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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Magistrates' Court Amendment (Mental Health
List) Bill 2009
TABLE OF PROVISIONS
Clause Page
1 Purpose 1
2 Commencement 1
3 Principal Act 2
4 Definitions 2
5 New sections 4S to 4Y inserted 3
4S Mental Health List 3
4T Eligibility criteria 5
4U Specific powers of the Mental Health List 6
4V Adjournment of proceeding in Mental Health List 7
4W Other adjournment powers not limited 8
4X Transfer of proceedings to and from Mental Health
List 8
4Y Completion of, and participation in, individual support
plan 9
6 Rules of Court 10
7 New clause 45 of Schedule 8 10
45 Transitional provision--Magistrates' Court
Amendment (Mental Health List) Act 2009 10
8 Repeal of amendments relating to trial period for Mental
Health List 11
9 Repeal of amending Act 11
ENDNOTES 12
561328B.I-7/12/2009 i BILL LA INTRODUCTION 7/12/2009
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Magistrates' Court Amendment (Mental
Health List) Bill 2009
A Bill for an Act to amend the Magistrates' Court Act 1989 to
establish a Mental Health List in the Magistrates' Court for a trial
period, to provide for its operation and for other purposes.
The Parliament of Victoria enacts:
1 Purpose
The purpose of this Act is to establish the Mental
Health List in the Magistrates' Court for a trial
period.
5 2 Commencement
(1) Subject to subsection (3), this Act, other than
section 8, comes into operation on a day or days to
be proclaimed.
(2) Subject to subsection (4), section 8, comes into
10 operation on a day to be proclaimed.
561328B.I-7/12/2009 1 BILL LA INTRODUCTION 7/12/2009
Magistrates' Court Amendment (Mental Health List) Bill 2009
s. 3
(3) If a provision of this Act, other than section 8,
does not come into operation before 1 December
2010, it comes into operation on that day.
(4) If section 8 does not come into operation before
5 1 August 2013 it comes into operation on that day.
3 Principal Act
See: In this Act, the Magistrates' Court Act 1989 is
Act No.
51/1989. called the Principal Act.
Reprint No. 14
as at
21 August
2008
and
amending
Act Nos
51/2006,
12/2008,
34/2008,
38/2008,
52/2008,
68/2008,
72/2008,
74/2008,
76/2008,
78/2008,
83/2008,
4/2009, 7/2009,
9/2009,
13/2009,
25/2009,
30/2009 and
50/2009.
LawToday:
www.
legislation.
vic.gov.au
4 Definitions
10 (1) In section 3(1) of the Principal Act, insert the
following definitions--
"intellectual disability has the same meaning as it
has in the Disability Act 2006;
Mental Health List means the list established by
15 section 4S;
mental illness has the same meaning as it has in
the Mental Health Act 1986;".
561328B.I-7/12/2009 2 BILL LA INTRODUCTION 7/12/2009
Magistrates' Court Amendment (Mental Health List) Bill 2009
s. 5
(2) In section 3(1) of the Principal Act, in the
definition of proper venue--
(a) in paragraph (a) after "paragraph (c)" insert
", (dc)";
5 (b) after paragraph (db) insert--
"(dc) in relation to a proceeding in respect of
which the Mental Health List has
jurisdiction--
(i) a venue of the Court determined in
10 accordance with paragraph (a),
(b), (c) or (d); or
(ii) a venue of the Court at which the
Mental Health List may sit and
act;".
15 5 New sections 4S to 4Y inserted
After section 4R of the Principal Act insert--
"4S Mental Health List
(1) A Mental Health List is established.
(2) Subject to subsection (3), the Mental Health
20 List consists of any criminal proceeding
referred to that List by the Court.
(3) The Court must not refer a criminal
proceeding to the Mental Health List
unless--
25 (a) the proceeding relates, wholly or partly,
to a charge for an offence which does
not involve--
(i) a serious violence offence as
defined in section 6B(1) of the
30 Sentencing Act 1991; or
561328B.I-7/12/2009 3 BILL LA INTRODUCTION 7/12/2009
Magistrates' Court Amendment (Mental Health List) Bill 2009
s. 5
(ii) a violent offence as defined in
section 6B(1) of that Act; or
(iii) a sexual offence as defined in
section 6B(1) of that Act; and
5 (b) the accused meets the eligibility criteria
specified in section 4T; and
(c) the accused consents to the proceeding
being dealt with in the Mental Health
List; and
10 (d) the proceeding is at a venue of the
Court where the Mental Health List
operates; and
(e) it appears to the Court that, in all the
circumstances, it is appropriate for the
15 proceeding to be dealt with in the
Mental Health List.
