Supplementary Order Paper No 40

No 40

House of Representatives

Supplementary Order Paper

Thursday, 3 June 2021

Rights for Victims of Insane Offenders Bill

Proposed amendments for the consideration of the Committee of the whole House

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Hover your cursor over an amendment for information about that amendment. Download the PDF version to see this information in a form that can be printed out.

Explanatory note

This Supplementary Order Paper (SOP) amends the Rights for Victims of Insane Offenders Bill. It makes minor technical amendments to the Bill.

The SOP makes an identical amendment to clauses 7A (new section 33C(2)), 8B (new section 50C(2)), 8D (new section 52C(2)), 11 (new clause 3AAA), and 12B (new section 65B(2)) to simplify the drafting. References to “making submissions on, or giving information relevant to,” a decision are amended to refer to “making submissions on” a decision.

The SOP amends clause 8B (new section 50) to reinstate the existing wording of section 50(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992, in order to maintain consistency with existing law.

The SOP inserts 2 equivalent transitional provisions in Schedule 2 (New Schedule 1AA, Part 1) and Schedule 3 (New Schedule 1AA, Part 1). These provisions apply if a decision to grant leave is taken before the commencement date but the resulting leave is being taken at or after the commencement date. In this circumstance, the Director of Mental Health (in the case of a decision taken under the Mental Health (Compulsory Assessment and Treatment) Act 1992) or the Director-General of Health (in the case of a decision taken under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003) may advise a victim of the leave decision to the extent that the Director or Director-General considers appropriate in the circumstances.

The SOP also corrects erroneous references (clauses 8B (new section 50F(1), 8D (new section 52F(1)), 11A, 12AA (new section 9A), 15A, and 16, and in clause 1(3) of each of Schedules 1, 2, 3, and 4).

The Honourable Louise Upston, in Committee, to propose the amendments shown in the following document.

Hon Louise Upston

Rights for Victims of Insane Offenders Bill

Member’s Bill

129—2

Contents

1Title
2Commencement
3Principal Act
3ASection 4 amended (Interpretation)
5Section 20 replaced (Finding of insanity)
20Finding of insanity
6Section 31 amended (Change of status from special patient to patient or special care recipient to care recipient where person unfit to stand trial)
7Section 33 amended (Duration of order for detention as special patient or special care recipient if person acquitted on account of insanity)
7ANew sections 33A to 33E inserted
33AReport by Director of Mental Health on defendant’s continued detention
33BWhen victims must be notified of impending decision under section 31 or 33
33CRight of victims to make submissions on proposed change of status
33DSubmissions from certain victims
33EVictims must be notified of decisions made under sections 31 and 33
33FInformation about victims not to be disclosed
7BSchedule 1AA amended
8Principal Act
8ASection 2 amended (Interpretation)
8AANew section 2C inserted (Transitional, savings, and related provisions)
2CTransitional, savings, and related provisions
8BSection 50 replaced (Leave of special patients)
50Special patient defined
50AMinister may grant leave to special patients
50BWhen victims must be notified of impending decision under section 50A
50CRight of victims to make submissions on proposed leave of absence
50DSubmissions from certain victims
50EVictims must be notified of decisions made under section 50A
50FInformation about victims not to be disclosed
50GMinister may cancel leave of special patients
8CSection 52 replaced (Director may grant short-term leave)
52Director may grant short-term leave to special patients
8DNew sections 52B to 52H inserted
52BWhen victims must be notified of impending decision under section 52
52CRight of victims to make submissions on proposed leave of absence
52DSubmissions from certain victims
52EVictims must be notified of decisions made under section 52
52FInformation about victims not to be disclosed
52GDirector may cancel short-term leave of special patients
52HDirector may authorise Director of Area Mental Health Services to exercise certain powers
10Section 80 amended (Tribunal reviews of certain special patients)
11Schedule 1 amended
11AAANew Schedule 1AA inserted
11AConsequential amendments to Mental Health (Compulsory Assessment and Treatment) Act 1992
12Principal Act
12ASection 5 amended (Interpretation)
12AANew section 9A inserted (Transitional, savings, and related provisions)
9ATransitional, savings, and related provisions
12BNew sections 65A to 65E inserted
65AWhen victims must be notified of impending decision under section 65
65BRight of victims to make submissions on proposed leave
65CSubmissions from certain victims
65DVictims must be notified of decisions made under section 65
65EInformation about victims not to be disclosed
12CSection 66 amended (Minister may authorise leave for special care recipients)
12DNew sections 67B to 67H inserted
67BWhen victims must be notified of impending decision under section 66
67CWhen victims must be notified of impending decision under section 67
67DRight of victims to make submissions on proposed leave
67ESubmissions from certain victims
67FVictims must be notified of decisions made under section 66
67GVictims must be notified of decisions made under section 67
67HInformation about victims not to be disclosed
13ANew Schedule 1 inserted
14Principal Act
14ASection 4 amended (Interpretation)
14AANew section 5A inserted (Transitional, savings, and related provisions)
5ATransitional, savings, and related provisions
14BCross-heading above section 17AA replaced
14CSection 17AA amended (Victim impact statement defined)
14DNew cross-heading above section 17 inserted
14ESection 20 renumbered and repositioned (Statements by others disadvantaged by offence)
14FNew cross-heading above section 21AA inserted
14GNew cross-heading above section 21 inserted
14HSection 21 amended (Victim impact statement to be submitted to judicial officer)
14ISection 22 amended (Victim impact statement may be read to court)
14JSection 22A amended (Victim impact statement may be presented to court in some other manner)
14KNew section 22C inserted (Judicial officer not to take into account withheld part)
22CJudicial officer not to take into account withheld part
14LNew cross-heading above section 23 inserted
14MSection 26 repealed (Judicial officer not to take into account withheld part)
14NSection 28 and cross-heading renumbered and repositioned
14ONew section 30A and cross-heading inserted
30AVictims of persons or offenders subject to mental health or intellectual disability care must be notified of person’s or offender’s designation
15AAANew Schedule 1AA inserted
15AConsequential amendments to Victims’ Rights Act 2002
16Consequential amendments to other enactments

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Rights for Victims of Insane Offenders Act 2019.

