Mental Health and Cognitive Impairment Forensic Provisions Regulation 2021
In ForceNSW
Jurisdiction
New South Wales
Act Number
117 of 2021
Collection
regulation
Plain English Summary
6/10 complexity
This Regulation prescribes procedural rules under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020: who may provide expert reports, how courts and the Tribunal handle victim submissions and certain decisions, how Justice Health implements and responds to forensic community treatment orders, and how a Victims Register is verified, notified and protected from publication. It shifts operational and administrative burdens to Justice Health, the Tribunal President/Deputy and the Commissioner of Victims Rights, affects victims’ disclosure obligations, and imposes a penalty for unauthorised publication.
This Regulation prescribes procedural, administrative and information‑sharing rules to implement parts of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 and to modify specified provisions of the Mental Health Act 2007 when forensic community treatment orders are involved. It commenced on 27 March 2021 (cl 2) and replaces the prior 2017 Regulation in effect immediately before repeal (cl 32). The Regulation (a) specifies who may provide expert reports to courts and tribunals (cl 4, cl 6), (b) governs Tribunal constitution, adjournments and certain review timeframes (cls 5, 7, 9, 10), (c) sets out how victims may make submissions and how the Tribunal and legal representatives may receive edited versions of those submissions (cls 11-14), (d) alters how community treatment orders operate where a forensic community treatment order is made, by modifying specified parts of the Mental Health Act 2007 and prescribing roles for Justice Health and Forensic Mental Health Network officers (cls 15-20), (e) creates and governs a Victims Register including verification, notification and confidentiality requirements (cls 21-28), and (f) prescribes certain operational matters including who may transport defendants in Local Court proceedings, the status of persons found not guilty by reason of mental illness in Norfolk Island, and information types that may be covered by information‑sharing protocols (cls 29-31).
Official rationale elements are present in the text through cross references to the Act and to the Mental Health Act 2007 (see cl 15 and cl 3 note). Mechanically, the Regulation allocates decision‑making authority to particular office‑holders (for example President or Deputy President of the Tribunal may sit alone for certain determinations, cls 5, 7, 9, 10), prescribes documentary and timing requirements for notices and appeals (cl 8, cl 20(4), cl 25(3)), creates an administrated Victims Register with verification steps and limits on publication (cls 22-28), and both extends powers to and constrains the practices of medical officers authorised by the Chief Executive of Justice Health and Forensic Mental Health Network where forensic community treatment orders are involved (cls 16-19). The Regulation sets a single express monetary penalty: publication of information in the Victims Register carries a maximum penalty of 10 penalty units (cl 27(1)).
Current sections
Direct links to the current provisions in Mental Health and Cognitive Impairment Forensic Provisions Regulation 2021.
The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.
Part 2
Proceedings
Part 2 Proceedings
Part 2 Proceedings
Division 1
Court proceedings
Division 1 Court proceedings
Division 1 Court proceedings
4
Matters to be considered by Court—reports
4 Matters to be considered by Court—reports
4 Matters to be considered by Court—reports
A person is prescribed for the purposes of sections 33(2) and 66(1) of the Act, if the person—
(a) is a registered psychologist, and
(b) has, in the opinion of the Court, appropriate experience or training in forensic psychology or neuro-psychology.
Division 2
Tribunal proceedings
Division 2 Tribunal proceedings
Division 2 Tribunal proceedings
5
Adjournments
5 Adjournments
5 Adjournments
The Tribunal may be constituted by the President or a Deputy President for the purpose of adjourning a review under the Act.
6
Matters to be considered by Tribunal
6 Matters to be considered by Tribunal
6 Matters to be considered by Tribunal
A person is prescribed for the purposes of section 84(1)(b) of the Act, if the person—
(a) is a registered psychologist, and
(b) has, in the opinion of the Tribunal, appropriate experience or training in forensic psychology or neuro-psychology.
7
Reviews by Tribunal of persons awaiting transfer to mental health facility
7 Reviews by Tribunal of persons awaiting transfer to mental health facility
7 Reviews by Tribunal of persons awaiting transfer to mental health facility
(1) For the purposes of section 89(1) of the Act, the prescribed period is 14 days after the making of the order.
(2) The Tribunal may be constituted by the President or a Deputy President for the purposes of conducting a review under section 89 of the Act.
8
Appeals against decisions of Secretary about leave of absence
8 Appeals against decisions of Secretary about leave of absence
8 Appeals against decisions of Secretary about leave of absence
(1) An appeal in writing under section 97 of the Act is to be made by giving a notice of appeal, in the form approved by the Secretary, to the medical superintendent of the mental health facility in which the forensic patient or correctional patient making the appeal is being detained.
(2) The medical superintendent must forward the notice of appeal to the Tribunal within 2 business days after receiving it and must notify the Secretary of the appeal within that period.
(3) An oral appeal under section 97 of the Act is to be made by telling the medical superintendent of the wish to make an appeal.
(4) The medical superintendent must provide written notice of an oral appeal to the Tribunal within 2 business days after the appeal is made and must notify the Secretary of the appeal within that period.
(5) A copy of the written notice is to be given to the forensic patient or correctional patient making the appeal and a copy is to be kept by the medical superintendent as a record of the appeal.
9
Reviews of persons in custody who are subject to forensic community treatment orders
9 Reviews of persons in custody who are subject to forensic community treatment orders
9 Reviews of persons in custody who are subject to forensic community treatment orders
The Tribunal may be constituted by the President or a Deputy President for the purposes of conducting a review under section 100 of the Act.
10
Tribunal to disclose the whole or part of a submission
10 Tribunal to disclose the whole or part of a submission
10 Tribunal to disclose the whole or part of a submission
A request made by the victim not to disclose the whole or part of a submission under section 145 of the Act may be determined by the President or Deputy President of the Tribunal sitting alone.
11
Submissions to Tribunal by victims
11 Submissions to Tribunal by victims
11 Submissions to Tribunal by victims
(1) For the purposes of section 145(6)(a) of the Act, a victim may make a submission about the following—
(a) the forensic patient’s behaviour and the impact of the behaviour on the victim or the victim’s family,
(b) the risk posed by the forensic patient to the victim, the victim’s family or any other person,
(c) the impact on the victim and the victim’s family if the forensic patient is released or granted a leave of absence, whether unconditionally or subject to proposed conditions,
(d) the conditions that should be imposed on the release of or grant of leave of absence to forensic patients, including non-association conditions and place restriction conditions under section 146 of the Act.
(2) A submission may be made in writing or orally.
(3) The Tribunal must acknowledge the receipt of a submission.
(4) A victim who makes a submission to the Tribunal may, with the leave of the Tribunal, raise questions that the Tribunal considers to be appropriate for discussion during the proceedings.
12
Disclosure of victims’ submissions by Tribunal
12 Disclosure of victims’ submissions by Tribunal
12 Disclosure of victims’ submissions by Tribunal
(1) The Tribunal may disclose an edited version of a submission by a victim to the legal representative of a forensic patient if—
(a) the Tribunal determines under section 145 of the Act that a submission is not to be disclosed to a forensic patient, and
(b) the Tribunal is of the opinion that information contained in the submission should be provided to the legal representative of the patient for reasons of procedural fairness, and
(c) the legal representative has agreed to the non-disclosure conditions in subclause (2).
(2) The non-disclosure conditions are as follows—
(a) the edited submission must not be disclosed to the forensic patient without the consent of the Tribunal,
(b) the following information may be disclosed, but not information identifying the location of the residence or place of work of the victim or the victim’s family or friends or of other places frequented by the victim—
(i) information about proposed place restrictions,
(ii) general information about the areas the proposed restrictions apply,
(iii) the reasons for the victim’s proposal,
(c) the legal representative must only disclose to the forensic patient general information about the submission of a kind specified by the Tribunal.
(3) The edited version of the submission may be created by the victim or the Tribunal.
(4) Before disclosing an edited version of a submission, the Tribunal must—
(a) inform the victim of the proposed disclosure, and
(b) give the victim an opportunity to withdraw or amend the submission, and
(c) if the edited version is created by the Tribunal—provide the victim with a copy of the edited version and give the victim an opportunity to request amendments to the edited version, and
(d) if the edited version is created by the victim—give the victim an opportunity to amend the edited version.
