Crimes (Mental Impairment and Unfitness to be Tried) Regulations 2019

These Regulations prescribe the classes of persons who count, for the purposes of paragraph (d) of the definition of "appropriate person" in section 30(6) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The prescription is narrow and mechanical. Regulation 6 names two classes: (a) mental health practitioners; and (b) registered medical practitioners employed or engaged by a designated mental health service (reg 6). The Regulations do not restate the substance of section 30(6) of the Act; they operate solely to identify which persons fall within one limb of that statutory definition.

Mechanically, the instrument is a subordinate statutory rule made under the Act. The Regulations state their objective in reg 1 and declare the authorising provision as section 80 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (reg 2). They commenced on 21 June 2019 (reg 3), were made on 12 June 2019 (endnote 1), and expressly revoke two earlier subordinate instruments: the Crimes (Mental Impairment and Unfitness to be Tried) Regulations 2009 and the 2011 Amendment Regulations (reg 4). The Regulations adopt a cross‑reference approach to terminology: the term "mental health practitioner" is given the same meaning as in section 3 of the Mental Health Act 2014, and "the Act" is defined as the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (reg 5).

The Explanatory Endnotes record that the Regulations will sunset ten years after the day of making, that is on 12 June 2029, under section 5 of the Subordinate Legislation Act 1994 (endnote 1). The instrument contains no operative procedural rules, fee schedules, evidentiary requirements, powers, or sanctions. Its legal effect is to expand or clarify who may be treated as an "appropriate person" under the specified paragraph of the Act by naming specific practitioner classes. Any duties, powers or processes that flow from being an "appropriate person" remain in the parent Act and other governing instruments; these Regulations only determine which persons fall into the prescribed classes (reg 6).

The Regulations are short and conceptually focused. Three core concepts determine their operation and reach: the notion of an "appropriate person" under section 30(6) of the parent Act, the prescribed classes in reg 6, and the cross‑reference to the Mental Health Act 2014 for the definition of "mental health practitioner" (reg 5).

"Appropriate person" is a term used in section 30(6) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The Regulations do not reproduce section 30(6). Instead they operate as a subordinate vehicle to specify the persons who, for paragraph (d) of that definition, count as appropriate. The consequential legal effect of the prescription depends on the substantive content of section 30(6) in the Act; the Regulations only supply a list of classes for one paragraph of that definition (reg 6).

Regulation 6 prescribes two classes. The first is "mental health practitioners" (reg 6(a)). The Regulations do not define that term within themselves; they adopt the existing statutory definition in section 3 of the Mental Health Act 2014 (reg 5). Therefore the identity and professional composition of this class depends directly on the Mental Health Act 2014 and any future amendments to that Act.

The second class is "registered medical practitioners employed or engaged by a designated mental health service" (reg 6(b)). This language introduces three component ideas: (i) registered medical practitioners; (ii) employment or engagement status; and (iii) the qualifying institution, a "designated mental health service". The Regulations do not define "registered medical practitioner" or "designated mental health service" within their text; those terms are likely defined elsewhere in the statutory framework or in administrative instruments. The inclusion of both "employed" and "engaged" covers both direct employment relationships and contractual or other engagement arrangements, insofar as those relationships satisfy whatever definition is used for "designated mental health service".

Legally, the instrument is a form of delegated legislation made under an express head of power in the parent Act (reg 2). Its normative mechanism is descriptive rather than prescriptive: instead of imposing a new duty or creating new powers, it fixes the identities of eligible persons under an existing statutory definition. Interpretation matters therefore turn on cross‑references to other Acts and established statutory definitions. The Explanatory Notes and Endnotes indicate that interpretative provisions of the Interpretation of Legislation Act 1984 are to be applied to the form and style of the Rule as applicable, and that headings, examples, punctuation and provision numbers form part of the Statutory Rule where relevant (endnotes and ILA references).

The Regulations directly affect three identifiable groups by naming who counts under paragraph (d) of the definition of "appropriate person" in section 30(6) of the Act (reg 6). Those groups are: mental health practitioners (as that term is defined in the Mental Health Act 2014); registered medical practitioners who are employed or engaged by a designated mental health service; and, indirectly, the organisations and decision‑makers who rely on the "appropriate person" category under the parent Act.

1. Mental health practitioners. The Regulations apply to persons who satisfy the statutory definition of "mental health practitioner" in section 3 of the Mental Health Act 2014, because reg 5 ties the meaning to that Act. Which professions and registrants fall into that label is determined by the Mental Health Act 2014. Any change to that underpinning definition in the Mental Health Act would change who is picked up by these Regulations, because the Regulations explicitly adopt that definition (reg 5).