2 Commencement

This Act comes into force on 1 July 2022.

Part 1 Amendments to Criminal Procedure (Mentally Impaired Persons) Act 2003

3 Principal Act

This Part amends the Criminal Procedure (Mentally Impaired Persons) Act 2003.

3A Section 4 amended (Interpretation)

In section 4(1), insert in its appropriate alphabetical order:

proven but insane, in respect of a defendant charged with an offence, means—

(a)

the defendant is proven to have done, or omitted to do, an act that is the subject of the charge brought against the defendant; but

(b)

the defendant was insane at the time that the defendant did, or omitted to do, the act

victim has the same meaning as in section 2(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992.

5 Section 20 replaced (Finding of insanity)

Replace section 20 with:

20 Finding of insanity

(1)

At a trial, the Judge must record a finding of proven but insane if—

(a)

the defendant gives evidence as to the defendant’s insanity; and

(b)

the jury or (if there is no jury) the Judge finds—

(i)

the defendant is proven to have done, or omitted to do, an act that is the subject of the charge brought against the defendant; but

(ii)

the defendant was insane at the time that the defendant did, or omitted to do, the act.

(2)

Before or at a trial, the Judge must record a finding of proven but insane if—

(a)

the defendant indicates an intention to raise the defence of insanity; and

(b)

the prosecution agrees that the only reasonable verdict is a finding of proven but insane; and

(c)

the Judge is satisfied, on the basis of expert evidence, that the defendant was insane within the meaning of section 23 of the Crimes Act 1961 at the time of the commission of the offence.

(3)

If, at a trial before a jury, the defendant gives evidence as to the defendant’s insanity and the jury finds the defendant not guilty, the Judge must ask the jury whether it has acquitted the defendant on account of the defendant’s insanity.

(4)

The Judge must record a finding of proven but insane if—

(a)

the Judge asks the jury under subsection (3) whether it has acquitted the defendant on account of the defendant’s insanity; and

(b)

the jury responds that it has acquitted the defendant on account of the defendant’s insanity.

(5)

In a case where it appears from the evidence that the defendant may have been insane at the time of the commission of the offence, the Judge may ask the jury to find whether the defendant was insane within the meaning of section 23 of the Crimes Act 1961, even though the defendant has not given evidence as to the defendant’s insanity or put the question of the defendant’s sanity in issue.

6 Section 31 amended (Change of status from special patient to patient or special care recipient to care recipient where person unfit to stand trial)

Replace section 31(3) with:

(3)

If, at any time before the expiry of the relevant maximum period specified in section 30, a certificate is given under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 to the effect that, although the defendant is still unfit to stand trial, the continued detention of the defendant under section 24 is no longer necessary to safeguard the interests specified in subsection (3A), the Minister of Health, acting with the concurrence of the Attorney-General, must—

(a)

consider whether, in the Minister’s opinion, the continued detention of the defendant under that section is no longer necessary to safeguard those interests; and

(b)

direct that the defendant be held as a patient or, as the case requires, as a care recipient if, in the Minister’s opinion, that detention is no longer necessary to safeguard those interests.

(3A)

The interests referred to in subsection (3) are—

(a)

the defendant’s own interests; and

(b)

the safety of the public or the safety of a person or class of person.

(3B)

In reaching a decision under subsection (3)(a), the Minister must have regard to any report from the Director of Mental Health made under section 33A.

7 Section 33 amended (Duration of order for detention as special patient or special care recipient if person acquitted on account of insanity)

After section 33(4), insert:

(4A)

In reaching a decision under subsection (3)(a), the Minister must have regard to any report from the Director of Mental Health made under section 33A.

7A New sections 33A to 33E inserted

After section 33, insert:

33A Report by Director of Mental Health on defendant’s continued detention

The Director of Mental Health may report to the Minister of Health about the continued detention under section 24 of a defendant described in section 31(1) or 33(1).

33B When victims must be notified of impending decision under section 31 or 33

(1)

This section applies if the Director of Mental Health intends to report to the Minister of Health under section 33A.

(2)

The Director must take all reasonable steps to—

(a)

give notice to a victim that the Director intends to report to the Minister of Health under section 33A about the continued detention of a defendant; and

(b)

explain to the victim—

(i)

the process under section 31(3) or 33(3); and

(ii)

how the victim may participate in that process.

33C Right of victims to make submissions on proposed change of status

(1)

This section applies to a person notified under section 33B.

(2)

The person may write to the Director of Mental Health, making submissions on, or giving information relevant to, the decision of whether to change the defendant’s status under section 31(3) or 33(3).

(3)

The person’s submissions may address—

(a)

any concerns that the person has, on reasonable grounds, about any risk that the defendant presents to—

(i)

the person’s physical safety or security; or

(ii)

the physical safety or security of 1 or more members of the person’s immediate family; and

(b)

any other information that the person considers relevant to the decision of whether to change the defendant’s status under section 31(3) or 33(3).

(4)

The person must send the submission to the Director by the date specified by the Director.

(5)

The Director must have regard to any written submissions made by a victim under this section or section 33D.

(6)

In this section, immediate family has the same meaning as in section 4 of the Victim’s Rights Act 2002.

