Criminal Law (Mental Impairment) Act 2023 (WA)

Western Australia Criminal Law (Mental Impairment) Act 2023 Western Australia Criminal Law (Mental Impairment) Act 2023 Contents Part 1 — Preliminary Division 1 — Introduction 1. Short title 1 2. Commencement 1 Division 2 — General overview 3. Overview of Act 1 4. Overview: supervision orders 1 5. Overview: appeals and internal review 1 6. Overviews are guide only 1 Division 3 — Objects, principles and paramount consideration 7. Objects and principles 1 8. Paramount consideration 1 Division 4 — Interpretation 9. Terms used 1 10. Child‑specific considerations 1 11. Commission of offence: persons who have been acquitted on account of mental impairment 1 Division 5 — Other provisions 12. Act binds Crown 1 13. Application of Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 1 Part 2 — General provisions Division 1 — Courts' procedures 14. Application of Criminal Procedure Act 2004 to proceedings under Pt. 3 and 5 1 15. Adjournments 1 Division 2 — Interaction with Mental Health Act 2014 16. Criminal law applies to involuntary patients 1 17. Person in custody may be made involuntary patient 1 18. Supervised person in community may be made involuntary patient 1 19. Court may make hospital order in respect of accused 1 Division 3 — Communication with accused and supervised persons 20. Communication and support measures 1 21. Appointment of communication partner for accused or supervised person 1 Division 4 — Submissions by close family members and carers 22. Submission by close family members and carers 1 Division 5 — Reports under this Act 23. Reports to include information about treatment, training or other measures 1 Part 3 — Accused who are unfit to stand trial Division 1 — Preliminary matters 24. Overview of Part 1 25. Application of Part 1 Division 2 — Raising and deciding question of fitness of accused 26. Accused who is unfit to stand trial 1 27. Presumptions as to fitness to stand trial 1 28. When the question of fitness to stand trial may be raised 1 29. Deciding question of fitness to stand trial 1 30. Chief Mental Health Advocate to be notified 1 31. Determining question of fitness if charge to be dealt with on indictment 1 32. Fit to stand trial with support measures 1 Division 3 — Procedure following finding of unfitness Subdivision 1 — Application of Division 33. Division applies to accused found unfit 1 34. Application of Young Offenders Act 1994 1 Subdivision 2 — General procedure 35. Opportunity for accused to become fit to stand trial 1 36. Chief Mental Health Advocate to be notified 1 37. Court to make orders as to how charge against unfit accused to be dealt with 1 38. Legal representation of unfit accused 1 39. Procedure for deciding if accused has become fit to stand trial 1 40. Trial to continue if accused found fit to stand trial 1 Subdivision 3 — Special proceedings 41. Nature of special proceedings 1 42. Conduct of special proceedings 1 43. Effect of findings 1 Part 4 — Persons required to be dealt with under this Act 44. Persons acquitted on account of mental impairment or found to have committed offence 1 Part 5 — Court‑ordered dispositions Division 1 — Overview of Part 45. Overview of Part 1 Division 2 — Orders that may be made by court 46. Orders that may be made 1 47. Orders that may be made: considerations 1 48. Court to notify Tribunal and Chief Mental Health Advocate of orders 1 Division 3 — Custody orders 49. Custody orders 1 50. Limiting term for custody order 1 51. When custody order ceases to have effect 1 Division 4 — Community supervision orders 52. Community supervision orders 1 53. Term of community supervision order 1 54. Conditions of community supervision order: statutory conditions 1 55. Conditions of community supervision order: court imposed conditions 1 56. When community supervision order ceases to have effect 1 Part 6 — Administration of supervision orders by Tribunal Division 1 — Preliminary matters 57. Overview of Part 1 58. Representative of supervised person 1 59. Non‑compliance with conditions of orders 1 Division 2 — Declared places 60. Minister may make order as to declared places 1 Division 3 — Custody orders: places of custody 61. Place of custody to be determined 1 62. Limitations on place of