Mental Health Act 2007 No 8
Current version for 14 May 2020 to date (accessed 12 August 2020 at 08:20)
Chapter 6
Chapter 6 Mental Health Review Tribunal
Part 1 The Tribunal
140   Constitution of the Tribunal
(cf 1990 Act, s 252)
(1)  There is constituted by this Act a Mental Health Review Tribunal.
(2)  The Tribunal has the functions conferred or imposed on it by or under this Act or any other law.
(3)  Schedule 5 has effect with respect to the Tribunal.
141   Membership of Tribunal
(1)  The Tribunal consists of the following members appointed by the Governor—
(a)  the President of the Tribunal who is to be appointed as a full-time or part-time member,
(b)  1 or more Deputy Presidents of the Tribunal who may be appointed as full-time or part-time members,
(c)  other members (if any) who may be appointed as full-time or part-time members.
(2)  The members (other than the President and any Deputy President) are to be appointed from the following classes of persons—
(a)  Australian lawyers,
(b)  psychiatrists,
(c)  persons having, in the opinion of the Governor, other suitable qualifications or experience, including at least 1 person selected from a group of persons who are nominated by consumer organisations.
(3)  The members are to include 1 or more women and 1 or more persons of ethnic background and a different person is to be appointed to satisfy each of those qualifications, even though a person so appointed may possess both of those qualifications.
(4)  If, at the time at which an appointment is required to be made of a person selected from a group of persons who are nominated by consumer organisations no such group has been nominated, the Governor may appoint as a member instead a person who, in the opinion of the Governor, has suitable qualifications or experience.
142   Registrar and other staff of the Tribunal
(cf 1990 Act, s 256)
(1)  A Registrar and such persons as may be necessary to enable the Tribunal to exercise its functions may be employed in the Public Service under the Government Sector Employment Act 2013.
Note.
 Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Tribunal makes use of) may be referred to as officers or employees, or members of staff, of the Tribunal. Section 47A of the Constitution Act 1902 precludes the Tribunal from employing staff.
(2)  The Registrar has the functions conferred or imposed on the Registrar by or under this Act or any other law or by the Tribunal in the exercise of its functions.
143   Authentication of documents
(cf 1990 Act, ss 254, 257)
(1)  The Tribunal is to have a seal of which judicial notice is to be taken.
(2)  Every document requiring authentication by the Tribunal is sufficiently authenticated without the seal of the Tribunal if it is signed by the President or a Deputy President.
144   Judicial notice of certain signatures
(cf 1990 Act, s 258)
Judicial notice is to be taken of the signature of the President, a Deputy President or the Registrar of the Tribunal when appearing on a document issued by the Tribunal.
145   Certain proceedings prohibited
(cf 1990 Act, s 259)
No proceedings lie against the Tribunal, a member of the Tribunal or a member of staff of the Tribunal for or on account of any act, matter or thing done or ordered to be done or omitted or suffered to be done by the Tribunal, member or member of staff, and purporting to be done, ordered, omitted or suffered for the purposes of carrying out the provisions of this or any other Act, if the Tribunal, member or member of staff has acted in good faith.
146   Application of Defamation Act 2005 to proceedings of Tribunal
(cf 1990 Act, s 260)
Section 27 of the Defamation Act 2005 makes provision for a defence of absolute privilege in respect of publications of defamatory matter in the course of proceedings of the Tribunal.
Note.
 Section 27 (2) (b) of the Defamation Act 2005 provides that the defence of absolute privilege is available in respect of defamatory matter that is published in the course of proceedings of an Australian court or Australian tribunal, including (but not limited to) the following—
(a)  the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process),
(b)  the publication of matter while giving evidence before the court or tribunal,
(c)  the publication of matter in any judgment, order or other determination of the court or tribunal.
The term Australian tribunal is defined in section 4 of that Act to mean any tribunal (other than a court) established by or under a law of an Australian jurisdiction that has the power to take evidence from witnesses before it on oath or affirmation (including a Royal Commission or other special commission of inquiry).
The Mental Health Review Tribunal is an Australian tribunal for the purposes of the Defamation Act 2005 because it is a tribunal that has the power under section 151 (5) of this Act to take evidence from witnesses under oath.
147   Annual report
(cf 1990 Act, s 261)
(1)  As soon as practicable after 1 September, but on or before 1 December, in each year, the President must prepare and forward to the Minister a report as to the exercise by the Tribunal of its functions.
(2)  Without limiting subsection (1), the report is to include the following matters relating to persons taken to mental health facilities under Part 2 of Chapter 3—
(a)  the number of persons so taken and the provisions of this Act under which they were so taken,
(b)  the number of persons detained as mentally ill persons or mentally disordered persons,
(c)  the number of persons in respect of whom a mental health inquiry was held,
(d)  the number of persons detained as involuntary patients.
(3)  The report is also to include any matters the Minister may direct or that are prescribed by the regulations.
(4)  The Minister must lay the report, or cause it to be laid, before each House of Parliament as soon as practicable after receiving the report.