33D Submissions from certain victims

(1)

This section applies to a person who—

(a)

is not a victim as defined in section 4; but

(b)

is a victim as defined in section 4 of the Victim’s Rights Act 2002.

(2)

The person may make written submissions to the Director of Mental Health about the decision of whether to change the defendant’s status under section 31(3) or 33(3).

(3)

If the person seeks information from the Director for the purpose of making submissions under subsection (2), the Director may—

(a)

advise the person of the date on which the Director intends to report to the Minister of Health about the continued detention of the defendant; and

(b)

give the person any other information that is reasonably necessary to enable the person to make submissions.

(4)

Section 33C applies with any necessary modifications.

(5)

Neither the Director nor any other person has any liability for any act done in pursuance, or intended pursuance, of the Director’s functions under this section or section 33E(1)(b), unless the act was done in bad faith.

33E Victims must be notified of decisions made under sections 31 and 33

(1)

The Director of Mental Health must advise the following persons of the matters specified in subsection (2):

(a)

a person notified under section 33B:

(b)

a person who makes a submission under section 33D(2).

(2)

The specified matters are—

(a)

whether the Director’s report to the Minister of Health concludes that the defendant’s continued detention under section 24—

(i)

continues to be necessary; or

(ii)

is no longer necessary; and

(b)

what decision the Minister has reached under section 31(3) or 33(3).

33F Information about victims not to be disclosed

(1)

This section applies to sections 33A to 33E.

(2)

No person may, directly or indirectly, disclose to the defendant the current address or contact details of any victim of the defendant.

7B Schedule 1AA amended

In Schedule 1AA,—

(a)

insert the Part set out in Schedule 1 of this Act as the last Part; and

(b)

make all necessary consequential amendments.

Part 2 Amendments to Mental Health (Compulsory Assessment and Treatment) Act 1992

8 Principal Act

This Part amends the Mental Health (Compulsory Assessment and Treatment Act 1992.

8A Section 2 amended (Interpretation)

In section 2(1), insert in its appropriate alphabetical order:

victim means (unless otherwise provided),—

(a)

in relation to a special patient, a person who has, under section 32B of the Victims’ Rights Act 2002,—

(i)

asked for notice, or for advice and copies; and

(ii)

given their address:

(b)

an individual appointed under section 40 of that Act

8AA New section 2C inserted (Transitional, savings, and related provisions)

After section 2B, insert:

2C Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.

8B Section 50 replaced (Leave of special patients)

Replace section 50 with:

50 Special patient defined

In this section and in sections 50A to 50G, special patient means a person who is detained in a hospital under—

(a)

section 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 as a person acquitted on account of insanity; or

(b)

section 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003; or

(c)

an order made under section 45; or

(d)

section 46.

50A Minister may grant leave to special patients

(1)

The Minister may grant a special patient leave of absence from the hospital if—

(a)

2 medical practitioners certify that the special patient is fit to be allowed to be absent from the hospital; and

(b)

the Director supports the proposed leave of absence, taking into account any submission from a victim made in accordance with section 50C or 50D.

(2)

The Minister may grant the leave of absence subject to any conditions the Minister considers appropriate, including (at the Minister’s discretion) a condition that the person must return to the hospital on the date or within the period that the Minister specifies.

(3)

The Minister may not exercise the power to grant leave under this section in respect of any person who—

(a)

was, immediately before that person’s admission to the hospital, detained in a prison—

(i)

while awaiting, or during the course of, a trial or hearing before a court; or

(ii)

while awaiting sentence by a court; or

(iii)

pending the determination of an appeal to a court against conviction; or

(b)

is subject to a sentence of imprisonment for life or to a sentence of preventive detention.

50B When victims must be notified of impending decision under section 50A

(1)

This section applies if the Director is required to decide whether to support the proposed leave of absence of a special patient under section 50A(1).

(2)

The Director must take all reasonable steps to—

(a)

give notice to a victim that the Director is required to decide whether to support the proposed leave of absence of the special patient under section 50A(1); and

(b)

explain to the victim—

(i)

the process under section 50A for granting a special patient leave of absence; and

(ii)

how the victim may participate in that process.

50C Right of victims to make submissions on proposed leave of absence

(1)

This section applies to a person notified under section 50B.

(2)

The person may write to the Director, making submissions on, or giving information relevant to, the decision of whether to grant leave of absence under section 50A(1).

(3)

The person’s submissions may address—

(a)

any concerns that the person has, on reasonable grounds, about any risk that the special patient presents to—

(i)

the person’s physical safety or security; or

(ii)

the physical safety or security of 1 or more members of the person’s immediate family; and

(b)

any other information that the person considers relevant to the decision of whether to grant leave of absence under section 50A(1).

(4)

The person must send the submissions to the Director by the date specified by the Director.

(5)

The Director must have regard to any written submissions made by a victim under this section or section 50D.

(6)

In this section, immediate family has the same meaning as in section 4 of the Victims’ Rights Act 2002.

50D Submissions from certain victims

(1)

This section applies to a person who—

(a)

is not a victim as defined in section 2(1); but

(b)

is a victim as defined in section 4 of the Victims’ Rights Act 2002.

(2)

The person may make written submissions to the Director about the decision of whether to grant leave of absence under section 50A(1).

(3)

If the person seeks information from the Director for the purpose of making submissions under subsection (2), the Director may—

(a)

advise the person of the date on which the Director intends to decide whether to support the proposed leave of absence of the special patient; and

(b)

give the person any other information that is reasonably necessary to enable the person to make submissions.

(4)

Section 50C applies with any necessary modifications.

