New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Mental Health (Forensic Provisions)
Amendment (Victims) Bill 2018
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Mental Health (Forensic Provisions) Act 1990 No
10 3
Schedule 2 Amendment of Crimes (Forensic Procedures) Act 2000 No 59 9
Schedule 3 Amendment of Crimes (Sentencing Procedure) Act 1999 No 92 10
Schedule 4 Amendment of Government Information (Public Access) Act 2009
No 52 12
Schedule 5 Amendment of Mental Health Act 2007 No 8 13
Schedule 6 Amendment of Victims Rights and Support Act 2013 No 37 14
I certify that this public bill, which originated in the Legislative Assembly, has finally passed
the Legislative Council and the Legislative Assembly of New South Wales.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2018
New South Wales
Mental Health (Forensic Provisions)
Amendment (Victims) Bill 2018
Act No , 2018
An Act to amend the Mental Health (Forensic Provisions) Act 1990 and other legislation with
respect to the rights of victims of forensic patients and proceedings relating to forensic patients;
to amend the Crimes (Forensic Procedures) Act 2000 with respect to the retention of forensic
material relating to forensic patients; and for other purposes.
I have examined this bill and find it to correspond in all respects with the bill as finally
passed by both Houses.
Assistant Speaker of the Legislative Assembly.
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Mental Health (Forensic Provisions) Amendment (Victims) Act 2018.
2 Commencement
(1) This Act commences on the date of assent to this Act, except as provided by
subsection (2).
(2) The following provisions of this Act commence on a day or days to be appointed by
proclamation:
(a) Schedule 1 [1], to the extent that it inserts the definitions of Commissioner of
Victims Rights, registered victim and Victims Register,
(b) Schedule 1 [8]-[10] and [14] (except to the extent it inserts the heading to
Part 5A and section 76L),
(c) Schedules 3 and 4.
Page 2
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
Schedule 1 Amendment of Mental Health (Forensic Provisions) Act 1990 No 10
Schedule 1 Amendment of Mental Health (Forensic
Provisions) Act 1990 No 10
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
Commissioner of Victims Rights has the same meaning as in the Victims
Rights and Support Act 2013.
registered victim means a victim registered on the Victims Register.
victim of a forensic patient means:
(a) a primary victim of an act of violence (within the meaning of the Victims
Rights and Support Act 2013) committed by a forensic patient, and
(b) a family victim (within the meaning of section 22 of that Act) of an act
of violence committed by a forensic patient.
Victims Register means the Victims Register established under Part 5A.
[2] Section 26A
Insert after section 26:
26A Reports about accused person
(1) The Court may, following a verdict being reached at a special hearing and on
its own motion, request a report by an expert, who is not currently involved in
treating the accused person, as to:
(a) the condition of the accused person, and
(b) whether the release of the accused person is likely to seriously endanger
the safety of the accused person or any member of the public.
(2) The Court may consider the report, and any other report of an expert that is
tendered to the Court for the purposes of this section, before determining what
orders to make about the accused person.
(3) In this section, expert means a forensic psychiatrist or other person of a class
prescribed by the regulations.
[3] Section 38A
Insert after section 38:
38A Reports about accused person
(1) The Court may, following a special verdict of not guilty by reason of mental
illness at the trial of a person for an offence, request a report by an expert, who
is not currently involved in treating the person, as to:
(a) the condition of the person, and
(b) whether the release of the person is likely to seriously endanger the
safety of the person or any member of the public.
(2) The Court may consider the report, and any other report of an expert that is
tendered to the Court for the purposes of this section, before determining what
orders to make about the person.
(3) In this section, expert means a forensic psychiatrist or other person of a class
prescribed by the regulations.
Page 3
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
Schedule 1 Amendment of Mental Health (Forensic Provisions) Act 1990 No 10
[4] Section 40 Objects
Insert after section 40 (e):
(f) to protect the safety of victims of forensic patients and to acknowledge
the harm done to victims.
[5] Section 52A
Insert after section 52:
52A Effect of unlawful absence on limiting term
(1) For the purposes of calculating whether a limiting term has expired, any period
during which the person on whom the term was imposed was unlawfully
absent from a mental health facility or other place in which the person was
detained under this Act is not to be counted as part of the limiting term.
(2) In this section, a person is unlawfully absent from a mental health facility or
other place during any period commencing when an order is made for the
apprehension of the person under section 68 (1) and ending when the person
is apprehended and detained under the order.
(3) On being notified of the apprehension and detention of a forensic patient on
whom a limiting term has been imposed and who is the subject of an order
under section 68 (1), the Tribunal must give the forensic patient a written
notice setting out the effect of this section and the new expiration date of the
limiting term.
[6] Section 68 Breach of orders for release
Omit "under this Part" from section 68 (1) (d).
