1. The reasons in matter MH 452/2022, delivered 21 January 2025, not be published.

1. Earlier this year, the Tribunal made a decision (the decision) in a contested review of detention conducted under section 180 the Mental Health Act 2015. The written reasons for decision (the reasons) were provided to the parties only. The question before the Tribunal is whether the Tribunal may publish those reasons, and in what form.
2. In the reasons below, a reference to 'ACAT' or 'the tribunal ' refers to the ACT Civil and Administrative Tribunal generally, whereas 'Tribunal' refers to the present tribunal members.

1. The decision followed upon a referral from the Court under Part 13 of the Crimes Act 1900 (ACT)[1]. Under the Crimes Act, a Court[2] may (amongst other things) order that a person (the subject person) who is found not guilty by reason of mental impairment be detained in custody pending review by the tribunal under section 180 of the Mental Health Act (MH Act).[3] Following such a review, the tribunal may order the person's release from detention, either conditionally or unconditionally. Referrals of this kind are one of several diversionary pathways by which a Court may refer a person with a mental impairment who is facing criminal charges to the tribunal so that their illness may be managed, rather than conviction and/or sentencing through the criminal process. Such orders are called "referrals".
2. A copy of sections 180 to 183 of the MH Act is attached to these reasons at Annexure A.
3. Section 180 of the MH Act is relevant only where the Court has ordered that the person be detained in custody pending review by the tribunal. There are limited circumstances where a Court may do this,[4] and in this Tribunal's experience, orders of this kind are far less commonly made than orders that a person is released from custody but is to submit to the jurisdiction of the tribunal so that it can consider whether to make a treatment order. Amongst the various considerations for the Court when determining whether to detain a person is the requirement, stated in the Crimes Act, that a person found not guilty by reason of mental impairment not be detained in a correctional centre unless no other reasonable option is available.[5]
4. Where a Court orders that a person be detained for review by the tribunal, the tribunal has 7 days to conduct a review of detention and consider whether to release the subject person.[6] In conducting the review, the Tribunal must consider a range of factors,[7] including the subject person's illness, any risk to the subject person or to others, the views of any registered affected person,[8] information provided by the Chief Psychiatrist, and the principle that detention in custody is to be regarded as a last resort and ordered only in exceptional circumstances.
5. Following review, the tribunal may order the release of the referred person. While release may be unconditional, it is more often made on conditions, as provided for by section 180(4) of the MH Act. The MH Act is silent on the kinds of conditions that may be imposed, but the tribunal will often ask the parties to suggest the conditions and has also developed a series of template orders that it has regard to. These include, for example, requirements about where the subject person will live, that they engage in treatment and care and accept medication, or that they submit to regular drug and alcohol testing.[9] An order setting out these terms of release is called a "conditional release order" (CRO). CROs are reviewed at least every six months and may become less restrictive over time as the subject person's health improves and they are reintegrated into the community.
6. It is important to note that "release" in the context of a section 180 review does not necessarily mean release into the community; it means release from the criminal justice system (usually the AMC) into the mental health system. It is not unusual for a subject person to be required to live at another secure facility, for example, release on the condition that the subject person reside at the Dhulwa Secure Mental Health Unit (Dhulwa).
7. A CRO remains in place for a period of time equivalent to the "nominated term" or "limiting period"[10] - a term nominated by the Court as being the "best estimate" of the term of imprisonment that would have been imposed had the referred person been found guilty of the offence.[11] This can be many years.
8. Hearings under s 180, like all matters under the MH Act, are routinely conducted in an informal and restorative manner, with the subject person, members of the treating team, the public advocate and, where relevant, a representative of the Victims of Crime Commissioner (VOCC) in attendance[12]. While there may be some contested issues, in the usual case these are not significant, and the tribunal is, for the most part, guided by the expert clinical opinions of the treating team on how best to ensure the subject person gets appropriate treatment, while also ensuring the protection of the community where appropriate.

