Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Attorney General for the State of New South Wales v XY [2014] NSWCA 466 Hearing dates: 5 December 2014 Decision date: 24 December 2014 Before: Beazley P at [1]; McColl JA at [111]; Basten JA at [120] Decision: (1) Affirm the decision of the Mental Health Review Tribunal delivered on 10 September 2014. (2) Otherwise dismiss the appeal. (3) Order that the Attorney pay the respondent's costs in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: MENTAL HEALTH - forensic patient - release - order for unconditional release upon transfer to a medium security mental health unit in Queensland - test of serious endangerment of public - whether care of a less restrictive kind available upon release - Mental Health (Forensic Provisions) Act 1990 (NSW), s 43(a) and (b), s 47 MENTAL HEALTH - forensic patient - transfer - whether transfer of a forensic patient permitted under a corresponding law of Queensland - transferee ceasing to be forensic patient in New South Wales - Mental Health Act 2007 (NSW), s 176 STATUTORY INTERPRETATION - resolving inconsistency between provisions in a single statute - provisions introduced contemporaneously - reading statute as a whole - giving each provision work to do - Mental Health (Forensic Provisions) Act 1990 (NSW), s 43, s 47(3) WORDS AND PHRASES - "corresponding law" - "seriously endangered" - "care of a less restrictive kind" - Mental Health (Forensic Provisions) Act 1990 (NSW), s 43 Legislation Cited: Acts Interpretation Act 1954 (Qld), ss 12, 14H Mental Health (Forensic Provisions) Act 1990 (NSW), ss 39, 40, 42, 43, 44, 45, 46, 47, 48, 49, 50, 74, 76E, 77A; Pt 5 Mental Health Act 2007 (NSW), ss 68, 109, 170, 174, 176; Ch 8, Pt 2 Mental Health Act 2000 (Qld), ss 183, 185, 507, 508 Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (NSW) Mental Health Regulation 2013 (NSW), cll 23, 26, 27; Pt 8, Div 3 Mental Health Regulation 2002 (Qld) Cases Cited: Australia Gaslight Co v Valuer-General (NSW) (1940) 40 SR(NSW) 126 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 In the Matters of Major Reviews of Percy, Farrell and RJO (1998) VSC 70 Jardin and Jardim Investments Pty Ltd v Metcash Ltd [2011] NSWCA 409; (2011) 214 IR 448 Life Insurance Co of Australia Ltd v Phillips [1925] 36 CLR 60 NOM v Director of Public Prosecutions [2012] VSCA 198; 38 VR 618 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; 94 CLR 509 People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253 Re VAS [2010] VSC 411 Texts Cited: Macquarie Dictionary (online edition, 2014) Oxford English Dictionary (online edition, 2014) Category: Principal judgment Parties: Attorney General for the State of New South Wales (Appellant) XY (First Respondent) Mental Health Review Tribunal (Second Respondent) Representation: Counsel: D T Kell; T Phillips (Appellant) M J Ierace SC; K Stares (First Respondent) Submitting Appearance (Second Respondent) Solicitors: Crown Solicitor (Appellant) Legal Aid NSW (First Respondent) Crown Solicitor (Second Respondent) File Number(s): CA 2014/294225 Decision under appeal Date of Decision: 2014-09-10 00:00:00 Before: Mental Health Review Tribunal P Staunton AM, Deputy President; U Bardulis, Psychiatrist; D Bell, Member File Number(s): F1691 HEADNOTE [This headnote is not to be read as part of the judgment] The respondent suffers from schizophrenia. In November 2006 in Queensland he struck a person in the head with a sledgehammer, causing him serious injury. On 16 August 2007 a judge in Queensland found him to be of unsound mind and made a "forensic order" pursuant to which he was detained in a mental health facility in Caboolture. In 2009 he left Queensland without permission and travelled to Sydney, where he lived for a period with his uncle. In August 2009 he killed his uncle with a knife. He was charged with murder but found not guilty by reason of mental illness. He then became a forensic patient in New South Wales. As a forensic patient, the respondent was subject to six monthly reviews by the Mental Health Review Tribunal. He remained subject to the Queensland forensic order. In September 2014 the Tribunal accepted psychiatric evidence that the respondent would benefit from transfer to Caboolture, where he would be closer to his family. The Tribunal made an order that he be unconditionally released upon notification of his admission to the Caboolture medium secure forensic unit in Queensland. Upon unconditional release in New South Wales, he ceased to be a forensic patient in this State. On 8 October 2014, the day upon which his release took effect, the Attorney General lodged an appeal against the order of the Tribunal. The Attorney's purpose was not to have the respondent returned to New South Wales, but to maintain his status as a forensic patient in this State. The Attorney General exercised his right to appeal from a determination of the Tribunal to release a person, pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Forensic Provisions Act"), s 77A(6). The following issues arose on the appeal: (i) whether the Tribunal erred in law in construing s 43(a) of the Forensic Provisions Act; (ii) if the Tribunal was in error, whether the error was material to its determination; (iii) whether the Tribunal erred in law in construing s 43(b) of the Forensic Provisions Act (iv) the respondent having been transferred to Queensland, whether his status as a forensic patient was in any event terminated pursuant to s 176(2) of the Mental Health Act 2007 (NSW) (v) whether the court should continue the non-publication order. The Court held, dismissing the appeal: (1) Section 43 required that the Tribunal must not make an order for release of a forensic patient unless satisfied that the safety of the public will not be seriously endangered by the patient's release: s 43(a). The statement of the Tribunal that the "risk" must be "more than merely possible and can be characterised as very high" involved error, as was conceded on behalf of the respondent: at [51] (Beazley P, McColl JA agreeing); [168] (Basten JA, McColl JA agreeing). (2) The error in the construction of s 43(a), although rendering the Tribunal's reasoning erroneous, did not affect the outcome: at [110] (Beazley P, McColl JA agreeing). Based on the findings of fact made by the Tribunal, the Tribunal would have come to the same decision absent the error of interpretation, which was therefore immaterial: at [172] (Basten JA, McColl JA agreeing). (3) The approach set out above assumed the relevance of s 43(a) to the making of an order for release under s 47(1) of the Forensic Provisions Act. Section 47(3) stated that "[a]n order for release under this section may be made despite any other provisions of this Act". Section 47(3) does not override the requirements of s 43: at [90] (Beazley P); Basten JA contra but not finally deciding at [153] and [155]. (4) Section 43(b) requires that, before making an order for release, the Tribunal must be satisfied that other care of a less restrictive kind is appropriate and reasonable available. The evidence demonstrated that one consequence of the transfer to Queensland would be that the respondent would be subject to closer constraints whilst he was assessed at Caboolture. Nevertheless, it was open to the Tribunal to be satisfied that, in the longer term, the respondent would be subject to less restrictive conditions of care. Accordingly the Tribunal did not err in law in reaching a state of satisfaction with respect to that condition: at [76] (Beazley P, McColl JA agreeing); [175] (Basten JA, McColl JA agreeing). (5) The transfer of the respondent to Queensland did not mean that he ceased to be a forensic patient in New South Wales pursuant to s 176(2) of the Mental Health Act, because the transfer required that there be a "corresponding law" in Queensland. The relevant law, s 183 of the Mental Health Act 2000 (Qld), did not apply to patients detained in New South Wales under the Forensic Provisions Act: at [105] (Beazley P) and [179] (Basten JA). (6) The return of the respondent to Queensland was probably permitted and authorised by ss 507 and 508 of the Mental Health Act (Qld). On that view, the status of forensic patient may have ceased pursuant to s 176(2); the declaration to the contrary sought by the Attorney should not be made: at [180] and [182] (Basten JA). (7) The Mental Health Act 2007, s 162 prohibits publication of the name of a person involved in proceedings before the Tribunal without the consent of the Tribunal. Accordingly, the respondent's name has not been used in this judgment. There is no need for any other non-publication order and the orders in force should be revoked: at [185]-[187] (Basten JA, McColl JA agreeing). Judgment 1BEAZLEY P: On 2 July 2010, the first respondent (XY) became a forensic patient in New South Wales under the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act), s 39, after having been found not guilty of a charge of murder by reason of mental illness. Since that time, XY has been the subject of regular reviews by the Mental Health Review Tribunal (the Tribunal), pursuant to s 44 in respect of his initial review and thereafter pursuant to s 46 of the Act. From April 2012, he was an inmate of Bloomfield Hospital, Orange, in New South Wales. In May 2014, XY's treating psychiatrist, Dr Burns, lodged a notice of intent with the Tribunal indicating that an unconditional release order would be sought on his behalf so that he: "... may be admitted to the Caboolture Medium Secure Forensic Unit in Queensland as a 'forensic patient' under Queensland jurisdiction." 2On 26 August 2014, the Tribunal conducted a review, being the thirteenth review of XY, pursuant to s 46 of the Act. The Attorney General, who was notified of the proposed application for XY's release, appeared before the Tribunal and opposed the making of the order on three bases. Those bases, as recorded by the Tribunal at (4) of its reasons, were: first, that the Tribunal, could not, as a matter of law, form the state of satisfaction required by s 43 of the Act that XY be unconditionally released; secondly, that even if the Tribunal was empowered to make an order for unconditional release under s 43, it would be inappropriate to do so as a matter of discretion; and thirdly, that the Tribunal was not empowered by the Mental Health Act 2007 (NSW), s 176(1) to order that XY be transferred to Queensland. 3On 10 September 2014, the Tribunal determined that XY be unconditionally released upon notification of his admission to the Caboolture Medium Secure Forensic Unit in Queensland (Caboolture). On 8 October 2014, XY was escorted from Bloomfield Hospital to Queensland and was admitted to Caboolture. Upon his admission, the Tribunal made an order for his unconditional release pursuant to s 47(1) of the Act. 4The Attorney General has a right of appeal on a question of law pursuant to s 77A(6) of the Act. In his amended notice of appeal filed on 20 October 2014, the Attorney General raised the following two questions of law: "1. [The Tribunal] erred in law in construing the expression 'seriously endangered' as it appears in s 43(a) of [the Act]. a. The Tribunal erred in finding that s 43(1) precludes the Tribunal from making an order for release only where it is satisfied on the evidence available to it that the probability of a risk of danger materialising is very high. b. the Tribunal erred in finding that the critical consideration in determining whether the precondition for release in s 43(a) is fulfilled is the likelihood of the risk materialising without reference to the gravity of harm that may eventuate if it does. 2. The Tribunal erred in law in construing the phrase 'other care of a less restrictive kind' as it appears in s 43(b) of [the Act]. a. The Tribunal erred in failing to find that the phrase 'other care of a less restrictive kind' requires a comparison to be made between the existing restrictions on a forensic patient's liberty and the restrictions on the patient's liberty under the posited 'other care' regime that is found to be both consistent with safe and effective care and appropriate and reasonably available to the patient. b. The Tribunal erred in failing to conduct such a comparison, on the facts before it, for the purpose of being satisfied (or not) of the precondition for release in the first limb of s 43(b) of [the Act]." 5The Attorney General sought orders that the appeal be allowed, that the Tribunal's decision dated 10 September 2014 be set aside and that the matter be remitted to the Tribunal for rehearing in accordance with the decision and reasons of the Court. The Attorney General also sought a declaration that the respondent is, and has been at all relevant times since 2 July 2010, a forensic patient of New South Wales within the meaning of Pt 5 of the Act. 6The Tribunal filed a submitting appearance. 7XY conceded ground 1 of the amended notice of appeal. However, he did not concede certain of the Attorney General's submissions in support of that ground. XY opposes the Attorney General's second ground of appeal and submitted that the Tribunal did not err in law in its construction or application of s 43(b) of the Act. 8It should be noted that the Attorney General did not seek a stay of the Tribunal's determination prior to XY's move from New South Wales, nor does he seek XY's return. The practical utility of the Attorney General's appeal is therefore questionable. Nonetheless, the Attorney General insisted on proceeding with the appeal, stating that it was important that the Tribunal's errors for which he contended be corrected. Statutory scheme Mental Health (Forensic Provisions) Act 9Pursuant to s 39 of the Act, if a "special verdict" that the accused is not guilty by reason of mental illness is returned by a jury on a person's trial for an offence, the court may order that the person be detained in such place and manner as the court thinks fit until released by due process of law. Upon a person being detained pursuant to s 39, the person becomes a "forensic patient". 10Part 5 of the Act makes provision, relevantly, for forensic patients: s 42. Section 40 states the objects of Pt 5 to be: "(a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care." 11Section 43 provides the criteria for release of a forensic patient as follows: "43 Criteria for release and matters to be considered by Tribunal The Tribunal must not make an order for the release of a forensic patient unless it is satisfied, on the evidence available to it, that: (a) the safety of the patient or any member of the public will not be seriously endangered by the patient's release, and (b) other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care." 12After a forensic patient's initial review under s 44, the Tribunal must review the case of each forensic patient every 6 months, but may review the case of any forensic patient at any time. Section 46 provides, relevantly: "46 Further reviews by Tribunal of forensic patients (1) The Tribunal must review the case of each forensic patient every 6 months but may review the case of any forensic patient at any time. ... (4) The period within which a particular review under this section (other than a review of the case of a forensic patient who is subject to an extension order) must be held may, on the motion of the Tribunal or on the application of the patient or the primary carer of the patient, be extended by the Tribunal to a maximum of 12 months. ...." 