2008
2008
2010-06-28
act
government
publicspecial
act.reprint
act-2009-056
partuncommenced
2008-11-27
2008-12-04
0
2008
none
act-2008-107
157025dd-89c6-483d-9fff-556a8140536b
6f5a26da-ff45-49d0-ac6a-4e0dbf7fd1c0
Does not include amendments
by:
Statute Law
(Miscellaneous Provisions) Act 2010 No 59 (not commenced
— to commence on 9.7.2010)
Proposed
repeal:
The Act is to be repealed by sec 5 (1) of this
Act on the day following the day on which all of the provisions of this Act
have commenced.
An Act to amend various Acts in relation to
courts, crimes and civil and criminal procedure.
1Name of
Act
This Act is the Courts and Crimes
Legislation Further Amendment Act
2008.
2Commencement
(1)
This Act commences on the date of assent to this
Act, except as provided by this section.
(2)
Section 4, and Schedules 4, 14 [1]–[8] and
[10]–[15], 16, 17, 19, 22, 24 and 29, commence on a day or days to be
appointed by proclamation.
(3)
Schedule 7 [11] commences on:
(a)
the date of assent to this Act,
or
(b)
the date of commencement of Schedule 1.11 [21] to
the Crimes and Courts Legislation Amendment Act
2006,
whichever is the later.
(4)
Schedule 11 commences on:
(a)
the date of assent to this Act,
or
(b)
the date of commencement of Schedule 1 [81] to
the Evidence Amendment Act
2007,
whichever is the later.
3Amendments
The Acts specified in Schedules 1–29 are
amended as set out in those Schedules.
4Repeal of Wardens’ Courts Rules
1992
The Wardens’
Courts Rules 1992 are repealed.
5Repeal of
Act
(1)
This Act is repealed on the day following the day
on which all of the provisions of this Act have
commenced.
(2)
The repeal of this Act does not, because of the
operation of section 30 of the Interpretation
Act 1987, affect any amendment made by this
Act.
Schedules 1–3
Schedule 4Amendment of Confiscation of Proceeds of Crime Act 1989 No
90
(Section 3)
[1]Section 45A Contravention of
restraining orders
Omit “Supreme Court” from section 45A
(1).
Insert instead “court that is dealing with
the offence”.
[2]Section 74 Proceedings for
offences
Omit “$10,000” wherever occurring in
section 74 (2) and (3).
Insert instead “the jurisdictional limit of
the Local Court”.
[3]Section 74
(5)
Insert after section 74 (4):
(5)
In this section, the jurisdictional limit of the Local
Court means the jurisdictional limit of a Local Court
sitting in its General Division, within the meaning of the Local Courts Act
1982.
[4]Schedule 1 Savings,
transitional and other provisions
Insert after Part 2:
Part 3Provision consequent on
enactment of Courts and Crimes Legislation Further
Amendment Act 2008
7Proceedings for
offences
Section 74, as amended by Schedule 4 to the
Courts and Crimes Legislation Further Amendment Act
2008, extends to proceedings commenced before the
commencement of that Schedule.
Schedules 5, 6
sch 5: Rep 2009 No
56, Sch 5.
sch 6: Rep 2009 No
56, Sch 5.
Schedule 7Amendment of Criminal Procedure Act 1986 No
209
(Section 3)
[1]–[10]
[11]Schedule 2 Savings,
transitional and other provisions
Insert “and any such warrant expires at the
end of 20 years from the date of issue” after “provisions”
in clause 53.
[12]
sch 7: Am 2009 No 56,
Sch 5.
sch 8–15: Rep
2009 No 56, Sch 5.
sch 18–23: Rep
2009 No 56, Sch 5.
schs 25–29: Rep
2009 No 56, Sch 5.
Schedules 8–15
Schedule 16Amendment of Mental Health Act 2007 No
8
(Section 3)
[1]Section 4
Definitions
Omit “by a Magistrate after a mental health
inquiry or” from the definition of involuntary patient in section 4
(1).
Insert instead “after a mental health
inquiry or otherwise”.
