43Z When supervision orders are made
The court must make a supervision order under this Division in
respect of a person if:
(a) the court declares under section 43I(2)(a), 43X(2)(a) or (3)
or 43XB(a) that the person is liable to supervision; or
(b) the Court of Criminal Appeal remits a matter to the court under
section 412A(3) for the making of a supervision order in
respect of the person.
43ZA Nature of supervision orders
(1) A supervision order may, subject to the conditions the court
considers appropriate and specifies in the order:
(a) if it is a custodial supervision order – commit the accused
person to custody:
(i) subject to subsection (2) – in a custodial correctional
facility; or
(ii) subject to subsection (3) – in another place (an
appropriate place) the court considers appropriate; or
(b) if it is a non-custodial supervision order – release the accused
(2) The court must not make a custodial supervision order committing
the accused person to custody in a custodial correctional facility
unless it is satisfied that there is no practicable alternative given the
circumstances of the person.
(2A) Without limiting subsection (1), the court may decide a supervision
order is subject to the condition that a person (an authorised
person) authorised by the CEO (Health) may use any reasonable
force and assistance:
(a) to enforce the order; and
(b) without limiting paragraph (a) – to take the accused person
into custody, or to restrain the accused person, in order to
prevent the accused person harming himself or herself or
someone else.
Criminal Code Act 1983 69
(2B) The CEO (Health):
(a) must, by Gazette notice, make supervision directions about:
(i) the qualifications of an authorised person; and
(ii) the reporting by an authorised person of any use of force
or assistance for subsection (2A); and
(b) may, in the supervision directions, provide for any other
matters about the use of such force and assistance as
decided by the CEO (Health).
(2C) An authorised person may use reasonable force or assistance as
provided in subsection (2A) only in accordance with the supervision
directions.
(3) Unless the court receives a certificate from the CEO (Health)
mentioned in subsection (4), the court must not make a supervision
order:
(a) committing the accused person to custody in an appropriate
place; or
(b) providing for the accused person to receive treatment or other
services in, at or from an appropriate place.
(4) The certificate of the CEO (Health) must state:
(a) facilities or services are available in the appropriate place for
the custody, care or treatment of the accused person; and
(b) if the appropriate place is a secure care facility – the accused
person fulfils the criteria for involuntary treatment and care
under the Disability Services Act 1993.
43ZB Appeals against supervision orders
(1) A supervision order (including a supervision order varied under
section 43ZD or 43ZE) is subject to the same rights of appeal as a
sentence.
(2) In addition to appeals referred to in subsection (1), the CEO
(Health) may appeal to the Court of Criminal Appeal against a
supervision order if he or she considers that:
(a) a different supervision order should have been made; and
(b) an appeal should be brought in the public interest.
Section 43Z - Criminal Code Act 1983 - When supervision orders are made | Zoe
Criminal Code Act 1983 70
(3) On an appeal under subsection (2), the Court of Criminal Appeal
may confirm the supervision order or quash the supervision order
and make another supervision order in substitution for it.
43ZC Term of supervision order
Subject to sections 43ZD, 43ZE and 43ZG, a supervision order is
for an indefinite term.
43ZD Variation or revocation of supervision order
(1) Any of the following persons may apply to the court for an order
varying or revoking a supervision order:
(a) the Director of Public Prosecutions;
(b) the supervised person;
(c) a person having the custody, care, control or supervision of
the supervised person;
(d) any other person who has an interest that the court recognises
as proper for the purposes of making the application.
(2) A person who makes an application under subsection (1) must give
notice of the application at least 14 days before the hearing of the
application to:
(a) the Director of Public Prosecutions; and
(b) the supervised person; and
(c) the next of kin (if any) of the supervised person; and
(d) a person having the custody, care, control or supervision of
the supervised person.
(3) If, on an application to vary or revoke a supervision order by the
supervised person, the court refuses the application, the supervised
person must not make another application within 12 months after
the date of the court's refusal or any other period (which may be
lesser or greater) the court fixes.