1. The present matter was not a usual case.
2. The subject person was found not guilty by reason of mental impairment by a court. The court ordered that he be detained in custody pending review by the tribunal. The tribunal was, pursuant to section 180(2)(a) of the MH Act, required to list the matter as soon as practicable, and within 7 days. This was done, although at the first hearing there was no suggestion that any order should be made as a delegate of the Chief Psychiatrist was still preparing a report and both parties needed time. The matter returned to the Tribunal a few weeks thereafter.
3. We note, again, that we are being vague about dates and timeframes because, for reasons that will become clear, we do not wish to identify the subject person.
4. When the matter returned to the Tribunal, the proceedings were contested, with the subject person, on one hand, and the treating team, on the other, taking different views as to what the appropriate conditions of release were and, indeed, what form the treatment should take. In broad terms, the subject person sought an order that he be released under certain conditions, including as to residence. The delegate of the Chief Psychiatrist, on behalf of the treating team, declined to agree to such an order, being of the opinion that the option was neither clinically appropriate nor practical. The treating sought time to arrange an alternative residential placement and submitted that no release order should be made and that the subject person should remain detained in the AMC until that time. The Chief Psychiatrist's position was strongly opposed by the subject person, who also argued that under the terms of the section 180(3)(a) of the MH Act, the Tribunal must order he be released from detention unless satisfied that there were exceptional circumstances and detention was the 'last resort'. The subject person made reference to his human rights under the Human Rights Act 2004 (HR Act), and to the obligation in section 30 of that HR Act to interpret the MH Act "so far as it is possible to do so consistently with its purpose ... in a way that is compatible with human rights."
5. At the hearing the subject person was legally represented. A delegate of the Chief Psychiatrist, members of the treating team, and a representative from the VoCC were also present, as was a representative from the ACT Human Rights Commission, who was given leave to appear as amicus to assist the Tribunal. The Tribunal is grateful for all the participants' contributions.
6. The Tribunal delivered its initial decision on 21 January 2025. The decision was accompanied by the reasons, which were lengthy. In that decision, the Tribunal made the decision not to order the release of the subject person, as it could not be satisfied that there was an appropriate place to order their release to. The consequence of this decision was that the subject person, who has not been convicted of any criminal offence, was to remain incarcerated in the Alexander Maconochie Centre (AMC) pending further review.
7. The full reasons and reasoning for this undesirable situation are detailed in the Tribunal's reasons for decision, provided to the parties. The matter raises significant policy issues, as well as a number of questions of law under both the MH Act and the HR Act.
8. As is a requirement of the MH Act, the decision to not release the subject person has been reviewed every month since.[13] These reviews have largely been done in chambers, or in brief hearings, with all parties and interested persons preparing for a full hearing in July 2025. It is anticipated that at this hearing the tribunal will hear evidence from several clinicians as well as submissions from several parties. In the meantime, the subject person remains detained in the AMC.
9. In the usual course, this is the kind of matter where the tribunal would publish its reasons. However, the MH Act clearly provides that hearings are in a private,[14] which raises a range of questions about what a private hearing is, what it requires, and how the MH Act and the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) interact.
10. After the Tribunal provided its reasons to the parties, we listed the matter again and sought the views of the parties as to whether those reasons should be published as per usual, albeit with the subject person's name and other clearing identifying details withheld. The publication of the Tribunal's reasons was strongly opposed by the subject person and the Public Advocate. Submissions were also made by the Human Rights Commission about the legal aspects of such a decision. The primary concerns of all these parties were the consequences of publication for the subject person. They were also concerned that, given the particular circumstances of this case, the subject person may be identifiable even by a relatively vaguely written decision.
11. Of particular concern is that the published reasons consider the nature of the subject person's offending, his background and his psychiatric condition. These factors are all particularly relevant to, and discussed in the context of, whether there are 'exceptional circumstances' justifying his continued detention for the purpose of section 180(3).
12. The Tribunal accepts that it would be difficult to publish its reasons in a way that would include sufficient background and context to be comprehensible, without the risk of identifying the subject person. Many of the factual considerations that went to the Tribunal's ultimate decision are sufficiently unique that the subject person could be identified by reference to other, publicly available information. Moreover, the information discussed in the decision is of a highly personal nature.
13. Nonetheless, the Tribunal is acutely aware that this is a matter of some public importance. The question, therefore, is what, if anything, the Tribunal can publish in this matter.

1. Section 194 of the MH Act provides that hearings under the Act are to be in private:

(1) A hearing of a proceeding in relation to a subject person must be held in private.

_(2) However, a hearing of a proceeding in relation to a subject person who is not a child may be held in public if - _

(a) the subject person asks for the hearing to be held in public; or

(b) the ACAT orders the hearing be held in public.

(3) A private hearing is taken to be a hearing to which the ACT Civil and Administrative Tribunal Act 2008, section 39 (Hearings in private or partly in private) applies.

Note Requirements for keeping private hearings secret are set out in the ACT Civil and Administrative Tribunal Act 2008, s 40.

1. Reference is made in section 194(3) to section 39 of the ACAT Act. This section deals with circumstances where a hearing in the tribunal may be "in private" pursuant to orders made by the tribunal.
2. To put section 39 in context, it is necessary to look first at section 38 of the ACAT Act. This provides that hearings in the tribunal should be public unless orders are made under section 39 of the ACAT Act:

(1) The hearing of an application by the tribunal must be in public.

(2) However, this section does not apply to a hearing, or part of a hearing, if the tribunal makes an order under section 39 in relation to the hearing, or part.

Section 38 reflects the well-established principle that justice should not only be done but be seen to be done. This requires that proceedings be subject to public scrutiny. Suppression or non-publication orders are usually made only in exceptional circumstances.[15] Section 194 of the MH Act effectively creates an exception to this principle by making all mental health hearings "private hearings", although as will be seen, what this means could be clearer.

1. Section 39 of the ACAT Act then sets out the circumstances where the tribunal can make orders effectively disapplying the principle of open justice expounded in section 38. It provides:

(1) This section applies in relation to an application, or part of an application, if the tribunal is satisfied that the right to a public hearing is outweighed by competing interests.