custody 1 63. Tribunal to notify determination of place of custody 1 64. Place of custody may be changed 1 Division 4 — Tribunal to review orders 65. Terms used 1 66. Initial and periodic review 1 67. Application for review by supervised person, representative or legal practitioner 1 68. Review by Tribunal on its own initiative 1 69. Review at request of Minister 1 70. Time of review may be extended in certain cases 1 71. Notice to supervised persons and CEO of review proceedings 1 72. Matters to be considered on review 1 73. Orders the Tribunal may make after carrying out review 1 74. Court may cancel certain orders 1 75. Truncated review in serious and urgent cases 1 76. Copy of order and reasons for decision to be given to certain persons 1 Division 5 — Custody orders: leave of absence 77. Leave of absence orders 1 78. Tribunal making or varying leave of absence orders 1 79. Effect of certain leave of absence orders 1 80. Notifying Tribunal about breach of leave of absence order 1 81. Breach of conditions of leave of absence order 1 82. Cancelled leave of absence order 1 83. Absence without leave from place of custody 1 84. Relationship of Division to other Acts 1 Division 6 — Community supervision orders 85. Tribunal to designate supervising officer 1 86. Tribunal varying conditions on community supervision order 1 87. Notifying Tribunal about breach of conditions of community supervision order 1 88. Breach of conditions of community supervision order 1 89. Court's powers to deal with breach of conditions of community supervision order 1 Division 7 — Review of and appeals against certain decisions Subdivision 1 — Internal review by Tribunal 90. Term used: reviewable decision 1 91. Internal review of Tribunal decision 1 92. Nature of review proceedings 1 Subdivision 2 — Appeals to Supreme Court 93. Appeals against certain decisions 1 94. Arrest of person subject to custody order 1 95. Grounds of appeal 1 96. Dealing with appeal 1 97. Effect of appeal on decision appealed against 1 Subdivision 3 — Effect of decisions made on, or as a consequence of, review or appeal 98. Effect of decisions made on, or as a consequence of, review or appeal 1 Division 8 — Supervising officers 99. Supervising officers 1 Part 7 — Extended custody and community supervision orders Division 1 — Preliminary matters 100. Overview of Part 1 101. Nature of court proceedings under Part 1 102. References to orders include extended orders 1 Division 2 — Tribunal to consider and report on need for extended orders 103. Tribunal to consider and report on need for extended custody orders 1 104. Tribunal to consider and report on need for extended community supervision orders 1 Division 3 — Applications for extended orders 105. Minister may apply for extended order 1 106. Report to be prepared for application 1 Division 4 — Interim orders pending determination of applications 107. Interim custody orders 1 108. Interim community supervision orders 1 Division 5 — Making extended custody orders 109. Extended custody orders 1 110. Supreme Court may make extended custody order 1 111. Leave of absence orders and conditions carried over 1 112. When extended custody order has effect 1 Division 6 — Making extended community supervision orders 113. Extended community supervision orders 1 114. Supreme Court may make extended community supervision order 1 115. Conditions carried over 1 116. When extended community supervision order has effect 1 Division 7 — Review of extended custody orders 117. Periodic review on application by Minister 1 118. Application by supervised person for review 1 119. Dealing with application for review 1 120. Report to be prepared for review 1 121. Court's powers on review of extended custody order 1 Division 8 — General 122. Court to notify Tribunal of orders 1 123. Evidence in extended order proceedings 1 124. Court may give directions 1 125. Appearance at hearings 1 Part 8 — Mental health advocacy services for unfit accused and supervised persons Division 1 — Preliminary matters 126. Overview of Part 1 127. Terms used 1 Division 2 — Access to mental health advocacy services 128. Access to mental health advocacy services 1 129. Request for CLMI identified person to be contacted 1 130. Duty to contact CLMI identified