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Magistrates' Court Amendment (Mental
Health List) Bill 2009
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purpose of the Bill. The Bill establishes the Mental
Health List in the Magistrates' Court of Victoria for a trial period.
Clause 2 contains the commencement provisions. All provisions of the
proposed Act (other than section 8) commence on a day or days
to be proclaimed. If a provision of the proposed Act (other than
section 8) does not come into operation before 1 December 2010,
it comes into operation on that day.
Section 8, which provides for the ending of the trial period for the
Mental Health List, comes into force on a day to be proclaimed
or on 1 August 2013. The Mental Health List is a 3 year pilot
program that will cease on that date or a day to be proclaimed.
The project will be evaluated before that date to determine
whether its operation should be extended.
Clause 3 provides that the Principal Act is the Magistrates' Court Act
1989 for the purposes of the Bill.
Clause 4 amends section 3(1) of the Principal Act by inserting a number of
new definitions.
Clause 4(1) inserts the definitions of intellectual disability,
Mental Health List and mental illness into the Principal Act.
Clause 4(2) amends the definition of proper venue in section 3(1)
of the Principal Act to recognise the establishment of the Mental
Health List. If the List has jurisdiction in relation to a
proceeding, the venues at which the List may sit and act are the
proper venues for those proceedings.
Clause 5 inserts new sections 4S to 4Y into the Magistrates' Court Act
1989 to provide for the establishment and operation of the Mental
Health List.
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New section 4S establishes the Mental Health List and provides
for its jurisdiction. In particular, new section 4S--
· specifies that the Mental Health List has jurisdiction in
criminal proceedings that are referred to the List by the
Court;
· specifies that the Mental Health List does not have
jurisdiction to hear charges involving violent offences,
serious violence offences or sexual offences as defined
in section 6B(1) of the Sentencing Act 1991;
· specifies that the Court can only refer a matter to the
List if the accused consents to have the matter dealt with
in the Mental Health List and meets the eligibility
criteria listed in new section 4T;
· limits the operation of the List to the venue of the Court
in which the Mental Health List operates;
· provides that the Mental Health List will be able to sit at
the venues gazetted by the Chief Magistrate;
· provides that the operation of the List is at the direction
of the Chief Magistrate.
New section 4T sets out the eligibility criteria for accused
persons who wish to have their matters dealt with in the List.
To be eligible to enter the List, an accused person must meet each
of the diagnostic, functional and needs criteria that are outlined in
new section 4T.
The diagnostic criteria require that the accused has a mental
illness, intellectual disability, acquired brain injury, autism
spectrum disorder or a neurological impairment, including but
not limited to dementia.
The functional criteria require that the accused has one of the
above disorders, or a combination thereof, which causes a
substantially reduced capacity in at least one of the areas of self-
care, self-management, social interaction or communication.
The needs criteria require that the accused would derive benefit
from receiving co-ordinated services in accordance with a care
plan that may include psychological assessment, welfare services,
health services, mental health services, disability services, drug
and alcohol treatment services or housing and support services.
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New section 4U sets out the specific powers of the Mental Health
List. These powers will enable the Court to periodically convene
hearings to receive reports on an accused's progress and
compliance with his or her individual support plan. The Court
will also be able to adjust, amend or vary the support plan, as
well as remove or transfer a criminal proceeding from the List to
the Court. This clause also provides that the Court may
discharge an accused or indicate an intention to discharge the
accused at any time.
New section 4U(3) requires that the Court exercise its jurisdiction
in the Mental Health List with as little formality and technicality,
and with as much expedition, as possible, having regard to the
requirements of the Principal Act, the Sentencing Act 1991 and
the proper consideration of the matters before the Court.
New section 4V allows the Court to adjourn a proceeding for a
period not exceeding 12 months, before taking a formal plea from
the accused. This power is designed to allow court-based mental
health practitioners to conduct an assessment of the accused in
order to identify his or her needs based on the needs criteria set
out in section 4T and to prepare an individual support plan for the
accused to be considered by the Court. The Court is required to
fix a return date at which the Court will consider the proposed
individual support plan. On the return date, the Court may
approve the individual support plan, make amendments to it,
impose bail or other conditions or require an accused to enter into
undertakings that the Court considers appropriate.
New section 4W clarifies that the adjournment power in
section 4V does not affect the operation of the adjournment
powers in sections 59 and 331 of the Criminal Procedure
Act 2009.
New section 4X provides for transfers of proceedings to and from
the Mental Health List in accordance with the Act and the rules.
The Court has the power to transfer proceedings out of the List
and to the Court sitting other than as the List for hearing at the
same or a different venue. If an accused at any stage pleads not
guilty, or indicates an intention to plead not guilty, the
proceeding must be transferred out of the List to a contested
hearing in the Court.
New section 4Y provides that the Court must, on completion of
an individual support plan to the satisfaction of the Court by an
accused, hear and determine the criminal proceeding to which the
individual support plan related. The Court is required to take into
account the extent to which the accused complied with,
participated in or completed the individual support plan when
sentencing the accused.
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New section 4Y(2) gives the Court the power to discharge an
accused person without any finding of guilt if the accused
completes or participates in a support plan to the satisfaction of
the Court.
New section 4Y(3) provides that the fact of participation in the
individual support plan and the program is not to be treated as a
finding of guilt.
New section 4Y(4) specifies that the fact of participation in, or
completion of, the individual support plan and the discharge of
the accused is a defence to a later charge for the same offence or
a similar offence arising out of the same circumstances.
New section 4Y(5) requires the Court take into account the extent
to which an accused participated in the individual support plan
when sentencing the accused if the accused is found guilty of the
charge.
New section 4Y(6) provides that the Court must not take into
account an accused's failure to participate in the individual
support plan when sentencing the accused if the accused failed to
participate in the individual support plan to the satisfaction of the
Court.
New section 4Y(7) clarifies that section 4Y does not affect the
requirement to observe the rules of natural justice.
New section 4Y(8) specifies that section 4Y does not affect the
incurring of demerit points under the Road Safety Act 1986 or
regulations made under that Act.
New section 4Y(9) clarifies that section 4Y does not affect or
limit the operation of the Sentencing Act 1991, or the powers of
a magistrate or the Court under that Act.
Clause 6 inserts in section 16(1A) of the Principal Act new powers of the
Court to make rules about any matter relating to the practice and
procedure of the Mental Health List and the transfer of
proceedings to and from the Mental Health List.
Clause 7 inserts in Schedule 8 to the Principal Act a new clause 45 which
provides that the amendments to the Principal Act made by
section 5 of the Magistrates' Court Amendment (Mental
Health List) Act 2009 apply to any proceeding, irrespective of
when the offence was committed or the proceeding commenced.
This is intended to ensure that matters can be brought before the
Mental Health List irrespective of when the offence was
committed or the proceeding commenced. However, the
amendments do not apply to a proceeding in respect of an
accused which was listed before the Court before the
commencement of section 5.
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Clause 8 repeals the amendments to the Principal Act at the conclusion of
the trial period.
Clause 9 repeals the amending Act on 1 August 2014. Subject to clause 8,
the repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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