13Section 47 provides: "47 Orders and recommendations on further Tribunal reviews (1) The Tribunal may, after reviewing the case of a forensic patient under section 46, make an order as to: (a) the patient's continued detention, care or treatment in a mental health facility, correctional centre or other place, or (b) the patient's release (either unconditionally or subject to conditions). (2) The Tribunal must not make an order as to the release of a forensic patient if the patient is a person who has been remanded in custody pending the person's return to court but may make a recommendation to the court as to the person's release. (2A) The Tribunal must not make an order as to the release, unconditionally, of a forensic patient who is subject to an extension order but may make a recommendation to the Supreme Court as to the variation or revocation of the extension order. (3) An order for release under this section may be made despite any other provision of this Act or any order of a court under this Act. (4) On reviewing under section 46 the case of a forensic patient who is subject to a finding that the person is unfit to be tried for an offence, the Tribunal must make a recommendation as to the fitness of the patient to be tried for an offence. (5) The Tribunal must notify the court that made the finding of unfitness and the Director of Public Prosecutions if, on a review, the Tribunal is of the opinion that the person: (a) has become fit to be tried for an offence, or (b) has not become fit to be tried for an offence and will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence." 14Section 74, which appears in Pt 5, Div 7, "Tribunal functions", provides: "74 Matters for consideration Without limiting any other matters the Tribunal may consider, the Tribunal must have regard to the following matters when determining what order to make about a person under this Part: (a) whether the person is suffering from a mental illness or other mental condition, (b) whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's own protection from serious harm or the protection of others from serious harm, (c) the continuing condition of the person, including any likely deterioration in the person's condition, and the likely effects of any such deterioration, (d) in the case of a proposed release, a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the person, as to the condition of the person and whether the safety of the person or any member of the public will be seriously endangered by the person's release, (e) in the case of the proposed release of a forensic patient subject to a limiting term, whether or not the patient has spent sufficient time in custody." 15I have already referred to s 77A(6), which provides for a right of appeal at the instance of the Attorney General on a question of law from a decision of the Tribunal. Section 77A further provides: "(9) After deciding the question the subject of an appeal under this section, the Court may, unless it affirms the determination of the Tribunal on the question: (a) make such order in relation to the proceedings in which the question arose as, in its opinion, should have been made by the Tribunal, or (b) remit its decision on the question to the Tribunal and order a rehearing of the proceedings by the Tribunal. (10) If such a rehearing is held, the Tribunal is not to proceed in a manner, or make an order or a decision, that is inconsistent with the decision of the Court remitted to the Tribunal. ... (13) If a rehearing is held, fresh evidence, or evidence in addition to or in substitution for the evidence on which the original determination was made, may be given on the rehearing. ..." 16The Mental Health Act, s 68(a)-(c), (f) and (g) and s 176 are also relevant to the issues raised on the appeal. Those sections provide as follows: "68 Principles for care and treatment It is the intention of Parliament that the following principles are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder: (a) people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given, (b) people with a mental illness or mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards, (c) the provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community ... ... (f) any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances, (g) the age-related, gender-related, religious, cultural, language and other special needs of people with a mental illness or mental disorder should be recognised ... ... 176 Transfer of patients from this State (1) A person who is detained as an involuntary patient or forensic patient in a mental health facility in this State may be transferred to a mental health facility in another State, if the transfer is permitted by or under a provision of a corresponding law of the other State and is in accordance with the regulations. (2) A person who is transferred to a mental health facility in another State under this section ceases to be an involuntary patient or forensic patient on admission to the facility. (3) A person may be taken to a mental health facility in another State under this section by a person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State. (4) The regulations may make provision for or with respect to the following matters: (a) procedures for authorising the transfer of a patient under this section and for notifying any such transfer or proposed transfer, (b) criteria for authorising the transfer of a patient under this section, (c) the handing over of custody of any such patient by persons in this State, (d) the persons (including interstate persons) who may take a patient to a mental health facility in another State under this section, (e) the mental health facilities to which a patient may be taken under this section and the places taken to be mental health facilities for the purposes of this section. ..." Background 17XY, who is aged 31, is of Iranian Kurdish background, having arrived in Australia from Indonesia in 2002. His father had arrived in 1999. XY was granted a Temporary Protection Visa eight months after his arrival in Australia and went to live with an uncle in suburban Sydney. He was first diagnosed with schizophrenia at about that time and had a number of admissions to mental health facilities. In 2005, XY moved to live with his father in Queensland. After his move to Queensland, XY ceased taking his prescribed medication. 18Sometime in 2006, whilst living in Queensland, XY struck a workmate of his father's, causing him severe injuries. He was reportedly delusional at the time. XY was charged with assault in respect of this incident. XY subsequently received mental health treatment in Queensland. In August 2007, the Queensland Mental Health Court determined that XY was of unsound mind at the time of committing the alleged offence of assault occasioning bodily harm. The Queensland Mental Health Court made a Forensic Order pursuant to the Mental Health Act 2000 (Qld). XY thereby became a forensic patient under that Act. 19The Forensic Order made by the Queensland Mental Health Court required XY to be detained in Caboolture, but approved limited community treatment at the discretion of the treating psychiatrist on certain conditions, including residency requirements and abstinence from alcohol and illicit substances. 20XY had a poor history of compliance with the conditions of the Forensic Order and in 2009, in contravention of the Forensic Order, he travelled to Sydney and lived with his uncle. In the following months, he did not seek or receive medical treatment and his delusions intensified. On 27 August 2009, XY killed his uncle in his uncle's home unit. 21In mid-September 2009, an Interstate Apprehension Order was issued by the Queensland authorities seeking XY's return to Caboolture. 22XY was found not guilty of the murder of his uncle on the grounds of mental illness. On 10 June 2010, R A Hulme J, pursuant to s 39(1) of the Act, ordered that XY be detained at Long Bay Prison Hospital or at such other place as may be determined by the Tribunal until released by due process of law. As a consequence of that order, XY became a Forensic Patient pursuant to s 42(a)(i). In April 2012, XY was transferred to the Macquarie Unit, a medium secure forensic unit at Bloomfield Hospital, Orange, where he was continuously detained and treated under the Act until his recent return to Caboolture. 23Throughout his detention in New South Wales, XY was the subject of ongoing reviews every six months by the Tribunal pursuant to s 46(1) of the Act. At his review in November 2013, XY's treating team reported that his mental condition had remained consistently stable, that he was engaging well with staff and patients, that he had successfully undertaken some work and study, and that visits with his family had gone well. He had also engaged in community work with the Salvation Army. XY's treating team considered it desirable that XY return to Queensland to be near to his family as part of his ongoing treatment and rehabilitation. The treating team also reported that XY had expressed a wish to be near to his family and his family were reported to be keen for him to return to Brisbane. 24Notwithstanding that XY has been a Forensic Patient in New South Wales since 10 June 2010, he has remained subject to the Queensland Forensic Order. In April 2014, the Queensland Tribunal confirmed the Queensland Forensic Order and approved conditions including the following: "[L]imited community treatment is approved for [XY] subject to the following conditions: 1. The patient may undertake treatment or rehabilitation in the community by way of:* a) Escorted absences from the authorised mental health service limited to: the grounds of Caboolture Hospital b) Escorted absences from the authorise mental health service *[The limited community treatment is to be progressed on a staged graduated basis to be managed at the discretion of the treating psychiatrist] 2. On escorted absences, the patient is to be accompanied by a health service staff member or members and shall obey their lawful instructions." Evidence before the Tribunal 25At the hearing before the Tribunal in August 2014, XY's psychiatrist, Dr Burns, in his report dated 10 June 2014, explained that the reason for the request for transfer was: "... to enable his care and management to be transferred to the jurisdiction of Queensland Forensic Mental Health, with placement in a medium secure facility in Caboolture. This will enable [XY] to be closer to his family, to help rebuild their relationship after prolonged separation and to continue important family psychoeducation and therapy. Given that [XY's] family have previously not supported his retention in ongoing mental health follow-up, it will be important to develop better family insight and improve his support network approaching reintegration into the community. The treating team is of the opinion that this transfer could be safely managed and would present a low risk for both [XY] and the wider community." 26In his oral evidence, Dr Burns stressed the "crucial importance" of XY's family to XY's ongoing rehabilitation, which was not possible with XY being in New South Wales and their residing in Queensland. Dr Burns provided a detailed transfer plan to the Tribunal should it order XY's release. This involved a period of conditional release, in the company of trained staff, for the purposes of travelling to Queensland and admission into the Caboolture facility. The intention was that once the Tribunal was notified that this had occurred, an order for unconditional release under the New South Wales Act would be effected. 27The treating team at Caboolture was supportive of XY's return to their care. Ms Litster, a clinical nurse specialist in forensic mental health at Caboolture, gave evidence. She had been involved with XY and his family since his first admission to Caboolture. The Tribunal, at (49), summarised her evidence as follows: "By engaging with the family in psycho-education during [XY's] detention in New South Wales, Ms Litster stated that considerable progress had been made in assisting the family to develop insight into [XY's] mental illness and the need for continued monitoring and treatment compliance. Nevertheless, she said, there was 'still a little way to go with that process'. Comparing her involvement with [XY] from his time in the Caboolture Mental Health Unit and her current knowledge of his engagement with his treating team at the Macquarie unit, Ms Litster said [XY's] insight 'had improved enormously'." 28The Tribunal also referred to Ms Litster's evidence as to the proposed programme for XY should he return to Queensland: "... when [XY] was returned to the Caboolture unit, he would initially have no outside leave privileges for about four weeks so that a proper risk assessment could be undertaken by the treating team and to give [XY] time to settle into the unit. After that initial period, the intention of the treating team would be to return [XY] gradually to the level of community activities he had been undertaking at Macquarie, such as TAFE and working with the Salvation Army or like organisation. It was also intended to link [XY] with appropriate multicultural contacts as part of his ongoing community reintegration." 29An independent report from Dr Kavanagh, Consultant Forensic Psychiatrist, and Ms Zingirlis, Forensic Psychologist, was supportive of the treating team's application. Their overall assessment was that XY did "not pose an imminent risk of reactive aggression", but that given his vulnerability for violence, he would require "assertive case management, treatment and monitoring in the long term". 30Dr Kavanagh and Ms Zingirlis expressed the following opinions for the purposes of ss 74 and 43 of the Act: "In regard to Section 74 of [the Act], it is our opinion that [XY] suffers from a mental illness (Schizophrenia) as defined by the NSW Mental Health Act 2007 in that he has a condition that can seriously impair, either temporarily or permanently, his mental functioning. His illness, when he is unwell is characterised by hallucinations, delusions, serious thought disorder, and severe disturbance of mood. It is our opinion that there are reasonable grounds that [XY] requires care, treatment and control for his own protection and the protection of others from serious harm. It is our opinion that if inadequately treated [XY's] condition is likely to deteriorate and that he will thus pose a risk to himself and others. In regard to Section 43(a) of the Act, it is our opinion that, on the balance of probabilities, the safety of [XY] and the public will not likely be seriously endangered by his Conditional Release to facilitate his transfer to the Secure Mental Health Rehabilitation Unit (SMHRU) at Caboolture, Queensland. This is on the proviso that the proposed plan for [XY's] safe transfer and risk management, recommended by Dr Burns, is strictly adhered to. Once [XY] has been safely admitted to SMHRU, it is our understanding that he will be granted Unconditional Release by [the Tribunal] and cease to be a Forensic Patient in the state of NSW. He will however remain a Forensic Patient in the state of Queensland. This, in our opinion, is the least restrictive care available for [XY] and that he requires such treatment and care. In regard to Section 43(b) of the Act, it is our opinion that [XY's] current proposed placement and transfer, from one medium secure unit to another, is considered to offer a safe and effective level of care of the least restrictive nature." Proceedings before the Tribunal 31The Attorney General opposed the application for XY's unconditional release. The Attorney General contended that the gravity of XY's violent offending was such that the Tribunal could not be satisfied, for the purposes of s 43(a), that XY's unconditional release would not seriously endanger his safety or the safety of any member of the public. The Attorney General referred the Tribunal to NOM v Director of Public Prosecutions [2012] VSCA 198; 38 VR 618, particularly at [63]-[64], and Re VAS [2010] VSC 411. 32The Tribunal, at (82), agreed with the observation in NOM, at [59], that: "It is an assessment of the likelihood of the risk materialising and whether or not that risk is more than merely possible, that is the critical consideration, not the gravity of the harm that may eventuate." (Footnote omitted) 33The Tribunal added that "the use of the word 'seriously' in s 43(a) means that the risk of endangerment must be very high". The Tribunal, at (83), concluded its consideration of the statutory requirements in s 43(a) as follows: "... the Tribunal must be satisfied to the requisite standard that [XY's] unconditional release in the circumstances and in the manner proposed would not seriously endanger any member of the public. To be so satisfied, the Tribunal is required to have regard as to whether, on the evidence before it, the likelihood of the risk of harm from [XY] to a member of the public is likely to materialise and whether or not that risk is more than merely possible and can be characterised as very high." 34This finding is the subject of ground 1 of the appeal. 