[2]Section 4 (1), definition of
“mental health inquiry”
Omit “a Magistrate”. Insert instead
“the Tribunal”.
[3]Section 27 Steps for medical
examination requirements for ongoing detention in mental health
facility
Omit “bring the person before a
Magistrate” from section 27 (d).
Insert instead “notify the Tribunal and
bring the person before the Tribunal”.
[4]Section 27
(d)
Omit:
The person must be brought before a Magistrate as
soon as practicable after the authorised medical officer is notified of the
relevant finding of the second or third examiner.
Insert instead:
The person must be brought before the Tribunal as
soon as practicable after admission (subject to meeting the requirements set
out above).
[5]Section 33 Actions may be
delayed because of other illnesses or conditions
Omit “a Magistrate” from section 33
(b). Insert instead “the Tribunal”.
[6]Section
34
Omit the section. Insert instead:
34Mental health inquiries to be
held
(1)
The Tribunal must hold an inquiry about an
assessable person under step 4 in section 27 (d).
Note—
Section 27 sets out the events that result in a
mental health inquiry. Notice of the inquiry is to be given to the person
concerned, and all reasonably practicable steps are to be taken to notify
primary carers in accordance with section 76.
(2)
An authorised medical officer of the mental
health facility in which an assessable person is detained:
(a)
must ensure that, as far as practicable, the
person is brought before the Tribunal dressed in street clothes,
and
(b)
must make all necessary arrangements to ensure
that all appropriate medical witnesses appear before the Tribunal and other
relevant medical evidence concerning the person is placed before the Tribunal
at or before the inquiry, and
(c)
as soon as practicable after notifying the
Tribunal under section 27 (d), and at or before the inquiry, must provide the
Tribunal with all relevant medical reports of the examinations in step 1 or
step 2, as referred to in section 27 (d), and any additional information
required by the Tribunal for the purposes of the
inquiry.
An assessable person, or any other person, may,
with the approval of the Tribunal and subject to the regulations (if any), be
brought or appear before the Tribunal by way of audio visual
link.
The primary carer of an assessable person may,
with the approval of the Tribunal, appear at an inquiry.
Note—
The Tribunal must be constituted by at least one
member who is the President or a Deputy President for the purposes of a mental
health inquiry (see section 150 (2A)). Other provisions relating to the
Tribunal’s procedures generally, that apply to mental health inquiries
and other proceedings, are set out in Part 2 of Chapter
6.
[7]Section 35 Purpose and
findings of mental health inquiries
Omit “A Magistrate” from section 35
(1). Insert instead “The Tribunal when”.
[8]Section 35
(2)
Omit “the Magistrate” wherever
occurring. Insert instead “the Tribunal”.
[9]Section 35 (2A) and
(2B)
Insert after section 35 (2):
(2A)
As soon as practicable after the beginning of a
mental health inquiry, the Tribunal must ask the assessable person whether the
person:
(a)
has been given a written statement, in the
prescribed form, of the person’s legal rights and other entitlements, as
required by section 74, and
(b)
has been informed of the duty imposed under
section 76 on the authorised medical officer relating to the giving of the
notice specified in that section.
(2B)
As soon as practicable after the beginning of a
mental health inquiry, the Tribunal must ascertain from the authorised medical
officer whether the written statement and notice referred to in subsection
(2A) have been given or all such things as are reasonably practicable have
been done to give that statement or notice, as the case
requires.
[10]Section 35
(3)
Omit the subsection. Insert instead:
(3)
If the Tribunal is not satisfied, on the balance
of probabilities, that an assessable person is a mentally ill person, the
Tribunal must order that the person be discharged from the mental health
facility.
[11]Section 35 (4) and (5)
(c)
Omit “Magistrate” wherever occurring.
Insert instead “Tribunal”.
[12]Section 35
(5)
Omit “A Magistrate who is satisfied, on the
balance of probabilities, that an assessable person is a mentally ill
person”.
Insert instead “If the Tribunal is
satisfied, on the balance of probabilities, that an assessable person is a
mentally ill person, the Tribunal”.