(4) Despite anything to the contrary in this Act,
the Mental Health List may only sit and act
at a venue of the Court specified by the Chief
20 Magistrate by notice published in the
Government Gazette.
(5) The operation and administration of the
Mental Health List is at the direction of the
Chief Magistrate.
25 (6) The Chief Magistrate, under section 16A,
may issue practice directions, statements or
notes for the Court in relation to the Mental
Health List.
(7) Nothing in this section takes away from, or
30 limits, a discretion or power conferred on the
Chief Magistrate by or under this Act.
(8) Nothing in this section or sections 4T to 4Y
affects the operation or application of the
Crimes (Mental Impairment and
35 Unfitness to be Tried) Act 1997.
561328B.I-7/12/2009 4 BILL LA INTRODUCTION 7/12/2009
Magistrates' Court Amendment (Mental Health List) Bill 2009
s. 5
4T Eligibility criteria
(1) To be eligible for a criminal proceeding to
enter the Mental Health List, an accused
must meet--
5 (a) the diagnostic criteria; and
(b) the functional criteria; and
(c) the needs criteria.
(2) The diagnostic criteria are that the accused
has one or more of the following--
10 (a) a mental illness;
(b) an intellectual disability;
(c) an acquired brain injury;
(d) autism spectrum disorder;
(e) a neurological impairment, including,
15 but not limited to dementia.
(3) The functional criteria are that the accused
has one or more of the diagnostic criteria
which causes a substantially reduced
capacity in at least one of the following
20 areas--
(a) self-care;
(b) self-management;
(c) social interaction;
(d) communication.
25 (4) The needs criteria are that the accused would
derive benefit from receiving coordinated
services in accordance with an individual
support plan that may include one or more of
the following--
30 (a) psychological assessment;
(b) welfare services;
561328B.I-7/12/2009 5 BILL LA INTRODUCTION 7/12/2009
Magistrates' Court Amendment (Mental Health List) Bill 2009
s. 5
(c) health services;
(d) mental health services;
(e) disability services;
(f) drug treatment services or alcohol
5 treatment services;
(g) housing and support services;
(h) other services that aim to reduce the
risk of offending or re-offending.
4U Specific powers of the Mental Health List
10 (1) The Mental Health List has the powers of the
Court necessary to enable it to exercise its
jurisdiction.
(2) Without limiting subsection (1), the Court
may--
15 (a) at any time, convene a hearing to
receive reports on an accused's progress
and compliance with his or her
individual support plan;
(b) adjust, amend or vary any individual
20 support plan of an accused;
(c) at any time, remove a criminal
proceeding from the Mental Health
List;
(d) at any time discharge an accused or
25 indicate an intention to discharge the
accused.
(3) In hearing any proceeding in the Mental
Health List, the Court must exercise its
jurisdiction with as little formality and
30 technicality, and with as much expedition, as
the requirements of this Act and the
Sentencing Act 1991 and the proper
561328B.I-7/12/2009 6 BILL LA INTRODUCTION 7/12/2009
Magistrates' Court Amendment (Mental Health List) Bill 2009
s. 5
consideration of the matters before the Court
permit.
4V Adjournment of proceeding in Mental
Health List
5 (1) The Court, at any time before taking a formal
plea from the accused in a criminal
proceeding which has been referred to the
Mental Health List, may adjourn a
proceeding in that List for the purposes of a
10 clinical assessment of the accused to--
(a) identify the accused's needs based on
the needs criteria set out in section 4T;
and
(b) prepare an individual support plan for
15 the accused.
(2) The Court must fix a return date for
consideration by the Court of the proposed
individual support plan.
(3) On the return date, the Court may--
20 (a) approve the individual support plan,
with or without amendments;
(b) fix bail conditions or any undertakings
or other conditions the Court considers
appropriate;
25 (c) make any other order the Court thinks
fit.
(4) The Court may adjourn a proceeding under
this section for a period not exceeding
12 months to enable the accused to be
30 assessed and participate in and complete his
or her individual support plan.
561328B.I-7/12/2009 7 BILL LA INTRODUCTION 7/12/2009
Magistrates' Court Amendment (Mental Health List) Bill 2009
s. 5
4W Other adjournment powers not limited
Nothing in section 4V limits the operation of
section 59 or section 331 of the Criminal
Procedure Act 2009 in relation to any
5 criminal proceeding.
4X Transfer of proceedings to and from
Mental Health List
(1) Subject to and in accordance with this Act
and the rules--
10 (a) a proceeding may be transferred to the
Mental Health List, whether sitting at
the same or a different venue; and
(b) the Court may transfer a proceeding in
the Mental Health List out of that List
15 and back to the Court for hearing at the
same or a different venue.