35The Tribunal continued, at (85), that: "... the application for [XY's] unconditional release (preceded by a short period of conditional release) is to facilitate his return to Queensland and to be detained in the medium secure forensic unit at Caboolture pursuant to a Queensland Forensic Order." 36The Tribunal noted that an unconditional release from a New South Wales Forensic Order would avoid the problem of XY being simultaneously subject to two such orders in two different states. 37The Tribunal rejected the Attorney General's argument that it could not be reasonably satisfied that the public in New South Wales or Queensland would not be seriously endangered by XY's unconditional release. Rather, as the Tribunal stated: "(95) On the evidence before it, the Tribunal is satisfied [XY's] current clinical risk status is low in his current controlled environment and while he remains treatment compliant. It has also noted Dr Kavanagh's evidence that one of [XY's] stressors is his proposed relocation to Queensland. For that reason the Tribunal has noted with approval the detailed proposal and risk assessment regime prepared by his treating team at the Macquarie unit in order to ensure [XY's] travel to Queensland and ultimately the Caboolture medium secure unit is done in a closely supervised environment at all times. (96) Given the conclusion reached as to [XY's] current clinical risk status and the approach taken as enunciated above to the phrase 'seriously endangered' as it appears in s 43(a) of [the Act], the Tribunal is satisfied that [XY's] unconditional release in the circumstances and manner proposed will not seriously endanger any member of the public whether the 'public' be the public of New South Wales alone or the public of New South Wales and Queensland." 38The Attorney General also argued before the Tribunal that the Tribunal could not be satisfied that care of a "less restrictive kind" as required by s 43(b) would be reasonably available to XY should he be returned to Queensland. The Attorney General submitted that, on the evidence, it was intended that upon XY's admission to Caboolture, he would not have outside leave for approximately four weeks and would have limited ground leave within the Caboolture unit, to enable him to undergo a detailed risk and mental health assessment and to allow time for him to settle into the new environment. Such care was thus not "less restrictive" than his care in New South Wales, where XY had periods of unsupervised leave. The Attorney General also submitted that Dr Kavanagh's opinion of the meaning of "care of a less restrictive kind" should not be accepted. 39The Tribunal, at (98), acknowledged that on the evidence, XY required "ongoing care and treatment in a medium secure forensic unit". In this regard, Dr Kavanagh gave evidence of her opinion that care "of a less restrictive kind" within the meaning of s 43(b) needed also to be "safe and effective care". The Tribunal agreed, at (100), with Dr Kavanagh's evidence that as a relocation to Queensland would be a stressful experience for XY and his mental health would have to be carefully monitored for a period after his arrival, the proposal to "temporarily suspend" XY's unsupervised leave conditions was both appropriate and consistent with "'safe and effective care' of the least restrictive kind at a potentially vulnerable time" for XY's mental health. 40The Tribunal, at (101), also accepted Dr Kavanagh's opinion: "... that the test under the first limb of s 43(b) must, in the first instance, consider 'care of the least restrictive kind, that is consistent with safe and effective care'. To do otherwise would render the phrase 'consistent with safe and effective care' otiose and would be at odds with the principles for the care and treatment of patients under the Mental Health Act in s 68 of the Mental Health Act 2007 (NSW) and specifically s 68(a) that requires people with a mental illness 'should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given." 41The Tribunal concluded, therefore, that the proposal that XY's leave conditions be suspended for a period of approximately four weeks when he was first admitted to Caboolture was, in all the circumstances, "care of a less restrictive kind, that is consistent with safe and effective care". 42The Tribunal dismissed other arguments advanced by the Attorney General which are not relevant to the appeal, save for one matter. The Tribunal noted, at (122), that the Attorney General had raised the question of the Tribunal's power to transfer a forensic patient from New South Wales to another state under the Mental Health Act, s 176. The Tribunal stated, at (123), that having regard to the terms of s 176, the absence of regulatory provisions as required under subs (1) entailed that s 176 did not currently allow for the transfer of a New South Wales forensic patient to another state. Consideration First ground of appeal: s 43(a) 43The Attorney General submitted that the Tribunal erred in its characterisation, at (82) (see above at [34]), of the central question under s 43(a), as being whether the likelihood of the materialisation of any risk of harm posed by XY was "very high" and in finding that the critical consideration is the likelihood of the risk materialising without reference to the gravity of harm that may eventuate if it does. The Attorney General submitted that the Tribunal was required to balance both the likelihood of a risk materialising and the potential gravity of any harm that might result in determining whether XY's release would result in serious endangerment to him or to the public. 44The Attorney General and XY submitted that the Tribunal misdirected itself as to what was said in NOM v Director of Public Prosecutions and that, correctly understood, the analysis of the Victorian Court of Appeal in NOM v Director of Public Prosecutions of the meaning of "serious endangerment" was only applicable to the phrase "seriously endangered" in s 43(a). 45NOM v Director of Public Prosecutions was concerned with s 40(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) where the relevant words of the legislation were: "... whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment." 46The relevant expression in s 43(a) is: "... the safety of the patient or any member of the public will not be seriously endangered by the patient's release" 47Curtain AJA (Redlich and Harper JJA agreeing) stated, at [58], in respect of s 40(1)(c): "Endangerment is about the risk of harm. The gravity of the harm may be relevant to assessing the nature of the risk, but the probability of any risk, be it high or low, is the critical concept of endangerment. In the absence of any Parliamentary guidance on the meaning of the word, this much is clear from the term's ordinary and literal meaning. In the Oxford English Dictionary, the word 'endanger' means 'to expose to danger or cause danger to.' The current main sense of the word 'danger' is defined as 'liability or exposure to harm or injury; the condition of being exposed to the chance of evil; risk, peril.' The ordinary meaning of endangerment entails the concept of chance or risk. The terms of s 40(1)(c) requires a Court to assess whether a person is 'likely to endanger themselves or others.' This serves to emphasise that the focus is upon the extent of the chance, risk or peril of some harm materialising. If the harm or injury which is likely to result is substantial but the 'chance', 'risk' or 'peril' of it eventuating is minimal, then a person subject to a supervision order is not necessarily 'likely to endanger' himself or others under s 40(1)(c)." (Footnotes omitted) Curtain AJA then made the finding to which reference is made at [32] above. 48Curtain AJA, at [61], pointed to an error in the decision of the primary judge in that case in failing "to distinguish between the notions of likelihood of danger and serious endangerment". His Honour referred to In the Matters of Major Reviews of Percy, Farrell and RJO (1998) VSC 70 where Eames J dealt with the criterion of "serious endangerment" under s 35(3)(a)(i) of the Crimes (Mental Impairment and Unfitness to be Tried) Act. His Honour noted, at [63], that: "In the course of considering 'serious endangerment' Eames J took into account the gravity of the potential harm by drawing the distinction between a highly probable risk of minor moment and a mathematically improbable risk of serious import. The former may not satisfy a court that the person subject to a custodial order or the public would be seriously endangered by keeping custodial arrangements intact, whereas the latter may satisfy the court of such a criterion, provided that it could be established to the applicable standard of proof ..." 49Curtain AJA then set out Eames J's explanation in In the Matters of Major Reviews of Percy, Farrell and RJO, at [56], of the meaning of "seriously endangered": "In my opinion, a conclusion that there is a less than 50% chance of violent behaviour if the reviewee is released might, in some cases, support a conclusion that the judge is satisfied that the safety of the public would be 'seriously endangered'. The risk of serious harm being done, were the anticipated danger to eventuate, may constitute a release to be a serious endangerment, on the balance of probabilities, even though the risk of the event happening was less than a 50% chance. Similarly, a very high risk of a relatively minor act occurring (for example, indecent exposure) might not constitute serious endangerment of the public." (Footnote omitted) 50Curtain AJA went on to state, at [64], that in many cases there may be no real difference between: "... the risk of 'serious endangerment' (which encompasses the gravity of the possible harm) and the likelihood of endangerment (to which the gravity of the possible harm is irrelevant) ..." 51In my opinion, the Tribunal erred in its construction of the phrase "seriously endangered" in s 43(a) and that that phrase, as used in s 43(a), involves a consideration of both the probability and the gravity of the risk. 52The Attorney General submitted that the reference to "any member of the public" in s 43(a) included the public in both New South Wales and Queensland. The Tribunal accepted this submission, given that, at the time of his arrival in Queensland, XY would still be subject to the New South Wales Order. This was not in dispute on the appeal. It should be said, however, that any member of "the public" in s 43(a) may extend to any member of the public with whom the patient comes or may come into contact with. For example, if the Tribunal was considering conditional release to enable a patient to travel overseas, any member of "the public" would presumably encompass persons encountered in the course of travelling and whilst overseas. 53The Attorney General further submitted that apart from acting on a wrong construction of s 43(a), the Tribunal erred in the exercise of its discretion in making an order for XY's unconditional release and, in particular, in considering that it was making an order for unconditional release "in name only", given that XY was going to be taken into care under the Queensland mental health legislation. The Attorney General submitted that s 43 ought not to be treated as a surrogate provision for the Mental Health Act, s 176 so as to achieve an interstate transfer. 54XY submitted that the Tribunal was entitled and indeed was required to take into account all relevant circumstances in determining whether it was satisfied that an order for release should be made. This would include the evidence relating to his proposed care in Queensland. 55In circumstances where the proposed transfer to Queensland underlay the making of the application, I am of the opinion that it was relevant, if not incumbent upon the Tribunal, to have regard to XY's proposed care in that State. That was relevant material for the purposes of the Tribunal's determination as to whether it was satisfied of the matters specified in s 43(a). The matter might be tested in this way. If the proposal was for XY to be released in order for him to be returned to his parents' care, it would be relevant for the Tribunal to consider the circumstances of his proposed care, including matters relating to his medication regime and the availability of services for him should they be required. If the proposed living arrangements were a mental health facility, that would likewise be relevant and require an understanding and consideration of what that care involved. In short, the living arrangements and proposed medical care, whatever they might be, is a matter that would be integral to any determination under s 43(a). 56Accordingly, I would reject this aspect of the Attorney General's argument, but otherwise uphold ground 1 of the appeal. Second ground of appeal: s 43(b) 57The Attorney General submitted that the Tribunal erred in interpreting the phrase "other care of a less restrictive kind" in s 43(b). The Attorney General submitted that the section required a comparison between the existing restrictions on a forensic patient's liberty and the restrictions on the patient's liberty under the proposed "other care" regime, and that the Tribunal had failed to undertake the comparison. 58On the material before the Tribunal, the Macquarie unit, in which XY was detained at the Bloomfield Hospital, and the unit to which he was to be admitted in Caboolture were both medium risk facilities. It was agreed that the proposed care of Caboolture was "appropriate and reasonably available" to XY as required by the section. Accordingly, the question in issue was whether the proposed care at Caboolture was "other care of a less restrictive kind". 59The Attorney General's essential proposition was that the Tribunal could not be satisfied that the care in Queensland was of a less restrictive kind than his care in New South Wales. The Attorney General submitted that the notion of "care" under Pt 5 of the Act was implicitly linked to the notion of control, as was apparent from the objects of Pt 5 stated in s 40 of the Act. 60The Attorney General submitted, therefore, that it was necessary, in order to ascertain whether the proposed "other care" was more or less restrictive, to have regard to the control that would be exercised in relation to the person subject to the proposed arrangements. The Attorney General contended that when regard was had to the conditions imposed by the Tribunal upon XY in New South Wales, it was apparent that those conditions were less restrictive than those proposed for him in Queensland. In particular, the Attorney General relied upon the fact that there would be a period of four weeks when XY was first admitted to Caboolture in which there would be no outside privileges available to him whilst a proper risk assessment could be undertaken. 61The Attorney General also pointed out that in its determinations to date, and as recently as April 2014, the Queensland Tribunal had ordered only limited community treatment and that XY was precluded from engaging in any unsupervised leave. The Attorney General further submitted that XY's future care and the level of control would be dependent upon the outcome of the assessment in Queensland and the conditions that the Tribunal saw fit to impose from time to time. What level of control might be exercised would depend upon XY's mental health from time to time, and thus was unknown. 