(5) If the forensic patient is not represented by a legal representative, the Tribunal may appoint an Australian legal practitioner to act on behalf of the forensic patient for the purposes of this clause.
(6) In this clause—
the Tribunal includes the President or Deputy President of the Tribunal sitting alone.
13
Representation of victims
13 Representation of victims
13 Representation of victims
(1) A representative may be nominated by a victim to represent the victim at a hearing of the Tribunal at which the victim is entitled to make a submission.
(2) The representative is not eligible to represent a victim at a hearing unless—
(a) the representative has completed and lodged with the Tribunal a statutory declaration, in the form approved by the Secretary, as to confidentiality, and
(b) the representative has the victim’s written authority to attend the hearing and represent the victim, and
(c) if the representative is the legal representative of the victim—leave is granted by the Tribunal or President or Deputy President sitting alone.
(3) The representative may do anything at the hearing that the victim may do.
14
Disclosure by Tribunal to treatment team
14 Disclosure by Tribunal to treatment team
14 Disclosure by Tribunal to treatment team
(1) The Tribunal may disclose all or part of, or a summary of, a submission received from a victim of a forensic patient to a person who is treating the forensic patient or a delegate of the person.
(2) The submission must be disclosed on the condition that the person to whom the information is disclosed does not disclose the information to the forensic patient.
(3) In this clause—
the Tribunal includes the President or Deputy President of the Tribunal sitting alone.
Part 3
Forensic community treatment orders
Part 3 Forensic community treatment orders
Part 3 Forensic community treatment orders
15
Modification of provisions of Mental Health Act 2007
15 Modification of provisions of Mental Health Act 2007
For the purposes of section 99(2) of the Act, Chapter 3, Part 3 of the Mental Health Act 2007 is modified as set out in this Part for the purposes of the making of a forensic community treatment order.
16
Applications for forensic community treatment orders
16 Applications for forensic community treatment orders
16 Applications for forensic community treatment orders
(1) An application under section 51 of the Mental Health Act 2007 for a forensic community treatment order may also be made by a medical officer authorised by the Chief Executive of Justice Health and Forensic Mental Health Network.
(2) Sections 52(3) and 53(3)(c) of the Mental Health Act 2007 do not apply to an application for a forensic community treatment order.
17
Treatment plans
17 Treatment plans
17 Treatment plans
A reference in section 53 or 56 of the Mental Health Act 2007 to a declared mental health facility is taken to also include a reference to Justice Health and Forensic Mental Health Network if the reference relates to a community treatment order.
18
Implementation of forensic community treatment orders
18 Implementation of forensic community treatment orders
18 Implementation of forensic community treatment orders
(1) A medical officer authorised by Justice Health and Forensic Mental Health Network may exercise functions under section 57(2) and (4) of the Mental Health Act 2007 in relation to a forensic community treatment order in the same way as the director of community treatment of a declared mental health facility.
(2) Section 57(5) of the Mental Health Act 2007 does not apply to a forensic community treatment order.
19
Breaches of forensic community treatment orders
19 Breaches of forensic community treatment orders
19 Breaches of forensic community treatment orders
(1) This clause applies to the following persons who are subject to forensic community treatment orders (an affected person)—
(a) a forensic patient, correctional patient or other person who is detained in a correctional centre,
(b) a person who is subject to an order for transfer from a correctional centre but who has not been transferred.
(2) Sections 58–64 of the Mental Health Act 2007 do not apply to an affected person and are replaced by subclauses (3)–(5).
(3) A medical officer authorised by Justice Health and Forensic Mental Health Network must take the steps set out in subclauses (4) and (5) if an affected person refuses or fails to comply with the forensic community treatment order and the officer is of the opinion that—
(a) Justice Health and Forensic Mental Health Network has taken all reasonable steps to implement the order, and
(b) there is a significant risk of deterioration in the mental or physical condition of the affected person.
(4) The officer must cause the affected person to be informed that further refusal or failure to comply with the order may result in the person being given treatment in accordance with the forensic community treatment order.
(5) If there is a further refusal or failure to comply with the order—
(a) the officer must cause the affected person to be assessed for the purpose of issuing certificates for the purpose of a transfer of the person under section 86 of the Act to a mental health facility, and
(b) the officer may cause the affected person to be given treatment in accordance with the forensic community treatment order, if the officer thinks it appropriate for clinical reasons to do so, and must notify the Tribunal within 2 business days after the treatment is given.
20
Variation or revocation of forensic community treatment orders
20 Variation or revocation of forensic community treatment orders
20 Variation or revocation of forensic community treatment orders
(1) A person authorised by Justice Health and Forensic Mental Health Network may also apply to vary or revoke a forensic community treatment order under section 65(2) of the Mental Health Act 2007.
(2) An application to vary or revoke a forensic community treatment order may also be made under section 65(3) of the Mental Health Act 2007 on the grounds the person subject to the order is released, or proposed to be released, from a correctional centre.
(3) A medical officer authorised by Justice Health and Forensic Mental Health Network may also revoke an order under section 66 of the Mental Health Act 2007.
(4) A person who revokes a forensic community treatment order under this clause or section 66 of the Mental Health Act 2007, must notify the Tribunal in writing of the revocation within 7 days after the revocation.
Part 4
Victims Register
Part 4 Victims Register
Part 4 Victims Register
21
Definition
21 Definition
21 Definition
In this Part—
registered victim means a victim whose name is included in the Victims Register.
22
Information to be in Victims Register
22 Information to be in Victims Register
22 Information to be in Victims Register
For the purposes of section 156(2)(b) of the Act, the following matters are to be included in the Victims Register in relation to each registered victim of a forensic patient—
(a) particulars of the information used to verify the identity of the victim,
(b) the name of the forensic patient,
(c) whether the victim has obtained, or is the subject of, or is seeking to obtain, a non-association condition or place restriction condition under section 146 of the Act,
(d) whether or not the victim made a victim impact statement to a court in proceedings against the forensic patient,
(e) dates relating to the events the subject of court proceedings against the forensic patient or a victim of the forensic patient that may cause distress to a victim if Tribunal hearings were held on those dates,
(f) the name and contact details of an emergency contact for the victim if the victim is unavailable when notice is given under clause 25(1)(d) or (2).
23
Verification of identity and status before registration
23 Verification of identity and status before registration
23 Verification of identity and status before registration
(1) A person must not be registered on the Victims Register unless the Commissioner of Victims Rights is satisfied as to the person’s identity and that the person is a primary victim or a family victim of an act of violence committed by a forensic patient.
(2) A person requesting registration on the Victims Register as a victim of a forensic patient must provide the following to the Commissioner—
(a) at least 1 of the person’s current Australian driver licence, current passport or birth certificate,
(b) the name of the forensic patient,
(c) if available, at least 1 of the following documents, to enable verification that the person is a victim—
(i) the case number of the Director of Public Prosecutions for each offence committed by the forensic patient that is relevant to the victim,
(ii) the hearing number for the Tribunal,
(iii) the police event number for each offence committed by the forensic patient that is relevant to the victim,
(3) The Commissioner may require a person who applies to be registered on the Victims Register, or any other person, to execute undertakings or other documents relating to disclosure or publication of information contained in the Register.
(4) The Commissioner may request a victim to provide further information for the purposes of the Victims Register.
(5) A failure by the victim to provide information under subclause (2) or further information under subclause (4) does not prevent the registration of the victim on the Victims Register.
(6) The Commissioner must notify a registered victim in writing when the victim is registered on the Victims Register.
24
Administration of Victims Register
24 Administration of Victims Register
24 Administration of Victims Register
(1) The Commissioner of Victims Rights may remove the name of a victim from the Victims Register if—
(a) the forensic patient ceases to be a forensic patient or is no longer a forensic patient for reasons related to acts committed by the forensic patient that are relevant to the victim, or
(b) all limiting terms imposed on the forensic patient for acts committed by the forensic patient that are relevant to the victim have expired, or
(c) an extension order or interim extension order is in force in respect of the forensic patient.
(2) The Commissioner of Victims Rights must give written notice to a person whose name is removed from the Victims Register about the removal.