person 1 Division 3 — Functions and powers of mental health advocates 131. Functions of Chief Mental Health Advocate 1 132. Directions to Chief Mental Health Advocate about general matters 1 133. Delegation by Chief Mental Health Advocate 1 134. Functions of mental health advocates 1 135. Powers of mental health advocates relating to CLMI identified persons 1 136. Issues arising out of inquiries and investigations 1 137. Documents to which access is restricted 1 138. Disclosure by mental health advocate 1 Division 4 — Interaction with Mental Health Act 2014 139. Interaction with Mental Health Act 2014 1 Division 5 — Reporting in relation to mental health advocacy services 140. Annual reports 1 Part 9 — Victim considerations Division 1 — Preliminary matters 141. Overview of Part 1 142. Terms used 1 Division 2 — Victim impact statements may be given to court 143. Term used 1 144. Victim impact statements may be given to court 1 145. Content of victim impact statements 1 146. Availability of victim impact statements 1 Division 3 — Victim submissions may be made to Tribunal 147. Victim submissions may be made to Tribunal 1 Division 4 — Victim submissions may be made to court 148. Victim submissions may be made to court 1 149. Content of victim's submission 1 150. Availability of victim's submissions 1 Division 5 — Notice of Tribunal review given to victims 151. Notice to victims of review proceedings 1 152. Delegation by CEO 1 Division 6 — Miscellaneous 153. Disclosing information to victims 1 Part 10 — Mental Impairment Review Tribunal Division 1 — Preliminary matters 154. Overview of Part 1 155. Terms used 1 Division 2 — Mental Impairment Review Tribunal 156. Tribunal established 1 157. Tribunal's jurisdiction 1 158. Constitution of Tribunal 1 159. Contemporaneous exercise of jurisdiction 1 Division 3 — Proceedings of Tribunal 160. Conduct of proceedings 1 161. Who presides 1 162. Decision of Tribunal 1 163. Questions of law 1 164. Evidence generally 1 165. Appearance in review proceedings 1 166. Summons to give evidence or produce documents 1 167. Power to examine on oath 1 168. Privilege against self‑incrimination 1 169. Confidentiality orders 1 170. Publication of names 1 Division 4 — Membership of Tribunal 171. Tribunal members 1 172. Qualifications of certain members 1 173. Terms and conditions of appointment 1 174. Remuneration 1 175. Deputy President acting as President 1 176. Leave of absence from office 1 177. Vacating office prematurely 1 178. Conditions for public service members 1 179. Resignation of members 1 180. Terminating appointment of members 1 181. Training of members 1 Division 5 — General powers of Tribunal 182. Exercise and performance of Tribunal's administrative powers and duties 1 183. Tribunal may use experts 1 184. Tribunal may require examination of supervised person 1 185. Issue of warrants by Tribunal 1 186. Power to obtain information and records 1 187. Extension of time in which to give report or other information 1 Division 6 — Registrar, staff and facilities of Tribunal 188. Registrar, staff and facilities to be made available 1 Division 7 — Miscellaneous 189. Offences relating to information and records 1 190. Tribunal to notify Public Advocate of orders 1 191. Tribunal to report death of supervised person to coroner 1 192. Tribunal may request information from SAT about supervised person's guardian or administrator 1 193. Seal 1 194. Orders 1 195. President may issue practice notes 1 196. Delegation by President 1 197. Judicial notice and evidence of certain matters 1 198. Annual report 1 Part 11 — Transfer into and out of the State Division 1 — Preliminary matters 199. Overview of Part 1 200. Terms used 1 201. Informed consent 1 202. Nature of proceedings under this Part 1 Division 2 — Transfer of persons from Western Australia 203. Transfer of persons from Western Australia to a participating jurisdiction 1 Division 3 — Transfer of persons to Western Australia 204. Transfer of persons from a participating jurisdiction to Western Australia 1 205. Interim dispositions for persons transferred to Western Australia 1 206. Review of persons transferred to Western Australia 1 207. Limiting term for custody order 1 208. Court to make orders if person has been in