62The Attorney General submitted, therefore, that both in respect of the immediate period after admission to Caboolture and in any point thereafter, the Tribunal could not be satisfied that "other care of a less restrictive kind" was available to XY. 63XY contended that the Tribunal did not err in its construction or application of s 43(b). He submitted that the Tribunal was not confined to considering the circumstances of care in the immediate transitional period whilst an assessment was undertaken, but was entitled to have regard to the overall proposed care at Caboolture. XY submitted the Tribunal was entitled to conclude that following the brief transitional period, his rehabilitation would proceed with greater success than it had in New South Wales and with consequent greater liberties because of the involvement of his family and the availability to him of cultural ties that were not readily available to him in New South Wales. Consideration (a) meaning of medium care facility 64A "mental health facility" is defined under the Act to have the same meaning as in the Mental Health Act. In the latter Act, "mental health facility" is defined to mean, relevantly, a "declared mental health facility", which in turn is defined to mean "premises subject to an order in force under s 109". Section 109(1) provides that the Director General may, by order published in the Government Gazette, declare any premises to be a "declared mental health facility". Section 109(2) provides that an order under subs (1) may "designate a declared mental health facility as a facility of a specified class". 65Notwithstanding this provision, the Attorney General was not able to inform the Court as to whether there was any such statutory or regulatory classification made of mental health facilities in New South Wales. There is no definition in the New South Wales legislation of a "medium secure unit" or "medium security unit". Nor does the Queensland legislation contain any provision relating to medium secure care. Nonetheless, it was accepted that the unit in which XY was detained at Bloomfield Hospital was a medium secure unit, as is the unit at Caboolture to which he was to be admitted if the Tribunal made an order for his unconditional release (and to which he has now been admitted). (b) meaning of less restrictive care 66There is no definition in the New South Wales legislation of the meaning of "care of a less restrictive kind". In the Dictionary to the Queensland Mental Health Act, "less restrictive" is defined as follows: "... less restrictive, for assessment, treatment or care of an involuntary patient, means assessment, treatment or care of the level that - (a) maximises the opportunity for positive outcomes; and (b) ensures the protection of the patient and the community; and (c) having regard to paragraphs (a) and (b), imposes the minimum limits on the freedom of the patient." 67An "involuntary patient" is defined in the Queensland legislation to include a forensic patient. 68In the absence of any statutory definition in the New South Wales legislation to assist in the construction of s 43(b), it is necessary to return to the principles of statutory construction, which require the text of the provision to be construed having regard to the context in which it appears and its purpose. The starting position is the text of the provision: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; 248 CLR 378 at [23]-[25]. 69The Macquarie Dictionary (online edition, 2014) defines "care", relevantly to mean "protection; charge" and gives the phrase "under the care of a doctor" as an illustration of that meaning. The Oxford English Dictionary (online edition, 2014) similarly defines "care" to mean: "charge; oversight with a view to protection, preservation, or guidance". The Macquarie Dictionary defines "restrict" to mean "to confine or keep within limits, as of space, action, choice, quantity". "Restrictive", in turn, is defined to mean "tending or serving to restrict". 70These definitions provide some support for the Attorney General's submission that the Tribunal could not be satisfied that the care at Caboolture was less restrictive because the conditions under which XY was to be detained were, initially, more restrictive than the conditions under which he was presently detained and that thereafter it could not be known whether his care would be less restrictive or not. It should be noted that senior counsel for XY accepted that the conditions on a patient's detention were "everything". 71However, the context and purpose of the legislation indicate that the phrase "care of a less restrictive kind" ought not to be confined so as to related only to the extent and type of leave which a forensic patient may be granted. The objects of Pt 5 of the Act include the provision for the care, treatment and control of a forensic patient. The principles for care and treatment of persons with a mental illness, as defined in the Mental Health Act, include that a person should receive treatment in "the least restrictive environment enabling the care and treatment to be effectively given": s 68(a). The cultural and language needs of such a person are also to be recognised: s 68(g). 72It is apparent from Dr Kavanagh's evidence that a professional dealing with a patient such as XY is concerned, not only with the extent of the physical control to which a person is subject, but also with the person's psychosocial care, including the circumstances of a person's detention and the most appropriate means of improving outcomes for the mentally ill person. 73The Tribunal considered, in accepting the opinion of Dr Kavanagh, that upon its proper construction, it was necessary under s 43(b) for it to consider, in the first instance, whether what was proposed was "care of the least restrictive kind, that is consistent with safe and effective care". As I have indicated, the language of s 43(6) is different, in that the Tribunal must be satisfied that care of "a less restrictive kind" is reasonably available. Dr Kavanagh explained in some detail in her evidence what she meant by "care of the least restrictive kind" as follows: "DR KAVANAGH: When looking at 'least restrictive' we're looking at again what the treating team has been saying. They can't provide - and again we're looking at his treatment and his care, and where we're looking at for him to improve his rehabilitation to allow him to go further we do need him access to his family. He needs to have access to the community. He's isolated where he is. Another risk factor, and I'm always looking at risk factors, is lack of personal supports. So he does have professional supports, as we can see, but he does lack those personal supports. And these are one of the reasons that it is least restrictive. Another thing is that being on one forensic order is also a least restrictive because there's a lot of stress involved with forensic hearings. And so if we look at [XY] at the moment he's quite stressed. We can see that he's not like - for instance, it's very difficult to see on a videolink. However, when I interviewed him he was more animated. But we can see that he's not animated now because he is under quite a lot of stress, and these proceedings are stressful. So, in other words, in fact being on one forensic order as opposed to two, this is the least restrictive care. And does he need that care? Yes, he does need that care. (CB 129) ... ... section 43(a) and (b) cannot be mutually exclusive because if we are looking at a person's risk to himself and others that move increases the risk. So what we're doing is putting in strategies to manage that risk, and that's what's important. That is least restrictive care. So by restricting his leave for four weeks that's addressing that risk factor. And it's very important and it is the least restrictive to allow him that transfer. And while he's staying in New South Wales [his] rehabilitation is actually stunted. He is going through the motions, but his emotional growth is being stunted because he lacks that family support, he lacks the community support and that would be an important part of his rehabilitation. And if we look at care one thing I was unable to understand, and I might have to ask Mr Kell this, is how can care equate to where a person is placed because we actually looked at the Webster Dictionary and I know that for us as medical professionals our terms 'care' can differ from, for instance, a legal definition, and for us the provision of what is necessary for health, welfare and maintenance and protection of someone or some thing is concerned care. So if we are looking at [XY's] treatment, care and control. So care has to be looked at not as a place and restriction on a person's movement but providing a person with what is necessary for their physical, emotional and spiritual wellbeing. That's for us care. Now, if in a legal sense it's different then I would like to understand that because I don't understand that. The control part I do understand, and, yes, we do need that control. There's no doubt about it. But the care bit I don't understand in the submission." 74The matters to which Dr Kavanagh referred are consonant with the meaning of "less restrictive" in the Queensland legislation. That is significant given that, as I discuss below in relation to s 176, there is co-operation between certain states, including New South Wales and Queensland, in relation to persons who are subject to the provisions of the mental health legislation in operation in the respective states. This has not resulted in uniform or national laws. Nonetheless, where there is intended to be co-operation between states, as there is between New South Wales and Queensland, and where mental health legislation is of such a specialised nature, it is reasonable to assume that there would have been input to the terminology and concept in the legislation from relevant professionals. Accordingly, when regard is had to the context of this legislation as specialised legislation dealing with the mentally ill, including with persons who are forensic patients, the specialised views of experts in the field may assist in the proper construction of the legislation. 75Dr Kavanagh drew attention to another important point in the text of the legislation, namely, that the expression in the legislation was "less restrictive care". In particular, she contrasted the meaning of "care" with the expression "control". The distinction was rightly pointed out. The mental health legislation is concerned, not only with the "care" of a mentally ill person, but with "the care, treatment and control" of such persons: see, for example, the objects of Pt 5 stated in s 40(b) and (c). The words, as used in the objects, clearly delineate different aspects of the overall care of a forensic patient. I am of the opinion, however, that the word "care", as used in s 43, encompasses a person's overall care, including care in the sense used by Dr Kavanagh, as well as the physical controls that are placed on a person, including the extent of leave that a person is given and whether that leave is restricted or unrestricted. 76I should state immediately that I do not consider that, for the purposes of s 43(b), the immediate restrictions that were to be placed on XY upon his return to Caboolture, were relevant to the Tribunal's assessment under s 43(b), where there was no evidence that indicated that those restrictions were likely to be ongoing. I accept, however, as submitted by the Attorney General, that the Tribunal may not have been able to be satisfied that the physical control to which XY would be subject would be less restrictive, at least in the near to medium term. However, as I have indicated, the matter of which the Tribunal was to be satisfied was that XY's overall care would be less restrictive than was the case at Bloomfield. It could be satisfied of that in at least the following important respects to which Dr Kavanagh referred in her evidence. First, XY would not be subject to two forensic orders, with the legislative requirement that he be periodically assessed under both orders. As Dr Kavanagh said, the assessment by way of video link was stressful to XY. That would most likely continue if two orders were in place. Secondly, XY would have more frequent contact with his family, a factor that was considered to be critical to the continued enhancement of his mental health. Thirdly, he would have contact with his own Kurdish community, which was also considered to be of importance in his care. Other considerations 77Before concluding, three other considerations arise. The first relates to the provisions of s 47(3) of the Act. The second relates to s 176 of the Mental Health Act. The third relates to the orders that should be made. Operation of s 47(3) 78A question arose during the course of the hearing as to whether an order under the Mental Health (Forensic Provisions) Act, s 47(3) for XY's unconditional release could have been made. That section provides: "47 Orders and recommendations on further Tribunal reviews ... (3) An order for release under this section may be made despite any other provision of this Act or any order of a court under this Act." 79Despite the apparent attraction of construing the section so as to authorise XY's transfer in this case, the Attorney General and XY have provided written submissions that explain its operation within Pt 5, Div 2 of the Act and thus why the section is not available to order an unconditional release. 80Part 5, Div 2 relates to "Forensic patients". Subdivision 1, containing ss 43-48, deals with the "Review of forensic patients by [the] Tribunal". Section 43, to which consideration has been given above, specifies the criteria of which the Tribunal must be satisfied for an order for the release of a forensic patient to be made. Section 46 provides that a forensic patient must be reviewed at the periods specified, which is generally at 6 month periods, or in accordance with a request made by certain identified persons, including the Minister for Health, the Director-General, or the medical superintendent of the facility in which a person is detained. The Tribunal may extend the time for review to a maximum of 12 months. 81Section 47 was introduced into the Act by the Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (NSW) (the Forensic Provisions Amendment Act) which introduced reforms recommended by the Review of the New South Wales Forensic Mental Health legislation by the then President of the Tribunal, the Hon Greg James QC (the James Report). The effect of the amendments was to replace the former scheme for the care, treatment and detention of forensic patients, which was a system of executive discretion, and vest the decision-making power in a tribunal. Section 47, for the most part, replaced earlier provisions of the Act. However, s 47(3) was new. 82Section 47 in its present form provides for the orders and recommendations that may be made by the Tribunal on a further review under s 46. Subsection 47(1) specifies the two orders that the Tribunal may make: first, an order as to a patient's continued detention, care, or treatment in a mental health facility, correctional facility, or other place; or secondly, an order for the patient's release, either unconditionally or conditionally. 83Subsections (2) and (2A) limit what the Tribunal may do on a review under s 46, in the circumstances specified in those provisions. Subsection (2) deals with the position where a forensic patient is on remand. In that case, the Tribunal must not make an order for the release of the forensic patient. The Tribunal, however, may make a recommendation to the court as to the person's release. Subsection (2A) deals with the circumstances in which a forensic patient is the subject of an extension order as to the person's status as a forensic patient. The Tribunal may make a recommendation to the Supreme Court as to the variation or revocation of an extension order. Subsections (4) and (5) deal with a person who has been found unfit to be tried for an offence. On a review under s 46 of such a person, the Tribunal must make a recommendation as to the person's fitness to be tried. 84None of ss (2), (2A), (4) and (5) are in play in the present case. 85As I have indicated above, s 47(3) was an entirely new provision in the legislative scheme governing forensic patients. The Explanatory Note to s 47 stated that: "... the Tribunal may make an order for release despite any other Act or any order of court under the Forensic Provisions Act (proposed section 47)." 86The wording of s 47(3), set out above at [78], does not replicate the statement in the Explanatory Note. Rather, it provides, "despite any other provision of this Act ..." (my emphasis). 