Note See s (5) in relation to competing interests.

(2) The tribunal may, by order, do 1 or more of the following:

(a) direct that the hearing of the application, or part of the hearing, take place in private and give directions about the people who may be present;

(b) give directions prohibiting or restricting the publication of evidence given at the hearing, whether in public or private, or of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing;

(c) give directions prohibiting or restricting the disclosure to some or all of the parties to the application of evidence given at the hearing, or of a matter contained in a document lodged with the tribunal or received in evidence by the tribunal for the hearing.

(3) The tribunal may make an order under subsection (2) on application by a party or on its own initiative.

(4) A person must not contravene an order under subsection (2) (b) or (c).

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

_(5) For this section, the right to a public hearing is outweighed by competing interests if the tribunal is satisfied that the application, or part of the application, should be kept private - _

(a) to protect morals, public order or national security in a democratic society; or

(b) because the interest of the private lives of the parties require the privacy; or

(c) to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.

1. Broadly, section 39 gives the tribunal the discretion to make orders closing or privatising a hearing.[16] However, the test is not a light one - the starting point remains that a should be public unless a ground for making it private is established as per the criteria in subsection (5).
2. Section 40 of the ACAT Act then regulates the disclosure of 'protected information', being information obtained, inter alia, in a "private hearing" or to which a direction made under section 39(2) applies:

court includes any entity with power to require the production of documents or answering of questions.

protected information _means information that is disclosed to, or obtained by, a person to whom this section applies if - _

(a) the information is disclosed to the person because of the exercise of a function under this Act by the person or someone else; and

_(b) at disclosure, the function is being exercised in relation to - _

(i) a hearing held in private; or

(ii) evidence, or a document, to which a direction under section 39 (2) (b) or (c) applies.

_(2) This section applies to a person who is, or has been - _

(a) a tribunal member; or

(b) a member of the staff of the tribunal; or

(c) acting under the direction or authority of the tribunal.

_(a) the person - _

(i) makes a record of protected information; and

(ii) is reckless about whether the information is protected information; or

_(b) the person - _

(i) does something that divulges protected information; and

_(ii) is reckless about whether - _

• (A) the information is protected information; and
• (B) doing the thing would result in the information being divulged.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

_(4) This section does not apply if the record is made, or the information is divulged - _

(a) under this Act or another territory law; or

(b) in relation to the exercise of a function, as a person to whom this section applies, under this Act or another territory law.

(5) The person need not divulge protected information to a court, or produce a document containing protected information to a court, unless it is necessary to do so for this Act or another territory law.

1. As to how these provisions affect the current proceedings, and the tribunal's ability to publish reasons, it is perhaps most useful to commence by setting out how sections 39 and 40 of the ACAT Act operate to protect certain information acquired in hearings in the tribunal in general and then turn to the operation of the MH Act and how it applies in this case.

1. As stated above, section 38 of the ACAT Act establishes the principle that justice must be open. Section 39 then sets out the limited circumstances where the tribunal may make orders that a hearing be closed and that evidence not be provided to the public, or even to some parties if the tribunal is satisfied that the right to a public hearing is outweighed by certain competing interests.
2. Section 39 applies to "applications or parts of applications", not just to hearings. "Application" is defined for the purposes of the ACAT Act in the Dictionary to the Act to mean:

(a) for this Act generally - means an application under section 9; and

_(b) for parts 5 to 9 includes - _

(i) a matter referred or appealed to the tribunal under any authorising law; and

(ii) a matter heard or dealt with by the tribunal on its own initiative.

Examples - authorising laws under which a matter may be referred to the tribunal

1 Crimes Act 1900, s 331 (Referral to ACAT)

2 Human Rights Commission Act 2005, s 53A (Referral of discrimination complaints other than commission-initiated discrimination matters)

A person may apply to the tribunal if an authorising law provides that the application may be made.

1. In effect, section 9 of the ACAT Act provides that a person may apply to the tribunal if an authorising law provides that the application may be made. The Dictionary to the ACAT Act defines "application', for relevant purposes, to include a "a matter referred to the tribunal under an authorising law."
2. By applying to "applications", section 39 appears to give the tribunal the power to make non-publication orders in relation to the whole matter, not just the matters the subject of hearing. However, the directions that the tribunal may make, set out in section 39(2), are focused on the evidence given at hearings or received for the purpose of a hearing. The tribunal may:

(a) direct that the hearing of the application or part of the hearing take place in private and give directions about the people who may be present;

(b) give directions prohibiting or restricting the publication of evidence given at the hearing or of matters contained in documents filed with the tribunal or received in evidence by the tribunal for the hearing; and

(c) give directions prohibiting or restricting the disclosure to some or all of the parties evidence given at the hearing or contained in a documents lodged with the tribunal or received in evidence.