2. Registered medical practitioners employed or engaged by a designated mental health service. The Regulations reach registered medical practitioners only where they are employed or otherwise engaged by a "designated mental health service" (reg 6(b)). This language excludes, on its face, registered medical practitioners who are not employed or engaged by a designated mental health service. As the instrument does not define "designated mental health service" or "registered medical practitioner", those terms will be supplied by the statutory and administrative framework that governs mental health services and medical registration.

3. Organisations and administrative actors. Designated mental health services and their administrative staff are affected because the inclusion of employees and engaged practitioners ties eligibility to an employment or engagement relationship with the designated service. Courts, tribunals, legal practitioners and other decision makers operating under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 will be affected in that their pool of persons who may be treated as "appropriate persons" under paragraph (d) of s30(6) is defined by these Regulations (reg 6).

There is also an indirect effect on accused persons and their representatives in proceedings governed by the Act, insofar as the class of persons eligible to perform functions associated with being an "appropriate person" will determine who may provide assessments, opinions or other services contemplated by the parent Act. The instrument does not itself create procedural requirements for calling or certifying such persons, nor does it change the substantive roles set out in the Act; it changes only who can be selected under a specific limb of the Act's definition by naming that class (reg 6).

The Regulations do not, on their face, create new duties, obligations, enforcement mechanisms or direct rights. Their legal function is classificatory: to specify which persons fall within a particular limb of a statutory definition. As such, key duties and rights remain located in the primary Act and in other governing legislation. The Regulations should be understood as shaping the set of people to whom any duties, powers or rights in the parent Act may attach by virtue of being an "appropriate person".

Duties that may flow to persons who are thereby classified arise from the parent Act, not from these Regulations. The instrument itself contains no operative text imposing conduct obligations on mental health practitioners or on registered medical practitioners employed or engaged by designated mental health services (see reg 6). Any procedural or substantive duties relevant to an "appropriate person",for example, duties to assess, report, attend court, or provide evidence,are matters for the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and any regulations, rules or practice directions made under it.

Rights that derive from being an "appropriate person" likewise depend on the parent Act. The Regulations merely confirm eligibility under paragraph (d) of the definition in s30(6) but do not create standalone rights such as entitlement to remuneration, decision‑making authority, or statutory immunity. Any such entitlements or immunities must be located in the Act or other instruments.

There are some practical implications for organisations and practitioners, which are not legal duties in the regulatory text but are foreseeable compliance tasks flowing from the classification function. Organisations employing or engaging practitioners who wish to be treated as "appropriate persons" under the Act will likely need to maintain documentation proving employment or engagement by a designated mental health service, because reg 6(b) ties eligibility to that employment/engagement relationship. Mental health practitioners will need to be able to demonstrate that they meet the statutory description in section 3 of the Mental Health Act 2014, because reg 5 imports that definition.

Finally, because the Regulations were made under section 80 of the Act (reg 2), decision makers should look to that head of power and to the Act itself for the source of any duties or rights; the Regulations function as an interpretative supplement to supply content to a definition used in the Act.

The Regulations contain no penalty, infringement, or enforcement provisions. They do not create offences, set out sanctions, or provide enforcement mechanisms. The instrument's text is limited to prescription of classes of persons for a defined purpose and to formalities such as commencement and revocation (regs 1-6). Consequently, any penalties, enforcement mechanisms or compliance sanctions applicable to conduct that arises in the context of being an "appropriate person" must be found in the parent Act, in other subordinate instruments made under the Act, or in relevant general laws governing professional conduct and registration.

Practically, this allocation has several implications for enforcement and administrative practice. First, no enforcement agency is named in the Regulations because the instrument does not establish an enforcement regime; the Act and existing regulatory bodies retain responsibility for overseeing conduct. Second, administrative verification and compliance responsibility will sit with organisations and practitioners who wish to rely on the classifications in the Regulations. For example, designated mental health services will need to be able to demonstrate employment or engagement relationships for their registered medical practitioners where status as an "appropriate person" under s30(6) is relevant to a proceeding or process. The Regulations do not prescribe documentary proof requirements; they only specify the qualifying classes (reg 6).

The Explanatory Endnotes record the legal provenance and lifecycle of the instrument, including the fact that it was made by the Governor in Council under s80 of the parent Act on 12 June 2019 and commenced on 21 June 2019 (endnote 1; regs 2-3). If any enforcement or sanctioning is required in relation to acts done in the course of a person acting as an "appropriate person", those matters must be pursued under the relevant statutory or professional frameworks rather than under these Regulations.

Finally, because the instrument will sunset on 12 June 2029 under the Subordinate Legislation Act 1994 (endnote 1), any enforcement approach that relies on continuing clarity about who qualifies under paragraph (d) will need to accommodate the instrument's ten year lifecycle or seek renewal or replacement prior to expiry.