25
Notifications by Commissioner of Victims Rights
25 Notifications by Commissioner of Victims Rights
25 Notifications by Commissioner of Victims Rights
(1) The Commissioner of Victims Rights must give notice in writing of the following to a registered victim of a forensic patient—
(a) particulars of proposed orders to be sought in relation to the forensic patient at a hearing of the Tribunal and the location of that hearing,
(b) particulars of the reasons for a decision by the Tribunal about an application for a grant of leave to, or the release of, the forensic patient,
(c) if there is an application for an extension order or interim extension order or an extension order or interim extension order is made in relation to the forensic patient,
(d) safety concerns relating to the victim known to the Commissioner in relation to a hearing before the Tribunal or arising out of a breach of an order relating to the forensic patient,
(e) if the forensic patient is reclassified as an involuntary patient.
(2) Despite subclause (1), notice may be given by telephone if the Commissioner is of the opinion that there is a risk of immediate harm to the victim or another person.
(3) The Commissioner must give notice in writing to the victim of a matter within 1 business day after notice is given of the matter to the victim by telephone.
(4) Notice under this clause must be given in a timely manner.
Note.
Section 6A of the Victims Rights and Support Act 2013 applies the Charter of rights of victims of crime to victims of forensic patients making submissions to the Tribunal. In particular, that section requires victims to be notified in a timely way of the release of or granting of leave to a forensic patient.
26
Disclosure of information to Tribunal
26 Disclosure of information to Tribunal
26 Disclosure of information to Tribunal
The Commissioner of Victims Rights may, with the consent of the victim, disclose to the Tribunal information contained in the Victims Register and other information relating to the victim.
27
Publication of information in Victims Register
27 Publication of information in Victims Register
27 Publication of information in Victims Register
(1) A registered victim or any other person must not publish information contained in the Victims Register.
Maximum penalty—10 penalty units.
(2) This clause does not apply if the Tribunal or a court consents to or orders the publication or the information is publicly available.
(3) In this clause, publish means disseminate or provide access to 1 or more persons by means of the internet, radio, television or other media.
28
Giving notice
28 Giving notice
28 Giving notice
A notice in writing under this Part may be given to a victim by any of the following methods—
(a) by personal delivery to the victim,
(b) by post to the address specified by the victim for the service of documents of that kind,
(c) in the case of a victim who has not specified an address for service—by post to the residential or business address of the person last known to the person serving the document,
(d) by email to an email address specified by the victim for the service of documents of that kind.
Part 5
Miscellaneous
Part 5 Miscellaneous
Part 5 Miscellaneous
29
Transport of defendants in Local Court proceedings
29 Transport of defendants in Local Court proceedings
29 Transport of defendants in Local Court proceedings
For the purposes of section 22(1)(b) of the Act, the following persons are prescribed as persons who may take a defendant to or from a place—
(a) if the defendant is on remand or serving a sentence of imprisonment, other than a defendant detained in a detention centre—a correctional officer or a police officer,
(b) otherwise—a member of the NSW Health Service, a police officer, a correctional officer, a juvenile justice officer or a person who provides a transport service approved for that purpose by the Secretary.
30
Forensic patients
30 Forensic patients
30 Forensic patients
For the purposes of section 72(1)(d) of the Act, a person is prescribed if the person, whether before or after the commencement of this clause—
(a) is found not guilty of an offence under the law of Norfolk Island by reason of mental illness or mental impairment, and
(b) is transferred to and being held in the custody of this State—
(i) under a law of this State that provides for the person to be held in custody, and
(ii) under an order made or warrant issued following the finding.
31
Exchange of information
31 Exchange of information
31 Exchange of information
For the purposes of section 161(2)(b) of the Act, the following information is prescribed as information to which an information sharing protocol may relate—
(a) information concerning former forensic patients or correctional patients transferred, or proposed to be transferred, to correctional centres,
(b) information concerning persons, other than forensic patients or correctional patients, who are, or may be, subject to forensic community treatment orders,
(c) information concerning persons, other than forensic patients or correctional patients, who were formerly subject to forensic community treatment orders and who have been released from a correctional centre and are subject to community treatment orders,
(d) information concerning visitors to forensic patients or correctional patients who are reasonably believed to pose a security risk to the good management and order of a correctional centre or mental health facility.
This Regulation is the Mental Health and Cognitive Impairment Forensic Provisions Regulation 2021.
2 Commencement
2 Commencement
2 Commencement
This Regulation commences on 27 March 2021 and is required to be published on the NSW legislation website.
3 Definitions
3 Definitions
3 Definitions
In this Regulation—
forensic community treatment order means a community treatment order made under section 99 of the Act.
Justice Health and Forensic Mental Health Network means the statutory health corporation of that name constituted under the Health Services Act 1997.
the Act means the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
Note.
The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.
Part 2 Proceedings
Part 2 Proceedings
Part 2 Proceedings
Division 1 Court proceedings
Division 1 Court proceedings
Division 1 Court proceedings
4 Matters to be considered by Court—reports
4 Matters to be considered by Court—reports
4 Matters to be considered by Court—reports
A person is prescribed for the purposes of sections 33(2) and 66(1) of the Act, if the person—
(a) is a registered psychologist, and
(b) has, in the opinion of the Court, appropriate experience or training in forensic psychology or neuro-psychology.
Division 2 Tribunal proceedings
Division 2 Tribunal proceedings
Division 2 Tribunal proceedings
5 Adjournments
5 Adjournments
5 Adjournments
The Tribunal may be constituted by the President or a Deputy President for the purpose of adjourning a review under the Act.
The instrument therefore reallocates procedural duties, creates privacy and notification rules for victims, and delegates specified clinical and administrative powers to Justice Health and Forensic Mental Health Network personnel for the purposes of forensic community treatment orders, while keeping the core Tribunal and Mental Health Act machinery in play subject to the stated modifications (cl 15).
Main concepts
The Regulation is short and programmatic. It defines a handful of recurring concepts and then applies them in procedure and administrative rules.
Definitions and cross‑reference framework. The instrument defines the Act as the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, and it defines forensic community treatment order and Justice Health and Forensic Mental Health Network (cl 3). The cl 3 note points to the Act and to the Interpretation Act 1987 for further definitions that affect interpretation.
Prescribed experts. For the purposes of sections of the Act that require prescribed persons to prepare reports, the Regulation prescribes "a registered psychologist" with appropriate forensic psychology or neuro‑psychology experience, subject to the court's or Tribunal's opinion (cl 4, cl 6). The prescription is occupation plus a fitness‑to‑opine condition assessed by the deciding body.
Tribunal composition and procedure. The Tribunal may be constituted by the President or a Deputy President for particular purposes including adjournments and specified reviews (cls 5, 7, 9). The President or Deputy President sitting alone can determine certain victim non‑disclosure requests and is included in the working definition of "Tribunal" for some clauses (cls 10, 12(6), 14(3)). Victims may make written or oral submissions, the Tribunal must acknowledge receipt, and victims (with leave) may ask appropriate questions during proceedings (cl 11).
Victims Register. The Regulation creates an administrated register for victims of forensic patients (cl 21). It lists the categories of information to be held (cl 22), sets verification requirements before registration (cl 23), identifies administrative powers to remove names and give notice (cl 24), prescribes what notifications must be given to registered victims and timeframes (cl 25), permits disclosure to the Tribunal with the victim's consent (cl 26), and prohibits publication of register contents subject to a maximum penalty of 10 penalty units (cl 27). Methods of giving notice are prescribed (cl 28).
Forensic community treatment orders. The Regulation modifies Chapter 3, Part 3 of the Mental Health Act 2007 for the purpose of making forensic community treatment orders (cl 15). It expressly permits applications for such orders to be made by a medical officer authorised by the Chief Executive of Justice Health and Forensic Mental Health Network (cl 16(1)) and removes certain Mental Health Act provisions from applying to those applications (cl 16(2)). It treats Justice Health and Forensic Mental Health Network as a declared mental health facility for treatment‑plan references where the plan relates to a community treatment order (cl 17). It authorises medical officers from Justice Health and Forensic Mental Health Network to exercise particular implementation functions normally exercised by a director of community treatment (cl 18(1)) and replaces the operation of ss 58-64 of the Mental Health Act for persons subject to forensic community treatment orders who are in custody or awaiting transfer, by a process where authorised medical officers act, warn and, if appropriate, assess for transfer and provide treatment and notify the Tribunal within 2 business days after treatment is given (cl 19).