[7] Section 68 (2)
Omit the subsection. Insert instead:
(2) The Tribunal must review the case of a person apprehended under this section
and may:
(a) order the person's temporary detention, care or treatment in a mental
health facility, correctional centre or other place, and in the manner,
specified in the order, or
(b) confirm the person's release or leave, either unconditionally or subject
to conditions, or
(c) revoke the conditional release order and order the person's detention,
care or treatment in a mental health facility, correctional centre or other
place, and in the manner, specified in the order.
Note. The Tribunal may also make a community treatment order under Division 5.
[8] Sections 74A and 74B
Insert after section 74:
74A Victims may make submissions to Tribunal on review of and release of, or
grant of leave to, forensic patients
(1) A victim of a forensic patient may make a submission to the Tribunal if the
Tribunal is considering the release of or the grant of leave of absence to the
forensic patient.
(2) A submission may include an application under section 76 (2).
Page 4
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
Schedule 1 Amendment of Mental Health (Forensic Provisions) Act 1990 No 10
(3) The victim may request the Tribunal not to disclose the whole or part of a
submission made by the victim to the forensic patient.
(4) The Tribunal is to agree to a request of a victim not to disclose the whole or
part of a submission unless it considers that it is not in the interests of justice
to agree to the request.
Note. Among other things that may be considered by the Tribunal is the question of
procedural fairness to the forensic patient.
(5) The regulations may make provision for or with respect to submissions by
victims relating to the release of or grant of leave of absence to forensic
patients.
(6) Without limiting subsection (5), the regulations may make provision for or
with respect to the following:
(a) the matters about which a victim may make submissions,
(b) the representation of victims by nominated support persons at hearings
conducted for the purpose of a review,
(c) the form of submissions by victims,
(d) the disclosure of victims' submissions to the forensic patient or other
persons, including the circumstances in which the Tribunal may
determine that, having regard to the interests of justice, non-disclosure
is reasonable in the circumstances of the case.
74B Rights of victims
In conducting a review under this Act, the Tribunal is to have regard to the
rights of victims in accordance with the Charter of Victims Rights set out in
the Victims Rights and Support Act 2013.
[9] Section 75 Conditions that may be imposed by Tribunal on release or leave of
absence
Insert after section 75 (1) (k):
(l) requirements for the purposes of monitoring (including by electronic
means) compliance with the conditions of release or leave.
[10] Section 76 Tribunal may amend or impose conditions on release or leave orders on
application of victims
Insert "(in a submission made under section 74A or otherwise)" after "may apply" in
section 76 (2).
[11] Section 76J Exchange of information
Insert ", the Secretary of the Department of Family and Community Services" after
"Corrective Services" in section 76J (1).
[12] Section 76J (4)-(4B)
Omit section 76J (4). Insert instead:
(4) The Commissioner of Victims Rights and the President of the Tribunal may
enter into arrangements with each other to exchange information held by the
Department of Justice, the Commissioner or the Tribunal for the purposes of
the Victims Register and notifications under Part 5A.
(4A) If an arrangement under subsection (4) applies to them, the Department of
Justice, the Commissioner and the Tribunal are authorised:
(a) to request and receive information held by any of them, and
Page 5
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
Schedule 1 Amendment of Mental Health (Forensic Provisions) Act 1990 No 10
(b) to disclose information to any of them,
and without the consent of any person concerned, but only to the extent that
the information is reasonably necessary for the purposes of the Victims
Register and notifications under Part 5A.
(4B) This section does not limit the operation of any Act under which the
Department or associated agency concerned, or the Commissioner of Victims
Rights or the Tribunal, is authorised or required to disclose information to
another person or body.
[13] Section 76J (5A)
Insert after section 76J (5):
(5A) The provision of information under this section does not constitute a
contravention of the Health Records and Information Privacy Act 2002 or the
Privacy and Personal Information Protection Act 1998.
[14] Part 5A
Insert after Part 5:
Part 5A Victims Register
76L Victims Register
(1) There is to be a Victims Register.
(2) The following matters are to be included in the Victims Register:
(a) the names of victims of forensic patients who have requested that they
be given notice of the review by the Tribunal of those patients,
(b) any other matter prescribed by the regulations.
(3) The Victims Register may only include the name of a victim of a forensic
patient if:
(a) the forensic patient has been found not guilty by reason of mental illness
of an offence (whether or not following a special hearing), or
(b) a limiting term has been imposed on the forensic patient following a
verdict in a special hearing.
(4) The Victims Register is to be kept by the Commissioner of Victims Rights and
is to be in the form determined by the Commissioner.
(5) The regulations may make provision for or with respect to the following
matters:
(a) applications to register as a victim,
(b) the verification by the Commissioner of the identity of persons applying
to register as victims, and the circumstances under which they became
victims,
(c) the use and disclosure of information contained in the Victims Register,
(d) notifications to victims by the Tribunal or the Commissioner,
(e) the operation and administration of the Victims Register.