(3A) The court may adjourn the hearing for the application if the court
(3B) If the court adjourns the hearing under subsection (3A), the court
may make interim orders for the supervised person (including, for
example, an order that the supervised person be remanded in
custody in a custodial correctional facility or another place the court
Criminal Code Act 1983 71
considers appropriate).
(3C) The court must not make an interim order under subsection (3B)
(3D) To avoid doubt:
(a) the making of an interim order under subsection (3B) does not
revoke the supervision order; and
continues to have effect while an interim order under
subsection (3B) is in force.
(4) On hearing the application, the court may:
(a) confirm the supervision order the subject of the application; or
(b) if the application is for an order revoking the supervision order:
(i) revoke the supervision order and release the supervised
person unconditionally; or
(ii) vary the conditions of the supervision order; or
(c) if the application is for an order varying the supervision order:
(i) vary the conditions of the supervision order;
(ii) where the supervision order is a non-custodial
supervision order – vary the supervision order to a
custodial supervision order; or
(iii) where the supervision order is a custodial supervision
order – vary the supervision order to a non-custodial
supervision order.
43ZE Urgent variation of non-custodial supervision order
(1) If it appears to the Director of Public Prosecutions that a supervised
person who is subject to a non-custodial supervision order is not
complying or is not likely to comply with the supervision order and,
because of that, the supervision order should be varied urgently,
the Director of Public Prosecutions may make an urgent application
to the court for an order varying the supervision order.
Criminal Code Act 1983 72
(2) In making an application under subsection (1):
(a) the Director of Public Prosecutions may give notice of the
application to one or more of the persons specified in
section 43ZD(2) and the notice he or she gives may be less
than the 14 days required under that subsection; and
(b) the Director of Public Prosecutions may make the application
orally by telephone or in writing by facsimile or any other
available electronic means of communication.
(3) If the supervised person fails to appear at the hearing of the
application, the court must issue a warrant for the apprehension
and arrest of the supervised person.
(3A) The court may adjourn the hearing for the application if the court
(3B) If the court adjourns the hearing under subsection (3A), the court
may make interim orders for the supervised person (including, for
example an order that the supervised person be remanded in
custody in a custodial correctional facility or another place the court
considers appropriate).
(3C) The court must not make an interim order under subsection (3B)
(3D) To avoid doubt:
(a) the making of an interim order under subsection (3B) does not
revoke the supervision order; and
continues to have effect while an interim order under
subsection (3B) is in force.
(4) On hearing the application, the court may:
(a) confirm the non-custodial supervision order; or
(b) vary the conditions of the non-custodial supervision order; or
(c) vary the non-custodial supervision order to a custodial
supervision order and impose the conditions on the custodial
supervision order that the court considers appropriate.
Criminal Code Act 1983 73
(5) If the court makes an order under subsection (4)(c) varying the
supervision order to a custodial supervision order:
(a) unless the term fixed under section 43ZG in respect of the
supervision order has expired, that period continues to apply
in respect of the custodial supervision order; or
(b) if the term referred to in paragraph (a) has expired – the court
must fix the term it considers appropriate during which the
supervision order as varied is to be in force and specify the
term in the supervision order (and section 43ZG applies to and
in relation to the supervision order as varied as if that term
were a term fixed under section 43ZG(1)).
43ZF Emergency power of apprehension
(1) If a member of the Police Force suspects on reasonable grounds
(a) a supervised person is failing or has failed to comply with the
supervision order to which he or she is subject (including a
supervision order that has just been varied);
(b) the safety of a supervised person is at risk unless the
supervised person is apprehended; or
(c) the safety of the public is at risk if a supervised person is not
apprehended,
the member may apprehend the supervised person.
(2) A supervised person who is apprehended under subsection (1)
must be detained:
(a) if the supervised person is subject to a custodial supervision
order – in the place where he or she is committed to custody
under the supervision order; or
(b) if the supervised person is subject to a non-custodial
supervision order – in an appropriate place (which would, if
there is no practicable alternative in the circumstances, be a
custodial correctional facility or a police station).
(3) If a supervised person who is apprehended under subsection (1) is
subject to a non-custodial supervision order, an application for an
order varying the non-custodial supervision order is to be made to
the court under section 43ZD or 43ZE.