1. Section 39 does not, of itself, operate to make a hearing private. Rather, it provides the circumstances under which the tribunal, on application or on its own initiative, may order that an application, or part of an application, should not be published.
2. In the usual course, the tribunal would make a non-publication order under section 39 following an interim application by a party, although in a small subset of cases (e.g. those involving minors) orders may be made by the tribunal in chambers prior to any listing. The tribunal does not explicitly make orders or directions under section 39 in relation to MH matters. It did not make any such orders in this case.

Interaction between the ACAT Act and the MH Act

1. As established above, a hearing under the MH Act must be "held in private" unless a contrary order is made under section 194 of that Act. Persons who must be given notice of the hearing are set out in section 188 of the MH Act, and parties who may "appear and give evidence" are set out in section 190 and include parties to which the tribunal grants leave.[17] It is not usual for the tribunal to make an express additional order under section 39(2)(a) closing the hearing to the public.
2. But what does a "private hearing", as per section 184 of the MH Act, actually entail? And what does the statement that a private hearing under the MH Act is a hearing to which the section 39 of the ACAT Act applies add to that? Unfortunately, the answer is unclear.
3. There is no definition of "hearing" in the MH Act. There are several places in the MH Act where a "hearing" is stated to be a prerequisite to making an order (e.g. before making any mental health order[18] or forensic mental health order[19]), but there is no express requirement for a "review" under section 180 to be by way of hearing.
4. There is also no definition of the term "review" for the purposes of section 180. The term "review" is used in various places the MH Act, including, for example, in section 182, which relates to reviews following a breach of a CRO. This section makes it clear that a review and a hearing are a different thing - s 182(3) provides that a review under this section can be conducted without a hearing. This raises the question - does section 194, which expressly provides that hearings are to be in private apply to reviews that are conducted without a hearing? It is not immediately apparent that it does (although orders could still be made under section 39 of the ACAT Act). Ultimately, however, this question does not need to be resolved for this matter, as in this matter, the Tribunal did conduct a hearing, and that hearing was undisputedly required to be "in private" under section 194.
5. The terms "private", "in private" or "private hearing" are not defined in either the MH Act or the ACAT Act. Presumably, the tribunal is meant to adopt the ordinary meaning of the term, although even this is not straightforward.
6. It may be that a hearing "in private" is intended to be equivalent of a closed or 'in camera' hearing, in the sense of being closed to anyone who does not have a right, or leave, to be there. There is some support for this in the text of the MH Act. As mentioned above, section 190 of the MH Act sets out who may "appear and give evidence" at hearing. This includes a list of specific entities and provides that the tribunal is able to grant leave to other parties to "appear" and/or "give evidence". Although not specifically stated, it may be that any person who is on this list has a right to attend the hearing, as well as appear and give evidence.
7. It may be that a person not on the list in section 190 must seek leave not just to appear and give evidence for a hearing under the MH Act, but also to attend, but this is not expressly stated. This approach is consistent with the intention of the provision as set out in the Explanatory Statement to the Mental Health (Treatment and Care) Bill 1994 (MH Explanatory Statement), in which the original version of this clause was first enacted:

"clause 95 provides that proceedings of the Tribunal are to be held in private unless the person who is the subject of the proceedings requests otherwise or if the Tribunal orders otherwise. The requirement is to preserve the privacy of the person who is the subject of the proceedings as much as possible. Only certain persons are entitled to be present at proceedings held in private. The Tribunal may give leave for other persons to be present only after endeavouring to ascertain the wishes if the person who is the subject of the proceedings."[20]

1. It must be noted, however, that the language in the MH Explanatory Statement is more expansive than that in the Act - making preference to needing leave to be "present" rather than to "appearing" and "giving evidence". An Explanatory Memorandum may be used in working out the meaning of the Act[21], including resolving ambiguity and displacing the apparent meaning of the Act[22], but care needs to take when relying on external interpretative aids to do the latter[23]. If the literal meaning is to be departed from, it must usually be clear that the literal intention does not give effect to the intention of the legislature and that some departure from literal meaning will fulfil that intent.[24]
2. When considering what may have been intended by a private hearing, a useful consideration of what a private hearing means in practice was undertaken by the High Court in SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (SZAYW).[25] In this case, the High Court looked at the meaning of "in private" in the context of a Refugee Review Tribunal hearing under the then section 429 of the Migration Act 1958, which required that oral hearings be conducted "in private". The appellant gave his evidence at first instance at a time when the applicants in other matters heard at the same time were also present. On appeal, he argued that this meant that his matter was not held "in private".
3. The High Court rejected this argument as an "unduly narrow and inflexible interpretation of s 429."[26] Their Honours[27] observed[28] that:

"The concept of privacy is imprecise, and is not to be equated either with secrecy or isolation. Where, as in s 365, the Act requires that evidence be given "in public", then the requirement is satisfied if, subject to any relevant provisions of the Act, and to the exercise of a Tribunal's express or implied powers, the proceedings are open to the public in the sense that members of the public who wish to be present may attend and observe what is going on. Obviously, in order for a hearing to be in private it is necessary that it not be in public. However, it is not sufficient. A hearing would not be in private if, for example, a Tribunal member decided to invite a group of his or her acquaintances to be present. In such a case the hearing would not be open to the general public, but the applicant's entitlement to privacy would be disregarded. "Public" and "private" are words that are used in contrast, but they do not cover the entire range of possibilities. Furthermore, the question whether proceedings are taking place in public is not the same as the question whether there are present at the proceeding persons who, vis-à-vis an applicant, are to be regarded as members of the public. The group of onlookers, in the example just given, would, vis-à-vis an applicant, properly be regarded as members of the public, but the hearing would not be open to the public because ordinary members of the public, other than members of the group of onlookers specially invited to be present, would be excluded. (citations omitted).

