(1) Where a person has been charged with a federal offence on indictment and the person is acquitted because of mental illness at the time of the offence, the court must order that the person be detained in safe custody in prison or in a hospital for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.
(2) The Attorney‑General may, at any time, by order in writing, vary the prison or hospital at which a person is detained under subsection (1).
(3) Where, for urgent medical or security reasons it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the prison or hospital at which the person is detained but, where the officer does so, the officer must forthwith notify the Attorney‑General, in writing, of the variation and of the reasons for the variation.
(4) Despite subsection (1), the court may, if in the court’s opinion it is more appropriate to do so than to make an order under subsection (1), order the person’s release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years.
(5) The conditions may include:
(a) a condition that the person remain in the care of a responsible person nominated in the order; and
(b) a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person’s mental illness, mental condition or intellectual disability and, where appropriate, for treatment.
(6) Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions.
20BK Review by Attorney‑General
(1) Where, under subsection 20BJ(1), a court orders that a person be detained in safe custody in prison or in a hospital, the Attorney‑General must, as soon as practicable after the person is so detained, consider (in this section called the initial consideration) whether or not the person should be released from detention and must, while the person is in detention, reconsider the matter at least once in each period of 6 months after the initial consideration.
(2) In considering whether a person should be released from custody the Attorney‑General:
(a) must obtain and consider:
(i) a report from a duly qualified psychiatrist or psychologist; and
(ii) a report from another duly qualified medical practitioner; and
(b) may obtain and consider such other reports as the Attorney‑General considers necessary; and
(c) must take into account any representations made to the Attorney‑General by the person or on the person’s behalf.
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20BL Attorney‑General may order release
(1) The Attorney‑General may, after considering under subsection 20BK(1) whether or not the person should be released from custody, order that the person be released from custody.
(2) The Attorney‑General must not order a person’s release from detention unless the Attorney‑General is satisfied that the person is not a threat or danger either to himself or herself or to the community.
(3) An order:
(a) must be in writing; and
(b) remains in force for such a period as is specified in the order (being a period equal to the balance of the period fixed by the court for detention in safe custody under subsection 20BJ(1)) or for a period of 5 years, whichever is the lesser; and
(c) is subject to such conditions (if any) as are specified in the order.
(4) Without limiting the generality of paragraph (3)(c), the conditions that may be specified in the order may include all or any of the following:
(a) a condition that the person reside at an address specified in the order;
(b) a condition that the person present himself or herself for such medical or psychiatric treatment as is specified in the order at such times and places as are specified in the order;
(c) a condition that the person undertake such medical or mental health therapy as is specified in the order;
(d) a condition that the person undertake such social, vocational or educational counselling as is specified in the order;
(e) a condition that the person participate in such programs relating to financial management, behaviour modification or inter‑personal relationships as are specified in the order.
20BM Release order may be revoked
(1) The Attorney‑General may, by instrument in writing, revoke an order made under subsection 20BL(1) (in this section called a release order) at any time while that release order remains in force:
(a) if the person concerned has, during that period, failed, without reasonable excuse, to comply with a condition of the order; or
(b) if there are reasonable grounds for suspecting that the person has, during that period, failed, without reasonable excuse, so to comply;
and, where the Attorney‑General does so, the instrument of revocation must specify the condition of the order that the person has breached or is suspected of having breached.
(2) Before revoking a release order, the Attorney‑General must make all such enquiries and call for all such reports as are reasonably necessary for the purpose of determining whether the circumstances referred to in paragraph (1)(a) or (b) apply.
(3) Where a release order in relation to a person is revoked:
(a) a constable may arrest the person without warrant; or
(b) the Attorney‑General or the Director of Public Prosecutions may apply to a prescribed authority for a warrant for the arrest of the person.
(4) A person who is arrested under subsection (3) must, as soon as practicable after that arrest, be brought before a prescribed authority in the State or Territory in which the person is arrested.
(5) Subject to subsection (6), where a prescribed authority in a State or Territory before whom a person is brought under subsection (4) is satisfied that:
(a) the person is the person named in the instrument revoking the release order; and
(b) the release order has been revoked and the revocation is still in force;
the prescribed authority may issue a warrant:
(c) authorising any constable to take the person to a specified prison or hospital in the State or Territory; and
(d) directing that the person be detained in prison or in hospital in the State or Territory for such part of the period fixed by the court to be the period of detention in safe custody under subsection 20BJ(1) as had not elapsed at the time of the making of the release order.