Criminal Code Act 1983 74
43ZG Major review of supervision orders
(1) When the court makes a supervision order, the court must fix a
term in accordance with subsection (2), (3) or (4) that is appropriate
for the offence concerned and specify the term in the order.
(2) Subject to subsections (3) and (4), the term fixed under
subsection (1) is to be equivalent to the period of imprisonment or
supervision (or aggregate period of imprisonment and supervision)
that would, in the court's opinion, have been the appropriate
sentence to impose on the supervised person if he or she had been
found guilty of the offence charged.
(3) If:
(a) the offence charged carries a mandatory penalty of life
imprisonment; or
(b) the court is of the view that life imprisonment would have been
an appropriate penalty for the offence charged;
the court must fix the period it would have set as the non-parole
period for the offence under the Sentencing Act 1995 if the
supervised person had been found guilty of the offence charged as
the term under subsection (1).
(4) If the supervised person was charged with the commission of
multiple offences, the court must fix the term under subsection (1)
by reference to the offence carrying the longest maximum period of
imprisonment.
(4A) A reference in subsection (2) to a period of supervision is a
reference to a period of custody or any other form of supervision of
a person under a court order (including, for example, a home
detention order) on the court finding the person guilty of an offence.
(4B) The court may decide the term fixed under subsection (1) is taken
to have commenced from a specified time that was:
(a) before the making of the supervision order; and
(b) at or after the time the supervised person was first taken into
custody for an offence because of which the court may make
the supervision order.
(5) At least 3 months (but not more than 6 months) before the expiry of
the term fixed under subsection (1) in respect of a supervision
order, the court must conduct a review to determine whether to
release the supervised person the subject of the supervision order
from it.
Criminal Code Act 1983 75
(5A) The court may adjourn the proceedings for the review to a time that
is after the expiry of the term fixed under subsection (1) if the court
(5B) If the court adjourns the proceedings under subsection (5A):
(a) the court may make interim orders for the supervised person
(including, for example, an order that the supervised person
be remanded in custody in a custodial correctional facility or
another place the court considers appropriate); and
continues to have effect until the completion of the review.
(5C) The court must not make an interim order under subsection (5B)(a)
(6) On completing the review under subsection (5), unless the court
considers that the safety of the supervised person or the public will
or is likely to be seriously at risk if the supervised person is
released, the court must release the supervised person
(7) If the court considers that the safety of the supervised person or the
public will or is likely to be seriously at risk if the supervised person
is released unconditionally, the court must:
(a) confirm the supervision order; or
(b) vary the conditions of the supervision order (including, if the
supervision order is a custodial supervision order, the place of
custody where the supervised person is detained); or
(c) if the supervision order is a non-custodial order – vary the
supervision order to a custodial supervision order and impose
the conditions on the order that the court considers
appropriate; or
(d) if the supervision order is a custodial order – vary the
supervision order to a non-custodial order and impose the
conditions on the order that the court considers appropriate.
Criminal Code Act 1983 76
43ZH Periodic review of supervision orders
(1) After considering a report submitted by an appropriate person
under section 43ZK, if the court considers it is appropriate, the court
may conduct a review to determine whether the supervised person
the subject of the report may be released from the supervision
order.
(2) On completing the review of a custodial supervision order, the court
must:
(a) vary the supervision order to a non-custodial supervision order
unless satisfied on the evidence available that the safety of
the supervised person or the public will be seriously at risk if
the person is released on a non-custodial supervision order; or
(b) if the court is satisfied on the evidence available that the
safety of the supervised person or the public will be seriously
at risk if the person is released on a non-custodial supervision
order:
(i) confirm the order; or
(ii) vary the conditions of the order, including the place of
custody where the supervised person is detained.
(3) On completing the review of a non-custodial supervision order, the
court may:
(a) confirm the order;
(b) vary the conditions of the order;
(c) vary the supervision order to a custodial supervision order and
impose the conditions on the order the court considers
appropriate; or
(d) revoke the order and release the supervised person
43ZI Right of persons to appear at hearings under this Division
(1) Subject to subsection (2), a person who is or is likely to be the
subject of a supervision order has a right to appear before the court
at a hearing of an application for an order making, varying or
revoking the supervision order or of a review of the supervision
order under this Division.