(5)

Neither the Director nor any other person has any liability for an act done in pursuance, or intended pursuance, of the Director’s functions under this section or section 50E(1)(b), unless the act was done in bad faith.

50E Victims must be notified of decisions made under section 50A

(1)

The Director must advise the following persons of the matters specified in subsection (2):

(a)

a person notified under section 50B:

(b)

a person who makes a submission under section 50D(2).

(2)

The specified matters are—

(a)

whether the Director supports the proposed leave of absence of the special patient under section 50A(1):

(b)

if the Director supports the proposed leave of absence, whether the Minister has granted the special patient leave of absence under section 50A(1):

(c)

if the Minister has granted the special patient leave of absence, any conditions applying to the special patient under section 50A(2).

(3)

The Director may withhold advice of a particular condition if, in the Director’s opinion, disclosing the condition would unduly interfere with the privacy of any other person (other than the special patient).

50F Information about victims not to be disclosed

(1)

This section applies to sections 50B 50A to 50E.

(2)

No person may, directly or indirectly, disclose to the special patient the current address or contact details of any victim of the special patient.

50G Minister may cancel leave of special patients

(1)

The Minister may, during a period of leave of absence granted under section 50A(1) to a special patient, cancel that leave of absence.

(2)

If the Minister cancels a leave of absence, the Director must direct, in writing, that the special patient be admitted or re-admitted to a specified hospital.

(3)

The special patient may be taken to the specified hospital by any of the following:

(a)

the Director:

(b)

the Director of Area Mental Health Services:

(c)

a duly authorised officer:

(d)

a constable:

(e)

a person to whom the charge of the special patient has been entrusted during the period of leave.

(4)

If the specified hospital is not the one from which the special patient was on leave of absence, the special patient must be received and detained there as if the special patient had been transferred to that hospital under section 49.

8C Section 52 replaced (Director may grant short-term leave)

Replace section 52 with:

52 Director may grant short-term leave to special patients

(1)

The Director may grant a special patient leave of absence from the hospital for a period of up to 7 days, excluding the days of the patient’s departure and return.

(2)

The Director may grant the leave of absence subject to any conditions the Director considers appropriate.

(3)

The Director’s power to grant leave under this section—

(a)

must not be exercised in respect of any special patient described in section 50A(3)(a); and

(b)

applies despite any other provision of this Act.

8D New sections 52B to 52H inserted

After section 52A, insert:

52B When victims must be notified of impending decision under section 52

(1)

This section applies if—

(a)

the Director intends to decide whether to grant a special patient leave of absence under section 52(1); and

(b)

that leave of absence would permit the patient to exercise greater autonomy outside the hospital than has any other leave of absence previously granted to the patient.

(2)

The Director must take all reasonable steps to—

(a)

give notice to a victim that the Director intends to decide whether to grant leave of absence to the special patient under section 52(1); and

(b)

explain to the victim—

(i)

the process under section 52 for granting a special patient leave of absence; and

(ii)

how the victim may participate in that process.

52C Right of victims to make submissions on proposed leave of absence

(1)

This section applies to a person notified under section 52B.

(2)

The person may write to the Director, making submissions on, or giving information relevant to, the decision of whether to grant leave of absence under section 52(1).

(3)

The person’s submissions may address—

(a)

any concerns that the person has, on reasonable grounds, about any risk that the special patient presents to—

(i)

the person’s physical safety or security; or

(ii)

the physical safety or security of 1 or more members of the person’s immediate family; and

(b)

any other information that the person considers relevant to the decision of whether to grant leave of absence under section 52(1).

(4)

The person must send the submissions to the Director by the date specified by the Director.

(5)

The Director must have regard to any written submissions made by a victim under this section or section 52D.

(6)

In this section, immediate family has the same meaning as in section 4 of the Victims’ Rights Act 2002.

52D Submissions from certain victims

(1)

This section applies to a person who—

(a)

is not a victim as defined in section 2(1); but

(b)

is a victim as defined in section 4 of the Victims’ Rights Act 2002.

(2)

The person may make written submissions to the Director about the decision of whether to grant leave of absence under section 52(1).

(3)

If the person seeks information from the Director for the purpose of making submissions under subsection (2), the Director may—

(a)

advise the person of the date on which the Director intends to decide whether to grant the leave of absence to the special patient; and

(b)

give the person any other information that is reasonably necessary to enable the person to make submissions.

(4)

Section 52C applies with any necessary modifications.

(5)

Neither the Director nor any other person has any liability for an act done in pursuance, or intended pursuance, of the Director’s functions under this section or section 52E(1)(b), unless the act was done in bad faith.

52E Victims must be notified of decisions made under section 52

(1)

The Director must advise the following persons of the matters specified in subsection (2):

(a)

a person notified under section 52B:

(b)

a person who makes a submission under section 52D(2).

(2)

The specified matters are—

(a)

whether the Director has granted a special patient leave of absence under section 52(1):

(b)

if the Director has granted the special patient leave of absence, any conditions applying to the special patient under section 52(2).

(3)

The Director may withhold advice of a particular condition if, in the Director’s opinion, disclosing the condition would unduly interfere with the privacy of any other person (other than the special patient).

52F Information about victims not to be disclosed

(1)

This section applies to sections 52 and 52B to 52E.

(2)

No person may, directly or indirectly, disclose to the special patient the current address or contact details of any victim of the special patient.

52G Director may cancel short-term leave of special patients

(1)

The Director may, during a period of leave of absence granted under section 52(1) to a special patient, cancel that leave of absence.

(2)

If the Director cancels a leave of absence, section 50G(2) to (4) applies with any necessary modifications.