1. In considering the matter, the Honours recognised that section 429 of the Migration Act was enacted for the benefit of refugee applicants to protect them against the threat of reprisals so that they should feel uninhibited in presenting their case to the RRT. These beneficial reasons imply a personal or protective purpose for having a private hearing - that is, ensuring vulnerable persons can fully engage without the risk of public exposure and possible recriminations. This is as opposed to, say, a hearing that is private for national security purposes or so as to ensure an investigation is not compromised, where the secrecy provisions may be better aimed at protecting the evidence given or witness identities for reasons of investigative integrity.
2. However, circumstances may arise in which the requirements of privacy will need to allow for the practical capacity to meet the statutory objectives of fairness, economy and informality. Their Honours continued[29]:

"Since the requirement of privacy is for the benefit of an applicant, it is not open to the Tribunal member to allow anyone to be present at the hearing so long as it is not open to the general public. On the other hand, persons whose presence is reasonably required for purposes of or in connection with the performance of the Tribunal's functions are clearly within the contemplation of the statute as persons who may be present at the hearing. Obvious examples may include interpreters, security officers, necessary administrative staff and witnesses, although privacy may require the exclusion of witnesses when they are not giving evidence."

1. SZAYW was decided under a different legislative scheme. However, both the wording in section 194 of the MH Act and the clear purpose behind it are analogous to those of section 429 of the Migration Act, and we are of the view that these principles provide a persuasive guide to how the MH Act provisions should be approached. That is, the purpose of holding a hearing in private is to protect the subject person from the risks to their welfare, reputation and privacy that may come from public exposure and scrutiny of their mental health. Disinterested members of the public should not be able to attend hearings, obtain the transcript, or peruse documents or evidence lodged in this jurisdiction of the tribunal. At the same time, however, a practical approach needs to be taken to conducting MH hearings and determining the ambit of "private". For example, in addition to the Chief Psychiatrist or their delegate, the tribunal and the parties should anticipate members of the treating team, such as nurses or social workers, as well as wardsman and 'need to know' administrative officers, as being routinely present at the hearing and/or privy to information disclosed at it. The hearing is private, as opposed to public, but the proceedings are not entirely in secret.
2. When considering the meaning of "private hearing", we also note the wording of section 40 of the MH Act. This section deals with "protected information", which is defined to mean the information is disclosed to the person because of the exercise of a function under this Act by the person or someone else where at disclosure, the function is being exercised in relation to a hearing held in private; or evidence, or a document, to which a direction under section 39 applies.
3. As all hearings under the MH Act are held "in private", information obtained by the anyone exercising a function under the ACAT Act in relation to a mental health hearing would fall within the definition of "protected information" for the purposes of this section. As per section 40(2), this includes members of the tribunal, registry staff of the tribunal or a person acting under direction or authority of the tribunal, including members hearing matters or writing reasons and the officers or persons engaged or employed by the tribunal who are responsible for finalising and disseminating orders.
4. Section 40 does not apply to the subject person or other participants in the proceedings who are not performing functions under the ACAT Act. It does not, for example, prevent a party from disclosing what goes on during a hearing, whether to a family member, a friend, or indeed the public at large.
5. The limitations on the scope of section 40 may explain what is intended by the proclamation in section 194(3) of the MH Act, that a "private hearing" is "taken to be a hearing to which the ACT Civil and Administrative Tribunal Act 2008, section 39 (Hearings in private or partly in private) applies".
6. As noted above, section 39 of the ACAT Act does not itself make anything "private". Rather, where the requirements of section 39(1) are met, the Tribunal may make certain orders about non-publication that bind all parties. Such an order would be in addition to any protections that operate pursuant to section 40. Hence, one interpretation, and perhaps the most straightforward reading of section 194(3) of the MH Act is that a private hearing under section 194 of the MH Act should be taken to meet the threshold requirements of section 39(1) of the ACAT Act, such that it is in all such cases open to the tribunal to make the kinds of directions available to it under section 39(2). These directions would be available in relation to the entire "application", and could be crafted to capture all persons in attendance at the hearing. We note, however, that no such orders were made in this case.
7. The alternative interpretation (and one seemingly advanced by Legal Aid on behalf of the subject person[30]) is that section 194 of the MH Act may be taken as a specification that all the possible directions for privacy provided for under s 39(2) of the ACAT Act are to apply in regard to mental health hearings, without further order. We agree that this interpretation is open, but we are not convinced that this is intended, or practicable. The consequence would be to bind all parties and participants to expansive non-publication orders, including potentially the subject person, and subject them to the possible imposition of the offence provisions in section 40 of the ACAT Act where they to disclose information contained in documents filed with the tribunal. It would, however, ensure the secrecy of mental health provisions more broadly.
8. Consequently, the Tribunal prefers the first of the interpretation, rather than the second, but the situation is unclear and this is a matter that may require legislative clarification. It does not, however, ultimately affect the decision in this case, as this Tribunal and the registry staff that assist it are bound by the provisions in section 40 in any case.