Criminal Code Act 1983 77
(2) If the person who is or is likely to be the subject of the supervision
order does not appear before the court, the court must satisfy itself
(a) the person has been informed of his or her right to appear but
has elected not to appear; or
(b) appearing before the court would be detrimental to the
person's health.
(3) Subsection (2) does not apply to the hearing of an urgent
application for an order varying a non-custodial supervision order
under section 43ZE.
(4) The Director of Public Prosecutions may appear before the court at
a hearing referred to in subsection (1).
(4A) In addition, the CEO (Health) is entitled to appear at a hearing of an
application for an order varying or revoking the supervision order, or
of a review of the supervision order, for a person who is in custody
in an appropriate place mentioned in section 43ZA(1)(a)(ii),
including, for example, a resident of a secure care facility under the
Disability Services Act 1993.
(5) Also, the court may give leave to a person who it considers has a
proper interest in the matter the subject of a hearing mentioned in
subsection (1) to appear before the court at the hearing.
(6) A person who is entitled to appear before the court under this
section is a party to the matter in which he or she appears and is
entitled to be legally represented.
43ZJ Court to receive report on condition of accused persons
declared liable to supervision
(1) If the court declares under Division 2 or 4 that an accused person is
liable to supervision, the appropriate person must, within 30 days
after the date of the declaration or the longer period (if any) agreed
to by the court, prepare and submit a report to the court on the
mental impairment, condition or disability of the accused person
that is the reason he or she was found to be not guilty of the
offence charged because of mental impairment or to be unfit to
stand trial.
Criminal Code Act 1983 78
(2) A report referred to in subsection (1) is to contain:
(a) a diagnosis and prognosis of the accused person's mental
impairment, condition or disability;
(b) details of the accused person's response to any treatment,
therapy or counselling he or she is receiving or has received
and any services that are being or have been provided to him
or her; and
(c) a suggested treatment plan for managing the accused
person's mental impairment, condition or disability.
43ZK Periodic reports on condition of supervised persons
(1) If the court makes a supervision order, the appropriate person
must, at intervals of not more than 12 months, until the supervision
order is revoked, prepare and submit a report to the court on the
treatment and management of the supervised person's mental
impairment, condition or disability.
(2) A report referred to in subsection (1) is to contain:
(a) details of the treatment, therapy or counselling that the
supervised person has received, and the services that have
been provided to the supervised person, since the supervision
order was made or the last report was prepared (as the case
may require); and
(b) details of any changes to the prognosis of the supervised
person's mental impairment, condition or disability and to the
plan for managing the mental impairment, condition or
disability.
43ZL Reports on views of victim or next of kin
(1) At the time the court is considering whether to make, vary or revoke
a supervision order in respect of an accused person or a
supervised person, or whether to determine to release a supervised
person from a supervision order, the victim of the offence
concerned or the next of kin of the victim (who may be a deceased
victim) may prepare and submit a report to the court setting out the
views of the victim or next of kin concerning one or more of the
(a) the conduct of the accused person or supervised person;
(b) the impact of the accused person's or supervised person's
conduct on the victim or the next of kin or any other member
of the victim's family;
Criminal Code Act 1983 79
(c) if the court is considering whether to release a supervised
person from a supervision order – the impact the supervised
person's conduct could have on the victim or next of kin or any
other members of the victim's family if the supervised person
is released.
(2) The court must receive all reports made to it under subsection (1).
(3) The court may, on its own initiative if it considers it will assist in
determining whether to make, vary or revoke a supervision order in
respect of an accused person or a supervised person, or whether to
release a supervised person from a supervision order, request one
or more of the following reports:
(a) a report setting out the views of the next of kin of the accused
person or supervised person and the impact of the accused
person's or supervised person's conduct on the next of kin or
other members of the accused person's or supervised
person's family;
(b) if the accused person or supervised person is a member of an
Aboriginal community – a report setting out the views of the
members of the Aboriginal community.