Information sharing and operational prescriptions. The Regulation prescribes types of information that an information sharing protocol may cover, including information about transfers, persons who may be subject to forensic community treatment orders, those formerly subject and visitors who may pose a security risk (cl 31). It prescribes who may transport defendants in Local Court proceedings depending on custodial status (cl 29). It prescribes persons found not guilty in Norfolk Island by reason of mental illness and transferred to NSW custody as forensic patients for the purposes of the Act (cl 30).
Each concept is grounded in a short clause; the Regulation leaves policy judgements to the Act but fixes the implementing mechanics: who is authorised to act, what documents are required, what timelines apply and what confidentiality and disclosure constraints exist.
Who it affects
The Regulation allocates duties and rights across a small set of public office holders, professionals and private persons.
Forensic patients and correctional patients. The Regulation frequently addresses persons subject to forensic community treatment orders and those detained in correctional centres. It alters the operation of specified Mental Health Act provisions for affected persons and prescribes a different process when such persons in custody refuse or fail to comply with a forensic community treatment order (cl 19(1)-(5)). For these persons the medical officer authorised by Justice Health and Forensic Mental Health Network carries specific obligations to warn, assess for transfer and, where clinically appropriate, administer treatment and notify the Tribunal (cl 19(3)-(5)).
Victims and registered victims. Victims of forensic patients are central to multiple clauses. The Regulation creates the Victims Register (cl 21), prescribes what information will be recorded about each registered victim (cl 22), requires identity and victim‑status verification before registration (cl 23), gives the Commissioner of Victims Rights powers to notify, remove names and disclose register information with consent (cls 24-26), and prohibits publication of register contents (cl 27). Victims can make submissions to the Tribunal and may nominate representatives (cls 11, 13).
Commissioner of Victims Rights. The Commissioner has operational duties: verify identity and victim status prior to registration (cl 23(1)), notify registered victims in the specified circumstances (cl 25(1)), remove names in specified circumstances (cl 24(1)), make disclosures to the Tribunal with consent (cl 26), and possibly require undertakings regarding disclosure or publication (cl 23(3)). These are agency tasks, creating administrative workload and recordkeeping obligations.
Tribunal members. The President or Deputy President may determine a range of matters, sit alone for certain decisions including victim non‑disclosure requests (cl 10), and the Tribunal has procedural duties such as acknowledging receipt of victim submissions (cl 11(3)), disclosing edited submissions to legal representatives with conditions (cl 12), and appointing an Australian legal practitioner where the forensic patient is unrepresented (cl 12(5)).
Justice Health and Forensic Mental Health Network and its authorised medical officers. The Regulation expressly expands the pool of persons authorised to apply for forensic community treatment orders to include a medical officer authorised by the Network’s Chief Executive (cl 16(1)), enables such authorised officers to perform director‑of‑community‑treatment functions for implementation of forensic community treatment orders (cl 18(1)), allows authorised medical officers to apply to vary, revoke or revoke orders (cl 20(1), (3)), and requires them to follow particular steps when affected persons in custody refuse to comply (cl 19). These create operational obligations on the Network and its authorised clinicians.
Legal representatives and nominated representatives of victims. Legal representatives of patients may receive edited versions of victims’ submissions only if they accept non‑disclosure conditions (cl 12(1)-(2)); representatives nominated by victims must lodge a statutory declaration as to confidentiality in the form approved by the Secretary, and must have written authority from the victim (cl 13(2)(a)-(b)). The Tribunal may grant leave for legal representatives of victims to act (cl 13(2)(c)).
Correctional and other transport personnel. The Regulation prescribes who may transport defendants to or from Local Court proceedings: correctional officers or police for those on remand or serving sentences (other than in detention centres) and a range of other persons, including NSW Health Service members and Secretary‑approved transport services for other defendants (cl 29).
Publishers and the public. A registered victim or any person is prohibited from publishing information from the Victims Register, with a maximum penalty of 10 penalty units (cl 27(1)). The prohibition affects media outlets, online platforms and individuals; the Regulation defines "publish" to include internet, radio, television or other media (cl 27(3)).
Who pays. The Regulation does not specify fees payable to the State. The only direct monetary consequence in the text is the maximum penalty for unlawful publication of Victims Register information (cl 27(1)). Administrative compliance costs will fall on the Commissioner of Victims Rights, the Tribunal, Justice Health and Forensic Mental Health Network and authorised clinicians in the form of recordkeeping, notification obligations and timely forwarding of documents. Victims must provide identity documents and may be required to execute undertakings as a condition of registration (cl 23(2)-(3)). Medical officers will need to meet additional procedural steps when non‑compliance occurs (cl 19(3)-(5)).
Decision‑making. The instrument vests specific decision rights in the Tribunal, the President or Deputy President, the Commissioner of Victims Rights, the Chief Executive of Justice Health and Forensic Mental Health Network (in so far as authorising medical officers) and authorised medical officers themselves (for example to issue an assessment for transfer or to provide treatment under a forensic community treatment order) (cls 4, 5, 16-20, 23-26). The Regulation centralises certain practical decisions within these public authorities rather than leaving them to private actors.
Key duties and rights
This section lists the principal statutory duties and rights created or clarified by the Regulation, with clause references.
Duties placed on courts and tribunals
Prescribe qualifications for expert report authors: a person is prescribed for s 33(2) and s 66(1) of the Act if the person is a registered psychologist with, in the court’s opinion, appropriate forensic psychology or neuro‑psychology experience or training (cl 4). The Tribunal has a parallel prescription for s 84(1)(b) of the Act (cl 6).
Tribunal composition: the Tribunal may be constituted by the President or a Deputy President for adjournments, reviews of transfers and reviews under specified sections (cls 5, 7, 9).
Victim submissions: the Tribunal must acknowledge receipt of victim submissions (cl 11(3)). Victims may make oral or written submissions (cl 11(2)). A victim making a submission may, with leave, raise appropriate questions during proceedings (cl 11(4)).
Victim non‑disclosure determinations: a victim’s request that whole or part of a submission not be disclosed under s 145 of the Act may be determined by the President or Deputy President sitting alone (cl 10).
Disclosure to legal representatives and treatment teams: the Tribunal may disclose an edited version of a victim’s submission to the legal representative of a forensic patient subject to non‑disclosure conditions and procedural steps including informing the victim and giving opportunities to withdraw or amend (cl 12(1)-(4)). The Tribunal may disclose submissions or summaries to treating persons or delegates on the condition they do not disclose to the forensic patient (cl 14(1)-(2)).
Duties placed on victims and their representatives
Verification and documentation: a person cannot be registered on the Victims Register unless the Commissioner is satisfied as to identity and victim status; applicants must provide at least one approved identity document and information to verify victim status where available (cl 23(1)-(2)).
Representatives: a nominated representative must lodge a statutory declaration in a Secretary‑approved form as to confidentiality, possess the victim’s written authority and, if a legal representative, obtain leave if required (cl 13(2)(a)-(c)). The representative may act with the victim’s procedural rights at the hearing (cl 13(3)).
Duties placed on Commissioner of Victims Rights
Registration, notification and removal: verify identity and victim status before registration (cl 23(1)), notify victims when registered (cl 23(6)), remove names from the register in specified circumstances and give written notice of removal (cl 24(1)-(2)), provide specified notices to registered victims on Tribunal matters, Tribunal decisions and safety concerns (cl 25(1)-(4)). The Commissioner may require undertakings relating to disclosure or publication (cl 23(3)) and may disclose register information to the Tribunal with the victim’s consent (cl 26).
Duties placed on Justice Health and Forensic Mental Health Network and authorised medical officers
Applications and implementation: a medical officer authorised by the Chief Executive may apply under s 51 of the Mental Health Act 2007 for a forensic community treatment order (cl 16(1)). Such authorised medical officers may exercise functions under s 57(2) and (4) of the Mental Health Act in relation to forensic community treatment orders similarly to a director of community treatment (cl 18(1)).
Responses to breaches: where an affected person refuses or fails to comply and the authorised medical officer is satisfied reasonable steps to implement the order have been taken and there is significant risk of deterioration, the medical officer must warn the person that further non‑compliance may lead to treatment under the order, must cause assessment for transfer under s 86 of the Act if there is further non‑compliance, may give treatment if clinically appropriate and must notify the Tribunal within 2 business days after treatment is given (cl 19(3)-(5)).
Powers to vary and revoke: authorised persons may apply to vary or revoke forensic community treatment orders under specified Mental Health Act provisions and authorised medical officers may revoke orders and must notify the Tribunal in writing within 7 days of revocation (cl 20(1)-(4)).
Rights created or preserved
Right of victims to make submissions and be informed: victims may make submissions about a set of matters listed in cl 11(1)(a)-(d). The Commissioner must notify victims of Tribunal hearing particulars and decisions and of safety concerns as known to the Commissioner (cl 25(1)).
Right to confidentiality and controlled disclosure: victims may request non‑disclosure and the Tribunal may determine such requests; the Tribunal must follow prescribed processes before disclosing edited submissions and the legal representative receiving an edited submission must accept non‑disclosure constraints (cl 10, cl 12).
Procedural rights for forensic patients: when a forensic patient is unrepresented, the Tribunal may appoint an Australian legal practitioner to act for the purposes of clause 12 (cl 12(5)).
Notice and form requirements for appeals: appeals about leave of absence are to be made by notice in a Secretary‑approved form to the medical superintendent, which must be forwarded to the Tribunal within 2 business days and notifed to the Secretary; oral appeals are accepted by stating the wish to appeal to the medical superintendent who must provide written notice to the Tribunal within 2 business days and notify the Secretary (cl 8(1)-(5)).
Obligations with timing consequences. The Regulation establishes short, defined timeframes for particular actions: forwarding notices and appeals within 2 business days (cl 8(2), (4)); notification to the Tribunal within 2 business days after treatment is given (cl 19(5)); written notification to a registered victim within 1 business day after telephone notice (cl 25(2)-(3)); and written Tribunal notification within 7 days after revocation of an order (cl 20(4)). These timing mandates create operational dependencies for the agencies named.
Penalties and enforcement
The Regulation contains a narrow set of enforcement mechanisms. It is primarily procedural and administrative rather than penal, but it does include an express criminal or quasi‑criminal sanction and a few administrative enforcement levers.
Express monetary penalty
Publication of Victims Register material is prohibited and carries a maximum penalty of 10 penalty units (cl 27(1)). The prohibition applies to a registered victim or any other person, and the text defines "publish" to include dissemination via internet, radio, television or other media (cl 27(3)). The clause expressly permits publication if the Tribunal or a court consents or orders publication or the information is already publicly available (cl 27(2)). The Regulation does not set out who enforces that penalty; the clause itself establishes the offence and maximum penalty.
Administrative enforcement and reporting obligations
Notification obligations operate as an administrative enforcement mechanism. For example, where an authorised medical officer gives treatment in accordance with a forensic community treatment order following further refusal or failure to comply, the officer must notify the Tribunal within 2 business days (cl 19(5)). Failure to notify would engage administrative non‑compliance with the Regulation rather than a specified fine in this instrument.
Revocation of orders must be notified in writing to the Tribunal within 7 days after revocation (cl 20(4)). Again, failure to meet this timeline would be a breach of the Regulation but no express penalty is attached in the Regulation text.
Procedural controls and privacy safeguards
The Tribunal must follow particular steps before disclosing victims’ submissions, including informing the victim, giving opportunities to withdraw or amend and, where the Tribunal creates the edited version, giving the victim a copy and opportunity to request amendments (cl 12(4)). These procedural requirements serve as enforceable steps that the Tribunal must take before disclosure; enforcement would ordinarily be through judicial review or internal administrative oversight rather than an express penalty in the Regulation.
Delegated powers and obligations
The Regulation places duties on specific public office holders,medical officers authorised by the Chief Executive of Justice Health and Forensic Mental Health Network, the Commissioner of Victims Rights and Tribunal Presidents/Deputy Presidents,to act in specified ways. Enforcement of those duties will be via standard public sector accountability mechanisms, internal disciplinary regimes or review processes, not by pecuniary penalties specified in the Regulation text.
Scope limitations on enforcement
The Regulation does not create criminal offences for non‑compliance with most of its administrative provisions. It is procedural in nature, assigning responsibilities and timelines. The only explicit monetary penalty is for publication of Victims Register information (cl 27(1)). The regulation does not specify enforcement agencies, recovery mechanisms for penalty units, or conversion to dollar amounts; those matters lie in broader statutory frameworks and administrative practice.
Implementation risks relevant to enforcement
Several duties require short turnaround times and cross‑agency coordination: forwarding appeals and notices within 2 business days (cl 8), notifying the Tribunal within 2 business days after treatment (cl 19(5)), and providing written notice to victims within 1 business day after telephone notice (cl 25(3)). The Regulation therefore creates operational enforcement risk in the sense of compliance pressure on agency processes. The text itself does not set out direct sanctions for missing those timelines.
How it interacts with other laws
The Regulation is explicitly designed to operate in tandem with, and to modify in narrowly defined ways, other NSW statutes and instruments. The text itself directs attention to those interactions.
Primary Act interplay
The Regulation operates under and in support of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act). It prescribes persons, procedures, notification and registers for purposes expressly invoked by the Act such as sections referenced in clauses (for example s 33(2), s 66(1), s 84(1)(b), s 89(1), s 97, s 100, s 145) as noted in cl 4, cl 6, cl 7, cl 8, cl 9, cl 10, cl 11, cl 12 and elsewhere. Clause 3 also notes the Act contains definitions that affect interpretation.
Modifications to Mental Health Act 2007
Clause 15 states that for the purposes of section 99(2) of the Act, Chapter 3, Part 3 of the Mental Health Act 2007 is modified as set out in Part 3 of this Regulation for the making of a forensic community treatment order. The Regulation therefore creates a legally authorised modification to the operational application of the Mental Health Act 2007 when a forensic community treatment order is the instrument at issue.
Specific operational modifications include permitting a medical officer authorised by the Chief Executive of Justice Health and Forensic Mental Health Network to make an application under s 51 of the Mental Health Act for a forensic community treatment order (cl 16(1)); removing the application of ss 52(3) and 53(3)(c) to applications for such orders (cl 16(2)); construing references to declared mental health facility in ss 53 and 56 to include the Network for community treatment orders (cl 17); permitting authorised medical officers to exercise functions under s 57(2) and (4) (cl 18(1)); and displacing ss 58-64 with a different regime for affected persons in custody (cl 19(2)-(5)).
Interactions with Victims Rights and Support Act 2013
The Regulation references the Victims Rights and Support Act 2013 in two places: proof of victim status via prior claims under that Act is an accepted document for verification on registration (cl 23(2)(c)(iv)) and cl 25 includes a Note that s 6A of the Victims Rights and Support Act applies the Charter of rights of victims of crime to victims of forensic patients making submissions to the Tribunal, requiring timely notification of release or granting of leave to a forensic patient. The Regulation therefore relies on the Victims Rights and Support Act both as a source of documents for verification and as a cross‑instrument that imposes rights on victims whose procedural interactions are being structured here.
Information sharing protocols and other statutes
Clause 31 prescribes the types of information that an information sharing protocol may relate to for the purposes of s 161(2)(b) of the Act. The listed categories include transfers to correctional centres, persons who may be subject to forensic community treatment orders, those formerly subject and visitors believed to pose security risks. This clause creates an enabling specification that will interact with any statutory information sharing frameworks established under the Act or other statutes.
Tribunal and court procedural law
The Regulation allocates decision‑making and procedural responsibilities to the Tribunal, including who may be constituted to sit (cl 5, cl 7, cl 9, cl 10) and how victim submissions are handled (cls 11-14). These procedural adjustments operate within the Tribunal and court processes established by the Act and the Mental Health Act; the Regulation does not displace judicial review or other law but modifies the way statutory powers are exercised.
Savings and transitional effect
Clause 32 preserves acts, matters or things that had effect under the repealed Mental Health (Forensic Provisions) Regulation 2017, continuing them under this Regulation. The savings clause therefore creates legal continuity with prior regulatory settings and limits disruption in the transition between instruments.
Practical interaction points and potential friction
The Regulation creates points where multiple statutes and agencies must interoperate: verification of victim status may require access to police event numbers, DPP case numbers or Victims Rights and Support Act claim numbers (cl 23(2)(c)); Justice Health authorised clinicians must follow Mental Health Act procedures as modified by the Regulation, and also notify the Tribunal under the Act (cl 19); the Commissioner of Victims Rights must notify victims in ways that reconcile with the s 6A Charter obligations under the Victims Rights and Support Act (cl 25). The Regulation therefore stitches together institutional responsibilities across the Act, the Mental Health Act 2007 and the Victims Rights and Support Act 2013.
What the Regulation does not do
It does not amend primary statutes directly beyond the specific modifications it prescribes; it does not create new criminal offences for most administrative failures beyond the publication prohibition in cl 27, nor does it set out the monetary value of penalty units or enforcement mechanisms, which remain in broader statutory and administrative frameworks.
Amendment history
The Regulation itself contains limited historical material in its text. The record within the instrument includes:
Commencement. The Regulation commenced on 27 March 2021 and is required to be published on the NSW legislation website (cl 2). That date is the operative commencement date specified by the instrument.
Repeal and savings. Clause 32 contains a savings provision: any act, matter or thing that, immediately before the repeal of the Mental Health (Forensic Provisions) Regulation 2017, had effect under that Regulation continues to have effect under this Regulation (cl 32). That confirms the Regulation was intended as a replacement instrument with continuity of effect for matters previously governed by the 2017 instrument.
No internal amendment schedule. The Regulation text provided does not itself record subsequent amending provisions, dates of amendment to this Regulation, or an amendment history table. There are no amending clauses or schedules contained in the text supplied.
Cross‑reference to other legislation. The Regulation repeatedly cross‑refers to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) and to provisions of the Mental Health Act 2007 that are modified for particular purposes (cl 15). It also references the Interpretation Act 1987 as bearing on definitions and application (cl 3 note). Those cross‑references indicate the Regulation is an implementing instrument tied to the passage and structure of other Acts rather than a stand‑alone code.
Forms and approvals left to executive decision. The Regulation leaves certain procedural particulars to instruments or approvals by the Secretary or Chief Executive (for example the form of notice of appeal approved by the Secretary in cl 8(1), and statutory declaration forms for representatives in cl 13(2)(a)). Any amendment to those practical forms or approvals would occur through administrative processes rather than by amendment to the Regulation text itself.
No recorded repeal date in the instrument. The Regulation does not purport to be time limited and contains no sunset provision. It replaced the 2017 instrument with the savings clause recognising continuity, but the text does not indicate planned further amendment.
In short, the instrument itself documents its commencement and replacement of the 2017 Regulation, but contains no further amendment history entries within its four corners. Any subsequent amendments or repeal of this Regulation would be recorded in the consolidated statute database or later versions of the Regulation, not in the text provided.
Litigation history
The Regulation text does not contain or reference case law, judicial determinations, or litigation outcomes. There are no statutory notes within the instrument citing decisions, and no parts of the Regulation record judicial interpretation or precedent. As such, within the source supplied:
There is no litigation history recorded. The instrument contains no named cases, reported decisions, or references to judicial review outcomes.
The Regulation does refer to procedural rights and administrative steps that could, in principle, be the subject of judicial review or appeal under the Act (for example determinations by the President or Deputy President sitting alone about victim non‑disclosure, cl 10, or obligations to notify and process Victims Register entries, cls 23-26). But the Regulation itself contains no record of such litigation or of judicial interpretation.
Practical implication for practitioners: absence of litigation history in the source means there is no authoritative judicial gloss supplied with the Regulation in the provided text. Any arguments about interpretation, constitutionality of administrative arrangements, or the proper application of procedural requirements would therefore have to be developed from primary statutory materials, policy materials and subsequently reported decisions outside this instrument.
Because the Regulation gives effect to procedures that interact with Tribunal and court processes, practitioners should check case law and Tribunal decisions after the commencement date for any judicial consideration of these provisions. The Regulation text itself, however, contains no litigation history or citations and therefore offers no in‑text judicial guidance.
Gotchas
This section flags operational and legal points in the Regulation that may produce unintended consequences, pockets of discretion, or compliance traps, strictly as matters that appear in the text.
Short statutory timelines with cross‑agency dependencies
Multiple provisions impose tight timeframes on different actors. Notices of appeal to be forwarded to the Tribunal and the Secretary by the medical superintendent must be forwarded within 2 business days (cl 8(2), (4)). An authorised medical officer who provides treatment after further non‑compliance must notify the Tribunal within 2 business days (cl 19(5)). Where the Commissioner of Victims Rights gives telephone notice because of risk, written notice must follow within 1 business day (cl 25(2)-(3)). These short deadlines require reliable operational processes and cross‑agency communication. Failure to meet them is a breach of the Regulation but the instrument does not specify pecuniary sanctions for those breaches.
Broad delegation to President or Deputy President sitting alone
The Regulation permits the President or Deputy President sitting alone to determine certain matters including victim non‑disclosure requests (cl 10). That centralises decision‑making authority in single office holders for sensitive confidentiality determinations and for constituting the Tribunal for adjournments and certain reviews (cls 5, 7, 9). Practitioners should note opportunities for review or appeal are not specified in the Regulation itself and must be sought in the Act or by legal challenge where appropriate.
Edited disclosure regime and limits on patient access
The Tribunal can disclose edited versions of victims’ submissions to a forensic patient’s legal representative subject to non‑disclosure conditions (cl 12(1)-(2)). The edited submission may be created by the victim or the Tribunal. The Tribunal must inform the victim, give the victim opportunities to amend or withdraw, and if the Tribunal creates the edited version, provide it to the victim with opportunity to request amendments (cl 12(4)). If the forensic patient is unrepresented, the Tribunal may appoint an Australian legal practitioner to act for the narrow purpose of clause 12 (cl 12(5)). Practitioners must navigate the interplay between victims’ confidentiality claims and procedural fairness obligations to the patient.
Victims Register publication prohibition and broad scope of "publish"
Clause 27(1) prohibits publication of Victims Register information by a registered victim or any other person, with a maximum penalty of 10 penalty units. "Publish" is defined to include internet, radio, television or other media (cl 27(3)). The prohibition is broad; however cl 27(2) allows publication with Tribunal or court consent or where information is publicly available. Practitioners and media must perform due diligence before disseminating material that may have originated in the Victims Register.
Verification requirements that rely on external records
To register, applicants must provide at least one identity document and, if available, one of several sources of verification of victim status such as DPP case numbers, Tribunal hearing numbers, police event numbers or Victims Rights and Support Act claim numbers (cl 23(2)). Where such records are absent, cl 23(5) states failure to provide information does not prevent registration, but cl 23(3) permits the Commissioner to require undertakings or other documents relating to disclosure or publication. That creates a discretionary gate and potential delays while the Commissioner seeks verification.
Modification of portions of the Mental Health Act 2007
For forensic community treatment orders, the Regulation modifies how certain Mental Health Act 2007 provisions apply, for example by removing the application of ss 52(3) and 53(3)(c) to applications for forensic community treatment orders (cl 16(2)) and displacing ss 58-64 for affected persons in custody (cl 19(2)). The changes mean practitioners used to standard Mental Health Act processes should not assume identical procedures or protections apply in the forensic context; instead they must consult the Regulation and the amended operation of the Mental Health Act as modified by cl 15.
Treatment in custody and assessment for transfer triggers
If an affected person in custody refuses or fails to comply and the authorised medical officer considers reasonable steps have been taken and there is significant risk of deterioration, the officer must warn, then, upon further non‑compliance, may cause assessment for transfer under s 86 of the Act and may give treatment in accordance with the forensic community treatment order if clinically appropriate, with notification to the Tribunal within 2 business days after treatment is given (cl 19(3)-(5)). These steps permit clinical intervention in custodial settings with a short post‑treatment reporting obligation, creating a tight operational window and some clinical discretion.
Form and approval dependencies
Several procedural steps rely on forms or approvals by the Secretary or require statutory declarations in Secretary‑approved forms (cl 8(1), cl 13(2)(a)). The Regulation therefore leaves practical details to administrative instruments and the Secretary’s discretion.
Information sharing scope
Clause 31 prescribes detailed categories of information that information‑sharing protocols may cover, including visitors believed to pose a security risk to correctional centres or mental health facilities. That facilitates operational sharing but also raises data‑control and privacy practice questions in implementation.
No financial compensation structures for victims in the Regulation
While the Regulation references the Victims Rights and Support Act and permits recording whether a victim has claimed assistance under that Act (cl 22(d) and cl 23(2)(c)(iv)), the Regulation does not itself create or modify compensation or support payment schemes.
In sum, the text creates practical traps around timing, confidential handling of victim information, delegation of clinical and Tribunal authority, and verification requirements. These "gotchas" are visible in the clauses cited and require operational design choices by the agencies and practitioners who must implement them.
How to comply
This final section provides a checklist and practical steps for the principal actors named in the Regulation, grounded in the clauses.
For the Commissioner of Victims Rights (cls 22-26)
Establish intake and verification processes aligned to cl 23. Require applicants to provide at least one approved identity document (driver licence, passport or birth certificate) and request available corroborative documents such as DPP case numbers, Tribunal hearing numbers, police event numbers or Victims Rights and Support Act claim numbers (cl 23(2)). Build procedures to accept registrations even if applicants lack some items (cl 23(5)), but have a protocol for requiring undertakings where appropriate (cl 23(3)).
Maintain a Victims Register that records the specified fields in cl 22, including emergency contact details where necessary (cl 22(f)).
Implement notification workflows that meet the timing obligations in cl 25: provide notices in writing about Tribunal hearing particulars, Tribunal decisions and safety concerns (cl 25(1)); if you give notice by telephone because of immediate risk, ensure written notice follows within 1 business day (cl 25(2)-(3)); and ensure notices are given in a timely manner (cl 25(4)).
Track removal conditions in cl 24 and give written notice when removing a victim’s name (cl 24(2)).
Ensure consent protocols and confidentiality safeguards before disclosing Victims Register information to the Tribunal (cl 26).
Implement secure recordkeeping and information‑security controls to comply with cl 27’s publication prohibition and have processes to respond to requests for Tribunal or court consent to publish.
For the Tribunal and Tribunal President or Deputy President (cls 5, 7, 9-14)
Prepare standard operating procedures to allow the President or a Deputy President to constitute the Tribunal for adjournments and reviews and to sit alone for victim non‑disclosure determinations where authorised by the Regulation (cls 5, 7, 9, 10).
For victim submissions, confirm receipt acknowledgement processes (cl 11(3)), provide means to receive written and oral submissions (cl 11(2)), and have templates for allowing victims with leave to raise appropriate questions at hearings (cl 11(4)).
Develop redaction and editing workflows for disclosure to legal representatives: establish consistent edited submission templates, ensure compliance with the non‑disclosure conditions in cl 12(2), and implement the requirement to inform the victim, offer an opportunity to withdraw or amend and to share Tribunal‑created edited versions for amendment requests (cl 12(4)).
Where the forensic patient is unrepresented, have an on‑call list of Australian legal practitioners who can be appointed to receive an edited submission for the limited purpose of cl 12(5).
For Justice Health and Forensic Mental Health Network, Chief Executive and authorised medical officers (cls 16-20)
Establish authorisation processes under cl 16(1) for medical officers to be authorised by the Chief Executive to apply for forensic community treatment orders. Document delegations and ensure authorised officers are informed of the modifications in cl 15 and cl 16(2).
When implementing forensic community treatment orders, ensure authorised officers understand they may exercise functions under s 57(2) and (4) of the Mental Health Act in the same manner as a director of community treatment (cl 18(1)), and that s 57(5) does not apply to forensic community treatment orders (cl 18(2)).
For persons in custody who refuse or fail to comply with a forensic community treatment order, implement a stepwise clinical and administrative process under cl 19: verify that reasonable implementation steps have been taken and that there is significant risk of deterioration (cl 19(3)); give the required warning that future refusal may lead to treatment under the order (cl 19(4)); where further non‑compliance occurs, cause assessment for transfer under s 86 of the Act, consider treatment if clinically appropriate and notify the Tribunal within 2 business days of the treatment (cl 19(5)). Document these steps in clinical records.
When varying or revoking orders, ensure applications are made under the specified Mental Health Act provisions and, if revocation occurs, notify the Tribunal in writing within 7 days (cl 20(1)-(4)). Maintain audit trails for these notifications.
For medical superintendents and mental health facility staff (cl 8)
For appeals against Secretary decisions about leave of absence, ensure that written appeals follow the Secretary‑approved form and are given to the medical superintendent who must forward the notice to the Tribunal within 2 business days and notify the Secretary (cl 8(1)-(2)). For oral appeals, have a written notice process to provide that oral appeal to the Tribunal within 2 business days and notify the Secretary (cl 8(3)-(5)). Keep copies for the forensic or correctional patient and record the appeal.
For victims and representatives (cls 11, 13, 23)
If seeking registration, prepare identity documents and any corroborative documents listed in cl 23(2). Expect to provide written authority to nominated representatives and for those representatives to lodge Secretary‑approved statutory declarations as to confidentiality (cl 13(2)(a)-(b)). Be aware that the Tribunal will acknowledge receipt of submissions and may permit oral or written submissions (cl 11(2)-(3)).
Avoid publishing any information from the Victims Register unless Tribunal or court consent is obtained or the information is already publicly available (cl 27(1)-(2)). Understand publication carries a risk of a fine up to 10 penalty units (cl 27(1)).
For legal practitioners and media
Before publishing material that might have originated from the Victims Register, seek confirmation the material is publicly available or secured Tribunal/court consent (cl 27(2)). If asked to receive an edited victim submission, ensure compliance with the non‑disclosure conditions and understand that any disclosure beyond the conditions is prohibited (cl 12(2)-(3)).
For legal practitioners representing victims, secure client authority in writing and comply with any statutory declaration and confidentiality requirements specified by the Tribunal (cl 13(2)).
For correctional facilities and transport services (cl 29)
Ensure personnel transporting defendants are authorised as prescribed: correctional officers or police where the defendant is on remand or serving imprisonment (other than in a detention centre), and, otherwise, NSW Health Service members, police, correctional officers, juvenile justice officers or a Secretary‑approved transport service (cl 29). Maintain documentation of approvals and of transport authorisations.
Information governance and records
Across all agencies, implement records systems to capture the register entries required in cl 22, to log identity verification steps under cl 23, to record notification timelines in cl 25, and to document disclosures and the non‑disclosure undertakings in cl 12 and cl 23(3).
Ensure privacy, access control and a chain of custody for sensitive materials, particularly victims’ submissions and Victims Register data.
Testing and audit
Plan internal audits to confirm compliance with short notification windows in cl 8, cl 19(5), cl 20(4) and cl 25(3). Build escalation pathways to ensure Tribunal notifications and appeals forwarded within the specified timeframes.
In sum, compliance requires aligning intake procedures, short‑notice notification workflows, confidentiality and editing protocols, authorised clinician delegations, and recordkeeping to the explicit obligations and timeframes set out in the Regulation (see cl 8, cls 11-14, cls 16-20, cls 22-28).
A person is prescribed for the purposes of section 84(1)(b) of the Act, if the person—
(a) is a registered psychologist, and
(b) has, in the opinion of the Tribunal, appropriate experience or training in forensic psychology or neuro-psychology.
7 Reviews by Tribunal of persons awaiting transfer to mental health facility
7 Reviews by Tribunal of persons awaiting transfer to mental health facility
7 Reviews by Tribunal of persons awaiting transfer to mental health facility
(1) For the purposes of section 89(1) of the Act, the prescribed period is 14 days after the making of the order.
(2) The Tribunal may be constituted by the President or a Deputy President for the purposes of conducting a review under section 89 of the Act.
8 Appeals against decisions of Secretary about leave of absence
8 Appeals against decisions of Secretary about leave of absence
8 Appeals against decisions of Secretary about leave of absence
(1) An appeal in writing under section 97 of the Act is to be made by giving a notice of appeal, in the form approved by the Secretary, to the medical superintendent of the mental health facility in which the forensic patient or correctional patient making the appeal is being detained.
(2) The medical superintendent must forward the notice of appeal to the Tribunal within 2 business days after receiving it and must notify the Secretary of the appeal within that period.
(3) An oral appeal under section 97 of the Act is to be made by telling the medical superintendent of the wish to make an appeal.
(4) The medical superintendent must provide written notice of an oral appeal to the Tribunal within 2 business days after the appeal is made and must notify the Secretary of the appeal within that period.
(5) A copy of the written notice is to be given to the forensic patient or correctional patient making the appeal and a copy is to be kept by the medical superintendent as a record of the appeal.
9 Reviews of persons in custody who are subject to forensic community treatment orders
9 Reviews of persons in custody who are subject to forensic community treatment orders
9 Reviews of persons in custody who are subject to forensic community treatment orders
The Tribunal may be constituted by the President or a Deputy President for the purposes of conducting a review under section 100 of the Act.
10 Tribunal to disclose the whole or part of a submission
10 Tribunal to disclose the whole or part of a submission
10 Tribunal to disclose the whole or part of a submission
A request made by the victim not to disclose the whole or part of a submission under section 145 of the Act may be determined by the President or Deputy President of the Tribunal sitting alone.
11 Submissions to Tribunal by victims
11 Submissions to Tribunal by victims
11 Submissions to Tribunal by victims
(1) For the purposes of section 145(6)(a) of the Act, a victim may make a submission about the following—
(a) the forensic patient’s behaviour and the impact of the behaviour on the victim or the victim’s family,
(b) the risk posed by the forensic patient to the victim, the victim’s family or any other person,
(c) the impact on the victim and the victim’s family if the forensic patient is released or granted a leave of absence, whether unconditionally or subject to proposed conditions,
(d) the conditions that should be imposed on the release of or grant of leave of absence to forensic patients, including non-association conditions and place restriction conditions under section 146 of the Act.
(2) A submission may be made in writing or orally.
(3) The Tribunal must acknowledge the receipt of a submission.
(4) A victim who makes a submission to the Tribunal may, with the leave of the Tribunal, raise questions that the Tribunal considers to be appropriate for discussion during the proceedings.
12 Disclosure of victims’ submissions by Tribunal
12 Disclosure of victims’ submissions by Tribunal
12 Disclosure of victims’ submissions by Tribunal
(1) The Tribunal may disclose an edited version of a submission by a victim to the legal representative of a forensic patient if—
(a) the Tribunal determines under section 145 of the Act that a submission is not to be disclosed to a forensic patient, and
(b) the Tribunal is of the opinion that information contained in the submission should be provided to the legal representative of the patient for reasons of procedural fairness, and
(c) the legal representative has agreed to the non-disclosure conditions in subclause (2).
(2) The non-disclosure conditions are as follows—
(a) the edited submission must not be disclosed to the forensic patient without the consent of the Tribunal,
(b) the following information may be disclosed, but not information identifying the location of the residence or place of work of the victim or the victim’s family or friends or of other places frequented by the victim—
(i) information about proposed place restrictions,
(ii) general information about the areas the proposed restrictions apply,
(iii) the reasons for the victim’s proposal,
(c) the legal representative must only disclose to the forensic patient general information about the submission of a kind specified by the Tribunal.
(3) The edited version of the submission may be created by the victim or the Tribunal.
(4) Before disclosing an edited version of a submission, the Tribunal must—
(a) inform the victim of the proposed disclosure, and
(b) give the victim an opportunity to withdraw or amend the submission, and
(c) if the edited version is created by the Tribunal—provide the victim with a copy of the edited version and give the victim an opportunity to request amendments to the edited version, and
(d) if the edited version is created by the victim—give the victim an opportunity to amend the edited version.
(5) If the forensic patient is not represented by a legal representative, the Tribunal may appoint an Australian legal practitioner to act on behalf of the forensic patient for the purposes of this clause.
(6) In this clause—
the Tribunal includes the President or Deputy President of the Tribunal sitting alone.
13 Representation of victims
13 Representation of victims
13 Representation of victims
(1) A representative may be nominated by a victim to represent the victim at a hearing of the Tribunal at which the victim is entitled to make a submission.
(2) The representative is not eligible to represent a victim at a hearing unless—
(a) the representative has completed and lodged with the Tribunal a statutory declaration, in the form approved by the Secretary, as to confidentiality, and
(b) the representative has the victim’s written authority to attend the hearing and represent the victim, and
(c) if the representative is the legal representative of the victim—leave is granted by the Tribunal or President or Deputy President sitting alone.
(3) The representative may do anything at the hearing that the victim may do.
14 Disclosure by Tribunal to treatment team
14 Disclosure by Tribunal to treatment team
14 Disclosure by Tribunal to treatment team
(1) The Tribunal may disclose all or part of, or a summary of, a submission received from a victim of a forensic patient to a person who is treating the forensic patient or a delegate of the person.
(2) The submission must be disclosed on the condition that the person to whom the information is disclosed does not disclose the information to the forensic patient.
(3) In this clause—
the Tribunal includes the President or Deputy President of the Tribunal sitting alone.
Part 3 Forensic community treatment orders
Part 3 Forensic community treatment orders
Part 3 Forensic community treatment orders
15 Modification of provisions of Mental Health Act 2007
15 Modification of provisions of Mental Health Act 2007
15 Modification of provisions of Mental Health Act 2007
For the purposes of section 99(2) of the Act, Chapter 3, Part 3 of the Mental Health Act 2007 is modified as set out in this Part for the purposes of the making of a forensic community treatment order.
16 Applications for forensic community treatment orders
16 Applications for forensic community treatment orders
16 Applications for forensic community treatment orders
(1) An application under section 51 of the Mental Health Act 2007 for a forensic community treatment order may also be made by a medical officer authorised by the Chief Executive of Justice Health and Forensic Mental Health Network.
(2) Sections 52(3) and 53(3)(c) of the Mental Health Act 2007 do not apply to an application for a forensic community treatment order.
17 Treatment plans
17 Treatment plans
17 Treatment plans
A reference in section 53 or 56 of the Mental Health Act 2007 to a declared mental health facility is taken to also include a reference to Justice Health and Forensic Mental Health Network if the reference relates to a community treatment order.
18 Implementation of forensic community treatment orders
18 Implementation of forensic community treatment orders
18 Implementation of forensic community treatment orders
(1) A medical officer authorised by Justice Health and Forensic Mental Health Network may exercise functions under section 57(2) and (4) of the Mental Health Act 2007 in relation to a forensic community treatment order in the same way as the director of community treatment of a declared mental health facility.
(2) Section 57(5) of the Mental Health Act 2007 does not apply to a forensic community treatment order.
19 Breaches of forensic community treatment orders
19 Breaches of forensic community treatment orders
19 Breaches of forensic community treatment orders
(1) This clause applies to the following persons who are subject to forensic community treatment orders (an affected person)—
(a) a forensic patient, correctional patient or other person who is detained in a correctional centre,
(b) a person who is subject to an order for transfer from a correctional centre but who has not been transferred.
(2) Sections 58–64 of the Mental Health Act 2007 do not apply to an affected person and are replaced by subclauses (3)–(5).
(3) A medical officer authorised by Justice Health and Forensic Mental Health Network must take the steps set out in subclauses (4) and (5) if an affected person refuses or fails to comply with the forensic community treatment order and the officer is of the opinion that—
(a) Justice Health and Forensic Mental Health Network has taken all reasonable steps to implement the order, and
(b) there is a significant risk of deterioration in the mental or physical condition of the affected person.
(4) The officer must cause the affected person to be informed that further refusal or failure to comply with the order may result in the person being given treatment in accordance with the forensic community treatment order.
(5) If there is a further refusal or failure to comply with the order—
(a) the officer must cause the affected person to be assessed for the purpose of issuing certificates for the purpose of a transfer of the person under section 86 of the Act to a mental health facility, and
(b) the officer may cause the affected person to be given treatment in accordance with the forensic community treatment order, if the officer thinks it appropriate for clinical reasons to do so, and must notify the Tribunal within 2 business days after the treatment is given.
20 Variation or revocation of forensic community treatment orders
20 Variation or revocation of forensic community treatment orders
20 Variation or revocation of forensic community treatment orders
(1) A person authorised by Justice Health and Forensic Mental Health Network may also apply to vary or revoke a forensic community treatment order under section 65(2) of the Mental Health Act 2007.
(2) An application to vary or revoke a forensic community treatment order may also be made under section 65(3) of the Mental Health Act 2007 on the grounds the person subject to the order is released, or proposed to be released, from a correctional centre.
(3) A medical officer authorised by Justice Health and Forensic Mental Health Network may also revoke an order under section 66 of the Mental Health Act 2007.
(4) A person who revokes a forensic community treatment order under this clause or section 66 of the Mental Health Act 2007, must notify the Tribunal in writing of the revocation within 7 days after the revocation.
Part 4 Victims Register
Part 4 Victims Register
Part 4 Victims Register
21 Definition
21 Definition
21 Definition
In this Part—
registered victim means a victim whose name is includ
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