(2) Despite subsection (1), a proceeding in the
Mental Health List must be transferred out of
the List to a contested hearing in the Court if
20 at any stage the accused--
(a) pleads not guilty; or
(b) indicates an intention to plead not
guilty.
(3) Despite anything to the contrary in this Act,
25 if a proceeding is transferred from one venue
of the Court to another, the transferee venue
is the proper venue of the Court for the
purposes of this Act.
(4) This section does not limit--
30 (a) any other power conferred on the Court
by or under this or any other Act; or
(b) any other specific provision made by or
under this or any other Act for the
making of any report, statement or
561328B.I-7/12/2009 8 BILL LA INTRODUCTION 7/12/2009
Magistrates' Court Amendment (Mental Health List) Bill 2009
s. 5
submission, or the giving of any
evidence, to the Court for the purpose
of assisting it in hearing any criminal
proceeding or determining sentence.
5 4Y Completion of, and participation in,
individual support plan
(1) On completion of an individual support plan
by an accused to the satisfaction of the
Court, the Court must hear and determine the
10 criminal proceeding to which the individual
support plan related.
(2) If an accused completes, or participates in,
an individual support plan to the satisfaction
of the Court, the Court may discharge the
15 accused without any finding of guilt.
(3) The fact of participation in the individual
support plan is not to be treated as a finding
of guilt.
(4) If the accused is discharged by the Court, the
20 fact of participation in, or completion of, the
individual support plan and the discharge of
the accused is a defence to a later charge for
the same offence or a similar offence arising
out of the same circumstances.
25 (5) If an accused participates in an individual
support plan to the satisfaction of the Court
and the accused is subsequently found guilty
of the charge, the Court must take into
account the extent to which the accused
30 participated in the individual support plan
when sentencing the accused.
(6) If an accused fails to participate in an
individual support plan to the satisfaction of
the Court and the accused is subsequently
35 found guilty of the charge, the Court must
not take into account the accused's failure to
561328B.I-7/12/2009 9 BILL LA INTRODUCTION 7/12/2009
Magistrates' Court Amendment (Mental Health List) Bill 2009
s. 6
participate in the individual support plan
when sentencing the accused.
(7) Nothing in this section affects the
requirement to observe the rules of natural
5 justice.
(8) This section does not affect the incurring of
demerit points under the Road Safety Act
1986 or regulations made under that Act.
(9) Nothing in this section affects or limits the
10 operation of the Sentencing Act 1991 or the
powers of a magistrate or the Court under
that Act.".
6 Rules of Court
Before section 16(1A)(i) of the Principal Act
15 insert--
"(hd) any matter relating to the practice and
procedure of the Mental Health List;
(he) the transfer of proceedings to and from the
Mental Health List;".
20 7 New clause 45 of Schedule 8
After clause 44 of Schedule 8 to the Principal Act
insert--
"45 Transitional provision--Magistrates'
Court Amendment (Mental Health List)
25 Act 2009
The amendments made to this Act by
section 5 of the Magistrates' Court
Amendment (Mental Health List) Act
2009 apply to any proceeding, irrespective of
30 when the offence to which the proceeding
relates was committed or when the
proceeding commenced, but does not apply
to a proceeding in respect of an accused
561328B.I-7/12/2009 10 BILL LA INTRODUCTION 7/12/2009
Magistrates' Court Amendment (Mental Health List) Bill 2009
s. 8
which was listed before the Court before the
commencement of that section.".
8 Repeal of amendments relating to trial period for
Mental Health List
5 In the Principal Act--
(a) in section 3(1), the definitions of intellectual
disability, Mental Health List and mental
illness are repealed;
(b) in section 3(1), in the definition of proper
10 venue--
(i) in paragraph (a) omit ", (dc)";
(ii) paragraph (dc) is repealed;
(c) sections 4S to 4Y are repealed;
(d) in section 16(1A), paragraphs (hd) and (he)
15 are repealed;
(e) clause 45 of Schedule 8 is repealed.
9 Repeal of amending Act
This Act is repealed on 1 August 2014.
Note
20 Subject to section 8, the repeal of this Act does not affect the
continuing operation of the amendments made by it (see section
15(1) of the Interpretation of Legislation Act 1984).
561328B.I-7/12/2009 11 BILL LA INTRODUCTION 7/12/2009
Magistrates' Court Amendment (Mental Health List) Bill 2009
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561328B.I-7/12/2009 12 BILL LA INTRODUCTION 7/12/2009
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