(4) The court must consider all reports made to it under this section.
43ZLA Definition
order means:
(a) a declaration that an accused person is liable to supervision;
or
(b) an order releasing an accused person unconditionally; or
(c) an interim order for the bail of an accused person; or
(d) an interim order providing for the custody of an accused
person or supervised person; or
(e) an order making, varying or revoking a supervision order; or
(f) an order releasing a supervised person.
Criminal Code Act 1983 80
43ZM Principle court to apply when making order
In determining whether to make an order under this Part, the court
must apply the principle that restrictions on a supervised person's
freedom and personal autonomy are to be kept to the minimum that
is consistent with maintaining and protecting the safety of the
community.
43ZN Matters court must take into account when making order
(1) In determining whether to make an order under this Part, the court
must have regard to the following matters:
(a) whether the accused person or supervised person concerned
is likely to, or would if released be likely to, endanger himself
or herself or another person because of his or her mental
impairment, condition or disability;
(b) the need to protect people from danger;
(c) the nature of the mental impairment, condition or disability;
(d) the relationship between the mental impairment, condition or
disability and the offending conduct;
(e) whether there are adequate resources available for the
treatment and support of the supervised person in the
community;
(f) whether the accused person or supervised person is
complying or is likely to comply with the conditions of the
supervision order;
(g) any other matters the court considers relevant.
(2) The court must not make an order under this Part releasing a
supervised person from custody (whether conditionally or
otherwise) or significantly reducing the supervision to which a
supervised person is subject unless:
(a) the court has:
(i) obtained and considered 2 reports, each report being
prepared by a person who is a psychiatrist or other
expert (but the same person must not prepare both
reports); and
(ii) considered the reports submitted to the court under
sections 43ZJ and 43ZK and received by the court under
section 43ZL, if any; and
Criminal Code Act 1983 81
(b) subject to subsections (3) and (4), the court is satisfied that
each of the following persons was given reasonable notice of
the proceedings concerned:
(i) the victim of the offence concerned;
(ii) if the victim concerned is deceased – the victim's next of
kin;
(iia) the next of kin of the supervised person concerned;
(iii) if the supervised person concerned is a member of an
Aboriginal community – the Aboriginal community.
(3) Notice is not required to be given to a person referred to in
subsection (2)(b) if the person cannot be found after reasonable
inquiry.
(4) Notice is not to be given to a person referred to in
subsection (2)(b)(i) or (ii) who has given notice to the court that he
or she does not wish to be notified of any hearings in relation to the
supervised person concerned and has not withdrawn that notice.
43ZO Legal counsel to have independent discretion
If an accused person or supervised person is unable to instruct his
or her legal counsel on questions relevant to an investigation or
proceedings under this Part, the legal counsel may exercise an
independent discretion and act as he or she reasonably believes to
be the in the person's best interests.
43ZP Counselling next of kin
(1) If an application is made to the court under this Part that might
result in an order for the release from custody of a supervised
person, the Minister must ensure that counselling services are
available to the victim, next of kin of a deceased victim and next of
kin of the supervised person.
(2) A person who, in the course of the provision of counselling services
to a person referred to in subsection (1), discloses information
about the supervised person concerned to another person does
not, in doing so, contravene the law of the Territory or any code or
rule of conduct or professional ethics and is taken not to have
committed an offence against the law in force in the Territory
because of the disclosure.
Criminal Code Act 1983 82
43ZPA Protection from liability
(1) A person is not civilly or criminally liable for an act done or omitted
to be done by the person in good faith in the exercise of a power or
performance of a function under this Act as a person authorised for
section 43ZA(2A).
(2) Subsection (1) does not affect any liability the Territory would, apart
from that subsection, have for the act or omission.
exercise, of a power, includes the purported exercise of the power.
performance, of a function, includes the purported performance of
the function.
43ZQ Regulations
The Administrator may make regulations, not inconsistent with this
Act, prescribing matters:
(a) required or permitted by this Part to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or
giving effect to this Part.