(6) If the prescribed authority in the State or Territory before whom the person is brought under subsection (4) cannot complete the hearing under subsection (5) immediately, the prescribed authority may issue a warrant for the remand of the person in a prison or hospital in the State or Territory pending completion of the hearing.
(7) The Attorney‑General may, at any time, by order in writing, vary the prison or hospital at which a person is detained under this section.
(8) Where, for urgent medical or security reasons it becomes necessary to do so, an officer of the State or Territory in which the person is detained may vary the prison or hospital at which the person is detained but, where the officer does so, the officer must forthwith notify the Attorney‑General, in writing, of the variation and of the reasons for that variation.
20BN Attorney‑General to review detention of persons taken back into detention
(1) Where, under subsection 20BM(5), a prescribed authority directs that a person be detained in prison or in a hospital, the Attorney‑General must, as soon as practicable after the person is so detained, consider (in this section called the initial consideration) whether or not the person should be released from detention and must, while the person is in detention, reconsider the matter at least once in each period of 6 months after the initial consideration.
(2) Subsection 20BK(2) and, subject to the modification in subsection (3), section 20BL, apply in relation to an initial consideration and a reconsideration under subsection (1).
(3) For the purposes of applying section 20BL, subsection 20BL(1) has effect as if the reference in that subsection to subsection 20BK(1) were a reference to subsection (1) of this section.
20BP State or Territory authorities to be notified of certain releases
Where a person detained by authority of an order under subsection 20BJ(1) or a warrant under subsection 20BM(5) for a specified period in a State or Territory is due to be released because the period of the person’s detention has ended, the Attorney‑General must notify the mental health authorities of that State or Territory of the proposed release of the person.
Division 8—Summary disposition of persons suffering from mental illness or intellectual disability
20BQ Person suffering from mental illness or intellectual disability
(1) Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court:
(a) that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and
(b) that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law;
the court may, by order:
(c) dismiss the charge and discharge the person:
(i) into the care of a responsible person, unconditionally, or subject to conditions, for a specified period that does not exceed 3 years; or
(ii) on condition that the person attend on another person, or at a place, specified by the court for an assessment of the first‑mentioned person’s mental condition, or for treatment, or both, but so that the total period for which the person is required to attend on that other person or at that place does not exceed 3 years; or
(iii) unconditionally; or
(d) do one or more of the following:
(i) adjourn the proceedings;
(ii) remand the person on bail;
(iii) make any other order that the court considers appropriate.
(2) Where a court makes an order under paragraph (1)(c) in respect of a person and a federal offence with which the person has been charged, the order acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence.
(3) Where a court makes an order under subsection (1) in respect of a person and a federal offence with which the person has been charged, the court must not make an order under section 19B, 20, 20AB (other than an order covered by subparagraph 20AB(1AA)(a)(viia)) or 21B in respect of the person in respect of the offence.
20BR Means by which court may be informed
For the purposes of this Division, a court of summary jurisdiction may inform itself as the court thinks fit, but not so as to require the person charged to incriminate himself or herself.
Division 9—Sentencing alternatives for persons suffering from mental illness or intellectual disability
20BS Hospital orders
(1) Where a person is convicted in a State or Territory, on indictment, of a federal offence and the court before which the person is convicted is satisfied that:
(a) the person is suffering from a mental illness within the meaning of the civil law of that State or Territory; and
(b) the illness contributed to the commission of the offence by the person; and
(c) appropriate treatment for the person is available in a hospital in that State or Territory; and
(d) the proposed treatment cannot be provided to the person other than as an inmate of a hospital in the State or Territory;
the court may, without passing sentence on the person, make an order (in this section called a hospital order) that the person be detained in a hospital specified in the order for a period specified in the order for the purposes of receiving treatment specified in the order.
(2) A court must not make a hospital order unless, but for the mental illness of the person, the court would have sentenced the person to a term of imprisonment.