custody longer than limiting term 1 Division 4 — Interaction with other transfer related laws 209. Interaction with Mental Health Act 2014 1 210. Interaction with Prisoners (Interstate Transfer) Act 1983 1 211. Persons subject to international supervision orders 1 Part 12 — Appeals to Court of Appeal Division 1 — Preliminary matters 212. Overview of Part 1 213. Term used: deciding court 1 Division 2 — Appeals to Court of Appeal 214. Appeals against certain decisions 1 215. Grounds of appeal 1 216. Dealing with appeal 1 217. Appeal does not stay decision 1 218. Effect of decisions made on, or as a consequence of, appeal 1 Part 13 — Miscellaneous Division 1 — Preliminary matters 219. Terms used 1 Division 2 — Electronic monitoring and curfew 220. Term used: approved electronic monitoring device 1 221. Electronic monitoring 1 222. Curfew 1 223. Enforcement of electronic monitoring and curfew 1 Division 3 — Protection of information 224. Protection of information about persons covered by this Act 1 Division 4 — Cooperation and sharing of information between supporting agencies 225. Cooperation between supporting agencies 1 226. Disclosure of information between supporting agencies 1 Division 5 — Interactions between supervision orders and sentences 227. Interactions between supervision orders and sentences 1 228. Interactions between supervision orders and Commonwealth sentences 1 Division 6 — General 229. Giving notice, information, summonses and other documents 1 230. Issue and execution of warrants 1 231. Protection from liability 1 232. Regulations 1 233. Rules of court 1 234. Review of Act 1 Part 14 — Repeals and transitional provisions Division 1 — Repeals 235. Criminal Law (Mentally Impaired Accused) Act 1996 repealed 1 236. Criminal Law (Mentally Impaired Accused) Regulations 1997 repealed 1 Division 2 — Transitional provisions for Criminal Law (Mental Impairment) Act 2023 Subdivision 1 — Preliminary matters 237. Terms used 1 238. Interpretation Act 1984 not affected 1 Subdivision 2 — General provisions 239. Completion of things commenced before commencement day 1 240. Continuing effect of things done before commencement day 1 241. Continuation of duties of Board or registrar 1 242. References to repealed Act and old provisions 1 243. Relationship of this Subdivision to other transitional provisions 1 Subdivision 3 — Court proceedings 244. Proceedings generally 1 245. Question of fitness raised under repealed Act s. 11 1 246. Inquiries and appeals under repealed Act s. 12 1 247. Adjournments and other matters under repealed Act s. 16 or s. 19 1 248. Previous finding of unfitness 1 249. Requirement to make order under repealed Act s. 22 1 Subdivision 4 — Orders and other things to continue 250. Purpose of Subdivision 1 251. Hospital orders 1 252. Bail and custody under repealed Act s. 14 1 253. Existing community orders 1 254. Existing custody orders 1 255. Leave of absence orders 1 256. Absence without leave 1 257. Release orders 1 258. Breaches of conditions of release orders 1 259. Warrants 1 Subdivision 5 — Setting limiting term for existing custody orders 260. Application of this Subdivision 1 261. Application to set limiting term 1 262. Limiting term in cases of murder and manslaughter 1 263. Procedural matters 1 264. Court to set limiting term 1 265. Where person subject to existing custody order has been, or soon will have been, in custody longer than limiting term 1 266. Legal representation of person subject to existing custody order 1 267. Functions of Director of Public Prosecutions 1 Subdivision 6 — Matters relating to Board and its functions 268. Proceedings generally 1 269. Places of custody 1 270. Supervising officers 1 271. Examination required by Board 1 272. Members of Board 1 273. Registrar 1 Subdivision 7 — Miscellaneous 274. Final annual report to Minister 1 275. Records of Board 1 276. Tribunal to provide Chief Mental Health Advocate with details of supervised persons 1 277. Notice to Public Advocate 1 278. Declared places 1 Subdivision 8 — Transitional regulations 279. Transitional regulations 1 Part 15 — Consequential amendments to other Acts Division 1 — Bail Act 1982 amended 280. Bail Act 1982 amended 1 281. Schedule 1 Part C amended 1 Division 2 — Children's Court of Western Australia Act 1988 amended 282. Children's Court of Western Australia Act 1988 amended 1 283. Section 21 amended 1 Division 3 — Community Protection (Offender Reporting) Act 2004 amended 284. Community Protection (Offender Reporting) Act 2004 amended 1 285. Section 3 amended 1 286. Section 4 amended 1 287. Section 70 amended 1 288. Section 85A amended 1 Division 4 — Coroners Act 1996 amended 289. Coroners Act 1996 amended 1 290. Section 3 amended 1 Division 5 — Court Security and Custodial Services Act 1999 amended 291. Court Security and Custodial Services Act 1999 amended 1 292. Section 3 amended 1 293. Section 4 amended 1 294. Section 16 amended 1 295. Section 96 amended 1 296. Schedule 2 amended 1 Division 6 — Criminal Appeals Act 2004 amended 297. Criminal Appeals Act 2004 amended 1 298. Section 4 amended 1 299. Section 6 amended 1 300. Section 8 amended 1 301. Section 11 amended 1 302. Section 12 amended 1 303. Section 14 amended 1 304. Section 24 amended 1 305. Section 25 amended 1 306. Section 25A inserted 1 25A. Rights of appeal relating to Criminal Law (Mental Impairment) Act 2023 1 307. Section 30 amended 1 308. Section 31 amended 1 309. Section 32 amended 1 310. Sections 32A and 32B inserted 1 32A. Decision on appeal under s. 25A(a) or (b) 1 32B. Decision on appeal under s. 25A(c) or (d) 1 311. Section 41A inserted 1 41A. Custody orders under Criminal Law (Mental Impairment) Act 2023 1 312. Section 46A amended 1 313. Various references to "unsoundness of mind" amended 1 Division 7 — Criminal Injuries Compensation Act 2003 amended 314. Criminal Injuries Compensation Act 2003 amended 1 315. Section 15 amended 1 Division 8 — Criminal Investigation (Identifying People) Act 2002 amended 316. Criminal Investigation (Identifying People) Act 2002 amended 1 317. Section 67 amended 1 Division 9 — Criminal Procedure Act 2004 amended 318. Criminal Procedure Act 2004 amended 1 319. Section 126 amended 1 320. Section 130 amended 1 Division 10 — Cross‑border Justice Act 2008 amended 321. Cross‑border Justice Act 2008 amended 1 322. Part 9 heading replaced 1 Part 9 — Persons with mental impairment Division 11 — Declared Places (Mentally Impaired Accused) Act 2015 amended 323. Declared Places (Mentally Impaired Accused) Act 2015 amended 1 324. Long title replaced 1 325. Section 1 amended 1 326. Section 3 amended 1 327. Section 18 replaced 1 18. CEO's functions as to residents 1 328. Section 19 amended 1 329. Section 20 amended 1 330. Section 53 amended 1 331. Section 57 amended 1 332. Part 12 replaced 1 Part 12 — Transitional provisions for Criminal Law (Mental Impairment) Act 2023 65. Terms used 1 66. Provision of information about residents 1 Division 12 — Disability Services Act 1993 amended 333. Disability Services Act 1993 amended 1 334. Section 3 amended 1 335. Section 12 amended 1 336. Section 21 amended 1 Division 13 — Electoral Act 1907 amended 337. Electoral Act 1907 amended 1 338. Section 18 amended 1 339. Section 59 amended 1 Division 14 — Evidence Act 1906 amended 340. Evidence Act 1906 amended 1 341. Section 100A amended 1 342. Section 106A amended 1 Division 15 — Fines, Penalties and Infringement Notices Enforcement Act 1994 amended 343. Fines, Penalties and Infringement Notices Enforcement Act 1994 amended 1 344. Section 52C amended 1 Division 16 — Guardianship and Administration Act 1990 amended 345. Guardianship and Administration Act 1990 amended 1 346. Section 98 replaced 1 98. Supervised persons under Criminal Law (Mental Impairment) Act 2023 1 Division 17 — High Risk Serious Offenders Act 2020 amended 347. High Risk Serious Offenders Act 2020 amended 1 348. Section 6 amended 1 349. Section 79 amended 1 Division 18 — Juries Act 1957 amended 350. Juries Act 1957 amended 1 351. Section 5 amended 1 Division 19 — Magistrates Court Act 2004 amended 352. Magistrates Court Act 2004 amended 1 353. Section 11A inserted 1 11A. Limitations on exercise of certain jurisdiction 1 Division 20 — Mental Health Act 2014 amended 354. Mental Health Act 2014 amended 1 355. Section 4 amended 1 356. Section 82 replaced 1 82. Application of this Part 1 357. Section 105 amended 1 358. Section 127 amended 1 359. Section 145 amended 1 360. Part 9 Division 4 inserted 1 Division 4 — Notification of Mental