[13]Section
36
Omit the section. Insert instead:
36Adjournments
(1)
The Tribunal may, from time to time, adjourn a
mental health inquiry for a period not exceeding 14
days.
(2)
Without limiting subsection (1), the Tribunal may
adjourn the inquiry if it is not satisfied:
(a)
that the assessable person has been informed of
the duty imposed under section 76 on the authorised medical officer relating
to the giving of the notice specified in that section, or
(b)
that the notice specified in the section has been
given or all such things as are reasonably practicable have been done to give
that notice.
(3)
The Tribunal may adjourn an inquiry under this
section only if:
(a)
the Tribunal is of the opinion that it is in the
best interests of the assessable person to do so, and
(b)
the Tribunal has considered any certificates
given under this Act available to the Tribunal.
(4)
If an inquiry is adjourned, the assessable person
is to continue to be detained in the mental health facility unless the person
is discharged or allowed to be absent from the facility under another
provision of this Act.
[14]Section 51 Community treatment
orders
Omit “or a Magistrate” from section
51 (1).
[15]Section 53 Determination of
applications for community treatment orders
Omit “A Magistrate or the” from
section 53 (1). Insert instead “The”.
[16]Section 53 (2) and
(3)
Omit “Magistrate or” wherever
occurring.
[17]Section 53
(4)
Omit the subsection. Insert instead:
(4)
The Tribunal may not make a community treatment
order at a mental health inquiry unless the Tribunal is of the opinion that
the person is a mentally ill person.
[18]Section 53 (6) and
(7)
Omit “or Magistrate” wherever
occurring.
[19]Section 55 Community treatment
order may be made in absence of affected person
Omit “A Magistrate or the”. Insert
instead “The”.
[20]Section 77 Notification to new
involuntary patients of appeal rights
Omit “a Magistrate” from section 77
(1). Insert instead “the Tribunal”.
[21]Section 141 Membership of
Tribunal
Omit “Australian legal practitioners”
from section 141 (2) (a).
Insert instead “Australian
lawyers”.
[22]Section 150 Composition of the
Tribunal
Insert “in relation to mental health
inquiries or” after “other than” in section 150
(2).
[23]Section 150
(2A)
Insert after section 150 (2):
(2A)
For the purpose of conducting a mental health
inquiry, the Tribunal must consist of at least 1 member who is to be the
President or a Deputy President or a member qualified to be appointed as a
Deputy President.
[24]Section 150 (3)
(b)
Omit “Australian legal practitioner”.
Insert instead “Australian lawyer”.
[25]Section 154 Rights of
appearance and representation
Insert after section 154 (2):
(2A)
An assessable person who is before the Tribunal
for a mental health inquiry must, unless the person decides that he or she
does not want to be represented, be represented by an Australian legal
practitioner or, with the approval of the Tribunal, by another person of his
or her choice.
[26]Section 160 Tribunal procedure
generally
Insert after section 160 (2) (e):
(e1)
conditions for the use of audio or audio visual
links and other matters relating to the use of audio or audio visual links in
Tribunal proceedings,
[27]Section 188 Restrictions on
holding of certain offices
Omit section 188 (1) (d).
[28]Section 188
(3)
Omit “or
Magistrate”.
[29]Schedule 2 Mental health
inquiries
Omit the Schedule.
[30]Schedule
3
Omit “see a
Magistrate”.
Insert instead “see the Mental Health
Review Tribunal”.
[31]Schedule
3
Omit “Magistrates’ mental health
inquiries”.
Insert instead “mental health
inquiries”.
[32]Schedule
3
Omit “Magistrate’s”
wherever occurring.
[33]Schedule
3
Omit “A Magistrate’s”. Insert
instead “A”.
[34]Schedule
3
Omit “The Magistrate” and “the
Magistrate” wherever occurring.
Insert instead “Mental Health Review
Tribunal”.
[35]Schedule
3
Omit “he or she” where secondly
occurring. Insert instead “it”.