(3) A court must not specify a period of detention in a hospital that is longer than the period of imprisonment to which the person would have been sentenced had the hospital order not been made.
(4) Where the court orders a person to be detained in a hospital for a specified period, the court may fix a lesser period of detention during which the person is not to be eligible to be released from the hospital.
(5) Before reaching an opinion on the matters specified in subsection (1) in relation to a person, the court must obtain and consider the reports of 2 duly qualified psychiatrists with experience in the diagnosis and treatment of mental illness.
(6) A court may make a hospital order in respect of a person even if the person is serving a federal sentence at the time when, under the order, the person is to begin to be detained in hospital and, where a hospital order is made in such circumstances:
(a) the hospital order is sufficient authority for the person to be detained outside the prison during the period of involuntary hospitalisation under the order; and
(b) the person is to be treated, for the purposes of that sentence, as serving that sentence during the period of involuntary hospitalisation under the order; and
(c) if the person is still liable to serve a part of that sentence when the hospital order ends or is discharged, the person is to be returned for that purpose to the prison where he or she was serving that sentence before the making of the order.
(7) Subsection (4) does not enable a court, in the case of a person who is serving a federal sentence at the time when the hospital order begins, to fix a lesser period of detention ending:
(a) if a non‑parole period has been fixed in respect of the sentence—before the end of that non‑parole period; and
(b) otherwise—before the end of that sentence.
20BT Lesser periods of imprisonment fixed under hospital orders
(1) Where a lesser period of detention is fixed under subsection 20BS(4) in relation to a person detained in hospital under a hospital order, the Attorney‑General must, at the end of the lesser period, obtain and consider the reports of 2 duly qualified psychiatrists with experience in the diagnosis and treatment of mental illness so as to determine whether or not to release the person from the detention.
(2) Unless:
(a) either of the reports of the psychiatrists recommends that the person not be released because of a continuing need for hospital treatment; or
(b) the person continues, at the end of the lesser period of detention, to be required to serve a federal sentence of imprisonment that the person was serving at the time when the hospital order began;
the Attorney‑General must order the person to be released on such conditions (including conditions relating to release into the care of another person specified in the order) for the balance of the period of the hospital order as the Attorney‑General considers appropriate having regard to the reports and to such other matters as he or she considers relevant.
(3) Sections 20BM and 20BN apply in relation to a person released from involuntary hospitalisation by order under subsection (2) as if:
(a) the order under that subsection were a release order made under subsection 20BL(1); and
(b) the references in each of those sections to detention in a prison or a hospital were references only to detention in a hospital; and
(c) the reference in subsection 20BM(5) to the period of detention in safe custody under subsection 20BJ(1) were a reference to the period of detention in a hospital specified in the order under subsection 20BS(1).
20BU Discharge of hospital orders
(1) Where a person is subject to a hospital order, the person or the Director of Public Prosecutions may, at any time while the order is in force, apply to the court that imposed the order to discharge the order and to impose such other sentence as the court thinks appropriate, being a sentence that could have been imposed when the order was made.
(2) The court must not discharge a hospital order unless the court is satisfied:
(a) that the person has sufficiently recovered from mental illness no longer to require involuntary hospitalisation; or
(b) that the mental illness will not respond or respond further to hospital treatment.
(3) Where the court discharges a hospital order and imposes another sentence instead of the order:
(a) the new sentence must commence on the date of commencement of the order; and
(b) the length of the new sentence must not exceed the length of the order; and
(c) if the sentence is a sentence of imprisonment—the person concerned is to be treated as having served that part of the sentence during which he or she was subject to involuntary hospitalisation.
(4) Before reaching an opinion on the matters specified in subsection (2) in relation to a person, the court:
(a) must obtain and consider the reports of 2 duly qualified psychiatrists with experience in the diagnosis and treatment of mental illness; and
(b) if the person has been released, under section 20BR, into the care of another person for the balance of the hospital order—must obtain and consider the report of that other person; and
(c) may obtain and consider such other information as it thinks relevant.
(5) An application under subsection (1) to the court that made a hospital order may be dealt with by that court whether or not it is constituted in the way in which it was constituted when the order was made.
20BV Psychiatric probation orders
(1) Where a person is convicted in a State or Territory of a federal offence and the court is satisfied that: