This law sets up medico-legal procedures for people suspected of mental impairment: courts assess fitness to stand trial, can adjourn or hold special hearings, and instead of conviction may impose secure detention, supervised community release, treatment orders, or discharge.
It mainly affects defendants, courts, the Chief Psychiatrist, Tribunal and prosecutors, and shifts decision-making and resource burdens from ordinary criminal courts into forensic mental‑health services, so implementation depends on clinical capacity and inter-agency coordination.
This Act sets out procedures and outcomes where a defendant's mental state affects criminal proceedings: how courts decide fitness to stand trial, how special hearings operate when a defendant is unfit, and what orders courts may make for detention, supervision or treatment of persons found not guilty by reason of insanity or otherwise subject to forensic or treatment orders. The Act does not itself define treatment orders or many clinical terms; it repeatedly cross‑references the Mental Health Act 2013 for concepts such as approved hospital, Chief Psychiatrist, treatment order and secure mental health unit (see s 3, s 18(2)(c), s 21(1)(c), s 29A(1)). It also extends to forensic and supervision orders made under the Sentencing Act 1997 (s 4(2)).
Mechanically, the Act:
Defines unfitness to stand trial and a rule excluding mere memory loss from that head of incapacity (s 8(1)-(2));
Presumes fitness; places the standard of proof for unfitness at the balance of probabilities (s 9);
Provides that courts may reserve and investigate fitness and prescribes who may trigger or require that investigation (s 10-11);
Requires jury determination of fitness in Supreme Court proceedings (s 12) and provides oath/affirmation forms for jurors (Schedule 1);
Establishes special hearings where an unfit defendant may nonetheless be tried on the available limited evidence, with the same onus and standard as in ordinary criminal trials (ss 15-17);
Specifies the available disposals where a defendant is found not guilty by reason of insanity, where no finding can be made, or where the special hearing results in an insanity‑based not guilty: restriction order (detention in a secure mental health unit), supervision order (release under Chief Psychiatrist supervision with specified conditions), treatment order (dealt with under the Mental Health Act 2013), release on conditions, or unconditional release (ss 18, 21);
Current sections
Direct links to the current provisions in Criminal Justice (Mental Impairment) Act 1999.
[Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]next of kin of a person means a person's spouse, parents, children, any other person who is the primary carer of the person, a person who is in a caring relationship, within the meaning of the Relationships Act 2003 , with the person or any other class of person prescribed by the regulations as the next of kin of a person;
victim, in relation to an offence or conduct that would, but for the fact that the perpetrator has been found not guilty of the offence by reason of insanity or the fact that a finding to that effect has been made, have constituted an offence, means a person who has suffered significant mental or physical injury as a direct consequence of the offence or conduct and includes the immediate family of a deceased victim.
(1) A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired or for any other reason, the person is –
(a) unable to understand the nature of the charge; or
(b) unable to plead to the charge or to exercise the right of challenge; or
(c) unable to understand the nature of the proceedings; or
(d) unable to follow the course of the proceedings; or
(e) unable to make a defence or answer the charge.
(2) Notwithstanding subsection (1)(e) , a person is not unfit to be tried if the only reason that the person is unable to make a defence or answer a charge is that he or she is suffering from memory loss.
9
Presumption of fitness to stand trial and standard of proof
9 Presumption of fitness to stand trial and standard of proof
(1) A person's fitness to stand trial is to be presumed unless it is established, on an investigation under this Part, that the person is unfit to stand trial.
(2) The question of a person's unfitness to stand trial is to be determined on the balance of probabilities.
10
Reservation of question of fitness to stand trial
10 Reservation of question of fitness to stand trial
(1) A court before which a person is charged with an offence may, on the application of the prosecutor, the defendant or on its own initiative, reserve the question of the defendant's fitness to stand trial for investigation under this Part.
(a) the question is to be reserved for determination by the Supreme Court; and
(b) after the question is so determined –
(i) the preliminary proceedings are to be completed in accordance with the relevant criminal procedures; and
(ii) if appropriate, the Supreme Court may return the preliminary proceedings to the relevant court for completion.
(3) If, after a trial begins, the court of trial decides that the question of the defendant's fitness to stand trial should be investigated, the court may adjourn or discontinue the trial and proceed, subject to this Part, with the investigation.
(4) Nothing in this section prevents the question of a defendant's fitness to stand trial from being raised more than once in the same proceedings.
(5) A court must not conduct an investigation into a defendant's fitness to stand trial unless it appears to the court that there is a real and substantial question as to his or her fitness to stand trial.
11
Procedure on investigation
11 Procedure on investigation
(1) On an investigation into a defendant's fitness to stand trial, a court –
(a) must hear any relevant admissible and probative evidence and representations put to the court by the prosecutor or the defendant; and
(b) may call evidence on its own initiative; and
(c) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.
(2) At an investigation, the defendant is entitled to be legally represented.
12
Investigation by Supreme Court into fitness to stand trial
12 Investigation by Supreme Court into fitness to stand trial
(1) In the case of proceedings in the Supreme Court, the question whether a defendant is fit to stand trial must be determined by a jury.
(a) take an oath in the form specified in Part 1 of Schedule 1 ; or
(b) make an affirmation in the form specified in Part 2 of Schedule 1 .
(4) If a jury determines that the defendant is unfit to stand trial, it must also determine whether or not the defendant is likely to become fit to stand trial during the next 12 months.
13
Finding that defendant is not unfit to stand trial
13 Finding that defendant is not unfit to stand trial
(1) If an investigation is completed before a jury is empanelled for the purposes of a trial and the court does not find that the defendant is unfit to stand trial, the court must call on the defendant to plead to the charge and, if he or she does not do so, must enter a plea of not guilty.
(2) If an investigation is completed after a jury is empanelled for the purposes of a trial and the court does not find that the defendant is unfit to stand trial, the court must resume the proceedings in accordance with appropriate criminal procedures.
14
Finding that defendant is not fit to stand trial
14 Finding that defendant is not fit to stand trial
(1) If, on an investigation, a court finds that the defendant is unfit to stand trial or records a finding to that effect under section 19 , the court must determine whether or not the defendant is likely to become fit to stand trial during the next 12 months.
(2) If the court determines that the defendant is likely to become fit to stand trial during the next 12 months, the court must adjourn the proceedings for a period not exceeding 12 months and discharge any jury empanelled for the purposes of the trial.
(3) If, after the adjournment, the court is of the opinion that the grounds on which the investigation was thought to be necessary no longer exist, the court may decide not to proceed with the investigation.
(4) Where the court decides not to proceed with the investigation, the court must call on the defendant to plead to the charge and, if he or she does not do so, must enter a plea of not guilty.
(5) In the case of a trial in the Supreme Court, a decision under subsection (3) is to be made without further proceedings before a jury.
15
Special hearings
15 Special hearings
(1) A court must proceed to hold a special hearing if –
(a) the court determines that the defendant is not likely to become fit to stand trial within 12 months; or
(b) the defendant does not become fit to stand trial within 12 months after the determination referred to in section 14(2) .
(2) The purpose of the special hearing is to determine whether, despite the unfitness of the defendant to stand trial, on the limited evidence available the defendant is not guilty of the offence.
(3) In the case of proceedings in the Supreme Court, the question whether a defendant is not guilty of the offence must be determined by a jury.
(1) A special hearing is to be conducted so that the onus of proof and standard of proof are the same as in a trial of criminal proceedings and in other respects as nearly as possible as if it were a trial of criminal proceedings.
(2) The fact that the person has been found to be unfit to stand trial is taken not to be an impediment to his or her representation.
(3) Without limiting the generality of subsection (1) , at a special hearing –
(a) the defendant is taken to have pleaded not guilty to the offence; and
(b) the defendant's legal representative may exercise the defendant's rights to challenge jurors or the jury; and
(c) the defendant may raise any defence that could be properly raised as if the special hearing were an ordinary trial of criminal proceedings; and
(d) the defendant is entitled to give evidence.
17
Findings at special hearings
17 Findings at special hearings
The following findings are available to a court at a special hearing:
(a) not guilty of the offence charged or of any offence available as an alternative;
(c) not guilty of the offence charged on the ground of insanity or a finding to the same effect;
(d) a finding cannot be made that the defendant is not guilty of the offence charged or any offence available as an alternative.
18
Effect of findings
18 Effect of findings
(1) A defendant who is found not guilty of an offence at a special hearing is taken to have been found not guilty at an ordinary trial of criminal proceedings.
(1) If it appears that a person (the defendant) has breached the conditions on his or her release imposed under section 18(2)(e) or section 21(1)(e) , an application may be made to the court, which imposed the conditions, for an order under this section.
(2) An application under subsection (1) may be made by any of the following:
(3) A person making an application under subsection (1) must give notice of the application to the defendant.
(4) The court may issue a warrant for the arrest of the defendant if –
(a) the defendant fails to appear at the hearing of the application; or
(b) the court is satisfied that reasonable efforts to give the defendant notice of the application have been made but those efforts have been unsuccessful.
(5) If a court finds a defendant guilty of an offence punishable by imprisonment committed while the defendant was on release subject to conditions imposed under section 18(2)(e) or section 21(1)(e) (in this section called the new offence), a person referred to in subsection (2) –
(a) may make an oral application to the court, while the defendant is before the court in relation to the new offence, for an order under this section; and
(b) is to provide the defendant in writing with the grounds for the oral application, if directed to do so by the court.
(6) If an application is made under subsection (5) to a court that is not the court that imposed the conditions on the defendant, the court hearing the application may do either of the following:
(a) deal with the application under this section;
(b) adjourn the application to the court that imposed the conditions and either grant the defendant bail or remand the defendant in custody.
(7) If, on the hearing of an application under this section, the court is satisfied that the defendant has breached the conditions on his or her release, it may –
(a) confirm the conditions as originally imposed; or
(b) impose new conditions on the defendant; or
(c) revoke the order imposing the conditions and deal with the defendant for the offence or offences in respect of which the order was made in any manner in which the court could deal with the defendant under section 18(2) or section 21(1) , as the case may be.
(8) In determining how to deal with a defendant who is found to have breached the conditions of his or her release under this section, the court must take into account the extent to which the defendant had complied with the conditions before committing the breach.
Part 4
Persons Liable to Forensic Orders and Treatment Orders
Part 4 Persons Liable to Forensic Orders and Treatment Orders
(b) the Director of Public Prosecutions or counsel representing the Director of Public Prosecutions must appear for the Crown at the hearing of the application; and
(d) the applicant and the Director of Public Prosecutions may call evidence in support of, or in opposition to, the application; and
(e) if either party causes a report to be prepared relating to the application and intends to tender the report as evidence, that party must provide the other party with a copy of the report; and
(f) if either party puts any such report in evidence –
(i) the other party is entitled to cross-examine the person who made the report; and
(ii) the party that put the report in evidence may, after any such cross-examination, examine the person making the report by way of reply; and
(a) request the court before which the defendant was found to be unfit to stand trial to resume the proceedings against the defendant; or
(b) determine that no further proceedings are to be taken against the defendant for the offence in respect of which he or she was found unfit to stand trial and advise the defendant in writing of that fact.
(1) [Section 29A Subsection (1) amended by No. 4 of 2023, s. 16, Applied:25 Sep 2023] A supervision order is an order releasing the person to whom it applies under the supervision of the Chief Psychiatrist and on such conditions as to the supervision of that person and such other conditions as the court considers appropriate.
(2) Without limiting the conditions that may be specified in a supervision order, such conditions may include any one or more of the following conditions:
(2) Without limiting the persons who may apply to vary or revoke a supervision order, a person has a proper interest in the matter if the person has the care and control of the person subject to the supervision order.
(a) an application is to be in writing with a copy served on the Director of Public Prosecutions and, if the defendant is not the applicant, on the defendant; and
(b) the Director of Public Prosecutions or counsel representing the Director of Public Prosecutions must appear for the Crown at the hearing of the application; and
(c) the defendant may be present at the hearing of the application unless the Court makes an order to the contrary; and
(d) the applicant, the defendant and the Director of Public Prosecutions may call evidence in support of, or in opposition to, the application; and
(e) if a party causes a report to be prepared relating to the application and intends to tender the report as evidence, that party must provide each other party with a copy of the report; and
(f) if a party puts any such report in evidence –
(i) each other party is entitled to cross-examine the person who made the report; and
(ii) the party who put the report in evidence may, after any such cross-examination, examine the person making the report by way of reply; and
(2) A prescribed person may apprehend a defendant who is subject to a supervision order if the prescribed person believes on reasonable grounds –
(a) that –
(i) the defendant has contravened, or is likely to contravene, the supervision order; or
(ii) there has been, or is likely to be, a serious deterioration in the defendant's mental health; and
(b) that, because of the breach or likely breach of the supervision order or the deterioration or likely deterioration in the defendant's mental health, there is a risk that the defendant will harm himself, herself or another person.
(3) As soon as practicable after apprehending a defendant under subsection (2) , the prescribed person is to –
(ii) a secure mental health unit if the prescribed person is of the opinion that the defendant should be taken to a secure mental health unit for treatment or for the protection of the defendant or any other person.
(5) When apprehending a defendant, taking him or her to a secure mental health unit or an approved hospital or transferring him or her to a secure mental health unit under this section, a prescribed person may –
(a) be assisted by such persons as he or she considers appropriate; and
(b) use such restraint and force as the prescribed person believes appropriate in the circumstances; and
(c) enter, without warrant, any premises or part of premises in which the prescribed person reasonably believes the defendant is present.
(6) A secure mental health unit to which a defendant is taken under subsection (3) is to admit the defendant and may detain the defendant in the unit –
the defendant may be detained in the secure mental health unit until the application is determined by that Tribunal.
(8) Despite subsection (6) , if within any period for which a defendant may be detained under that subsection an application is made to the Supreme Court under section 30 to vary or revoke the supervision order in respect of the defendant, the defendant may be detained in a secure mental health unit until the Court has determined the application.
(9) While a defendant is being detained in an approved hospital or secure mental health unit under this section, the supervision order is suspended.
31A
Suspension of supervision order while defendant imprisoned
31A Suspension of supervision order while defendant imprisoned
[Section 31A Inserted by No. 72 of 2005, s. 104, Applied:20 Feb 2006] If a defendant is sentenced to a term of imprisonment for an offence while subject to a supervision order, the supervision order is suspended while the defendant is in prison serving the term of imprisonment.
For the purposes of proceedings under this Part, a court may –
(a) call such expert evidence as it thinks fit; and
(b) order the production of medical reports in respect of a defendant and for that purpose may require the defendant to undergo a medical, psychiatric or psychological examination.
33
Reports on attitudes of victims and next of kin
33 Reports on attitudes of victims and next of kin
(1) For the purpose of assisting a court to determine proceedings under this Part, the Attorney-General must provide the court with a report stating, so far as reasonably ascertainable, the views of the next of kin of the defendant and the victims, if any, of the defendant's conduct.
(2) In the case of a defendant released under a supervision order, a report is not required if the purpose of the proceeding is –
(a) to determine whether the defendant should be detained or subjected to a more rigorous form of supervision; or
(b) to vary, in minor respects, the conditions on which the defendant was released.
34
Principle on which courts are to act
34 Principle on which courts are to act
[Section 34 Substituted by No. 72 of 2005, s. 106, Applied:20 Feb 2006] A court is to apply, where appropriate, the principle that restrictions on the defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community when determining –
(ii) the possible effects of the proposed action on the behaviour of the defendant; and
(b) has considered the report on the attitudes of victims, if any, and next of kin prepared under this Part; and
(c) is satisfied that the defendant's next of kin and the victims, if any, of the offence with which the defendant was charged have been given reasonable notice of the proceedings.
(3) Notice need not be given under subsection (2)(c) to a person whose whereabouts have not, after reasonable inquiry, been ascertained.
(3) On an appeal, the Court of Criminal Appeal may affirm or quash the decision or order against which the appeal is brought or substitute any other decision or order as it thinks proper.
(1) If a magistrate is of the opinion, after taking into account the matters required to be considered in determining the order to be made, that a forensic order should be made in respect of a defendant, the magistrate may refer the matter to the Supreme Court for determination.
(2) On the referral of a matter to the Supreme Court under subsection (1) , the Supreme Court –
(a) must enquire into the circumstances of the case; and
(b) has the same powers to deal with the defendant as if the defendant had been dealt with in the Supreme Court.
(a) the Tribunal must issue the defendant with a certificate to that effect; and
(b) the defendant may apply immediately, despite any other provision of this Act, to the Supreme Court for discharge, revocation or variation of the forensic order.
(b) provide a copy of that recommendation to the defendant.
Part 5
Miscellaneous
Part 5 Miscellaneous
38
Counsel to have independent discretion
38 Counsel to have independent discretion
If a defendant is unable to instruct his or her legal representative on any question relating to an investigation or special hearing under this Act, the legal representative may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant's best interests.
39
Power of court to deal with defendant before proceedings completed
39 Power of court to deal with defendant before proceedings completed
(1) If the question of a defendant's fitness to stand trial is reserved for investigation under this Act, the court by which the question was reserved or by which the investigation is to be conducted may –
(b) the court considers that the defendant should be admitted to a secure mental health unit for his or her own health or safety or for the protection of others; and
(i) the admission of the defendant to the secure mental health unit is necessary for his or her care or treatment; and
(ii) adequate facilities and staff exist at the secure mental health unit for the appropriate care and treatment of the defendant; and
(iii) in the case of a defendant who has not attained the age of 18 years, the secure mental health unit is the most appropriate place available to accommodate him or her in the circumstances having regard to the objectives and general principles set out in sections 4 and 5 of theYouth Justice Act 1997 .
(a) an order requiring the production of a report in relation to the defendant's fitness to stand trial and his or her medical, psychological or psychiatric condition; and
(b) an order requiring the defendant to submit to an assessment for the purposes of a report referred to in paragraph (a) ; and
(c) an order giving directions in relation to the nature and means of obtaining the assessment referred to in paragraph (b) ; and
(d) an order allowing the person who is required to produce a report access to the defendant's medical records with or without the defendant's consent.
(a) proceedings are adjourned under Part 2 after a court determines that a defendant is likely to become fit to stand trial; or
(b) a court orders that a defendant is liable to supervision under this Act but wishes to reserve the question as to how the court is to deal with the defendant –
the court may exercise any of the powers conferred under subsection (1) .
39A
Limitation on making certain orders in respect of youth
39A Limitation on making certain orders in respect of youth
defendant includes a person who is subject to a restriction order or any other order under this Act that commits a person to, or otherwise requires the detention of a person in, a secure mental health unit.
(2) [Section 39B Subsection (2) amended by No. 4 of 2023, s. 22, Applied:25 Sep 2023] If a court requires a report from the Chief Psychiatrist or is provided with a report by the Chief Psychiatrist in relation to a defendant, the court may make such orders as to the distribution and security of the report provided as it considers necessary or appropriate.
defendant means a person who is subject to a restriction order or any other order under this Act that commits a person to, or otherwise requires the detention of a person in, a secure mental health unit;
specified means specified in a restriction order or any other order under this Act that commits a person to, or otherwise requires the detention of a person in, a secure mental health unit.
(2) If a court makes a restriction order or any other order under this Act that commits a defendant to, or otherwise requires the detention of a person in, a secure mental health unit –
(a) the court is to specify in the order that the specified person, or a person of the specified class of person, is to be responsible for taking the defendant to the specified secure mental health unit; and
(b) the court may specify in the order that the specified person or another specified person, or a person of the specified class or another specified class of person, is to be responsible for bringing the defendant from the specified secure mental health unit before the court in connection with the exercise by the court of its powers under this Act.
(3) [Section 39C Subsection (3) amended by No. 4 of 2023, s. 23, Applied:25 Sep 2023] A copy of the restriction order or other order that commits a defendant to, or otherwise requires the detention of the defendant in, a secure mental health unit and any report of the Chief Psychiatrist or other medical practitioner relevant to the decision of the Court to make the order are to accompany the defendant to the specified secure mental health unit.
(4) While a defendant is the responsibility of a person as specified in a restriction order or other order that commits the defendant to, or otherwise requires the detention of the defendant in, a secure mental health unit –
(a) that person has the custody of the defendant; and
(b) the defendant is taken to be in detention for the purposes of section 41 .
40
Exclusion of evidence
40 Exclusion of evidence
A finding made on an investigation into a defendant's fitness to stand trial or on a special hearing does not constitute an issue estoppel against the defendant in any later civil or criminal proceedings and evidence of any such finding is not admissible against the defendant in criminal proceedings against the defendant.
41
Arrest of person escaping from detention or absent without leave
41 Arrest of person escaping from detention or absent without leave
(1) If, immediately before the commencement of this section, a person was detained in custody under a restriction order in force under section 382 of the Criminal Code or under Division 2 of Part IV of theMental Health Act 1963 , that person is taken to be subject to a restriction order made under this Act on the commencement of this section.
(2) Notwithstanding section 37 , immediately after the commencement of this section the Mental Health Tribunal must review the detention of a person who is taken by virtue of subsection (1) to be subject to a restriction order made under this Act on that commencement.
(2) On the application of any of the following persons, that person may be provided with a copy of any report in respect of a defendant which is provided to a court under this Act:
(a) the controlling authority of a secure mental health unit if the defendant is admitted to the secure mental health unit;
(1) The Governor may make regulations for the purposes of this Act.
(2) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of any Act that amends this Act.
(3) Regulations made under subsection (2) may take effect on the day on which the Act amending this Act commences or a later day as specified in the regulations, whether the day so specified is before, on or after the day on which the regulations are made.
44
Savings and transitional provisions consequent on the enactment of the Mental Health Amendment (Secure Mental Health Unit) Act 2005
44 Savings and transitional provisions consequent on the enactment of the Mental Health Amendment (Secure Mental Health Unit) Act 2005
former Act means this Act as in force immediately before the commencement day.
(2) Where appropriate, an order made under the former Act that is in force immediately before the commencement day continues in effect in accordance with its terms and is taken to have been made under this Act.
(3) A supervision order made under the former Act by a court other than the Supreme Court and in force immediately before the commencement day is taken to have been made by the Supreme Court under this Act.
(4) The Forensic Tribunal is to review a restriction order or supervision order made under the former Act under section 37 but the first review is to be undertaken at a time to be determined by the Forensic Tribunal.
(5) For the purposes of subsection (4) , the Forensic Tribunal is not limited to determining, for the undertaking of the first review of the restriction order or supervision order, a time that is within the period of 12 months commencing on the commencement day.
44A
Transitional provision on commencement of Mental Health Act 2013
44A Transitional provision on commencement of Mental Health Act 2013
Sourced from Tasmanian Legislation Online (legislation.tas.gov.au), CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
1 Short title
1 Short title
This Act may be cited as the Criminal Justice (Mental Impairment) Act 1999 .
2 Commencement
2 Commencement
The provisions of this Act commence on a day or days to be proclaimed.
3 Interpretation
3 Interpretation
In this Act, unless the contrary intention appears –
[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006][Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014]approved hospital has the same meaning as in the Mental Health Act 2013 ;
[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006][Section 3 Amended by No. 4 of 2023, s. 12, Applied:25 Sep 2023]authorised person means a person authorised by the Chief Psychiatrist to exercise the powers of an authorised person under this Act;
[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006][Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014][Section 3 Amended by No. 4 of 2023, s. 12, Applied:25 Sep 2023]
[Section 3 Amended by No. 4 of 2023, s. 12, Applied:25 Sep 2023]Chief Psychiatrist has the same meaning as in the Mental Health Act 2013 ;
[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006][Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014][Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006][Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014]
[Section 3 Amended by No. 21 of 2016, s. 6, Applied:11 Jul 2016] has the same meaning as in the ;
Confers powers to apprehend and detain defendants subject to supervision orders where there is reasonable belief of breach or imminent deterioration and risk of harm, including use of force and entry without warrant (s 31);
Creates a breach process for conditions on release: specified persons may apply if a defendant breaches conditions; the court may confirm, change or revoke the supervision/conditional release and deal with the defendant under the same disposals available originally (s 21A);
Requires periodic review of forensic orders by the Tribunal under the Mental Health Act 2013 and gives review‑related rights, certificates and referral options back to the Supreme Court (s 37);
Sets procedural safeguards for expert evidence, the production and sharing of psychiatric reports, and the limited admissibility of fitness/special hearing findings in later proceedings (ss 32, 33, 39B, 40);
Allocates administrative and clinical roles to the Chief Psychiatrist (notifications, authorisations, reports) and the Attorney‑General and Director of Public Prosecutions (prosecution decisions when a defendant becomes fit) (ss 29, 29A, 41A, 39B, 29).
The Act therefore re‑allocates certain decision nodes in the criminal process to clinical authorities, to courts (including the Supreme Court and the Tribunal), and to the Attorney‑General/DPP at defined points. Several sections articulate minimum procedural steps and timelines (for example, application intervals for discharge s 26(1), review timings s 37(1), time limits on detention on apprehension s 31(6)). The Act also establishes who receives reports and when reports may be disputed and excluded from consideration unless parties are afforded opportunities to lead and cross‑examine (s 39B). Where the Act uses the term "treatment order", it treats those as being made under the Mental Health Act 2013 (s 18(2)(c), s 21(1)(c), s 18(4), s 21(3)).
Main concepts
The Act organises around a small set of core legal constructs that combine criminal procedure and mental‑health law.
Unfitness to stand trial (Part 2):
Defined in s 8: inability to understand the charge, plead, understand proceedings, follow proceedings, or make a defence, caused by disordered or impaired mental processes or other reasons. However, inability to make a defence caused only by memory loss does not amount to unfitness (s 8(2)).
Presumption of fitness and the civil standard: fitness is presumed unless an investigation establishes unfitness on the balance of probabilities (s 9).
Investigation and hearings:
Courts may reserve the question of fitness for investigation (s 10). A "real and substantial question" threshold applies before a court may investigate (s 10(5)). The court must hear admissible, probative evidence, call evidence on its own initiative, and may require psychiatric or other expert examinations (s 11). Defendants are entitled to legal representation at investigations (s 11(2)).
For Supreme Court proceedings, fitness is determined by a jury (s 12). If a jury finds unfitness it must also determine whether the defendant is likely to become fit within 12 months (s 12(4)).
If a defendant is unfit and not likely to become fit within 12 months, the court must hold a special hearing to determine whether the defendant is not guilty on the limited evidence available (ss 14-15). Special hearings proceed, as nearly as possible, like ordinary trials with the same onus and standard of proof; the defendant is taken to have pleaded not guilty and has protections including representation and the right to give evidence (ss 16, 17).
Disposals and forensic orders (Part 3 & Part 4):
Where a verdict or finding results in a not guilty by reason of insanity, inability to make a finding, or certain special hearing outcomes, the court must choose among: restriction order (detention in a secure mental health unit), supervision order (release under Chief Psychiatrist supervision and conditions), treatment order (as per Mental Health Act 2013), release on conditions, or unconditional release (s 18(2), s 21(1)). Only the Supreme Court may make restriction or supervision orders (s 18(3), s 21(2)).
Restriction orders require admission to and detention in a secure mental health unit until discharged by the Supreme Court (s 24). Discharge applications have timing rules (first application not less than 2 years after the order; subsequent applications at intervals of not less than 2 years) and procedural rules about service, DPP appearance, and report exchange (s 26).
Supervision orders are release under the Chief Psychiatrist's supervision with conditions; conditions may include medication and compliance with Chief Psychiatrist directions (s 29A). The Act gives the Tribunal and the Chief Psychiatrist roles in notification where a supervised defendant objects to medication (s 29A(3)).
Powers for enforcement and interim action:
The court may admit a defendant to bail, remand, order secure mental health unit detention, or make other custody orders while questions of fitness are investigated (s 39). Orders committing persons to secure mental health units must be supported by Chief Psychiatrist reports in the youth context (s 39A).
Apprehension powers for supervised defendants allow a prescribed person (wide list including Chief Psychiatrist, those administering treatment, authorised persons, police) to apprehend a defendant where there are reasonable grounds of likely contravention or serious deterioration and risk of harm; powers include use of restraint, entry without warrant and taking to approved hospitals or secure mental health units (s 31). The Act specifies limited periods of detention on apprehension (s 31(6)) and routes for extensions by the Chief Psychiatrist or Tribunal (s 31(6)(b)-(c)).
Breach process: specified persons (authorised person, police, prosecutor, probation officer, Chief Psychiatrist) can apply for orders if a defendant breaches release conditions; notice is required; the court may issue warrants for arrest if necessary; and on proof of breach the court may confirm, change conditions or revoke the order and re‑deal with the defendant as under s 18(2) or s 21(1) (s 21A).
Review and oversight:
Forensic orders are reviewed by the Tribunal under the Mental Health Act 2013 within 12 months and yearly thereafter; the Tribunal applies the principle of minimising restriction consistent with community safety (s 37(1)-(2), s 34) and may issue certificates that enable immediate applications to the Supreme Court (s 37(3)-(7)). The Tribunal may recommend changes including substitution of restriction orders for supervision orders and vice versa (s 37(4)-(7)).
Procedural safeguards:
Expert evidence may be called by the court and the production of medical reports may be ordered (s 32).
The Attorney‑General must provide courts with a report of victims' and next of kin’s views to assist the court (s 33). Reports are not required in limited supervision proceedings (s 33(2)).
Courts must generally consider reports from the Chief Psychiatrist and at least one other expert who has personally examined the defendant before significant changes to detention or supervision (s 35(2)(a)). If the Chief Psychiatrist’s report is disputed, the court cannot take it into account unless the disputing party has had opportunity to lead and cross‑examine on the disputed matters (s 39B(4)-(5)).
Relationship with mental health law:
Treatment orders and other clinical disposals are integrated with the Mental Health Act 2013. The Act treats treatment orders it makes as if made under that Act (s 18(4), s 21(3)), and invokes mental health definitions, roles and the Tribunal established under that Act repeatedly (see s 3 definitions and many cross‑references).
Regulatory and administrative powers:
The Chief Psychiatrist may authorise persons for purposes of the Act (s 41A). The Governor may make regulations, including savings and transitional provisions (s 43). The Act contains a number of transitional and savings clauses for earlier regime changes (ss 44, 44A).
Who it affects
The Act creates obligations and decision points for a range of actors in the criminal justice and mental health systems. The primary affected parties are:
Defendants accused of offences whose mental state raises questions of fitness: an accused may be investigated, held for assessment, subject to special hearings, and become subject to restriction, supervision or treatment orders (Part 2; ss 8, 11, 15, 18, 21, 24, 29A).
Courts at multiple levels: magistrates’ courts, the Supreme Court and specialist tribunals. The Act applies to all courts (s 4(1)); the Supreme Court has exclusive power to make restriction or supervision orders (s 18(3), s 21(2)), and must empanel juries for fitness and special hearings in Supreme Court proceedings (s 12, s 15). The Court of Criminal Appeal hears appeals from Supreme Court decisions under the Act (s 36).
The Chief Psychiatrist: core clinical and administrative duties include providing reports required before some orders or detentions (s 39(1A)(c), s 39A), authorising persons to exercise statutory powers (s 41A), being notified when a defendant under a forensic or treatment order becomes fit to stand trial (s 29), providing copies of reports to parties (s 39B(3)), and supervising persons under supervision orders (s 29A(1)). The Chief Psychiatrist also may be asked to prepare reports for Supreme Court discharge or variation hearings (s 26(3)(g), s 30(4)).
Mental Health Tribunal (Tasmanian Civil and Administrative Tribunal as defined in s 3): undertakes statutory reviews of forensic orders under the Mental Health Act 2013 and can issue certificates enabling immediate Supreme Court applications; it can authorise extensions of detention following apprehension (s 31(6)(c), s 37).
Director of Public Prosecutions and Attorney‑General: DPP must appear in discharge/variation hearings (s 26(3)(b), s 30(7)(b)); the Attorney‑General is to be informed when the Chief Psychiatrist is satisfied a defendant has become fit and, after consulting the DPP, must either request the court to resume proceedings or determine that no further proceedings are to be taken (s 29(1), s 29(3)). If the Attorney‑General determines no further proceedings, he or she must request dismissal and notify relevant parties (s 29(3A)).
Prosecutors and defence counsel: both can apply to reserve fitness questions, compel examinations, call/contest expert evidence, and must be provided certain reports. Counsel for defendants have independent discretion where the defendant cannot instruct them (s 38).
Clinical practitioners and psychiatric experts: psychiatrists and other experts are required to examine defendants when the court orders and produce reports that the court must consider (ss 11, 32, 35(2)(a), 26(3)(g), 30(4)). The Act specifies that at least two experts, one being the Chief Psychiatrist or a medical practitioner nominated by the Chief Psychiatrist, must personally examine the defendant before substantial changes to liberty are ordered (s 35(2)(a)).
Approved hospitals, secure mental health units and their controlling authorities: responsible for admitting and detaining persons under restriction orders or apprehensions, and receive copies of reports and orders that must accompany defendants (s 39C(3), s 26(4), s 42A).
Police, probation officers and authorised persons: police and authorised persons have powers to apprehend defendants (s 31(1), (2), (5)), arrest those who have escaped or are absent without leave (s 41), and may apply to courts under breach provisions (s 21A(2)). Probation officers may apply under the breach provisions (s 21A(2)(d)).
Victims and next of kin: the Attorney‑General must provide courts with reports of their views insofar as reasonably ascertainable (s 33). Next of kin of deceased victims are defined (s 3).
Corrections authorities: the Director of Corrective Services (Director) is referenced where a defendant is remanded or imprisoned; supervision orders are suspended while a defendant serves a sentence (s 31A); the Director can be supplied with reports if the defendant is remanded to prison (s 42A(2)(c)).
Administrative actors: Secretary of the responsible Department under the Mental Health Act 2013 must be notified in certain processes and can apply in variation/revocation matters (ss 26(1), 30(1)).
Who pays and who decides: courts decide on fitness/investigation and make disposals; the Chief Psychiatrist and Tribunal perform clinical oversight and reviews; the Attorney‑General/DPP decide whether to resume criminal proceedings when a person becomes fit (s 29). Costs are not set out in the Act but the processes (medical examinations, report preparation, detention and Tribunal review) impose clinical and administrative resource demands on health services and the Tribunal.
Key duties and rights
The Act assigns procedural and substantive duties and confers specific rights for defendants, courts, health authorities and other parties. The most salient are:
For courts and judges:
Duty to investigate fitness where a real and substantial question exists (s 10(1), s 10(5)). The court must hear relevant admissible and probative evidence, may call evidence itself, and may require psychiatric/other expert examinations with reporting to the court (s 11(1)(a)-(c)).
Duty to apply the principle of minimum restriction consistent with community safety in choosing or varying orders (s 34).
Duty to consider specified reports: before discharging or reducing supervision/detention the court must have considered reports from the Chief Psychiatrist or a medical practitioner nominated by that office and one other expert who has personally examined the defendant (s 35(2)(a)). The court must also consider reports on victims’/next of kin attitudes and ensure reasonable notice to them (s 35(2)(b)-(c), s 33).
For the Chief Psychiatrist and clinical staff:
Duty to prepare and provide reports when ordered by the court and, unless the court directs otherwise, provide copies to prosecutor and defence practitioner as soon as practicable (s 39B(2)-(3), s 30(6)).
Duty to be notified and to notify the Attorney‑General if satisfied that a defendant subject to an order has become fit to stand trial (s 29(1)).
Power to authorise persons to exercise statutory powers under the Act (s 41A).
Role of supervision: the Chief Psychiatrist supervises defendants released on supervision orders and can direct compliance with treatment that may be specified as a condition (s 29A(1)-(2)). If a supervised defendant objects to medication or treatment, the treating person or Chief Psychiatrist must notify the Tribunal within seven days (s 29A(3)).
For defendants:
Right to legal representation at investigations (s 11(2)).
Right to have the question of fitness determined by a jury in Supreme Court matters (s 12(1)).
Right to be present at discharge/variation hearings unless the court orders otherwise (s 26(3)(c), s 30(7)(c)).
Right to receive copies of reports that a party adduces (s 26(3)(e), s 30(7)(e), s 39B(3)).
Protection that findings on fitness and special hearings are not admissible against the defendant in later criminal proceedings (s 40).
When a report of the Chief Psychiatrist is disputed, the party disputing it must be given opportunity to lead evidence and cross‑examine the author or Chief Psychiatrist before the court may consider the disputed material (s 39B(4)-(5)).
For prosecutors, Attorney‑General and DPP:
The Attorney‑General must be informed by the Chief Psychiatrist when a defendant subject to an order becomes fit (s 29(1)). After consulting the DPP, the Attorney‑General either requests the court to resume proceedings or determines that no further proceedings are to be taken (s 29(3)). If no further proceedings are to be taken, the Attorney‑General must request dismissal and notify relevant parties (s 29(3A)).
The DPP must appear at certain hearings (s 26(3)(b), s 30(7)(b)) and is involved in consultations about resuming proceedings (s 29(3)).
For authorised persons, police and prescribed persons:
Powers to apprehend and detain supervised defendants where reasonable grounds exist (s 31(2)-(5)), including entering premises without warrant and using restraint. They must notify the Chief Psychiatrist after apprehension and take the defendant to an approved hospital or secure mental health unit (s 31(3)). Detention periods are limited and extensions require Chief Psychiatrist or Tribunal authorisation (s 31(6)-(7)).
For victims and next of kin:
The Attorney‑General must provide a report of victims’ and next of kin’s views to the court so far as reasonably ascertainable to assist determinations (s 33(1)). Where a defendant is released under a supervision order, such a report is not required for proceedings about detention or minor variations (s 33(2)).
For tribunals and review bodies:
The Tribunal reviews forensic orders under the Mental Health Act 2013 within 12 months and annually thereafter and must apply the minimisation principle and the matters in s 35(1) (s 37(1)-(2)). On review it may issue certificates and recommendations enabling immediate applications to the Supreme Court or further changes of order (s 37(3)-(7)).
Duties of disclosure and process:
Parties making reports must provide copies to other parties (s 26(3)(e), s 30(7)(e), s 39B(3), s 42A(2)). If a report is tendered in evidence, the opposing party may cross‑examine the author and the tendering party may re‑examine in reply (s 26(3)(f), s 30(7)(f)).
These duties create operational obligations: courts must secure expert examinations and reports (s 11, s 32, s 35(2)), the Chief Psychiatrist must be resourced to produce reports and manage supervised persons and authorisations (ss 29, 29A, 41A), and the Attorney‑General and DPP must manage prosecutorial decisions when a defendant regains fitness (s 29).
Penalties and enforcement
This Act does not primarily create new criminal offences with sentencing levels; it creates powers of detention, apprehension, arrest and procedural enforcement tied to the management of defendants with mental impairment. The main enforcement mechanisms and penalties are custodial and procedural rather than fines or discrete penal sanctions:
Detention and apprehension powers:
Apprehension of a defendant subject to a supervision order is authorised where a prescribed person reasonably believes there is contravention or likely contravention of the order, or serious deterioration in mental health, and that the defendant poses a risk of harm (s 31(2)). Prescribed persons include the Chief Psychiatrist, treating staff, authorised persons, mental health officers and police (s 31(1)). Apprehension includes use of restraint, assistance, entry without warrant and transportation to an approved hospital or secure mental health unit (s 31(5)(a)-(c)).
On apprehension, detention in a secure mental health unit is allowed for up to 24 hours, with one further period not exceeding 72 hours if authorised by the Chief Psychiatrist; additional Tribunal authorisations and Tribunal‑determined extensions are available (s 31(6)). Where applications are made to the Tribunal or to the Supreme Court, the person may be detained until determination (s 31(7)-(8)). While detained under this section, the supervision order is suspended (s 31(9)).
Arrest and warrants:
A person who escapes from or is absent from detention under a restriction order may be arrested without warrant by a police officer or an authorised person and returned to detention (s 41(1)). Judges and magistrates may issue warrants for arrest and return where there are proper grounds to suspect escape or absence without authority and leaving the State (s 41(1A), s 41(1B)). A judge may issue a warrant where supervised persons have contravened conditions and left the State (s 41(2)).
Breach proceedings and judicial responses:
Where a person appears to have breached conditions on release, specified persons (authorised person, police officer, prosecutor, probation officer, Chief Psychiatrist) may apply to the court that imposed the conditions for orders (s 21A(1)-(2)). The court may issue a warrant for arrest if the defendant fails to appear or reasonable efforts to notify fail (s 21A(4)).
If the court finds a defendant guilty of a new offence committed while on conditional release, the applicant may make an oral application in the new‑offence proceedings for orders under s 21A and must provide the defendant written grounds if directed (s 21A(5)). On hearing an application under s 21A, if the court is satisfied there has been a breach, it may confirm the original conditions, impose new conditions, or revoke the order and deal with the defendant under the disposals available for insanity/unfitness (confirm, make new supervision, restriction, treatment order, release on conditions or unconditionally) (s 21A(7)).
Custody and transfer obligations:
When a court commits a defendant to a secure mental health unit, it must specify who is responsible for taking the defendant to that unit and may specify who brings the defendant before the court in the future; those specified persons then have custody responsibilities while the defendant is in their charge (s 39C(2)-(4)). Reports and the order must accompany the defendant (s 39C(3)).
Limits and safeguards:
Discharge of restriction orders by the Supreme Court may be applied for at prescribed intervals only (first application not less than 2 years after order; subsequent applications not less than 2 years apart) (s 26(1)). The court must follow procedural rules about service and DPP appearance, and may order reports from the Chief Psychiatrist (s 26(3)).
The Tribunal conducts periodic reviews and may issue certificates and recommendations; the Tribunal’s determinations enable court action but must follow the review timetable (s 37). The Act requires the court to consider expert evidence from clinicians who have personally examined the defendant before removing or significantly reducing restraints (s 35(2)(a)).
Exclusion and evidentiary rules:
Findings from fitness investigations and special hearings are excluded from later admissibility in criminal proceedings against the defendant and do not constitute issue estoppel (s 40). This limits prosecutorial use of findings made under this Part in subsequent prosecutions.
Overall, enforcement relies on detention powers, arrest and warrants, court variation/revocation powers and Tribunal reviews. The Act also embeds procedural checks (reporting, opportunities to dispute reports, notice to victims and next of kin) that constrain instantaneous or unilateral penalties without judicial or Tribunal oversight (ss 26(3)(f), 39B(4)-(5), 33, 35).
How it interacts with other laws
The Act is designed to sit alongside and integrate with several other statutes; it repeatedly cross‑references and delegates clinical disposals and review jurisdiction to mental health law and sets procedural links to sentencing and corrections statutes.
Mental Health Act 2013:
Core clinical definitions and mechanisms are sourced to the Mental Health Act 2013: approved hospital, Chief Psychiatrist, controlling authority, secure mental health unit, and treatment order are defined as having the same meaning as in the Mental Health Act 2013 (s 3). Treatment orders made by courts under this Act are taken to have been made under Division 2 of Part 3 of Chapter 2 of the Mental Health Act 2013 (s 18(4), s 21(3)). Reviews of forensic orders are to be conducted under the Mental Health Act 2013 by the Tribunal within defined timeframes (s 37(1)). The Act excludes certain provisions of the Guardianship and Administration Act 1995 and section 213 of the Mental Health Act 2013 in the context of medication administered under a supervision order (s 29A(4)).
Sentencing Act 1997 and Criminal Code:
The Act applies to restriction and supervision orders made under the Sentencing Act 1997 (s 4(2)). Transitional provisions state that previous orders under the former Mental Health Act and earlier Criminal Code provisions take effect under this Act following commencement (s 42). Amendments effected by this Act have been incorporated into the authorised versions of the Criminal Code and Sentencing Act where indicated (sections 45-47 refer to incorporation).
Juries Act 2003 and trial procedure:
The Juries Act 2003 applies to the constitution and proceedings of juries empanelled under s 12 and s 15 (s 12(2), s 15(4) indicates application of the Juries Act to special hearings).
Corrections Act 1997 and Youth Justice Act 1997:
Probation officers, defined in the Corrections Act 1997, may apply under the breach provisions (s 21A(2)(d)). The Youth Justice Act 1997 principles and objectives are required to be considered in determining appropriateness of secure mental health unit admission for persons under 18, and the Chief Psychiatrist’s report must address this (s 39(1A)(c), s 39A).
Guardianship and Administration Act 1995:
The Act specifies that s 38 of the Guardianship and Administration Act 1995 and s 213 of the Mental Health Act 2013 do not apply to taking medication under a supervision order if the defendant complies despite objection (s 29A(4)).
Tribunal legislation:
The Act defines the Tribunal as the Tasmanian Civil and Administrative Tribunal (s 3) and delegates review and authorisation functions consistent with the Mental Health Act 2013.
Regulations and savings:
The Governor may make regulations for this Act and include savings/transitional provisions consequent on amendments to this Act; such regulations can take effect on the day of the amending Act's commencement (s 43). The Act itself contains specific savings and transitional provisions for prior amendments and related Acts (s 44, s 44A).
Interplay and operational implications:
The Act effectively creates a hybrid process where criminal procedure (courts, juries, DPP) interacts with mental health administrative and clinical structures (Chief Psychiatrist, Tribunal, Mental Health Act procedures). Clinical decisions trigger prosecutorial choices (s 29), Tribunal certificates trigger immediate court applications (s 37(3)), and treatment orders are channelled to the Mental Health Act regime (ss 18(4), 21(3)). This produces operational dependencies: courts rely on clinical reports and Chief Psychiatrist authorisations; mental health services must provide assessments and be ready to receive or detain defendants; the Attorney‑General and DPP are required to make prosecutorial decisions informed by clinical notifications. The Act therefore requires interagency coordination across criminal justice and mental health systems.
Amendment history
The Act text contains multiple inline amendment notes that record legislative changes and application dates. The Act as provided shows the following amendment markers and application dates for specific sections and provisions; the list below is drawn only from the amendment annotations present in the supplied text.
Major amendment sources and dates appearing in the text:
No. 72 of 2005, many sections amended and applied 20 February 2006: amendments to s 3 definitions, s 4(2), repeal of earlier provisions, substitution and insertion of many sections including ss 18, 21, 24, 26-31, 32-39C, Part 3A inserted, and s 43 substitution; specific mentions include s 3, s 4(2), s 8 notes, s 11-13, s 14-16, s 18(2) substitution, s 21 substitution, s 24 substitution, s 26, s 27 substitution, s 30 and s 31 substituted/inserted, s 35 substituted, s 37 substituted, s 39 subsections inserted (1A, 1B, 1C), s 39B, s 39C, s 41 amendments, s 41A, s 42A, s 43 substituted, s 44 substituted, and various schedule and other technical incorporations.
No. 69 of 2013, Schedule 1, applied 17 February 2014: multiple amendments across the Act, including definitions in s 3, additions and substitutions in ss 18, 21, 29, 29A, 30, 31, 31A, 35, 37, 39B, 42A, and other cross‑references to the Mental Health Act 2013.
No. 21 of 2016, applied 11 July 2016: introduced Part 3A (Breach of Conditions on Release) (s 21A insertion) and added s 35A (interim orders), among other amendments.
No. 18 of 2021, applied 5 November 2021: amendments to s 3 (Tribunal definition), s 29, s 31, s 37 and other provisions referencing Tribunal powers and review timing.
No. 4 of 2023, applied 25 September 2023: further amendments touching s 3 definitions (authorised person, Chief Psychiatrist), s 26(1), s 29 substitutions and omissions, s 29A, s 30, s 31, s 39 amendments (1A(c) expanded), s 39B, s 39C, s 42A and others adjusting clinical authorisations, notification duties and report distribution.
No. 7 of 2025, s 67, applied 1 July 2025: inserted s 37(1A) enabling reviews of suspended supervision orders to be reviewed notwithstanding suspension.
Earlier historical amendments recorded include No. 61 of 1999 (Schedule 1 substitution, applied 24 Nov 1999) and No. 35 of 2002 (s 41 amendments, applied 14 Nov 2002), No. 48 of 2003 (Juries Act application notes applied 1 Jan 2006), No. 3 of 2010 (amendments applied 1 Jul 2010), No. 13 of 2012 (s 10(2) amended, applied 30 May 2012), No. 66 of 2007 (s 39B(3) amendment applied 31 Dec 2008) and No. 72 of 2005 (numerous amendments applied 20 Feb 2006).
The Act’s text also notes that certain amendments effected by it have been incorporated into authorised versions of the Criminal Code, the Mental Health Act 1996 and the Sentencing Act 1997 (see sections 45-47 and related notes). Several amendments shift functions and definitions into alignment with the Mental Health Act 2013 and reassign review functions to the Tribunal.
This list is limited to the amendment annotations that appear in the supplied Act text. The Act itself contains numerous marginal notes indicating which subsections were inserted, substituted, omitted or repealed by the cited amending Acts, and the dates on which those amendments took effect are recorded inline.
Litigation history
The supplied statute text does not include or cite judicial decisions or reported cases construing its provisions. The Act creates appellate routes and review mechanisms that implicitly generate litigation opportunities:
Appeals to the Court of Criminal Appeal: s 36(2) creates a statutory appeal to the Court of Criminal Appeal at the suit of the Attorney‑General, the Secretary of the responsible Department under the Mental Health Act 2013 or the defendant from a decision or order made by the Supreme Court under this Part. The Court of Criminal Appeal may affirm, quash or substitute decisions (s 36(3)). This establishes a direct appellate track for contested Supreme Court decisions under the Act.
Tribunal certificates enabling immediate Supreme Court proceedings: where the Tribunal determines on review that a forensic order is no longer warranted or is inappropriate it must issue a certificate and the defendant may immediately apply to the Supreme Court for discharge, revocation or variation (s 37(3)). That pathway creates an expedited novel interface between administrative review and judicial relief.
Dispute procedures for psychiatric reports: s 39B(4)-(5) creates a procedure where the prosecution or defence may dispute parts of the Chief Psychiatrist’s report; the court is barred from considering disputed portions unless the disputing party has had the opportunity to lead evidence and cross‑examine the report author. This provision entrenches adversarial testing of psychiatric evidence and thereby creates forensic issues likely to reach appellate courts concerning admissibility, sufficiency of opportunity to dispute, and the weight to be accorded to contested reports.
Procedural orders (s 26, s 30): the Supreme Court’s discretionary powers to discharge or vary restriction and supervision orders, the timing constraints on applications for discharge (s 26(1)), and the court’s powers to order reports and to require examinations (s 26(3)(g), s 30(4)) make for litigation over procedural fairness, scope of report powers and compliance with statutory timeframes.
Although no cases are named in the statutory text, the Act establishes multiple contestable decision points,fitness determinations by juries in the Supreme Court (s 12), special hearings with criminal standards applied (s 16), disposals by courts with mandatory consideration of clinical reports and victims’ views (s 35), and Tribunal reviews with certificates triggering immediate judicial steps (s 37),which together provide substantial potential for litigation in trial courts and on appeal. Practitioners should therefore anticipate that the statutory framework will generate contested factual disputes about fitness, clinical reports, risks to the community, adequacy of community resources for treatment, and the procedural sufficiency of notices and report distribution.
Gotchas
A number of operational and procedural features of the Act are easy to miss but have concrete effects on process, rights and resource allocation:
Presumption and standard of proof:
Fitness is presumed (s 9(1)); the onus is to establish unfitness on the balance of probabilities (s 9(2)). This is different from criminal guilt standards and affects how evidence and expert reports must be marshalled.
Memory loss exclusion:
A defendant is not unfit under s 8 if the only reason for inability to make a defence is memory loss (s 8(2)). Memory‑related incapacity must therefore be framed cautiously in expert evidence.
"Real and substantial question" threshold:
A court must not investigate fitness unless a real and substantial question appears (s 10(5)). That threshold can be a preliminary gatekeeping issue; counsel should be prepared to identify evidence raising that question early.
Timing for discharge applications:
Restriction order discharge applications are time‑gated: first application not less than 2 years after the order, and subsequent applications at least 2 years apart (s 26(1)). This produces long minimum intervals before court reconsideration of detention, which has implications for liberty and the timing of evaluations.
Supreme Court exclusivity:
Only the Supreme Court may make restriction or supervision orders (s 18(3), s 21(2)). A magistrate who thinks a forensic order should be made may refer the matter to the Supreme Court (s 36A), but lower courts cannot themselves impose these orders. This affects early case disposal and forum selection.
Clinical reports and personal examination requirement:
Before discharging, releasing, or significantly reducing supervision or detention, the court must have considered reports from the Chief Psychiatrist (or a medical practitioner nominated by him/her) and one other expert who has personally examined the defendant (s 35(2)(a)). Failure to secure those personal examinations can block a proposed reduction in restrictions.
Distribution and dispute of Chief Psychiatrist’s report:
The Chief Psychiatrist must provide copies of reports to prosecutor and defendant unless the court orders otherwise (s 39B(3)). If the report is disputed, the court must not take disputed parts into account unless the disputing party had opportunity to lead evidence and cross‑examine (s 39B(4)-(5)). Practically this requires scheduling and the presence of report authors for cross‑examination or arranging alternative witness availability.
Treatment orders and other clinical instruments sit under the Mental Health Act 2013:
When courts make treatment orders they are treated as if made under the Mental Health Act 2013 (s 18(4), s 21(3)). Practitioners must therefore map criminal disposals to the Mental Health Act’s procedural and substantive regime.
Supervision orders and compulsion of treatment:
Supervision orders can require medication and compliance with the Chief Psychiatrist’s directions (s 29A(2)(a)-(b)). Section 29A(4) excludes certain guardianship and Mental Health Act safeguards in relation to medication taken under a supervision order, which may alter procedural protections a defendant might otherwise have when they object to treatment.
Detention durations on apprehension:
A prescribed person may detain a supervised defendant admitted to a secure mental health unit for up to 24 hours, plus one further period not exceeding 72 hours if authorised by the Chief Psychiatrist; Tribunal authorisation can extend detention further (s 31(6)). Practitioners must be alert to the short default detention window and the specific authorisation routes available for extensions.
Rights at special hearings:
Special hearings are to follow the same onus and standard as an ordinary trial and the defendant is taken to have pleaded not guilty (s 16). But evidence is restricted to what is available; the Act requires the court to determine “whether, despite the unfitness, on the limited evidence available the defendant is not guilty” (s 15(2)). The "limited evidence" feature can create evidentiary strategy issues.
Breach applications and overlaps with new offences:
If a defendant is found guilty of a new offence while on conditional release, the applicant may make an oral application in the new‑offence hearing for orders under s 21A(5). Courts may also adjourn such applications to the court that imposed the conditions, granting bail or remanding as appropriate (s 21A(6)). Handling of notice and timing is therefore important.
Suspension during imprisonment and review while suspended:
Supervision orders are suspended during imprisonment (s 31A). However, s 37(1A) (inserted in 2025 amendments in the supplied text) allows reviews of a supervision order to proceed even while suspended. That creates potential parallel tracks for correctional and mental health processes.
Requirement to notify victims/next of kin and provide reports:
The Attorney‑General must provide courts with a report of views of victims and next of kin so far as reasonably ascertainable (s 33). Courts must be satisfied that victims and next of kin have been given reasonable notice of proceedings before significant reductions in restraints (s 35(2)(c)). Practical compliance requires locating and notifying these persons.
Evidence exclusion:
Findings at fitness investigations or special hearings do not constitute issue estoppel in later proceedings and are not admissible in later criminal proceedings (s 40). That protects defendants from re‑use of certain findings but also means prosecutors must prepare fresh evidence if proceedings resume after restoration of fitness.
Authority to authorise persons:
The Chief Psychiatrist may authorise persons or classes of persons for purposes of the Act (s 41A). This creates a discretionary administrative power that will determine who has practical powers of apprehension and supervision.
Interagency resourcing:
The Act prescribes duties that require clinical capacity: personal psychiatric examinations by two experts, report preparation, secure mental health unit availability and staffing for admissions, Tribunal review scheduling, and Chief Psychiatrist authorisations. The court must consider whether adequate resources exist for treatment and support in the community (s 35(1)(c)), which is an explicit statutory factor but not a funding mechanism. The practical implication is that courts may be constrained by the availability of services.
How to comply
Compliance under this Act requires coordination between legal practitioners, courts, health services, correctional authorities and administrative offices. Below are actionable steps for principal actors, grounded in the statutory provisions.
For defence practitioners:
Early assessment: compile clinical history and secure psychiatric and other expert opinions that address the statutory unfitness elements (s 8). Remember that a defendant who is only unable to make a defence because of memory loss is not unfit under s 8(2).
Triggering fitness investigations: where appropriate, request reservation of the fitness question (s 10(1)). Prepare to demonstrate a "real and substantial question" (s 10(5)).
Ensure examinations occur: if the court requires examination, make the defendant available and, where necessary, obtain court orders under s 11(1)(c) or s 39(1B)(a)-(c) to formalise the assessment process. Ensure experts personally examine the defendant if you hope to rely on their reports for s 35(2)(a) compliance.
Report management: obtain copies of any Chief Psychiatrist’s report and other expert reports as soon as practicable; if disputing a report, prepare to lead evidence and seek cross‑examination (s 39B(3)-(5)). Ensure timely service and seek directions if the court fails to order report distribution.
Contesting detention or conditions: where detained or subject to supervision, monitor review timetables and the Tribunal’s certificates (s 37). For variation/revocation applications, be ready to respond to report production orders and attend hearings (s 30(1), s 30(4)-(7)).
For prosecutors and Attorney‑General / DPP:
Evidence preparation: obtain timely psychiatric reports and ensure the Chief Psychiatrist or nominated medical practitioner personally examines the defendant where s 35(2) applies. Provide the court with the report of victims' and next of kin’s views when required (s 33).
Engage with clinical notifications: if notified under s 29 that a defendant has become fit, consult promptly with the DPP and decide whether to request resumption of proceedings or determine that no further proceedings be taken (s 29(1), s 29(3)). If deciding no further proceedings, request dismissal and notify required parties (s 29(3A)).
Breach proceedings: if a defendant breaches release conditions, any authorised applicant must give notice to the defendant (s 21A(3)) and be ready to provide grounds in writing when making oral applications in relation to new offences (s 21A(5)).
For courts (magistrates and Supreme Court):
Gatekeeping: before ordering investigations, ensure there is a real and substantial question of fitness (s 10(5)). Where a magistrate thinks a forensic order is appropriate, consider referral to the Supreme Court (s 36A).
Report orders: when ordering reports or medical examinations, specify the matters to be addressed and ensure copies are to be provided to defendant and prosecutor (s 39(1B), s 39(1C), s 26(3)(g), s 30(4)).
Consider statutory factors: before making or varying orders, apply the minimisation principle in s 34 and have regard to the matters listed in s 35(1). Specifically, secure personal examinations by the Chief Psychiatrist or nominated medical practitioner and another expert for s 35(2)(a) compliance.
Manage hearings: ensure juror oath/affirmation forms are used as in Schedule 1 for Supreme Court jury determinations (s 12, Schedule 1) and adhere to Juries Act 2003 for jury procedures (s 12(2)).
For the Chief Psychiatrist and health services:
Timely reports and authorisations: prepare and provide reports as required under s 26(3)(g), s 30(4) and s 39B(2). Where authorised, provide prompt copies to prosecutor and defence unless the court orders otherwise (s 39B(3)). When satisfied a defendant has become fit, inform the Attorney‑General in writing (s 29(1)).
Supervision and treatment plans: when supervising defendants under s 29A, document conditions including medication and directions. If a defendant objects to medication or treatment, notify the Tribunal within seven days (s 29A(3)).
Authorisations: exercise s 41A powers to authorise classes or persons to perform statutory tasks and ensure records of authorisation are maintained and published to relevant agencies.
For prescribed persons, authorised persons and police:
Grounds for apprehension: ensure reasonable grounds before using s 31(2) powers,document the basis for believing contravention, likely deterioration and risk of harm. Follow notification obligations to the Chief Psychiatrist and ensure safe transport to an approved hospital or secure unit (s 31(3)).
Use restraint and entry lawfully: only use restraint and force believed appropriate in circumstances and document assistance and entries into premises (s 31(5)(a)-(c)). Understand custody and escort provisions under the Mental Health Act 2013 apply (s 31(5A)).
For custodial and receiving facilities:
Documentation: ensure restriction orders and relevant medical reports accompany defendants sent to secure units (s 39C(3)). Follow custody responsibilities specified in the order (s 39C(2)-(4)).
Capacity assessment: be prepared to provide the Court and Tribunal with timely reports about resources and appropriateness of secure unit admission and follow instructions for report provision (s 26(3)(g), s 30(4)).
For Tribunal and reviewers:
Timetable adherence: review forensic orders within 12 months of making and annually thereafter (s 37(1)). Apply s 34 and s 35 criteria on review and issue certificates when appropriate to enable immediate court action (s 37(3)-(7)).
Recommendations: when recommending revocation of supervision orders or substitution of restriction orders, provide copies to defendants and the Secretary as required (s 37(7)).
Administrative and process controls:
Notices to victims/next of kin: ensure the Attorney‑General’s reports capture victims’ and next of kin’s views as far as reasonably ascertainable (s 33). Courts must be satisfied reasonable notice has been given before major changes to restrictive orders (s 35(2)(c)).
Evidence management and dispute handling: where parties dispute psychiatric reports, schedule hearings that allow the party to lead evidence and cross‑examine the report author or Chief Psychiatrist as required by s 39B(5).
Recordkeeping and interagency coordination:
Maintain registers of who is authorised under s 41A and ensure nominated persons have clear lines of accountability for apprehension, transport and custody. Coordinate with corrections, DPP, Attorney‑General’s office, hospital controlling authorities and Tribunal to align timing of reviews, hearings and notifications.
Following these steps will address the statutory obligations set out in the Act: securing the necessary expert examinations and reports, meeting timeframes and notice requirements, ensuring proper distribution and disputing of reports when necessary, and coordinating between courts, clinical services, the Tribunal and prosecutorial authorities.
Director means the Director of Corrective Services;
[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006]forensic order means a restriction order or supervision order;
[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006][Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014]
immediate family, in relation to a deceased victim, includes –
(a) the spouse of the deceased victim; and
(b) a parent, guardian or step-parent of the deceased victim; and
(c) a child or stepchild of the deceased victim; and
(d) a brother, sister, stepbrother or stepsister of the deceased victim;
[Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014][Section 3 Amended by No. 18 of 2021, s. 62, Applied:05 Nov 2021]
[Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]next of kin of a person means a person's spouse, parents, children, any other person who is the primary carer of the person, a person who is in a caring relationship, within the meaning of the Relationships Act 2003 , with the person or any other class of person prescribed by the regulations as the next of kin of a person;
[Section 3 Amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010]
[Section 3 Amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010]psychiatrist means a medical practitioner who –
(a) is a Fellow of the Royal Australian and New Zealand College of Psychiatrists; or
(b) holds specialist registration in the speciality of psychiatry; or
(c) holds limited registration which enables the person to practise the speciality of psychiatry;
regulations means regulations made and in force under this Act;
[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006]
[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006]restriction order has the meaning given by section 24 ;
[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006][Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014]secure mental health unit has the same meaning as in the Mental Health Act 2013 ;
[Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]
[Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004]spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with that person;
[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006]
[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006]supervision order has the meaning given by section 29A ;
[Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014]treatment order has the same meaning as in the Mental Health Act 2013 ;
[Section 3 Amended by No. 18 of 2021, s. 62, Applied:05 Nov 2021]Tribunal means the Tasmanian Civil and Administrative Tribunal;
victim, in relation to an offence or conduct that would, but for the fact that the perpetrator has been found not guilty of the offence by reason of insanity or the fact that a finding to that effect has been made, have constituted an offence, means a person who has suffered significant mental or physical injury as a direct consequence of the offence or conduct and includes the immediate family of a deceased victim.
4 Application of Act
4 Application of Act
(1) This Act applies to all courts.
(2) [Section 4 Subsection (2) amended by No. 72 of 2005, s. 91, Applied:20 Feb 2006] The application of this Act extends to a restriction order and a supervision order made under the Sentencing Act 1997 .
5 Questions of fact
5 Questions of fact
For the purposes of this Act, the question whether a person is unfit to stand trial on a charge of an offence is a question of fact.
6.
[Section 6 Repealed by No. 72 of 2005, s. 92, Applied:20 Feb 2006]
7.
[Section 7 Repealed by No. 72 of 2005, s. 92, Applied:20 Feb 2006]
Part 2 Unfitness to stand trial
Part 2 Unfitness to stand trial
8 Unfitness to stand trial
8 Unfitness to stand trial
(1) A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired or for any other reason, the person is –
(a) unable to understand the nature of the charge; or
(b) unable to plead to the charge or to exercise the right of challenge; or
(c) unable to understand the nature of the proceedings; or
(d) unable to follow the course of the proceedings; or
(e) unable to make a defence or answer the charge.
(2) Notwithstanding subsection (1)(e) , a person is not unfit to be tried if the only reason that the person is unable to make a defence or answer a charge is that he or she is suffering from memory loss.
9 Presumption of fitness to stand trial and standard of proof
9 Presumption of fitness to stand trial and standard of proof
(1) A person's fitness to stand trial is to be presumed unless it is established, on an investigation under this Part, that the person is unfit to stand trial.
(2) The question of a person's unfitness to stand trial is to be determined on the balance of probabilities.
10 Reservation of question of fitness to stand trial
10 Reservation of question of fitness to stand trial
(1) A court before which a person is charged with an offence may, on the application of the prosecutor, the defendant or on its own initiative, reserve the question of the defendant's fitness to stand trial for investigation under this Part.
(2) [Section 10 Subsection (2) amended by No. 13 of 2012, s. 25, Applied:30 May 2012][Section 10 Subsection (2) amended by No. 13 of 2012, s. 25, Applied:30 May 2012][Section 10 Subsection (2) substituted by No. 27 of 2020, s. 11, Applied:01 Jul 2021] If, at preliminary proceedings for an indictable offence, the question of a defendant's fitness to stand trial arises –
(a) the question is to be reserved for determination by the Supreme Court; and
(b) after the question is so determined –
(i) the preliminary proceedings are to be completed in accordance with the relevant criminal procedures; and
(ii) if appropriate, the Supreme Court may return the preliminary proceedings to the relevant court for completion.
(3) If, after a trial begins, the court of trial decides that the question of the defendant's fitness to stand trial should be investigated, the court may adjourn or discontinue the trial and proceed, subject to this Part, with the investigation.
(4) Nothing in this section prevents the question of a defendant's fitness to stand trial from being raised more than once in the same proceedings.
(5) A court must not conduct an investigation into a defendant's fitness to stand trial unless it appears to the court that there is a real and substantial question as to his or her fitness to stand trial.
11 Procedure on investigation
11 Procedure on investigation
(1) On an investigation into a defendant's fitness to stand trial, a court –
(a) must hear any relevant admissible and probative evidence and representations put to the court by the prosecutor or the defendant; and
(b) may call evidence on its own initiative; and
(c) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.
(2) At an investigation, the defendant is entitled to be legally represented.
12 Investigation by Supreme Court into fitness to stand trial
12 Investigation by Supreme Court into fitness to stand trial
(1) In the case of proceedings in the Supreme Court, the question whether a defendant is fit to stand trial must be determined by a jury.
(2) [Section 12 Subsection (2) amended by No. 48 of 2003, Sched. 9, Applied:01 Jan 2006] The application of the Juries Act 2003 extends to the constitution and proceedings of a jury for the purposes of this section.
(3) Each juror chosen under this section must –
(a) take an oath in the form specified in Part 1 of Schedule 1 ; or
(b) make an affirmation in the form specified in Part 2 of Schedule 1 .
(4) If a jury determines that the defendant is unfit to stand trial, it must also determine whether or not the defendant is likely to become fit to stand trial during the next 12 months.
13 Finding that defendant is not unfit to stand trial
13 Finding that defendant is not unfit to stand trial
(1) If an investigation is completed before a jury is empanelled for the purposes of a trial and the court does not find that the defendant is unfit to stand trial, the court must call on the defendant to plead to the charge and, if he or she does not do so, must enter a plea of not guilty.
(2) If an investigation is completed after a jury is empanelled for the purposes of a trial and the court does not find that the defendant is unfit to stand trial, the court must resume the proceedings in accordance with appropriate criminal procedures.
14 Finding that defendant is not fit to stand trial
14 Finding that defendant is not fit to stand trial
(1) If, on an investigation, a court finds that the defendant is unfit to stand trial or records a finding to that effect under section 19 , the court must determine whether or not the defendant is likely to become fit to stand trial during the next 12 months.
(2) If the court determines that the defendant is likely to become fit to stand trial during the next 12 months, the court must adjourn the proceedings for a period not exceeding 12 months and discharge any jury empanelled for the purposes of the trial.
(3) If, after the adjournment, the court is of the opinion that the grounds on which the investigation was thought to be necessary no longer exist, the court may decide not to proceed with the investigation.
(4) Where the court decides not to proceed with the investigation, the court must call on the defendant to plead to the charge and, if he or she does not do so, must enter a plea of not guilty.
(5) In the case of a trial in the Supreme Court, a decision under subsection (3) is to be made without further proceedings before a jury.
15 Special hearings
15 Special hearings
(1) A court must proceed to hold a special hearing if –
(a) the court determines that the defendant is not likely to become fit to stand trial within 12 months; or
(b) the defendant does not become fit to stand trial within 12 months after the determination referred to in section 14(2) .
(2) The purpose of the special hearing is to determine whether, despite the unfitness of the defendant to stand trial, on the limited evidence available the defendant is not guilty of the offence.
(3) In the case of
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