Impairment Review Tribunal about absence of supervised persons 145A. Notification about absence of supervised persons 1 361. Section 177 amended 1 362. Section 185 amended 1 363. Section 196 amended 1 364. Section 198 amended 1 365. Section 199 amended 1 366. Section 200 amended 1 367. Section 201 amended 1 368. Section 204 amended 1 369. Section 209 amended 1 370. Section 224 amended 1 371. Section 240 amended 1 372. Section 241 amended 1 373. Section 242 amended 1 374. Section 243 amended 1 375. Section 249 amended 1 376. Section 258 amended 1 377. Section 288 amended 1 378. Section 289 amended 1 379. Section 348 amended 1 380. Section 357 amended 1 381. Section 409 amended 1 382. Section 423 amended 1 383. Section 515 amended 1 384. Section 520 amended 1 385. Section 527 amended 1 386. Section 536 amended 1 387. Part 30 inserted 1 Part 30 — Transitional matters for Criminal Law (Mental Impairment) Act 2023 678. Terms used 1 679. Functions in respect of Board 1 680. Duty to contact identified person 1 388. Various headings amended 1 Division 21 — National Disability Insurance Scheme (Worker Screening) Act 2020 amended 389. National Disability Insurance Scheme (Worker Screening) Act 2020 amended 1 390. Section 7 amended 1 Division 22 — Parliamentary Commissioner Act 1971 amended 391. Parliamentary Commissioner Act 1971 amended 1 392. Section 19H amended 1 Division 23 — Prisoners (Release for Deportation) Act 1989 amended 393. Prisoners (Release for Deportation) Act 1989 amended 1 394. Section 6A inserted 1 6A. Persons under custody orders under Criminal Law (Mental Impairment) Act 2023 1 Division 24 — Prisons Act 1981 amended 395. Prisons Act 1981 amended 1 396. Section 67 amended 1 397. Section 113 amended 1 Division 25 — Restraining Orders Act 1997 amended 398. Restraining Orders Act 1997 amended 1 399. Section 44E amended 1 Division 26 — Security and Related Activities (Control) Act 1996 amended 400. Security and Related Activities (Control) Act 1996 amended 1 401. Section 4B amended 1 Division 27 — Sentence Administration Act 2003 amended 402. Sentence Administration Act 2003 amended 1 403. Section 98 amended 1 404. Section 119 amended 1 Division 28 — Working with Children (Criminal Record Checking) Act 2004 amended 405. Working with Children (Criminal Record Checking) Act 2004 amended 1 406. Section 8 amended 1 Division 29 — Young Offenders Act 1994 amended 407. Young Offenders Act 1994 amended 1 408. Section 16 amended 1 Division 30 — Various Acts amended 409. Various references to Criminal Law (Mentally Impaired Accused) Act 1996 amended 1 410. Various references to Declared Places (Mentally Impaired Accused) Act 2015 amended 1 411. Various references to "Mentally Impaired Accused Review Board" amended 1 412. Various references to "unsoundness of mind" amended 1 Schedule 1 — Serious offences Division 1 — Offences that are serious offences in all circumstances Subdivision 1 — Offence under Bush Fires Act 1954 Subdivision 2 — Offence under Children and Community Services Act 2004 Subdivision 3 — Offences under The Criminal Code Subdivision 4 — Offences under Prostitution Act 2000 Subdivision 5 — Offence under Road Traffic Act 1974 Subdivision 6 — Offences under Western Australian Marine Act 1982 Division 2 — Offences that are serious offences if committed in specified circumstances Subdivision 1 — Offence under The Criminal Code Subdivision 2 — Offence under Prostitution Act 2000 Notes Compilation table 1 Uncommenced provisions table 1 Other notes 1 Defined terms Western Australia Criminal Law (Mental Impairment) Act 2023 An Act — * to make provision in relation to criminal proceedings involving persons with mental impairment; and * to provide for special criminal proceedings for persons who are unfit to stand trial; and * to provide for the supervision of persons who, in special criminal proceedings, are found to have committed an offence; and * to provide for the supervision of persons acquitted on account of mental impairment; and * to provide for the safe reintegration into the community of persons supervised under this Act; and * to repeal the Criminal Law (Mentally Impaired Accused) Act 1996 and the Criminal Law (Mentally Impaired Accused) Regulations 1997; and * for related purposes.