- 79 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 76 (2) Any appeal under section 51(4), as in force immediately before the commencement of section 41 of the Forensic Health Legislation (Amendment) Act 2002, that had not been determined before that commencement is to be determined as if that section 41 had not come into operation.". _______________ s. 48 -- 80 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 77 PART 6—STATUTE LAW REVISION 49. Community Visitors Legislation (Miscellaneous Amendments) Act 2001 (1) In the Community Visitors Legislation (Miscellaneous Amendments) Act 2001— (a) in section 1 for "Disability Services (Amendment) Act 2000" substitute "Disability Services Act 1991"; (b) in the heading to Part 2, for "DISABILITY SERVICES (AMENDMENT) ACT 2000" substitute "DISABILITY SERVICES ACT 1991"; (c) in section 3, for "section 5 of the Disability Services (Amendment) Act 2000 in the proposed" substitute "section 3 of the Disability Services Act 1991 in the"; (d) in the heading to section 4, for "Amendment to section 6" substitute "New section 12 inserted"; (e) in section 4, for "In section 6 of the Disability Services (Amendment) Act 2000 after the proposed section 11" substitute "After section 11 of the Disability Services Act 1991". (2) After section 2(2) of the Community Visitors Legislation (Miscellaneous Amendments) Act 2001 insert— "(3) This Act is deemed to have been enacted as amended by section 49 of the Forensic Health Legislation (Amendment) Act 2002.". s. 49 -- 81 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 78 50. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Part 9 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 is repealed. 51. Mental Health Act 1986 In section 65(e) of the Mental Health Act 1986, for "pychosurgery" substitute "psychosurgery". ═══════════════ s. 50 -- 82 of 83 -- Act No. 7/2002 Forensic Health Legislation (Amendment) Act 2002 79 ENDNOTES † Minister's second reading speech— Legislative Assembly: 29 November 2001 Legislative Council: 27 March 2002 The long title for the Bill for this Act was "to amend the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Control of Weapons Act 1990, the Intellectually Disabled Persons' Services Act 1986 and the Mental Health Act 1986 with respect to security patients and persons subject to supervision and for other purposes." Endnotes -- 83 of 83 --