76M Notification to victims of reviews and other matters
(1) The Commissioner of Victims Rights must give notice to any registered victim
of a forensic patient if:
Page 6
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
Schedule 1 Amendment of Mental Health (Forensic Provisions) Act 1990 No 10
(a) the forensic patient is due for a mandatory review by the Tribunal, or
(b) an application is made by or for the forensic patient for a review by the
Tribunal, or an application is made by or for the forensic patient to the
Tribunal, in relation to release or leave of absence, or
(c) the Tribunal makes or varies an order for the release (including the
conditional release) of, or granting leave of absence to, the forensic
patient or refuses to make any such order, or
(d) the forensic patient ceases to be a forensic patient, or
(e) the forensic patient is the subject of an order for apprehension made
under section 68 or a request for apprehension under section 70, or
(f) the forensic patient appeals against a decision of the Tribunal, or
(g) notice is required to be given of a specified matter by regulations made
for the purposes of this paragraph.
(2) The notice is to be given subject to and in accordance with the regulations.
(3) Without limiting subsection (2), the notice must contain the following
information:
(a) the matter being notified,
(b) that the victim may make a submission to the Tribunal in any review
proceedings involving the release of or a grant of leave to the forensic
patient,
(c) the form that a submission may take,
(d) the period within which a submission must be made.
(4) The Commissioner is not required to give notice of a matter under this section
if:
(a) the matter required to be notified to the victim is included in any other
requirement to give notice to the victim under this Act, or
(b) the victim has notified the Commissioner that the victim does not
require notice of the matter.
(5) A failure by the Commissioner to comply with this section does not affect the
validity of any decision or order made by the Tribunal.
[15] Schedule 1 Extension of status as forensic patient
Omit "28 days" from clause 11 (1). Insert instead "3 months".
[16] Schedule 1, clause 17 (1) and (3)
Insert "or extension order" after "limiting term" wherever occurring.
[17] Schedule 3 Savings and transitional provisions
Insert at the end of the Schedule, with appropriate Part and clause numbering:
Part Mental Health (Forensic Provisions) Amendment
(Victims) Act 2018
Existing victims register
(1) The information contained in the register of victims of forensic patients kept
by the Tribunal immediately before the commencement of section 76L, as
inserted by the Mental Health (Forensic Provisions) Amendment (Victims) Act
Page 7
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
Schedule 1 Amendment of Mental Health (Forensic Provisions) Act 1990 No 10
2018, (the former register) is taken to form part of the Victims Register for the
purposes of this Act.
(2) The Commissioner of Victims Rights may add to, correct or remove any
information included in the Victims Register by this clause.
(3) A victim whose name was contained in the former register is taken, for all
purposes, to be a victim registered in the Victims Register under this Act and
accordingly is to be treated as a registered victim for the purposes of this Act.
(4) This clause applies whether or not the person is a victim within the meaning
of this Act.
Page 8
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
Schedule 2 Amendment of Crimes (Forensic Procedures) Act 2000 No 59
Schedule 2 Amendment of Crimes (Forensic Procedures) Act
2000 No 59
Section 88 Destruction of forensic material after 12 months
Insert after section 88 (8):
(9) For the purposes of subsection (4), a person is not a suspect who has been
acquitted of an offence to which the forensic material relates if:
(a) a special verdict of not guilty of the offence on the ground of mental
illness has been returned, or
(b) the person has been found, following a special hearing under the Mental
Health (Forensic Provisions) Act 1990, on the limited evidence
available, to have committed the offence charged or an available
alternative offence.
Page 9
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
Schedule 3 Amendment of Crimes (Sentencing Procedure) Act 1999 No 92
Schedule 3 Amendment of Crimes (Sentencing Procedure)
Act 1999 No 92
[1] Sections 28A and 28B
Insert after section 28:
28A Victim impact statements where verdict of not guilty by reason of mental
illness or limited finding of guilt
(1) A court may receive a victim impact statement after:
(a) a verdict that an accused person is not guilty by reason of mental illness
(whether or not following a special hearing) under the Mental Health
(Forensic Provisions) Act 1990, or
(b) a verdict following a special hearing under that Act, that, on the limited
evidence available, an accused person committed an offence.
(2) A court must acknowledge receipt of the victim impact statement.
(3) A court may consider a victim impact statement when it considers what
conditions are to be imposed on the release of the accused person.
(4) A court is not to consider a victim impact statement when determining the
limiting term to be imposed on an accused person.
(5) A court must not consider a victim impact statement under this section unless
it has been given by or on behalf of the victim to whom it relates or by or on
behalf of the prosecutor.