The Regulations are explicitly cross‑referential and therefore their practical effect depends on several other statutes and administrative definitions cited in the text and endnotes.

1. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The Regulations are made under section 80 of this Act (reg 2) and operate solely to prescribe classes of persons for paragraph (d) of the definition of "appropriate person" in section 30(6) of the Act (reg 6). The substantive duties, powers, processes and legal consequences that attach to the status of being an "appropriate person" derive from the Act itself, not from the Regulations.

2. Mental Health Act 2014. The Regulations import the meaning of "mental health practitioner" from section 3 of the Mental Health Act 2014 (reg 5). That means the identity of the entire first prescribed class in reg 6(a) is determined by the Mental Health Act 2014. Any amendment to section 3 of that Act would change who is captured by reg 6(a) without further amendment to these Regulations.

3. Subordinate Legislation Act 1994. The Explanatory Endnotes record that the Regulations will sunset ten years after making, under section 5 of the Subordinate Legislation Act 1994 (endnote 1). That lifecycle rule interacts with operational planning by agencies and interested parties, requiring attention to the need for renewal or re‑enactment if the classification is to be retained beyond the sunset date.

4. Interpretation of Legislation Act 1984 and style provisions. The Endnotes refer to interpretation and style changes authorised by the Interpretation of Legislation Act 1984, including the status of headings, examples, punctuation and provision numbers as forming part of the Statutory Rule where applicable (endnotes). This interaction means that the form and drafting of the Regulation should be read in light of those interpretative rules.

5. Earlier subordinate instruments. The Regulations expressly revoke the earlier Crimes (Mental Impairment and Unfitness to be Tried) Regulations 2009 and the 2011 Amendment Regulations (reg 4). The revocation replaces those instruments for the purposes they previously served; any rights or expectations founded on those earlier instruments are displaced by the revocation, unless preserved by transitional rules elsewhere.

Operationally, the Regulations create a point of coordination between criminal procedure under the parent Act and the administrative and clinical regulation of mental health services. Because one of the prescribed classes depends on employment or engagement with a designated mental health service (reg 6(b)), administrative definitions and registration regimes that determine what counts as a designated service and as a registered medical practitioner will determine who qualifies under the criminal procedural statute. Any change in the governance of mental health services or in medical registration law may alter the practical membership of the prescribed class without amendment to these Regulations.

The Regulations themselves were made on 12 June 2019 by the Governor in Council under section 80 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, and they commenced on 21 June 2019 (endnote 1; reg 3). They replaced and revoked two prior subordinate instruments: the Crimes (Mental Impairment and Unfitness to be Tried) Regulations 2009 and the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Regulations 2011 (reg 4). The Explanatory Details reference the identifiers for the revoked instruments (S.R. No. 69/2009 and S.R. No. 4/2011) (endnote 4).

The published Table of Amendments included with the instrument records that there are no amendments made to the 2019 Regulations by subsequent statutory rules, subordinate instruments or Acts as at the Version date (endnote 2). The Endnotes also state that there are no amendments not in operation at the date of the publication (endnote 3). Accordingly, as of the Version date shown (21 June 2019), the instrument has not been amended.

The Explanatory Endnotes also note the statutory sunset: the Regulations will sunset 10 years after the date of making, that is, on 12 June 2029, under section 5 of the Subordinate Legislation Act 1994 (endnote 1). There is no indication in the instrument of any transitional or saving provisions with respect to the revocation of the earlier instruments.

Chronology in the instrument therefore is:

• 12 June 2019: Regulations made by Governor in Council under s80 of the Act (endnote 1).
• 21 June 2019: Regulations commence (reg 3).
• 21 June 2019 (Version date): Regulations recorded as Version No. 001 and no subsequent amendments recorded (endnote 2).
• 12 June 2029: Scheduled sunset date under the Subordinate Legislation Act 1994 unless earlier repealed, amended, or remade (endnote 1).

The revocation of the 2009 and 2011 instruments indicates that the 2019 Regulations were intended to replace the earlier prescription approach. The Table of Amendments and "Amendments Not in Operation" sections in the published Endnotes record no later changes to the instrument up to the version date.

The published Regulations and accompanying Endnotes provide no record of litigation about these Regulations. There are no cases, judgments, appeals or judicial notices cited in the instrument. The Explanatory Notes and Table of Amendments do not record any judicial or tribunal proceedings affecting the Regulations. The Table of Amendments explicitly records that there have been no amendments and the "Amendments Not in Operation" section records none at the date of publication (endnotes 2-3).