87The Attorney General and XY both submit that on its proper construction, s 47(3) does not enable the Tribunal to ignore the mandatory effect of s 43. It is sufficient to refer to XY's submissions on this point. XY submitted that upon its express terms, the words of the first limb of s 47(3), "an order for release under this section", is a reference to s 47(1)(b). That must be so. 88XY submitted that the effect of the first limb of s 47(3), which is the relevant part of the section which calls for consideration in these reasons, operates so that an order under s 47 may be made "despite" any other provision of the Act that is inconsistent with the Tribunal's powers under s 47 to make a final order for the release of a patient. One such provision is s 49, which provides that the Tribunal may make an order allowing a forensic patient to be absent from a mental health facility for such period and subject to such conditions as the Tribunal thinks fit. If an order was in place under s 49 at the time of a review of a person under s 46, the Tribunal could nonetheless make an order for release which is different in terms to the existing order for leave. 89For completeness, I should refer to XY's submission that the second limb operates in at least the following two circumstances. First, that subject to the circumstances specified in ss 47(2) and (2A), the Tribunal alone has the power to order the release of a forensic patient. Secondly, where, for example, a court had made an order for the conditional release of a person under s 39 of the Act, the second limb would operate such that the Tribunal could nonetheless order a person's unconditional release on a review under s 46. 90In my opinion, the Attorney General and XY are correct in their construction of s 47(3). The provisions of the Act are to be construed cohesively as a whole, insofar as that is possible. In the present case, there is nothing in s 47 that requires that it be read so as to override the operation of s 43. Rather, the two sections deal with different matters. Section 43 specifies the criteria for release upon a review undertaken in accordance with s 46. Section 47 deals, relevantly, with the orders that the Tribunal may make on a review undertaken under s 46. Section 47(3) permits an order to be made for release, despite any other provision of the Act or order of the court which affects the person's detention in the way discussed above. 91It follows that s 47(3) does not provide an avenue whereby XY could be released without the Tribunal having been satisfied of the matters specified in s 43. The Mental Health Act, s 176 92The Mental Health Act, s 176 provides for the transfer of forensic patients interstate. The Tribunal, at (122)-(123), agreed with submissions made by the Attorney General that, as no regulations had been made as to how a transfer was to be effected, the legislation did not presently allow for the transfer of a forensic patient to another state. 93Following correspondence from the Court, the Attorney General sought to file a further amended notice of appeal in which he pleaded the following further ground of appeal: "2B: The [Tribunal] did not have power under s 176 of the Mental Health Act 2007 (NSW) to authorise the transfer of [XY] from New South Wales to Queensland." The further amended notice of appeal also sought an order that the Court make a declaration that the transfer was not authorised by s 176. 94The Attorney General pointed out that the issues raised by ground 2B were not in contest on the appeal and were not the subject of an adverse determination by the Tribunal. The Attorney General informed the Court that he only sought to raise the new ground should its other grounds of appeal be successful and the Court of Appeal was considering what orders it should make pursuant to s 77A(9) of the Act. 95Leave was granted to the Attorney General to file the further amended notice of appeal on the Court file. The Court reserved the question whether leave would be granted to raise the so-called new ground. 96Section 176 of the Mental Health Act is contained in Ch 8, which deals with the interstate application of mental health laws. Part 2 of Ch 8, Div 1 deals with the transfer of patients from New South Wales to another State. Sections 174 and 176 are presently relevant. They provide: "Division 1 Transfer of persons from this State 174 Admission of persons to mental health facilities in other States (1) A person who may be taken to and detained in a mental health facility under ...the Mental Health (Forensic Provisions) Act 1990 may be taken to a mental health facility in another State instead of a mental health facility in this State, if this is permitted by or under a corresponding law of the other State. (2) A person may be taken to a mental health facility in another State under this section by: (a) a person who is authorised by this Act or the Mental Health (Forensic Provisions) Act 1990 to take a person to a declared mental health facility, or to apprehend a person and take the person to a declared mental health facility, if this is permitted by or under the law of the other State, or (b) any other person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State. (3) The regulations may make provision for or with respect to the following matters: (a) the handing over of custody of a person referred to in subsection (1) by persons in this State, (b) the persons (including interstate persons) who may take any such person to a mental health facility in another State under this section, (c) the mental health facilities to which a person may be taken under this section and the places taken to be mental health facilities of another State for the purposes of this section. ... 176 Transfer of patients from this State (1) A person who is detained as a ... forensic patient in a mental health facility in this State may be transferred to a mental health facility in another State, if the transfer is permitted by or under a provision of a corresponding law of the other State and is in accordance with the regulations. (2) A person who is transferred to a mental health facility in another State under this section ceases to be a ... forensic patient on admission to the facility. (3) A person may be taken to a mental health facility in another State under this section by a person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State. (4) The regulations may make provision for or with respect to the following matters: (a) procedures for authorising the transfer of a patient under this section and for notifying any such transfer or proposed transfer, (b) criteria for authorising the transfer of a patient under this section, (c) the handing over of custody of any such patient by persons in this State, (d) the persons (including interstate persons) who may take a patient to a mental health facility in another State under this section, (e) the mental health facilities to which a patient may be taken under this section and the places taken to be mental health facilities for the purposes of this section. ...." 97No regulations have been made for the purposes of s 174(3) or s 176(4). Attorney General's submissions 98The Attorney General made two principal submissions as to why the Tribunal did not have power to transfer XY to Caboolture pursuant to s 176 of the Act. First, he submitted that the transfer was not "permitted by or under a provision of a corresponding law" of Queensland. Secondly, he submitted that irrespective of whether the transfer was permitted by a provision of Queensland law, no transfer could be effected pursuant to s 176 because no regulations have been enacted to allow a transfer of a forensic patient such as XY to another state to be effected. Was the transfer permitted by or under a provision of a corresponding law? 99The Mental Health Regulation 2013 (NSW), r 23 relevantly provides that the Mental Health Act 2000 (Qld) and any regulations made under that Act is a corresponding law for the purposes of Ch 8 of the Mental Health Act, in which s 176 appears. The Attorney General identified the relevant provision of the corresponding Queensland law as being the Mental Health Act (Qld), s 183. That provision provides: "183 Transfer of patients to authorised mental health services (1) A person who is involuntarily detained in an interstate mental health service under a corresponding law may be transferred to an authorised mental health service if- (a) the administrator for the authorised mental health service agrees to the transfer; and (b) the transfer is authorised under the corresponding law. ..." 100Under the Queensland legislation, an involuntary patient includes a forensic patient. 101The Attorney General drew attention to the language of s 183(1) and, in particular, to the requirement in the reception power that the person being transferred to the Queensland mental health service be "involuntarily detained in an interstate mental health service under a corresponding law". "Corresponding law" is defined in the Mental Health Regulation 2002 (Qld), r 6 as a law stated in the schedule. The only New South Wales statute referred to in the schedule to the Queensland Regulation is the Mental Health Act 1990 (NSW). 102The Attorney General accordingly submitted that the transfer of XY was not permitted by the corresponding law of Queensland, because XY was not involuntarily detained pursuant to the Mental Health Act 1990 (NSW). Rather, he was detained pursuant to the Mental Health (Forensic Provisions) Act 1990. It should be noted that the Attorney General accepted that, in accordance with the Acts Interpretation Act 1954 (Qld), s 14H, reference to a law includes a reference to a law that has been repealed and remade. Thus, a reference to the Mental Health Act 1900 (NSW) as a corresponding law in the Queensland Act would now be read as a reference to the Mental Health Act 2007. However, the Mental Health (Forensic Provisions) Act 1990 pursuant to which XY is a forensic patient is not referred to in the Regulation. The Attorney General placed emphasis on the fact that, historically, the Mental Health Act (NSW) dealt only with civil patients and that civil and forensic patients have always been dealt with under separate legislation. The Attorney General submitted that if the Queensland legislature intended that s 183 could be used to transfer forensic patients to Queensland, it would have included the Mental Health (Forensic Provisions) Act 1990 or the Mental Health (Criminal Procedure) Act 1990 as a corresponding law. 103The Attorney General ventured that the Act/s dealing with forensic patients in New South Wales were not defined as a corresponding law because of the absence of an interstate agreement between the New South Wales and Queensland executives. The Attorney General suggested that this was supported by the reference in s 183(4) to Ch 4 of the Queensland Act. Submissions of XY 104XY submitted that the Tribunal had a power to effect his transfer pursuant to s 176 and that, even though the Tribunal did not consider that it was proceeding under s 176, the Court should consider the transfer under s 176 was effected in accordance with the requirements of that section. XY pointed out that in 2008, s 176 was amended to include forensic patients as patients that could be transferred interstate. XY submitted that this was to give effect to the recommendations in the James Report. XY submitted that the requirement that a transfer be permitted by a provision of a corresponding law had to be understood in the unusual circumstances of this case. XY explained that he was the subject of a forensic order that was made pursuant to the Mental Health Act (Qld), being a "corresponding law" for the purposes of s 176. That forensic order was first made in 2007 and was confirmed by the Queensland Tribunal on 2 April 2014 prior to the Tribunal's consideration of the application for his unconditional release (Appeal book 298-300). XY submitted that the transfer was permitted under the Mental Health Act (Qld), as once he was within Queensland territory, he was subject to that order and that order made provision for his care. Consideration 105In my opinion, s 176 was not an available power under which the Tribunal could have ordered XY's transfer to Queensland. The section requires that there be a corresponding law in the state to which the person is to be transferred. As has been explained above, XY's transfer was not permitted by a corresponding law of another state. The relevant corresponding law was the Mental Health Act (Qld), s 183. Whether by oversight or design, s 183 does not permit the transfer of a person who is a forensic patient in New South Wales pursuant to the Act. This is so, notwithstanding that s 176 was amended so as to include forensic patients. 106Section 176(1) stipulates that a transfer may be effected if the transfer is "in accordance with the regulations". The Attorney General submitted that this phrase should be read as a phrase of limitation. In the Attorney General's submission, in order for the power granted by s 176 to be enlivened, regulations dealing specifically with the exercise of the power had to be passed. It should be noted in this regard that the Mental Health Regulation 2013, r 27 is a regulation for the purpose of s 176, but that it only deals with matters relating to s 176(3) and (4). 107The Attorney identified five matters that were not the subject of s 176, the Act or Regulations and which would have to be dealt with for such a power to exist. First, there are no substantive criteria governing the transfer of a forensic patient. Secondly, there is no indication as to who the decision maker is who would exercise the power under s 176 to transfer such a patient. Thirdly, there is no indication as to how an application is made. Fourthly, there is no indication as to what mental health facilities a person could be transferred to. Finally, there is no indication of the process by which transfer is to be effected. The Attorney submitted that Mental Health (Forensic Provisions) Act 1990, s 76E, which provides for the transfer and transport of forensic patients authorised the transfer of a patient within New South Wales only: see the Interpretation Act, s 12. XY also eschewed reliance upon s 76E for the purposes of s 176 because the function relating to the transfer and transport of forensic patients was exercisable by the Director General. 108Having come to this conclusion, it is not necessary to determine whether XY's transfer to Caboolture under s 176 was unavailable because there were no regulations in place prescribing how the transfer was to be effected. Were it necessary to decide that point, I would have been inclined to the view that a transfer could have been effected, notwithstanding the absence of regulations relating to how a patient was to be transferred. However, there is merit in the Attorney General's submission that in the absence of there being in place any appropriate mechanisms for the transfer, including who should make the decision as to whether a person is to be transferred, an order under s 176 may not have been available because of the absence of relevant regulations. As I consider that the transfer could not have occurred under s 176 for other reasons, I consider that it is preferable not to finally determine this question. Proposed orders 109That leaves the question of what orders this Court should make. Section 77A(9) provides that after deciding the question the subject of the appeal, if the Court does not affirm the decision of the Tribunal it may only either make such orders as it considers the Tribunal should have made, or remit the matter to the Tribunal for rehearing. 110In the present case, I have found that the Tribunal erred in its construction of s 43(a). That was an error in the Tribunal's reasons. According to the record of the Tribunal, its decision was that XY be unconditionally released upon notification of his admission to Caboolture. Had the Tribunal applied the correct test, I consider that it would have been satisfied in accordance with s 43(a) that XY's safety and the safety of any member of the public would not be seriously endangered by his unconditional release. This is because the unconditional release only came into effect once XY was within the care of the mental health authorities in Queensland. Accordingly, I consider that the Tribunal's 'decision' was correct, albeit that the Tribunal's reasoning was erroneous. It follows that the decision of the Tribunal should be affirmed. 