1. Section 40 makes it an offence for a person who is bound by it to:

(a) something that divulges information obtained in the hearing of this matter; or

(b) be reckless about whether the information is protected information and doing something that would result in the information being divulged.

1. Section 40 does not specify to whom the information cannot be divulged. This suggests the information cannot be "divulged" to any other person or entity, unless specifically authorised elsewhere.
2. "Divulge" is defined in section 40(1) of the ACAT Act to "include communicate" but is otherwise not defined. The ordinary meaning is not controversial:

to disclose or reveal (something private, secret, or previously unknown).[31]

1. Having regard to this definition, the use of the word "divulge" suggests that the prohibition on publication applies only to information that is private or secret in character, or that has not already been revealed. On such an interpretation, publishing reasons to persons who are already in possession of the information is clearly not "divulging" information. More controversially, it may also be that the publication of information that is already in the public domain would also fall outside the definition, as such information would not have the character of being "secret", "private" or otherwise "previously unknown."
2. We note, however, that the Explanatory Statement to the ACT Civil and Administrative Tribunal Bill 2008 (the bill that became the ACAT Act) suggests that the intention of the provision may have been broader:

"Clause 40 Secrecy for private hearings etc

This clause creates an offence where information that is protected under clause 39 is disclosed in certain circumstances. This clause has been included to compel compliance with the right to fair trial principles expounded in clauses 38 and 39." (emphasis added)

1. Again, the wording in the explanatory statement is not consistent with the Bill (or the Act). The Act (and the Bill) use the word "divulge", and the Explanatory Memorandum uses the word "disclose". While one may be splitting semantic hairs, arguably the word 'disclose' has a slightly different meaning to 'divulge', with the ordinary meaning being less focused on secrecy:
   1. to cause to appear; allow to be seen; make known; reveal: to disclose a plot.
   2. to uncover; lay open to view.
2. Nonetheless, if one reads section 40 of ACAT Act having regard to the Explanatory Memorandum[32], then arguably information that falls within the definition of section 39 is given, by virtue of that section, a necessary of character of "private" information such that the disclosure/divulging of that information is prohibited, notwithstanding it may have been publicly available in any case.
3. If this interpretation is adopted, then the scope of the information potentially subject to section 40 is vast. It is not even apparent that anonymising the decision and withholding the facts that may identify the subject person would be sufficient. We do not think this is the intention of the privacy provisions in either the MH Act or the ACAT Act - that is, we think the privacy provisions are aimed at protecting the identify and privacy of the subject person, as per the hearing in SZAYW, not in making mental health hearings a process of which there can be no public scrutiny. However, this could certainly be clearer.
4. Adopting as we do the concept of "divulging" information as requiring that the information have the character of being private, secret or otherwise unpublished, we consider it arguable that the tribunal may publish reasons about a matter, including reasons that may identify a person, so long as those reasons do not divulge information that is not already in the public domain.
5. However, even accepting that definition, there is a practical problem in drawing a line between what is protected information and what it not. Of particular concern, section 40 includes a clear requirement that the tribunal not be reckless about whether the information is protected information, or about the possibility of disclosing it if is.
6. "Recklessness" is defined in the Criminal Code, section 20 to include:

_(1) A person is reckless in relation to a result if - _

(a) the person is aware of a substantial risk that the result will happen; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.

_(2) A person is reckless in relation to a circumstance if - _

(a) the person is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to the person, it is unjustifiable to take the risk.

(3) The question whether taking a risk is unjustifiable is a question of fact.

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.

1. This means that, even assuming that section 40 applies only information that has a necessary degree of secrecy or privacy, a member of the tribunal would need to be very careful before reporting or recording any information obtained in a mental health hearing, because they potentially commit an offence if that information does fall within section 40 and they divulge it.
2. For reason stated elsewhere, given the matters canvassed in the reasons, it is not possible for the Tribunal to disentangle the protected information from the public information in a way that would result in a readable and informative decision without risking a breach of section 40.

1. Section 40(4) of the act provides that section 40 does not apply if the record is made or the information is divulged:

(a) under the ACAT Act or another territory law;

(b) in relation to the exercise of a function as a person to whom this section applies under the ACAT act or another territory law.

