Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

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8.141 Upon arrival in Victoria, the person is placed on an ‘interim order’ and within six months,
an application must be made to the Supreme Court for a review. 146 At the review, the
court may place the person on a supervision order or order the person’s unconditional
release. 147 If the person is placed on a supervision order, the court must set a nominal
term. 148 The Supreme Court cannot make an order that is ‘more restrictive on the person’s
freedom and personal autonomy’ than the order the person was on interstate, unless the
safety of the person or members of the public would be seriously endangered if a more
restrictive order is not made. 149
Difficulty in effecting interstate transfers
8.142 Throughout Australia, the laws governing the supervision of people who are unfit to
stand trial or found not guilty because of mental impairment are different. This can create
complexity when a person subject to a supervision order in one state, moves to another
state. There is no uniform legislation governing the interstate transfer of people subject to
supervision orders in Australia and therefore interstate agreements govern the process. 150
Limited progress has been made in finalising these agreements, ‘notwithstanding the
existence of legislation enabling their development’. 151
8.143 When compared with the powers to apprehend a person who has left Victoria, Carroll
et al argue that the situation regarding interstate transfer orders is less ‘clear cut’ and is
largely a legal problem:
It was accepted that there was a ‘conflict of laws’, of the kind that frequently arises in the
Australian system of federalism. While there are often compelling arguments for interstate
transfers consistent with good clinical practice, such as optimising relationships with
families and other support networks, the issue unfortunately remains low on the political
agenda and attendant with a high degree of political sensitivity. 152
8.144 Interstate transfers can be beneficial for the person subject to the supervision order and
their family members. However, there may be a range of reasons the transfers are difficult
to effect, including the lack of complementary provisions across jurisdictions, a lack of
motivation on the part of the people who are able to initiate these transfers and possibly
a lack of straightforward mechanisms in the legislation to enable the transfers to occur.
Questions
83 What are the barriers to effecting interstate transfers under the CMIA
84 If there are barriers, what changes should be made to make the process more
efficient
146 Ibid s 73F(1).
147 Ibid s 73F(4).
148 Ibid s 73F(6).
149 Ibid s 73F(5).
150 Andrew Carroll et al, ‘Forensic Mental Health Orders: Orders Without Borders’ (2009) 17(1) Australasian Psychiatry 34, 36.
151 Ibid.
152 Ibid.
183