52H Director may authorise Director of Area Mental Health Services to exercise certain powers

(1)

The Director of Area Mental Health Services may exercise the powers and duties conferred on the Director by sections 50B, 50D, 50E, 52, and 52B to 52G in respect of a special patient—

(a)

with the authority of the Director; and

(b)

subject to any conditions imposed by the Director.

(2)

If the special patient is a special patient under section 50(c) or (d), the Director of Area Mental Health Services may exercise a power under subsection (1) only after consulting the manager of the appropriate prison.

10 Section 80 amended (Tribunal reviews of certain special patients)

After section 80(2), insert:

(2A)

The convener of the Review Tribunal must notify the Director of an application under subsection (1) for a review of the special patient’s condition.

(2B)

On receiving notice, the Director must take all reasonable steps to—

(a)

give notice to each victim of the special patient that the Review Tribunal has received an application under subsection (1) for a review of the special patient’s condition; and

(b)

provide the victim with an explanation of—

(i)

the process under this section for reviewing a special patient’s condition; and

(ii)

how the victim may participate in that process.

11 Schedule 1 amended

After clause 3 of Schedule 1, insert:

3AAA Right of victim to make a submission

Any person notified under section 80(2B) may write to the Review Tribunal, by the date specified by the Tribunal, making submissions on, or giving information relevant to, the Tribunal’s review of the special patient’s condition.

11AAA New Schedule 1AA inserted

Insert the Schedule 1AA set out in Schedule 2 of this Act as the first schedule to appear after the last section of the Mental Health (Compulsory Assessment and Treatment) Act 1992.

11A Consequential amendments to Mental Health (Compulsory Assessment and Treatment) Act 1992

Amend the Mental Health (Compulsory Assessment and Treatment) Act 1992 as set out in Part 1 of the Schedule 5.

Part 3 Amendments to Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003

12 Principal Act

This Part amends the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

12A Section 5 amended (Interpretation)

In section 5(1), insert in its appropriate alphabetical order:

victim means (unless otherwise provided),—

(a)

in relation to a care recipient or a special care recipient, a person who has, under section 32B of the Victims’ Rights Act 2002,—

(i)

asked for notice, or for advice and copies; and

(ii)

given their address:

(b)

an individual appointed under section 40 of that Act

12AA New section 9A inserted (Transitional, savings, and related provisions)

After section 9, insert:

9A Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.

12B New sections 65A to 65E inserted

After section 65, insert:

65A When victims must be notified of impending decision under section 65

(1)

This section applies if—

(a)

a care manager intends to decide whether to authorise a care recipient to be on leave under section 65(1); and

(b)

that period of leave would permit the care recipient to exercise greater autonomy outside the facility than has any other period of leave previously granted to the care recipient.

(2)

The care manager must take all reasonable steps to—

(a)

give notice to a victim that the care manager intends to decide whether to authorise a care recipient to be on leave under section 65(1); and

(b)

explain to the victim—

(i)

the process under section 65 for granting a care recipient a period of leave; and

(ii)

how the victim may participate in that process.

65B Right of victims to make submissions on proposed leave

(1)

This section applies to a person notified under section 65A.

(2)

The person may write to the care manager, making submissions on, or giving information relevant to, the decision of whether to authorise leave under section 65(1).

(3)

The person’s submissions may address—

(a)

any concerns that the person has, on reasonable grounds, about any risk that the care recipient presents to—

(i)

the person’s physical safety or security; or

(ii)

the physical safety or security of 1 or more members of the person’s immediate family; and

(b)

any other information that the person considers relevant to the decision of whether to authorise leave under section 65(1).

(4)

The person must send the submission to the care manager by the date specified by the care manager.

(5)

The care manager must have regard to any written submissions made by a victim under this section or section 65C.

(6)

In this section, immediate family has the same meaning as in section 4 of the Victims’ Rights Act 2002.

65C Submissions from certain victims

(1)

This section applies to a person who—

(a)

is not a victim as defined in section 5(1); but

(b)

is a victim as defined in section 4 of the Victims’ Rights Act 2002.

(2)

The person may make written submissions to the care manager about the decision of whether to authorise leave under section 65(1).

(3)

If the person seeks information from the care manager for the purpose of making submissions under subsection (2), the care manager may—

(a)

advise the person of the date on which the care manager intends to decide whether to authorise a care recipient to be on leave; and

(b)

give the person any other information that is reasonably necessary to enable the person to make submissions.

(4)

Section 65B applies with any necessary modifications.

(5)

Neither the care manager nor any other person has any liability for an act done in pursuance, or intended pursuance, of the care manager’s functions under this section or section 65D(1)(b), unless the act was done in bad faith.

65D Victims must be notified of decisions made under section 65

(1)

The care manager must advise the following persons of the matters specified in subsection (2):

(a)

a person notified under section 65A:

(b)

a person who makes a submission under section 65C(2).

(2)

The specified matters are—

(a)

whether the care manager has authorised a care recipient to be on leave under section 65(1):

(b)

if the care manager has authorised the care recipient to be on leave, any terms and conditions applying to the care recipient under section 65(1).

(3)

The care manager may withhold advice of a particular term or condition if, in the care manager’s opinion, disclosing the term or condition would unduly interfere with the privacy of any other person (other than the care recipient).

65E Information about victims not to be disclosed

(1)

This section applies to sections 65A to 65D.

(2)

No person may, directly or indirectly, disclose to the care recipient the current address or contact details of any victim of the care recipient.

12C Section 66 amended (Minister may authorise leave for special care recipients)

Replace section 66(1) with:

(1)

The Minister may authorise a special care recipient to be on leave from the care recipient’s secure facility on any terms and conditions that the Minister specifies, if—

(a)

a specialist assessor certifies that the care recipient is fit to be on leave; and

(b)

the Director-General of Health supports the proposed leave, taking into account any submission from a victim made in accordance with section 67D or 67E.

12D New sections 67B to 67H inserted

After section 67A, insert:

67B When victims must be notified of impending decision under section 66

(1)

This section applies if the Director-General of Health is required to decide whether to support the proposed leave of a special care recipient under section 66(1).

(2)

The Director-General must take all reasonable steps to—

(a)

give notice to a victim that the Director-General is required to decide whether to support the proposed leave of a special care recipient under section 66(1); and

(b)

explain to the victim—

(i)

the process under section 66 for granting a special care recipient a period of leave; and

(ii)

how the victim may participate in that process.

67C When victims must be notified of impending decision under section 67

(1)

This section applies if—

(a)

the Director-General of Health intends to decide whether to authorise a special care recipient to be on leave under section 67(1); and

(b)

that period of leave would permit the special care recipient to exercise greater autonomy outside the secure facility than has any other period of leave previously granted to the special care recipient.

(2)

The Director-General must take all reasonable steps to—

(a)

give notice to a victim that the Director-General intends to decide whether to authorise a special care recipient to be on leave under section 67(1); and

(b)

provide the victim with an explanation of—

(i)

the process under section 67 for granting a special care recipient a period of leave; and

(ii)

how the victim may participate in that process.

67D Right of victims to make submissions on proposed leave

(1)

This section applies to a person notified under section 67B or 67C.

(2)

The person may write to the Director-General, making submissions on, or giving information relevant to, the decision of whether to authorise leave under section 66(1) or 67(1).

(3)

The person’s submissions may address—

(a)

any concerns that the person has, on reasonable grounds, about any risk that the special care recipient presents to—

(i)

the person’s physical safety or security; or

(ii)

the physical safety or security of 1 or more members of the person’s immediate family; and

(b)

any other information that the person considers relevant to the decision of whether to authorise leave under section 66(1) or 67(1).

(4)

The person must send the submissions to the Director-General by the date specified by the Director-General.

(5)

The Director-General must have regard to any written submissions made by a victim under this section or section 67E.

(6)

In this section, immediate family has the same meaning as in section 4 of the Victims’ Rights Act 2002.

67E Submissions from certain victims

(1)

This section applies to a person who—

(a)

is not a victim as defined in section 5(1); but

(b)

is a victim as defined in section 4 of the Victims’ Rights Act 2002.

(2)

The person may make written submissions to the Director-General of Health about the decision of whether to authorise leave under section 66(1) or 67(1).

(3)

If the person seeks information from the Director-General for the purpose of making submissions under subsection (2), the Director-General may—

(a)

advise the person of the date on which the Director-General intends to decide whether to—

(i)

support the proposed leave of the special care recipient under section 66(1); or

(ii)

authorise a special care recipient to be on leave under section 67(1); and

(b)

give the person any other information that is reasonably necessary to enable the person to make submissions.

(4)

Section 67D applies with any necessary modifications.

(5)

Neither the Director-General nor any other person has any liability for an act done in pursuance, or intended pursuance, of the Director-General’s functions under this section, section 67F(1)(b), or 67G(1)(b), unless the act was done in bad faith.

67F Victims must be notified of decisions made under section 66

(1)

The Director-General must advise the following persons of the matters specified in subsection (2):

(a)

a person notified under section 67B:

(b)

a person who makes a submission under section 67E(2) about the decision of whether to authorise leave under section 66(1).

(2)

The specified matters are—

(a)

whether the Director-General supports the proposed leave of the special care recipient under section 66(1):

(b)

if the Director-General supports the proposed leave, whether the Minister has authorised the special care recipient leave under section 66(1):

(c)

if the Minister has authorised the special care recipient leave, any terms and conditions applying to the special care recipient under section 66(1).

(3)

The Director-General may withhold advice of a particular term or condition if, in the Director-General’s opinion, disclosing the term or condition would unduly interfere with the privacy of any other person (other than the special care recipient).

67G Victims must be notified of decisions made under section 67

(1)

The Director-General must advise the following persons of the matters specified in subsection (2):

(a)

a person notified under section 67C:

(b)

a person who makes a submission under section 67E(2) about the decision of whether to authorise leave under section 67(1).

(2)

The specified matters are—

(a)

whether the Director-General has authorised a special care recipient to be on leave under section 67(1):

(b)

if the Director-General has authorised the special care recipient leave, any terms and conditions applying to the special care recipient under section 67(1).

(3)

The Director-General may withhold advice of a particular term or condition if, in the Director-General’s opinion, disclosing the term or condition would unduly interfere with the privacy of any other person (other than the special care recipient).

67H Information about victims not to be disclosed

(1)

This section applies to sections 67B to 67G.

(2)

No person may, directly or indirectly, disclose to the special care recipient the current address or contact details of any victim of the special care recipient.

13A New Schedule 1 inserted

Insert the Schedule 1 set out in Schedule 3 of this Act as the first schedule to appear after the last section of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

Part 4 Amendments to Victims’ Rights Act 2002

14 Principal Act

This Part amends the Victims’ Rights Act 2002.

14A Section 4 amended (Interpretation)

(1)

In section 4, definition of offence, after paragraph (b), insert:

(c)

includes an offence—

(i)

committed against the victim; and

(ii)

in respect of which the court recorded a finding of proven but insane under section 20 of the Criminal Procedure (Mentally Impaired Persons) Act 2003

(2)

In section 4, replace the definition of offender with:

offender, in relation to a victim,—

(a)

means a person—

(i)

convicted of the crime or offence that affected the victim; or

(ii)

charged with the crime or offence that affected the victim, and in respect of which the court recorded a finding of proven but insane under section 20 of the Criminal Procedure (Mentally Impaired Persons) Act 2003; and

(b)

in section 9 (which relates to meetings requested by victims) and sections 17AA to 27 (which relate to victim impact statements), includes a person found guilty of, or who pleads guilty to, that crime or offence

(3)

In section 4, insert in its appropriate alphabetical order:

proven but insane has the same meaning as in section 4(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003

14AA New section 5A inserted (Transitional, savings, and related provisions)

After section 5, insert:

5A Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.

14B Cross-heading above section 17AA replaced

Replace the cross-heading above section 17AA with:

Part 2A Victim impact statements

Definitions and purpose

14C Section 17AA amended (Victim impact statement defined)

In section 17AA(1)(a)(ii)(B), after “sentencing the offender”, insert “or making an order under section 24(1) or 25(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 in relation to a defendant who is acquitted on account of insanity”.

14D New cross-heading above section 17 inserted

After section 17AB, insert:

Information to be ascertained

14E Section 20 renumbered and repositioned (Statements by others disadvantaged by offence)

Renumber section 20 as section 17AAB and reposition it after section 17AA.

14F New cross-heading above section 21AA inserted

Before section 21AA, insert:

Sentence indication

14G New cross-heading above section 21 inserted

Before section 21, insert:

Use by judicial officer

14H Section 21 amended (Victim impact statement to be submitted to judicial officer)

Replace section 21(1)(a) with:

(a)

to the judicial officer—

(i)

sentencing the offender; or

(ii)

making an order under section 24(1) or 25(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 in relation to a defendant who is acquitted on account of insanity; and

14I Section 22 amended (Victim impact statement may be read to court)

In section 22(1), after “sentencing the offender”, insert “or making an order under section 24(1) or 25(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 in relation to a defendant who is acquitted on account of insanity”.

14J Section 22A amended (Victim impact statement may be presented to court in some other manner)

In section 22A, after “sentencing the offender”, insert “or making an order under section 24(1) or 25(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 in relation to a defendant who is acquitted on account of insanity”.

14K New section 22C inserted (Judicial officer not to take into account withheld part)

After section 22B, insert:

22C Judicial officer not to take into account withheld part

(1)

In this section, withheld part means a part of a victim impact statement withheld under an order made under section 25.

(2)

A judicial officer must not take into account a withheld part in—

(a)

sentencing the offender; or

(b)

making an order under section 24(1) or 25(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 in relation to a defendant who is acquitted on account of insanity.

14L New cross-heading above section 23 inserted

Before section 23, insert:

Distribution or disclosure

14M Section 26 repealed (Judicial officer not to take into account withheld part)

Repeal section 26.

14N Section 28 and cross-heading renumbered and repositioned

Renumber section 28 as section 16B and reposition it, with the cross-heading above it, after section 16A.

14O New section 30A and cross-heading inserted

After section 30, insert:

Notice for victims of persons or offenders subject to mental health or intellectual disability care

30A Victims of persons or offenders subject to mental health or intellectual disability care must be notified of person’s or offender’s designation

(1)

Without limiting sections 29 and 32B, this section applies to a victim if the person accused of the offence or, as the case requires, the offender—

(a)

is liable to be detained in a hospital or facility in connection with the offence; and

(b)

when their liability of that kind began, they were liable to be detained in a hospital or facility—

(i)

as a special patient as defined in section 2(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or as a special care recipient as defined in section 6(2) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or

(ii)

under an order made under section 25(1)(a) or (b) or 34(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.

(2)

The Director-General of Health must give a victim to whom this section applies—

(a)

notice of whether the person or offender has been designated as—

(i)

a special patient as defined in section 2(1) of the Mental Health (Compulsory Assessment and Treatment) Act 1992; or

(ii)

a special care recipient as defined in section 6(2) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or

(iii)

a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992, under an order made under section 25(1)(a) or 34(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003; or

(iv)

a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, under an order made under section 25(1)(b) or 34(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003; and

(b)

an explanation of the meaning and consequences of the person or offender’s designation; and

(c)

a list of the future notifications that the victim is eligible to receive.

(3)

The Director-General of Health must give notice under subsection (2) to the victim as soon as practicable after the person or offender has been designated as one of the classes of people described in subsection (2)(a).

15AAA New Schedule 1AA inserted

Insert the Schedule 1AA set out in Schedule 4 of this Act as the first schedule to appear after the last section of the Victims’ Rights Act 2002.

15A Consequential amendments to Victims’ Rights Act 2002

Amend the Victims’ Rights Act 2002 as set out in Part 2 of the Schedule 5.

Part 5 Consequential amendments to other enactments

16 Consequential amendments to other enactments

Amend the enactments specified in Part 3 of the Schedule 5 as set out in that schedule.

Schedule 1 New Part inserted into Schedule 1AA of Criminal Procedure (Mentally Impaired Persons) Act 2003

s 7AB

Part 2 Provision relating to Rights for Victims of Insane Offenders Act 2019

2 Transitional provision

(1)

This clause applies to any matter initiated under section 20, 31, or 33 before the commencement of this clause.

(2)

If this clause applies, the provisions of the relevant section, as they read immediately before the commencement of this clause, continue to apply to the matter as if they had not been amended or replaced by the Rights of Victims of Insane Offenders Act 2019.

(3)

In this section clause, matter includes any—

(a)

action undertaken; and

(b)

decision taken; and

(c)

notice given; and

(d)

proceeding commenced; and

(e)

application made; and

(f)

agreement entered into; and

(g)

requirement imposed.

Schedule 2 New Schedule 1AA inserted in Mental Health (Compulsory Assessment and Treatment) Act 1992

s 11AAA

Schedule 1AA Transitional, savings, and related provisions

s 2C

Part 1 Provisions relating to Rights for Victims of Insane Offenders Act 2019

1 Transitional provision

(1)

This clause applies to any matter initiated under section 50, 52, 80, or Schedule 1 before the commencement of this clause.

(2)

If this clause applies, the provisions of the relevant section or Schedule, as they read immediately before the commencement of this clause, continue to apply to the matter as if they had not been amended or replaced by the Rights for Victims of Insane Offenders Act 2019.

(3)

In this section clause, matter includes any—

(a)

action undertaken; and

(b)

decision taken; and

(c)

notice given; and

(d)

proceeding commenced; and

(e)

application made; and

(f)

agreement entered into; and

(g)

requirement imposed.

2 Transitional provision if leave decision and resulting leave of absence fall either side of commencement date

(1)

This clause applies if

(a)

a leave decision has been taken; and

(b)

as a consequence of the leave decision, a special patient is due to take, or is taking, leave of absence when this clause commences.

(2)

The Director may, to the extent that the Director considers appropriate in the circumstances, advise a victim of the leave decision as specified in sections 50E(2) and 52E(2).

(3)

In this clause, a leave decision is

(a)

a decision by the Minister, taken before the commencement of this clause, to

(i)

grant a special patient leave of absence under section 50(1); or

(ii)

cancel a special patient’s leave of absence under section 50(3); or

(b)

a decision by the Director, taken before the commencement of this clause, to

(i)

grant a special patient leave of absence under section 52(1); or

(ii)

cancel a special patient’s leave of absence under section 52(3).

Schedule 3 New Schedule 1 inserted in Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003

s 13A

Schedule 1 Transitional, savings, and related provisions

s 9A

Part 1 Provisions relating to Rights for Victims of Insane Offenders Act 2019

1 Transitional provision

(1)

This clause applies to any matter initiated under section 66 before the commencement of this clause.

(2)

If this clause applies, the provisions of the relevant section, as they read immediately before the commencement of this clause, continue to apply to the matter as if they had not been amended or replaced by the Rights of Victims of Insane Offenders Act 2019.

(3)

In this section clause, matter includes any—

(a)

action undertaken; and

(b)

decision taken; and

(c)

notice given; and

(d)

proceeding commenced; and

(e)

application made; and

(f)

agreement entered into; and

(g)

requirement imposed.

2 Transitional provision if leave decision and resulting leave fall either side of commencement date

(1)

This clause applies if

(a)

a leave decision has been taken; and

(b)

as a consequence of the leave decision, a care recipient or a special care recipient is due to take, or is taking, leave when this clause commences.

(2)

The Director-General of Health may, to the extent that the Director-General considers appropriate in the circumstances, advise a victim of the leave decision as specified in sections 65D(2) and 67F(2).

(3)

In this clause, a leave decision is

(a)

a decision by a care manager, taken before the commencement of this clause, to

(i)

authorise a care recipient to be on leave under section 65(1); or

(ii)

extend a care recipient’s leave under section 65(2); or

(iii)

cancel a care recipient’s leave under section 65(3); or

(b)

a decision by the Minister, taken before the commencement of this clause, to

(i)

authorise a special care recipient to be on leave under section 66(1); or

(ii)

cancel a special care recipient’s leave under section 66(4); or

(c)

a decision by the Director-General of Health, taken before the commencement of this clause, to

(i)

authorise a special care recipient to be on leave under section 67(1); or

(ii)

cancel a special care recipient’s leave under section 67(3).

Schedule 4 New Schedule 1AA inserted in Victims’ Rights Act 2002

s 15AAA

Schedule 1AA Transitional, savings, and related provisions

s 5A

Part 1 Provisions relating to Rights for Victims of Insane Offenders Act 2019

1 Transitional provision

(1)

This clause applies to any matter initiated under section 17AA, 20, 21, 22, 22A, 26, or 28 before the commencement of this clause.

(2)

If this clause applies, the provisions of the relevant section, as they read immediately before the commencement of this clause, continue to apply to the matter as if they had not been amended or replaced by the Rights for Victims of Insane Offenders Act 2019.

(3)

In this section clause, matter includes any—

(a)

action undertaken; and

(b)

decision taken; and

(c)

notice given; and

(d)

proceeding commenced; and

(e)

application made; and

(f)

agreement entered into; and

(g)

requirement imposed.

Schedule 5 Consequential amendments

ss 11A, 15A, 16

Part 1Consequential amendments to Mental Health (Compulsory Assessment and Treatment) Act 1992

In section 46, replace “section 50” with section 50A.

In section 48, replace “section 50” with section 50A.

In section 51(1), replace “section 50” with section 50A.

In section 51(3), replace “section 50(1)” with section 50A(1).

In section 51(5), replace “section 50(3)” with section 50G(1).

In section 51(6), replace “section 50(1)” with section 50A(2).

In section 51(7), replace—

(a)

“section 50(3)” with section 50G(1); and

(b)

“section 50(1)” with section 50A(2).

In section 52A(1)(a) and (2)(a), replace “section 50” with section 50A.

Part 2Consequential amendments to Victims’ Rights Act 2002

In section 17AA(1)(a)(i)(B), replace “section 20” with section 17AAB.

In section 21(2), replace “section 20” with section 17AAB.

In section 53, replace “the Schedule” with Schedule 1.

In the Schedule heading, after Schedule insert 1.

Part 3Consequential amendments to other enactments

Criminal Procedure Act 2011

In section 200(6), replace “section 28” with section 16B.

Residential Care and Disability Support Services Regulations 2018

In regulation 6(f)(i), replace “section 50” with section 50A.