111McCOLL JA: The Attorney General for the State of New South Wales exercises his right of appeal on a question of law pursuant to s 77A(6) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the "Act") to challenge the determination of the Mental Health Review Tribunal (the "Tribunal") made on 10 September 2014 to order the unconditional release of XY on notification of his admission to the Caboolture medium secure forensic unit in Queensland. 112As is apparent from the background facts set out in Beazley P's reasons which I have had the benefit of reading in draft, on 8 October 2014 XY was escorted from the Bloomfield Hospital in which he was being treated as a forensic patient consequent upon the orders made by R A Hulme J on 2 July 2010. Upon his admission to the Caboolture medium secure forensic unit in Queensland the same day, the Tribunal made an order for his unconditional release pursuant to s 47(1) of the Act. 113Whether by coincidence or otherwise, the Attorney General's notice of appeal was also filed on 8 October 2014. The Attorney General sought to challenge the Tribunal's interpretation of s 43(a) and s 43(b) of the Act. He sought orders, in substance, that the appeal be allowed, the matter be remitted to the Tribunal for rehearing in accordance with the reasons of this Court, a declaration that XY was and at all relevant times since 2 July 2010 had been, a forensic patient within the meaning of Part 5 of the Act and a declaration that XY's transfer to Queensland was not authorised by s 176 of the Mental Health Act 2007 (NSW). 114The significance of the orders sought for XY is readily apparent. If the Court was to make the declarations sought then, prima facie, XY should be returned to New South Wales for continued supervision in this jurisdiction. I say, prima facie, because the question is academic. The Attorney General through his counsel informed the Court that he did not seek XY's return to this jurisdiction. He is content for him to remain in Queensland. While the parties are at issue on one aspect of legal interpretation the Attorney General seeks to advance, practically speaking, there is no live controversy between the parties. 115In that light there is a real question as to why the Court should entertain the appeal. 116As Beazley JA (Allsop P and Handley AJA agreeing) explained in People with Disability Australia Incorporated v Minister for Disability Services [2011] NSWCA 253 (at [12]) - [13]), this Court does not have an advisory jurisdiction, however it retains a discretion to hear and determine an appeal which has been regularly commenced but where a change of circumstances means that any decision will be moot so far as the particular controversy between the parties is concerned. 117It is not apparent when the Attorney General determined not to seek the substantive orders set out in the notice of appeal which could have the effect of having XY's status revert to that of a New South Wales forensic patient with all the consequences that may flow from that. Indeed it was not entirely clear that the Attorney General no longer sought that order. What was clear, however, as I have said, is that even though on his interpretation of s 43(a) and s 43(b), the Tribunal erred in ordering XY's unconditional release, the Attorney General did not wish him returned to New South Wales' jurisdiction. 118Nevertheless even where later events show an appeal has become moot, the Court has a discretion to permit such an appeal to proceed, if a practical point would be served by doing so (Jardin and Jardim Investments Pty Ltd v Metcash Ltd [2011] NSWCA 409; (2011) 214 IR 448 (at [ 31] - [32]) per Campbell JA), one such circumstance being that the decision is likely to affect other cases: People with Disability Australia Incorporated v Minister for Disability Services & Anor (at [14] - [15]; Jardin and Jardim Investments Pty Ltd v Metcash Ltd and Metcash Trading Ltd (at [32]). 119Although the Attorney General did not identify any current cases to which the interpretation of the relevant provisions could have application, it is not difficult to envisage that such cases could arise. In those circumstances, I agree with Beazley P's reasons and the orders her Honour proposes. I also agree with Basten JA's reasons. 120BASTEN JA: The respondent suffers from schizophrenia. In November 2006 in Queensland, he struck one of his father's workmates in the head with a sledgehammer, causing him severe injury. On 16 August 2007 Philippides J found him to be of unsound mind and made a "forensic order", pursuant to which he was detained in the Redcliffe-Caboolture District Authorised Mental Health Service. He was accorded conditional release into the community, but failed on a number of occasions to attend in order to receive his required medication and, in mid-2009, left Queensland without permission and travelled to Sydney. The respondent has at all times remained subject to the Queensland forensic order, whilst in New South Wales. 121On 27 August 2009 the respondent stabbed his uncle to death in a unit in Merrylands, western Sydney. He was charged with murder. In July 2010 R A Hulme J found him not guilty by reason of mental illness. He ordered that the respondent "be detained at Long Bay Prison Hospital or at such other place as may be determined from time to time by the Mental Health Review Tribunal until released by due process of law." 122The last review of the respondent by the Mental Health Review Tribunal in this State took place on 26 August 2014. The decision of the Tribunal, dated 10 September 2014, was in the following terms: "That [XY] be unconditionally released on notification of his admission to the Caboolture medium secure forensic unit in Queensland." 123On 8 October 2014 the decision was translated into a formal "order for unconditional release" pursuant to s 47(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("Forensic Provisions Act"), the order being signed by the Deputy President who presided over the last hearing before the Tribunal. According to the Attorney's submissions (the accuracy of which may be accepted for present purposes) XY was transported to Queensland on 8 October and the order was made, presumably upon notification of his admission to the forensic unit in Caboolture, later that day. 124On the same day, the Attorney General filed a notice of appeal against the decision of the Tribunal, pursuant to s 77A(6) of the Forensic Provisions Act. The appeal sought orders setting aside the decision of the Tribunal dated 10 September 2014 and seeking a declaration that XY "is, and has been at all relevant times since 2 July 2010, a forensic patient within the meaning of Part 5 of the [Forensic Provisions Act]." The Attorney's written submissions in this Court noted (at par 47): "The application before the Tribunal in relation to [the respondent] was not for an interstate transfer under s 176 of the Mental Health Act 2007 (NSW), but was instead for an unconditional release order under s 43 of the [Forensic Provisions Act]. In any case, as the Tribunal noted, s 176(1) does not currently allow for the transfer of a NSW forensic patient to another state due to the absence of applicable regulations." 125The significance of these statements was not articulated, leaving (on one view) the current status of the respondent in Queensland unresolved. The underlying legal assumption was unsubstantiated. 126The transfer of "patients and persons" from and to New South Wales is dealt with by Ch 8, Pt 2 of the Mental Health Act 2007 (NSW). There is provision (in Div 1) for persons who may be "detained in a mental health facility ... under the [Forensic Provisions Act]" to be taken to a mental health facility in another State, if that is permitted by or under a corresponding law of the other State: s 174(1). 127The term "forensic patients" encompasses a defined category of persons who may be detained in a mental health facility under the Forensic Provisions Act, being those who have been found unfit to plead to a charge or not guilty of an offence by reason of mental illness: s 42. Transfer of forensic patients is specifically dealt with in s 176 and, it may be accepted for present purpose, exclusively by s 176. That provision states: 176 Transfer of patients from this State (1) A person who is detained as an involuntary patient or forensic patient in a mental health facility in this State may be transferred to a mental health facility in another State, if the transfer is permitted by or under a provision of a corresponding law of the other State and is in accordance with the regulations. (2) A person who is transferred to a mental health facility in another State under this section ceases to be an involuntary patient or forensic patient on admission to the facility. (3) A person may be taken to a mental health facility in another State under this section by a person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State. (4) The regulations may make provision for or with respect to the following matters: (a) procedures for authorising the transfer of a patient under this section and for notifying any such transfer or proposed transfer, (b) criteria for authorising the transfer of a patient under this section, (c) the handing over of custody of any such patient by persons in this State, (d) the persons (including interstate persons) who may take a patient to a mental health facility in another State under this section, (e) the mental health facilities to which a patient may be taken under this section and the places taken to be mental health facilities for the purposes of this section. (5) Section 80 does not apply to a transfer under this section. 128It is true that there was no "application before the Tribunal" seeking a transfer under s 176, but it is not clear that an order is required from the Tribunal. The Attorney's submission implied that the two necessary conditions for such a transfer were (a) an appropriate provision of a corresponding law of the receiving State and (b) provisions in regulations with which the transfer should accord. 129The first requirement is correctly stated: s 176(1) should be read as providing for a transfer if, but only if, such a transfer "is permitted by or under" a "corresponding law" of the other State, in this case Queensland. The Mental Health Act 2000 (Qld) is such a law: Mental Health Act, s 170 and Mental Health Regulation 2013 (NSW), cl 23. However, the second requirement is not to be found in s 176. The transfer must be "in accordance with" any relevant regulation, but the section does not say that no transfer is permitted where there is no regulation. The absence of a relevant regulation entails the absence of any relevant constraint on the exercise of the power of transfer. Section 176(4) makes provision for various matters which may be the subject of a regulation, but does not make any particular matter a compulsory requirement, absent which the section cannot operate. In fact there are relevant regulations, transfers being dealt with in the Mental Health Regulation, Pt 8, div 3, namely cll 26 and 27. There was no suggestion that these provisions were not complied with: rather, the argument was that these provisions were incomplete or inadequate for their statutory purpose. 130If the respondent has been lawfully transferred to Queensland "under" s 176 a question arises as to the utility of the relief now sought. On admission to the facility in Queensland (which the Attorney assumes occurred on 8 October 2014) the respondent ceased to be a forensic patient for the purposes of New South Wales law, s 176(2). If the transfer were "unlawful", a further question arises as to the consequences which follow: the Attorney does not seek the respondent's return to NSW. Power to release forensic patient 131The Forensic Provisions Act is divided into six parts, of which Pt 1 - Preliminary and Pt 6 - Miscellaneous can be put to one side. Parts 2-4 contain operative provisions dealing with the circumstances in which mentally ill persons charged with criminal offences may become (relevantly for present purposes) "forensic patients". Part 5 deals with the manner in which forensic patients are to be held, treated, their circumstances reviewed and, where appropriate, released. 132Part 5 is headed "Forensic patients and correctional patients". (Broadly speaking, correctional patients are persons other than forensic patients who have been transferred from a correctional centre to a mental health facility.) Part 5, Div 2 deals with forensic patients: other Divisions deals with correctional patients. Within Div 2, subdiv 1 deals with "Review of forensic patients by Tribunal". It contains ss 43-48. Subdivision 2 deals with "Leave of absence", both the Tribunal and Director-General being empowered to allow a forensic patient to be absent from a mental health facility for a period. Subdivision 3 is headed "Termination of status as forensic patient" and, in part, makes express what is implicit in s 43. Although it identifies cessation of the status of a forensic patient where a person is "released unconditionally in accordance with an order by the Tribunal under this Part" (s 51), it does not refer to the effect of s 176(2) of the Mental Health Act. There may be a reason for that omission, namely that, at least implicitly, the Forensic Provisions Act is not intended to apply to persons who are not held in custody in New South Wales or are not subject to conditions which have been imposed in New South Wales. (That analysis is not meant to deal with cases where there have been breaches of conditions or absconding.) 133Within Div 2, subdiv 1, ss 44-46 deal with the obligation of the Tribunal to "review" the case of each forensic patient in a timely manner. The only other sections in the subdivision are ss 43, 47 and 48. Section 48, which deals with transfer of a forensic patient to a mental health facility, correctional centre or other place, may be put to one side. (It may be assumed that "other place" refers to a place within New South Wales.) 134The orders which the Tribunal may make are found in s 47: 47 Orders and recommendations on further Tribunal reviews (1) The Tribunal may, after reviewing the case of a forensic patient under section 46, make an order as to: (a) the patient's continued detention, care or treatment in a mental health facility, correctional centre or other place, or (b) the patient's release (either unconditionally or subject to conditions). (2) The Tribunal must not make an order as to the release of a forensic patient if the patient is a person who has been remanded in custody pending the person's return to court but may make a recommendation to the court as to the person's release. (2A) The Tribunal must not make an order as to the release, unconditionally, of a forensic patient who is subject to an extension order but may make a recommendation to the Supreme Court as to the variation or revocation of the extension order. (3) An order for release under this section may be made despite any other provision of this Act or any order of a court under this Act. (4) On reviewing under section 46 the case of a forensic patient who is subject to a finding that the person is unfit to be tried for an offence, the Tribunal must make a recommendation as to the fitness of the patient to be tried for an offence. (5) The Tribunal must notify the court that made the finding of unfitness and the Director of Public Prosecutions if, on a review, the Tribunal is of the opinion that the person: (a) has become fit to be tried for an offence, or (b) has not become fit to be tried for an offence and will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence. 135The "criteria for release and matters to be considered" are identified in s 43: 43 Criteria for release and matters to be considered by Tribunal The Tribunal must not make an order for the release of a forensic patient unless it is satisfied, on the evidence available to it, that: (a) the safety of the patient or any member of the public will not be seriously endangered by the patient's release, and (b) other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care. Note. See section 74 for matters that the Tribunal must consider in deciding what orders to make under this Part. Section 75 sets out conditions that may be imposed on release. 