1. In terms of "other laws", section 195 of the MH Act sets out a list of persons who must be given a copy of an Order made under the MH Act. It also allows the tribunal to order that any party not listed be given a copy of the Order.[33]
2. "Order" is not defined in the MH Act, or the ACAT Act, but the term's ordinary meaning is the directions or statements issued by the tribunal in disposition of a matter. An "Order" made by the tribunal does not usually include the reasons for the Order, although they may be provided separately.
3. The exercise of certain functions may also require the divulging of information. The tribunal must give a copy of an order made under the MH Act to the persons identified in section 195 of the Act, or as otherwise ordered under that section. Some kinds of orders made under the MH Act (including psychiatric and forensic treatment orders) must be accompanied by a statement about how the person meets the criteria for making the order,[34] in which case those reasons would be included with the order, and hence the publication of that combined document would be divulging protected information in accordance with an ACT law. However, a CRO does not require reasons[35] so this exception is not relevant to the present case.
4. A "function" is defined in the Legislation Act to include a "...authority, duty and power". This is potentially broader than a "law", although it is not clear where the boundary would fall.
5. The Tribunal does have an obligation to provide reasons for the making of a CRO or a transcript of oral reasons where requested by a party as per section 60 of the ACAT Act:

(a) the tribunal makes an order on an application; and

(b) within 14 days after the day the order is made, a party asks for a statement of reasons for the making of the order.

(2) The tribunal must give the party a written statement of reasons or a transcript of an oral statement of reasons for the making of the order.

(a) any principles of law relied on by the tribunal; and

(b) the way in which the tribunal applied the principles of law to the facts.

Note For what must be included in a statement of reasons, see the Legislation Act, s 179.

(4) This section does not apply to an order under section 53 (Interim orders) or an order of a procedural nature.

Examples - order of a procedural nature adjournment, order for default judgement, order joining a party to a proceeding

1. If reasons or a transcript are provided to a party on request under section 60, then the tribunal would be permissibly exercising a function in disclosing information to that requesting party, and would be protected by section 40(4) to the extent it has divulge protected information. There is nothing, however, that would allow the tribunal to publish those reasons to a non-party. It may be that the party receiving the reasons would not, in the absence of an order under section 39 of the ACAT Act, be prohibited by operation of section 40 from passing them on, but the Tribunal, tribunal staff and other parties bound by section 40 would be.
2. Section 60 aside, there is no general obligation under the ACAT Act to provide, or publish, reasons where not requested by a party, nor is there any obligation to publish reasons to anyone other than the parties.

Can the Tribunal order that a MH earing not be held in private?

1. I note for completeness that section 194(2)(a) of the MH Act provides that the hearing of a proceeding in relation to a person who is not a child may be held in public if the ACAT orders the hearing be in public.
2. While it is not entirely clear, it appears that this is a discretionary power, and that the tribunal may make such an order either on application or on its own motion. No criteria is set out in the MH Act as to when or why such an order could be made. Any discretion would obviously have to be exercised having regard to the intention of the legislation, and the reasons why MH Act hearings are by default "in private".
3. No such order was sought, or made, at the hearing of this matter. Given that the hearing was conducted in private, and the parties presented their cases and their evidence of that basis, it would not be appropriate for the Tribunal to now make an order that the hearing be in public, even were it able to do so.

1. The hearing having been conducted in private, and the details of the case being so specific as to make it impossible to meaningfully deidentify the reasons, the Tribunal orders that:
   1. The reasons in matter MH 452/2022, delivered 21 January 2025, not be published.

Extracts from Mental Health Act 2015

(1) This section applies if, under the Crimes Act, part 13, a court orders that a person be detained in custody for immediate review by the ACAT.

(2) The ACAT must review the detention and consider the release of the person -

(a) as soon as practicable, and not later than 7 days after the day of the order; and

(b) if the ACAT does not order the release of the person - at least monthly while the detention continues.

Note Under s 188, the ACAT must give notice of the hearing to certain people and may give notice to anyone else it considers appropriate.

(3) In reviewing the detention and considering the release of a person, the ACAT must have regard to the following:

(a) that detention in custody is to be regarded as a last resort and ordered only in exceptional circumstances;

(b) the nature and extent of the person's mental disorder or mental illness, including the effect it is likely to have on the person's behaviour in the future;

(i) the person's health or safety would be, or would be likely to be, substantially at risk; or

(ii) the person would be likely to do serious harm to others;

(d) if there is a registered affected person in relation to the person -

(i) any statement by the registered affected person; and

(ii) the views of the victims of crime commissioner;

(e) if the court nominated a term under the Crimes Act, part 13 - the nominated term;

(f) any information the chief psychiatrist or director-general has given to the ACAT about the treatment, care or support the person requires, including that the person be admitted to a particular approved mental health facility or approved community care facility.

(4) An order for the release of a person may be made subject to the conditions (if any) the ACAT considers appropriate, including a requirement to comply with a particular mental health order or forensic mental health order as in force from time to time.

(5) If, on a review, the ACAT does not order the release of a person, the ACAT may -

(a) make mental health orders (including additional orders) in relation to the person; or

(b) make forensic mental health orders (including additional orders) in relation to the person; or

(c) vary or revoke any of the mental health orders or forensic mental health orders in force in relation to the person.

(6) If, on a review, the ACAT does not order the release of a person, the ACAT must tell the following that the detention continues:

(i) each person with parental responsibility for the child under the Children and Young People Act 2008, division 1.3.2 (Parental responsibility); and

(f) if the person has a guardian under the Guardianship and Management of Property Act 1991 - the guardian;

(g) if the person has an attorney under the Powers of Attorney Act 2006 - the attorney;

(h) if the person has a nominated person - the nominated person;

(i) if a health attorney is involved in the treatment, care or support of the person - the health attorney;

(j) if the person is detained in a correctional centre - the corrections director-general;

(k) if the person is detained in a detention place - the CYP director-general.

(a) the ACAT orders the release of a person subject to a condition under section 180 (4); and

(2) The chief psychiatrist must tell the ACAT of the contravention, in writing, as soon as practicable after becoming aware of the contravention.

(1) The ACAT must review a condition under section 180 (4) to which an order for release of a person is subject at least every 6 months while the order is subject to the condition.

(2) The ACAT must review each condition under section 180 (4), to which an order for release of a person is subject within 72 hours after receiving notice under section 181 (2).

(3) A review required under subsection (2) may be conducted without a hearing.

Note If the ACAT holds a hearing for the review, s 188 (1) (Notice of hearing) does not apply (see s 188 (3)).

(4) In reviewing a condition of an order of release for a person, if there is a registered affected person in relation to the person, the ACAT must take into account -

(a) any statement by the registered affected person; and

(b) the views of the victims of crime commissioner.

(a) amend or revoke any condition of the order, including any requirement to comply with a particular mental health order or forensic mental health order as in force from time to time; or

(b) impose any other condition the ACAT considers appropriate, including a requirement to comply with a particular mental health order or forensic mental health order as in force from time to time.

(6) Also, if a person contravenes a condition of an order of release, the ACAT may order that the person be detained in custody until the ACAT orders otherwise.

(1) Nothing in section 180 or section 182 permits the ACAT to require a person to remain in custody for a period that is, or for periods that in the aggregate are, greater than the limiting period.

limiting period, in relation to a person, means a period that is equivalent to the period -

(a) commencing on the day on which an order of the relevant court under the Crimes Act, part 13 is made requiring the person to be detained in custody until the ACAT orders otherwise; and

(b) ending on the day on which, if the person had been sentenced to a term of imprisonment for a period equivalent to the term nominated under that Act, section 301, section 302, section 304 or section 305 (as the case may be) that sentence would have expired.

[1] For reasons that will become apparent, these reasons are vague as to the specifics of the referral.

[2] Ie. the ACT Magistrates Court or the ACT Supreme Court

[3] See section 323(3)(a) (Supreme Court - non serious offence); section 324(2)(a) (Supreme Court - serious offence); s 328(3)(a) (Magistrates Court - non serious offence); s 328(2(a) (Magistrates Court - serious offence).

[4] Crimes Act s 308 sets out the criteria

[5] s 308(d)

[10]MH Act section 183(2); Crimes Act 1901 sections 301 - 304

[11] Crimes Act Section 301(2), 302(2), 304(2); 305(2)

[12] See MH Act s. 190 for a list of who may appear and give evidence as a proceeding under the MH Act.

[15] See the principles identified in Country Care Group Pty Ltd v Commonwealth Director of Public Prosecutions (No 2) [2020] FCAFC 44 per Allsop CJ, Wigney and Abraham JJ; citing Rinehart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [27]; Rinehart v Rinehart (2014) 320 ALR 195; [2014] FCA 1241 at [23] - noting the statutory scheme is different, but we are satisfied that the principles are nonetheless broadly applicable

[16] GP v MacKenzie & Ors (Appeal) [2018] ACAT 96 at [109]

[21] Legislation Act 2002 s. 141(1) and 142, Table 142, item 3.

[22] Legislation Act 2001 s. 138

[23] See Legislation Act 2001 s. 141(2)

[24] Cooper Brookes (Wollongong) Pty Ltd v FCT [1981] HCA 26 at [310]; Hammon v Commissioner for ACT Revenue (Administrative Review) [2015] ACAT 12 at [79]

[25] [2006] HCA 49

[27] Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ

[30] See subject person's submissions dated 21 February 2025 at [8].

[32] As is permissible in the case of ambiguity: See Legislation Act 2001 s.142, Table 142, item 4.

[33] Section 195(1)(k)

[34] See e.g. section 59(2)(b) for Psychiatric Treatment Orders or 67(3)(b) for Community Care Orders

[35] Section 40 would not, however, apply to persons who simply receive a copy of that order, unless they fall within the scope of section 40(2). In relation to those other persons, the Order would likely be covered by other, general, privacy laws.