[36]Schedule 6 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
Courts and Crimes
Legislation Further Amendment Act
2008
[37]Schedule
6
Insert at the end of the Schedule with
appropriate Part and clause numbering:
PartProvisions consequent on
enactment of Courts and Crimes Legislation Further
Amendment Act 2008
Existing mental health
inquiries
A mental health inquiry that was commenced, but
not determined, before the substitution of section 34 by the Courts and Crimes Legislation Further Amendment Act
2008 may be determined in accordance with this Act as in
force immediately before that substitution.
Schedule 17Amendment of Mental Health (Criminal Procedure) Act 1990 No
10
(Section 3)
[1]Section 33 Mentally ill
persons
Omit “by a Magistrate” from section
33 (1A).
Insert instead “at a mental health
inquiry”.
[2]Section 33
(1B)
Omit “a Magistrate”. Insert instead
“the Tribunal”.
Schedules 18–23
Schedule 24Amendment of Protected Estates Act 1983 No
179
(Section 3)
[1]Section 15 Notice that
person’s capability to manage affairs will be
considered
Omit “a Magistrate”. Insert instead
“the MHRT”.
[2]Section 15
(b)
Omit “Magistrate”. Insert instead
“MHRT”.
[3]Section 16 Consideration of
capability of patients to manage affairs
Omit “a Magistrate” from section 16
(1). Insert instead “the MHRT”.
[4]Section 16
(1)
Omit “the Magistrate”. Insert instead
“the MHRT”.
[5]Section 16
(2)
Omit the subsection. Insert instead:
(2)
For the purposes of determining whether or not to
make an order under subsection (1), the MHRT may defer the question of a
person’s capability to manage their own affairs pending the provision to
the MHRT of information about the detained person or the detained
person’s affairs.
[6]Section 17 Consideration by
MHRT of capability of patients to manage affairs
Omit the section.
[7]Section 19 Subsequent
applications
Omit “a Magistrate or” from section
19 (2).
[8]Section 20 Interim
orders
Omit “A Magistrate or the MHRT may, if it
appears to the Magistrate or MHRT” from section 20 (1).
Insert instead “The MHRT may, if it appears
to the MHRT”.
[9]Section 21 Appeals to Court
against management orders
Omit “a Magistrate or” from section
21 (1).
[10]Section 21A Appeals to ADT
against estate management orders made by MHRT
Omit “a Magistrate or” from section
21A (1).
[11]Section 21B Notice of reasons
for orders and appeal rights
Omit “a Magistrate or” from section
21B (1).
[12]Section
21B
Omit “the Magistrate or” wherever
occurring. Insert instead “the”.
[13]Section 23 Management of
estates of persons who are protected persons
Omit “a Magistrate”. Insert instead
“the MHRT”.
Schedules 25–29
Historical
notes
Table of amending
instruments
Courts and Crimes
Legislation Further Amendment Act 2008 No 107. Assented to
8.12.2008. Date of commencement, except sec 4 and Schs 4, 7 [11], 11, 14
[1]–[8] and [10]–[15], 16, 17, 19, 22, 24 and 29, assent, sec 2
(1); date of commencement of sec 4 and Schs 14 [1]–[8] and
[10]–[15], 19, 22 and 29, 7.4.2009, sec 2 (2) and 2009 (112) LW
3.4.2009; date of commencement of Sch 4, 19.2.2010, sec 2 (2) and 2010 (33) LW
12.2.2010; date of commencement of Sch 7 [11], 18.12.2009, sec 2 (3) (b) and
2009 (606) LW 18.12.2009; date of commencement of Sch 11, 1.1.2009, sec 2 (4)
and GG No 158 of 19.12.2008, p 12305; date of commencement of Schs 16 and 17,
21.6.2010, sec 2 (2) and 2010 (246) LW 18.6.2010; date of commencement of Sch
24: not in force. This Act has been amended as follows:
2009
No
56
Statute Law
(Miscellaneous Provisions) Act 2009. Assented to
1.7.2009.
Date of commencement of Sch 5, 17.7.2009, sec 2
(1).
Table of
amendments
Schs
1–3, 5, 6
Rep 2009 No
56, Sch 5.
Sch
7
Am 2009 No
56, Sch 5.
Schs
8–15, 18–23, 25–29
Rep 2009 No
56, Sch 5.