136Section 43 is expressed in mandatory negative terms (the Tribunal "must not make an order ... unless ..."). The mandatory condition is not one to be identified objectively by a reviewing court, but requires the satisfaction of the Tribunal as to the two identified criteria in pars (a) and (b). Read in isolation, there could be no doubt that the Tribunal was not empowered to make an order for release absent satisfaction of the two conditions. However, that constraint appears to be countermanded by s 47(3) which permits an order for release under s 47 "despite any other provision of this Act or any order of a court under this Act." How are these provisions to be reconciled? 137The first step in reconciliation must be to view s 47(3) in its context. The second limb permits an order for release "despite ... any order of a court under this Act." Yet s 47(2) prevents the Tribunal ordering the release of a person who has been remanded in custody pending the person's return to court. It makes sense to read the second limb of subs 47(3) as referring to a final order of the court, such as the one made in this case remanding XY into custody, but not, in accordance with subs (2), prior to completion of the court proceedings. 138It is clear, however, that the first limb of subs (3) is of a different kind. It does not, for example, say that the order for release may be made "despite any other order of the Tribunal"; rather, it says "despite any other provision of this Act". That would appear to override the constraint imposed by s 43. 139The apparent conflict cannot be readily resolved by reliance on any of the standard canons of construction. The provisions of Pt 5 were inserted together (in 2007) and substituted together (in 2008). Neither was earlier than the other. Further, they both deal with the one topic, namely release of a forensic patient pursuant to an order made under s 47(1)(b). Further, the override ("despite ...") is the sole purpose of the provision. It does not confer a power: that is done by subs (1). Subsection (3) has no dual purpose which would allow it to be construed first without reference to the override, in accordance with the principle stated in Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352 at 358-359 (Kirby P for the Court, with Hope and Samuels JJA). 140At this stage it is necessary to consider the remaining provisions in subdiv 1 of Div 2. There are in effect two variables which explain the structure of subdivision, each having a binary division. The first variable relates to the basis upon which a person becomes a forensic patient, namely either by a finding of not guilty by reason of a mental illness or by being found unfit to be tried. The second variable distinguishes between the first (or initial) review undertaken by the Tribunal and subsequent (or further) reviews. Thus, initial reviews are dealt with by ss 44 and 45 and further reviews by ss 46 and 47. Section 44 deals with the initial review of a person found not guilty by reason of mental illness; s 45 deals with the initial review of a person found unfit to be tried. With respect to a person found not guilty by reason of mental illness, the Tribunal must make an order either as to the person's care, detention or treatment or as to the person's release (either unconditionally or subject to conditions): s 44(2). Somewhat different provisions relate to a person found fit to be tried: see s 45(2) and (3). 141Section 46 requires six monthly reviews in the case of any forensic patient. Broadly speaking, it is concerned with the timing of such further reviews. Section 47 only applies to the case of a forensic patient reviewed under s 46, that is by way of further review. Section 43 has a broader operation: it relates specifically to an order for release, but will apply equally to an initial review and a further review. Section 47(3) only applies to a further review. Accordingly, one construction of the two provisions which would give each work to do is that s 43 only applies on the initial review of a person found not guilty by reason of mental illness, whereas s 47(3) applies to further reviews. 142There are factors within the terms of Pt 5 which suggest that s 47(3) might not operate "despite" s 43(a). The condition of satisfaction as to the absence of serious danger also operates with respect to grants of leave of absence from a mental health facility by the Tribunal (s 49(3)), by the Director-General (s 50(2)) and with respect to a court order for release under s 39(2) - see at [144] below. If such a requirement is imposed with respect to 'release' for a short period, it would make sense that a similar requirement should apply to permanent release by the Tribunal, as with a court. 143However, if s 47(3) does not override s 43, what work does it do? 144Counsel for the respondent (and more tentatively, the Attorney) suggested that s 47(3) might have been intended to address the circumstances of a person found not guilty on the grounds of mental illness and detained pursuant to s 39 of the Forensic Provisions Act, which relevantly reads: 39 Effect of finding and declaration of mental illness (1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate. (2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release. 145Section 39(1) permits the court to make an order that the person be detained until released by due process of law. To that extent, the second limb of s 47(3) would operate so as to permit the Tribunal to make an order for release, despite the order of the court. However, that provides no role for the first limb of s 47(3). 146The Attorney submitted that s 47(3) also does not operate to displace the mandatory requirements of s 74. That is so. Section 74 appears in Pt 5, Div 7 "Tribunal functions". Section 73 refers to the constitution of the Tribunal; s 75 identifies the conditions which may be imposed by the Tribunal on making an order for release. Of present importance, s 74 which identifies a number of considerations which the Tribunal must take into account in exercising its functions. Paragraph (d) applies to the case of a proposed release and requires that the Tribunal have regard to, first, a report by an independent forensic psychiatrist (not the treating psychiatrist) and, secondly, "whether the safety of the person or any other member of the public will be seriously endangered by the person's release". 147Is this also a provision overridden by s 47(3)? The short answer is 'no', because it is not inconsistent with the ordinary meaning of s 47(3). Section 47(3) operates to override a provision which might prevent an order for release: it does not purport to interfere with the matters which the Tribunal may or must consider. It follows that the Tribunal must have regard to the safety condition and the evidence on which it forms a view must include a report of an independent forensic psychiatrist. 148The Attorney's submissions raised another and more intriguing possibility. In the course of the Minister's second reading speech, reference was made to the fact that before making an order for release, the "special panel will be required to consider a number of statutory considerations set out in clause 74 in schedule 1 to the bill": New South Wales Legislative Council, Parliamentary Debates (Hansard), 28 October 2008, at p 10620. After noting the matters now found in s 74 of the Act, the Minister stated: "I emphasise that the tribunal will only be able to release a forensic patient if it is satisfied that the safety of the patient and any member of the public will not be endangered by the patient's release." 149Read in context, it is unclear whether that was a reference to s 43 or to the important factor identified shortly before, namely the requirement that the panel will consider "independent safety reports from a psychiatrist not involved in the care of the person", being the factor identified in s 74(d). 150The Attorney's submissions also referred to the Explanatory Note in relation to s 47, which was in the following terms: "[T]he Tribunal will be empowered to make orders for the release of forensic patients (other than patients who have been remanded pending their return to court) after reviewing their cases, rather than making recommendations for an order for release to be made by the Governor or the Minister (see proposed sections 44 and 47). Before making an order for release, the Tribunal must be satisfied that the safety of the patient or any member of the public will not be seriously endangered by the person's release and that other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person (proposed section 43). The Tribunal may make an order for release despite any other Act or any order of a court under the Forensic Provisions Act (proposed section 47)." [Emphasis added.] 151The last sentence in the Explanatory Note is intriguing: it incorporates a mistake which removes the conflict. Section 47(3) specifically refers to a power to release "despite any other provision of this Act" whereas the Explanatory Note refers to a power to release "despite any other Act", which would, if a correct reading, remove the conflict. However, it is self-evidently mistaken. Nor do the terms of the Bill explain the error. 152It follows that both ss 43 and 47(3) would have work to do if s 43 were restricted to an order for release made under s 44, on an initial review. Section 47(3) is confined, in its terms, to further reviews. If this reasoning carries weight, it is curious that s 43 is not in its terms confined to reviews under s 44, but it is also true that it immediately precedes s 44. It is also unclear why the absence of serious danger should not condition the power to release on further reviews. It remains true that even when the Tribunal's power of release is engaged, it remains discretionary and subject to the need to consider serious danger, by virtue of s 74(d). 153This factor is arguably persuasive, because an important presumption is that all parts of the statute should have work to do and, in the case of apparent contradiction, a construction which gives work to each section is preferable to one which renders one or other section nugatory. 154On that basis, the practical difference between a further review (not confined by s 43) and an initial review (confined by s 43), is twofold. The first factor concerns the test in s 43(a). There is a higher threshold for relief if the Tribunal must be affirmatively satisfied of the negative proposition, namely that release will not seriously endanger either the patient or any member of the public. Absent that requirement, but having regard to the factor in s 74(d), it would be most unlikely that the Tribunal would order release if the Tribunal were satisfied as to the existence of serious danger, but it might do so if not positively satisfied as to the absence of serious danger. The distinction is one of emphasis. The second point of distinction concerns the need to be satisfied as to the second criterion, namely s 43(b). What precisely that paragraph envisages will need to be considered shortly, but it is doubtful whether it imposes any significant limit, in a practical sense, on the power to order release. 155The point of importance in resolving the conflict between s 43 and s 47(3) in the present case is that a misconstruction of the criterion requiring satisfaction as to the absence of serious danger will demonstrate an error of law, whether under s 43(a) or for the purposes of the mandatory consideration in s 74(d). It will be necessary to turn shortly to the question whether the actual error made by the Tribunal in this case had any effect on the outcome. However, if (as will appear) the mistake of construction made no difference to the outcome, the construction issue need not be resolved. As the only construction which realistically gives work to both provisions is contrary to the apparent scheme of the Act, it will need to be resolved soon, preferably by legislative amendment. The meaning of the serious endangerment criterion 156The terms of s 43 are set out at [135] above. The chapeau is clear: it is the Tribunal which must be satisfied as to the two criteria set out in pars (a) and (b). It is the satisfaction of the Tribunal which is the necessary condition for the power to release. In conventional terms, a court reviewing for error of law an exercise of power by the Tribunal will not intervene unless the decision or the reasons for the decision reveal that the Tribunal has misunderstood the scope of its power, or for some unrevealed reason, the decision appears to be arbitrary, capricious or manifestly unreasonable. The only issue in the present case is whether the Tribunal misconstrued the scope of its power. 157The courts used to draw a distinction between a determination as to the meaning of words used in their ordinary sense, which was characterised as a question of fact, whereas "[t]he effect of the words is a question of law": Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; 36 CLR 60 at 78 (Isaacs J). However the distinction has been described as "artificial, if not illusory": Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 396. Nevertheless, the Court did not in terms reject the conventional approach with respect to errors of law in applying ordinary words adopted by Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation [1956] HCA 80; 94 CLR 509 at 512: "The common understanding of the words has therefore to be determined, and that is a question of fact .... The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the appellant's operations fall within the ordinary meaning of the words as so determined; and that is a question of law: .... If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact ...." (No doubt was cast upon this formulation in the course of the appeal from Kitto J, which was dismissed: 94 CLR at 520-525.) 158It is also conventional to distinguish between the question whether a word is used in a technical sense or has its ordinary meaning, that being a question of law; if the word is used in a technical sense, the meaning will be a question of fact if it is not used in a technical legal sense: Australia Gaslight Co v Valuer-General (NSW) (1940) 40 SR(NSW) 126, Jordan CJ at 137. 159Each of these distinctions is easier to state than to apply in particular circumstances. Nevertheless, where an appeal is limited to a question of law, the statutory constraint requires that some such distinctions be identified. In the present case, the Parliament has not only limited the scope of the appeal (subject to the identification, with the leave of the Court, of another question) but the Parliament has vested in the Tribunal the power and obligation to consider and be satisfied of certain factual matters. The Tribunal is a body having expertise in making assessments in relation to psychiatric conditions. In such circumstances the Court should be slow to intervene. That includes a restrained approach to the determination by the Tribunal of the matters as to which it must be satisfied before making an order for release. That is to say, there is no bright line distinction to be drawn between the meaning of the statutory language, which may generally involve questions of law, and the factual content of the matters for consideration and their evaluation, which are to be determined by the Tribunal. 160This does not involve deferring to the Tribunal's understanding of its statutory mandate in a sense which might be inconsistent with the statements in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [39]ff rejecting deference accorded by the judiciary to administrative jurisdictional fact-finding. Rather, it is to accord deference to the legislative intention as revealed in the statutory text, an obligation which falls squarely within in the judicial function. Thus, in her concurring judgment in Enfield, Gaudron J stated that the notion of "judicial deference" did not apply with respect to non-jurisdictional facts, continuing at [59]: "And, again, different considerations apply where what is in issue is not a jurisdictional fact, but the decision-maker's opinion as to the existence of that fact. In that situation, the question is whether, on the available material, it was reasonably open for the decision-maker to form the opinion in question." 