(6) Section 28 does not apply to a victim impact statement received by a court
under this section.
(7) For the purposes of the definitions of family victim and primary victim in this
Division, an offence is taken to have been committed by an accused person
referred to in subsection (1).
28B Submissions by designated carers and principal care providers
(1) A court may seek a submission by the designated carer or principal care
provider of an accused person after a verdict of not guilty by reason of mental
illness (whether or not following a special hearing) under the Mental Health
(Forensic Provisions) Act 1990 or a verdict following a special hearing under
that Act, that, on the limited evidence available, the accused person committed
an offence.
(2) The regulations may make provision for or with respect to submissions under
this section.
(3) In this section, designated carer and principal care provider have the same
meaning as they have in the Mental Health Act 2007.
[2] Section 30B
Insert after section 30A:
30B Victim impact statements in mental health and cognitive impairment forensic
proceedings
(1) A victim may request that a court not disclose the whole or part of a victim
impact statement received by the court under section 28A to the accused
person or that the statement not be read out to the court.
Page 10
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
Schedule 3 Amendment of Crimes (Sentencing Procedure) Act 1999 No 92
(2) The court is to agree to a request of a victim not to disclose the whole or part
of a victim impact statement to the accused person or that a statement not be
read out to the court unless the court considers that it is not in the interests of
justice to agree to the request.
Note. Among other things that may be considered by the court is the question of
procedural fairness to the forensic patient.
(3) This section does not prevent the court from disclosing the whole or part of a
victim impact statement to an Australian legal practitioner representing the
accused person, on the condition that the statement is not to be disclosed to any
other person, if the court is satisfied that it is in the interests of justice to do so.
(4) The court is required to give a copy of the victim impact statement to the
Mental Health Review Tribunal constituted under the Mental Health Act 2007,
in accordance with the regulations, as soon as practicable after the court makes
a decision that results in the accused person becoming a forensic patient within
the meaning of that Act.
(5) The regulations may make provision for or with respect to the requirements
and procedures for victim impact statements in proceedings under the Mental
Health (Forensic Provisions) Act 1990.
Page 11
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
Schedule 4 Amendment of Government Information (Public Access) Act 2009 No 52
Schedule 4 Amendment of Government Information (Public
Access) Act 2009 No 52
Schedule 2 Excluded information of particular agencies
Insert "and functions relating to dealing with confidential information concerning victims
contained in the Victims Register established under the Mental Health (Forensic
Provisions) Act 1990" after "Victims Rights and Support Act 2013" in clause 4.
Page 12
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
Schedule 5 Amendment of Mental Health Act 2007 No 8
Schedule 5 Amendment of Mental Health Act 2007 No 8
Section 160 Tribunal procedure generally
Insert ", designated carers, principal care providers" after "family members" in
section 160 (2) (d).
Page 13
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
Schedule 6 Amendment of Victims Rights and Support Act 2013 No 37
Schedule 6 Amendment of Victims Rights and Support Act
2013 No 37
[1] Section 3 Definitions
Insert "and, in relation to a victim of a forensic patient, means the Charter set out in
section 6A" after "section 6" in the definition of Charter of Victims Rights in section 3 (1).
[2] Section 3 (1)
Insert in alphabetical order:
forensic patient has the same meaning as in the Mental Health (Forensic
Provisions) Act 1990.
[3] Section 6A
Insert after section 6:
6A Additional matters for Charter of victims rights of forensic patients
The following comprises the Charter of rights of victims of crime who are
victims of forensic patients:
6A.1 General matters
Each right referred to in section 6.
6A.2 Treatment of victim
A victim will be treated with respect and compassion, having regard to
the fact that proceedings may touch on painful or tragic events in the
victim's life and cause the victim to experience further grief and
distress.
A victim making a submission before the Mental Health Review
Tribunal should be listened to respectfully and in a way that is cognisant
of the effects of the victim's experience and the benefit of expressing
views about its impact.
6A.3 Information about reviews of and other proceedings relating
to forensic patients
A victim will be informed in a timely manner of any matter before the
Mental Health Review Tribunal, or the release of or granting of leave to
a forensic patient or any other matter, that the victim is required to be
informed of under the Mental Health (Forensic Provisions) Act 1990.
[4] Section 7 Implementation of Charter
Insert after section 7 (3) (d):
(e) the administration of matters relating to forensic patients and victims of
forensic patients.
Page 14
Mental Health (Forensic Provisions) Amendment (Victims) Bill 2018 [NSW]
Schedule 6 Amendment of Victims Rights and Support Act 2013 No 37
[5] Section 10 Functions of Commissioner
Insert after section 10 (1) (h):
(h1) to manage the Victims Register established under Part 5A of the Mental
Health (Forensic Provisions) Act 1990.
Page 15
[Index] [Search] [Download] [Related Items] [Help]