Because the instrument is strictly classificatory and does not create offences, sanctions or adjudicative processes of its own, litigation that implicates these Regulations would likely arise in the context of proceedings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, where questions of whether a particular person falls within paragraph (d) of the definition of "appropriate person" in section 30(6) might be contested. Any litigation making that argument would be recorded in the jurisprudence under the parent Act. The Regulations themselves do not record such litigation.

Readers and practitioners requiring authoritative judicial treatment of the legal consequences of being an "appropriate person" must consult decisions under the parent Act and not rely on the Regulations for litigation history. As the Regulations do not name or identify any cases, and the Endnotes make no reference to litigation, the document supplies no litigation history to analyse.

Several concrete points of legal and practical risk arise from the Regulations’ drafting choices and from their reliance on cross‑references to other instruments. These are practical "gotchas" that stakeholders should note and that derive directly from wording and endnotes in the instrument.

1. External definition dependence. The Regulations adopt the term "mental health practitioner" by direct reference to section 3 of the Mental Health Act 2014 (reg 5). This means the precise composition of the first prescribed class is not contained in the Regulations themselves. Any amendments to the Mental Health Act 2014’s definitions or to professional registration frameworks will change who is captured by reg 6(a) without further amendment to these Regulations. Practitioners and institutions should not assume the list of professions is static.

2. Employment or engagement requirement narrows the pool. The second prescribed class is limited to registered medical practitioners who are "employed or engaged by a designated mental health service" (reg 6(b)). This wording excludes registered medical practitioners who are not employed or engaged by a designated mental health service. For example, private consultants, clinic specialists or general practitioners who are not engaged by a designated mental health service may fall outside the prescribed class; the Regulation itself does not cover them. It is a legal gotcha to assume that any registered medical practitioner can be treated as an "appropriate person" under this limb.

3. The word "engaged" is broad but unpredictable. The Regulations use both "employed" and "engaged", which captures both direct employment and other contractual or service arrangements (reg 6(b)). However, the instrument does not define the terms. Whether a particular contractual relationship counts as an "engagement" for the purpose of the regulation may depend on external definitions or factual analysis. Parties should not assume that non‑standard arrangements automatically qualify.

4. "Designated mental health service" is not defined here. The Regulations rely on that institutional label but do not define it. Practitioners and institutions must check the relevant administrative or statutory instruments that define what counts as a designated mental health service in order to establish eligibility under reg 6(b). Without that check, organisations risk misclassifying persons as eligible or ineligible.

5. No procedural or evidentiary guidance in the Regulations. The instrument does not prescribe how eligibility is proved in proceedings under the parent Act, nor does it list documentary evidence to be provided. If a practitioner’s status as an "appropriate person" is contested in a proceeding under the Act, the parties must rely on the parent Act or court practice directions to determine admissible evidence. The Regulations create the classification but not the method to prove it.

Compliance with these Regulations is chiefly about accurate identification and documentary proof of status for the two prescribed classes when the status is relevant under section 30(6) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Because the Regulations do not create procedures or sanctions themselves, compliance steps focus on internal administrative controls and evidentiary preparedness. The following tasks flow directly and reasonably from the text of the Regulations (regs 5-6) and from the lifecycle note in the Endnotes.

1. Review statutory definitions and organisational roles. Entities likely to be involved in proceedings under the parent Act should map relevant personnel against the two prescribed classes in reg 6. For mental health practitioners, consult section 3 of the Mental Health Act 2014 to confirm whether individual clinicians meet that definition (reg 5). For registered medical practitioners, confirm whether they are employed or engaged by a designated mental health service (reg 6(b)).

2. Establish documentary proof protocols. Because the Regulations tie eligibility to employment or engagement relationships, designated mental health services should maintain clear, retrievable records for all registered medical practitioners they employ or engage. Useful documents include employment contracts, engagement letters, service agreements, payroll records, start and end dates, and appointment or roster records. Although the Regulations do not specify evidentiary requirements, these records will be the primary means to demonstrate that a person is "employed or engaged by a designated mental health service" (reg 6(b)) when their status is queried.

3. Update internal policies and forms. Legal teams and mental health service administrators should update internal templates, assessment forms, witness lists and provider registers to reflect the Regulations. Where previous procedures were built on the 2009 or 2011 Regulations, those should be reviewed and replaced in light of the revocation (reg 4).

4. Training and guidance for practitioners. Mental health practitioners and registered medical practitioners employed or engaged by designated mental health services should be informed of the Regulations and the implications of being treated as an "appropriate person" under section 30(6) of the Act. Training should emphasise: (a) the need to be able to evidence the employment/engagement relationship; (b) the dependence of "mental health practitioner" status on the Mental Health Act 2014 definition (reg 5); and (c) that the Regulations do not create independent duties or remuneration entitlements.