161In considering the scope and operation of s 43, it is notable that par (b), referring to "care of a less restrictive kind" cannot readily be given a meaning consonant with ordinary usage. Ordinary usage would distinguish between care and treatment on the one hand and control and restraint on the other. The former is designed to assist the patient; the latter to protect the patient and others from harm. In some cases there will be a tension between treatment and constraint; in others, the treatment (such as the administration of drugs) may constitute a form of restraint. 162The passage in the reasoning of the Tribunal which was challenged as revealing error of law came in the course of a lengthy passage directed to the Attorney General's submissions with respect to s 43(a), at [58]-[96]. The submissions were directed to two issues, namely: (a) the scope of "any member of the public", and (b) the scope of the phrase "seriously endangered". 163With respect to the public, the Tribunal accepted the Attorney's submission that it should be construed to apply to "any member of the public in Queensland and New South Wales": at [69]. 164That finding was not challenged and was sufficient for the circumstances of the case. It should not, however, be treated as a restrictive finding. The phrase is apt to cover members of the public anywhere in Australia and, indeed, may well extend to other countries. It is by no means clear that the Tribunal could properly disregard the consequences of the unconditional release of a forensic patient due to depart for a foreign country. 165As to the second issue, the Tribunal gave consideration, no doubt in response to the Attorney's submissions, to the discussion in a Victorian case of the concept of "serious endangerment", NOM v Director of Public Prosecutions [2012] VSCA 198 at [63]-[64] (Redlich and Harper JJA, Curtain AJA). Applying the reasoning in that decision, the Tribunal said at [82]: "Ultimately they held '[i]t is an assessment of the likelihood of the risk materialising and whether or not that risk is more than merely possible that is the critical consideration, not the gravity of the harm that may eventuate'. The Tribunal would agree adding only that the use of the word 'seriously' in s 43(a) means that the risk of endangerment must be very high." 166Applying that approach, the Tribunal then stated at [83]: "To be so satisfied, the Tribunal is required to have regard as to whether, on the evidence before it, the likelihood of the risk of harm from [XY] to a member of the public is likely to materialise and whether or not that risk is more than merely possible and can be characterised as very high." 167Some of the language used in NOM, taken out of context, could be misleading. The Court stated at [64]: "In many cases the inherent difference between the risk of 'serious endangerment' (which encompasses the gravity of the possible harm) and the likelihood of endangerment (to which the gravity of the possible harm is irrelevant) may be more apparent than real. This is not such a case. His Honour clearly indicated during the course of submissions that it was only in 'the unlikely event that [the appellant] became non-compliant, he would be a risk' (emphasis added). The only evidence suggesting that that was not the case was a very appropriate concession by the appellant's supervising psychiatrist that the risk of non-compliance could never be altogether discounted." 168The Tribunal's task may have been easier if it had focused upon the statutory language of s 43. The concept of the public being "seriously endangered by the patient's release" undoubtedly encompasses both the nature of the potential harm and the chance of its occurrence. If the conduct which may occur would probably not have serious consequences for any member of the public if it did occur, a reasonably high chance of occurrence would be tolerable. If the anticipated conduct following (in the example given above) non-compliance with a regime of medication involved serious physical harm and possibly homicide, a much lower level of risk of occurrence would need to be established for the Tribunal to be satisfied as to par (a). Accordingly, the Tribunal was wrong to suggest that it could be satisfied as to the absence of serious danger unless the risk of the harm eventuating was "very high". 169One problem in understanding precisely what the Tribunal meant arose from the focus in the impugned passage on two words, "seriously endangered", instead of focusing upon the whole of the provision. What the Tribunal was required to be satisfied of was a negative, namely that the safety of the public will not be seriously endangered by the patient's release. To apply that test, it needed to identify the nature of the harm which might follow from release, and the chance of the harm eventuating. That task it undertook in the following paragraphs of its reasons, stating: "[84] ... In relation to [XY], it is abundantly clear the Tribunal is not being asked, without more, to grant him unconditional release in the sense that, in making such an order, [XY] would be released from any supervisory controls and would be able to reside in the community. If that were the case, the application would, on the evidence before the Tribunal, undoubtedly fail. [85] As the evidence before the Tribunal establishes, the application for [XY's] unconditional release (preceded by a short period of conditional release) is to facilitate his return to Queensland and to be detained in the medium security forensic unit at Caboolture pursuant to a Queensland Forensic Order. Unconditionally releasing [XY] from his NSW Forensic Order once he is subject to the jurisdiction of his Queensland Forensic Order avoids the issue of being subject to Forensic Orders from two states." 170In short, the basis for the order was that the level of security to which the respondent would be subject would not significantly vary, except to the extent that he would no longer be subject to two orders. That was seen to be a benefit for his care, but not one which reduced the level of safety accorded to the public. Thus, the Tribunal stated at [89]: "As has been earlier established, the application for [XY's] unconditional release presently before the Tribunal is that in name only. It does not contemplate [XY] doing any more than relocating for a medium secure unit in New South Wales to a medium secure unit in Queensland and the Tribunal believes those factors should be properly considered in that context." 171The Tribunal then considered and approved "the detailed proposal and risk assessment regime prepared by his treating team at the Macquarie unit in order to ensure [his] travel to Queensland and ultimately the Caboolture medium secure unit is done in a closely supervised environment at all times": at [95]. 172These findings demonstrate that the Tribunal would have come to precisely the same conclusion had it identified the operation of s 43(a) in the correct manner. Accordingly, although there was an error of law to be identified in its reasons for decision, the error was immaterial to the decision-making process in fact carried out. Application of s 43(b) 173The second ground of the Attorney's challenge was that the Tribunal either misconstrued the phrase "other care of a less restrictive kind" in s 43(b), or failed to make the necessary comparison between the existing restrictions on XY and those which would arise under the alternative regime. 174That challenge was without substance. The Tribunal had before it the independent psychiatric evidence of Dr Kavanagh. The Tribunal accepted that the care to be offered in Caboolture would be preferable to that available in New South Wales because the respondent would be relocated to a place near his family so that care would be effected "in an appropriate and reasonable manner and, if anything, will remove some of the restriction and isolation [XY] currently experiences in the Macquarie unit being so far removed from his cultural and ethnic ties": at [114]. The Tribunal also accepted Dr Kavanagh's evidence that, by removing one forensic order, he would be subject to a less restrictive regime and less stress: at [95]. 175The Tribunal acknowledged a factual matter, namely that the respondent would lose his current entitlements to absence on leave whilst he was being assessed at Caboolture. In a sense, and for a period, it might be expected that his conditions of care would be more restrictive. Acknowledging that fact, the Tribunal nevertheless took a longer term approach, being satisfied that once the assessment process had been completed, the respondent would be subject to a less restrictive regime than in New South Wales: at [99]-[101]. This was an entirely factual assessment: the Attorney demonstrated no error of law (or indeed fact). Ground 2 must be rejected. 176For these reasons, the Court should not set aside the order made by the Tribunal. Effect of transfer to Queensland 177If the transfer were effected under s 176 of the Mental Health Act, the status of the respondent as a forensic patient in New South Wales would in any event have ceased by operation of s 176(2), regardless of the impugned order of the Tribunal. For that additional reason the Court would not set aside the decision of the Tribunal, as to do so would lack utility. 178The application of s 176(2) requires reference to the terms of s 176, set out at [127] above. The Attorney noted that a transfer to a mental health facility in another State was only authorised "if the transfer is permitted by or under a provision of a corresponding law of the other State": s 176(1). As noted above, the corresponding law is the Mental Health Act 2000 (Qld). Transfer to a mental health service in Queensland is provided for under s 183 of the Queensland Act. That provision, the Attorney correctly noted, refers to a person who is "involuntarily detained in an interstate mental health service under a corresponding law": s 183(1). The relevant corresponding laws are identified by the Mental Health Regulation 2002 (Qld), the Schedule of which includes the Mental Health Act 1990 (NSW). The Attorney accepted that this would include reference to the current Mental Health Act in New South Wales: his point was that there was no reference in the Queensland regulation to the Forensic Provisions Act in this State, under which the respondent was detained. 179This submission should be accepted: s 183 of the Queensland Act does not provide for the transfer of forensic patients detained under the Forensic Provisions Act in a New South Wales mental health facility. That conclusion was not, he noted, accidental: forensic patients did not come within the terms of s 176 of the Mental Health Act 2007 (NSW) until 2008, several years after the enactment of the Queensland Act. 180Counsel for the respondent submitted that s 176(1) was satisfied on a different basis. The respondent was already subject to a forensic order in Queensland. Indeed, he was subject to an "interstate apprehension order" issued on 15 September 2009, which not only permitted, but required, his return to the Caboolture Mental Health Unit in Queensland. Although there was no evidence that he was apprehended (under s 186 of the Mental Health Act (NSW)) or served with a copy of the order, so that his physical removal from New South Wales could be justified on that basis, counsel submitted that, there being existing authority for his transfer to Queensland for the purposes of the Mental Health Act (Qld), that transfer was "permitted by or under" the Queensland law. Once that condition was satisfied, s 176(1) was engaged with the consequence that, upon transfer, he ceased to be a forensic patient in New South Wales. 181It is not in doubt that the respondent's status as a forensic patient, pursuant to a forensic order made in Queensland, subsists. The Queensland Mental Health Review Tribunal continues to make regular orders confirming the forensic order and approving conditional limited community treatment. (The latest order before this Court was dated 2 April 2014, but the Court was advised that there was a more recent order in force.) 182It appears that the statutory authority underlying this submission may be found in s 185 of the Queensland Act which applies to an involuntary patient (as defined in the Dictionary to the Act) "who is apprehended in a participating State": s 185(1). The section then provides that the patient may be taken to "an authorised mental health service", being a Queensland mental health service. The application of this section in the present case may depend upon whether the respondent was "apprehended" in New South Wales. If that involved the execution of the warrant issued in Queensland, it was not shown that that had occurred: it appears that he was held in New South Wales pursuant only to the New South Wales statutory regime. On the other hand, it may not be necessary to rely upon s 185. There was in the evidence before the Court a document issued under ss 507 and 508 of the Queensland Act entitled "Authority to return patient to authorised mental health service". Section 508 relies purely upon the issue of a notice under s 507 to empower a health practitioner or police officer to take the patient to the authorised mental health service: s 508(1)(a) and (2). 183The submissions as to the basis for the operation of s 176(1) of the New South Wales Act were not comprehensive. However, I am not satisfied that the return of the respondent to Queensland was not both permitted and authorised by ss 507 and 508 (and possibly s 185) of the Queensland Mental Health Act. Accordingly, the declaration sought by the Attorney to the effect that "[the Tribunal] did not have power under s 176 ... to authorise the transfer of [XY] from New South Wales to Queensland" was inapposite and should not be made. 184I agree with the President that an order could be made under s 77A(9) affirming the decision of the Tribunal. Otherwise, it is sufficient to dismiss the appeal. The Attorney agreed to pay the respondent's costs in any event (CA Tcpt p 61(20)) and that order should be made 185I would also revoke the non-publication order made on 27 October 2014 under the Court Suppression and Non-publication Orders Act 2010 (NSW) ("the 2010 Act") with respect to disclosure of the identity of the respondent. While there is a legitimate concern to protect the privacy of a person suffering mental illness and brought before the courts against his or her will, the respondent is the subject of a published judgment in relation to the finding of not guilty on the grounds of mental illness and the homicide was no doubt the subject of some publicity. Any such order must be justified under the 2010 Act, s 6 of which requires that "a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice." The most nearly apposite ground in this case is that such an order "is otherwise necessary in the public interest ... and that public interest significantly outweighs the public interest in open justice": s 8(1)(e). Further, while the Court may have inherent power to make such an order (see s 4), in my view such a power should not be exercised without due regard to ss 6 and 8. 186In any event, such an order is not necessary: the Mental Health Act provides: 162 Publication of names (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) to whom a matter before the Tribunal relates, or (b) who appears as a witness before the Tribunal in any proceedings, or (c) who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health (Forensic Provisions) Act 1990, whether before or after the hearing is completed. 187It may be accepted that s 162 applies to the proceedings in this Court, so that it is appropriate that this judgment not use the respondent's name. However, for this Court to make any order to that effect is not merely otiose, but might be thought to affect the Tribunal's power to consent. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 December 2014