(5)  A report made under the Annual Reports (Departments) Act 1985 in respect of the Ministry of Health may include any report required to be made under this section.
148   Delegation
(cf 1990 Act, s 263)
(1)  The President may delegate to any of the following persons any of the functions of the President, other than this power of delegation—
(a)  a member of the Tribunal,
(b)  the Registrar of the Tribunal,
(c)  a person of a class prescribed by the regulations.
(2)  A delegate may sub-delegate to a person referred to in subsection (1) (a), (b) or (c) any function delegated by the President if the delegate is authorised in writing to do so by the President.
Part 2 Procedures of the Tribunal
149   Application of Part
This Part, and any regulations made under this Part, apply to any proceedings of the Tribunal under this or any other Act.
150   Composition of Tribunal
(cf 1990 Act, ss 264, 265)
(1)  The Tribunal is to be constituted by one or more members nominated by the President for the exercise of its functions.
(2)  For the purpose of exercising any of its functions (other than in relation to mental health inquiries or under the Mental Health (Forensic Provisions) Act 1990), the Tribunal must consist of at least 1 member who is to be the President, a Deputy President or a member who is an Australian legal practitioner.
(2A)  For the purpose of conducting a mental health inquiry, the Tribunal must consist of at least 1 member who is to be the President or a Deputy President or a member qualified to be appointed as a Deputy President.
(3)  The President may nominate other members of the following kinds—
(a)  a member who is a psychiatrist,
(b)  a member referred to in section 141 (2) (c).
(4)    (Repealed)
(5)  The regulations may make provision for or with respect to the members who are to constitute the Tribunal for the exercise of any of its functions.
151   Procedure at meetings of Tribunal to be informal
(cf 1990 Act, s 267)
(1)  Meetings of the Tribunal are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act, the Mental Health (Forensic Provisions) Act 1990, the regulations and as the proper consideration of the matters before the Tribunal permit.
(2)  In determining any matter relating to a forensic patient, correctional patient or other patient or a person detained in a mental health facility, or any matter relating to a community treatment order, the Tribunal is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate and as the proper consideration of the matter before the Tribunal permits.
(3)  The proceedings of the Tribunal are to be open to the public.
(4)  However, if the Tribunal is satisfied that it is desirable to do so for the welfare of a person who has a matter before the Tribunal or for any other reason, it may (of its own motion or on the application of the person or another person appearing at the proceedings) make any one or more of the following orders—
(a)  an order that the hearing be conducted wholly or partly in private,
(b)  an order prohibiting or restricting the publication or broadcasting of any report of proceedings before the Tribunal,
(c)  an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence before the Tribunal,
(d)  an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
Note.
 Section 162 prohibits the publication or broadcasting of the name of a person involved in Tribunal proceedings or other material that may identify any such person, except with the consent of the Tribunal.
(5)  The President or a Deputy President or the chairperson of a meeting of the Tribunal may administer an oath to any person giving evidence before the Tribunal.
(6)  The President or a Deputy President of the Tribunal has, in the exercise of his or her functions as a member, the same protections and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge.
152   Legal representation of mentally ill persons and other persons
The fact that a person is suffering from mental illness or an intellectual disability or developmental disability or is suffering from a mental condition that is not a mental illness or an intellectual disability or developmental disability is presumed not to be an impediment to the representation of the person by an Australian legal practitioner before the Tribunal.
153   Determination whether a person is a mentally ill person or mentally disordered person
(cf 1990 Act, s 268)
(1)  A member of the Tribunal must not determine, for the purposes of this Act or the Mental Health (Forensic Provisions) Act 1990, that a person is a mentally ill person or a mentally disordered person unless the member is satisfied, on the balance of probabilities, that the person is a mentally ill person or a mentally disordered person.
(2)  In determining whether a person is a mentally ill person, a member is to give due regard to the following—
(a)  any cultural factors relating to the person that may be relevant to the determination,
(b)  any evidence given to the Tribunal by an expert witness concerning the person’s cultural background and its relevance to any question of mental illness.
154   Rights of appearance and representation
(cf 1990 Act, s 274)
(1)  A person appointed to assist the Tribunal in a matter may appear before the Tribunal in relation to any matter in respect of which the person is appointed.
(2)  A forensic patient or correctional patient having any matter before the Tribunal must, unless the forensic patient or correctional patient decides that he or she does not want to be represented, be represented by an Australian legal practitioner or, with the approval of the Tribunal, by another person of his or her choice.
(2A)  An assessable person who is before the Tribunal for a mental health inquiry must, unless the person decides that he or she does not want to be represented, be represented by an Australian legal practitioner or, with the approval of the Tribunal, by another person of his or her choice.
(3)  A patient, other than a forensic patient or correctional patient, or a person detained in a mental health facility having any matter before the Tribunal may be represented by an Australian legal practitioner or, with the approval of the Tribunal, by another person of his or her choice.
(4)  A person who is under the age of 16 years who has a matter before the Tribunal must be represented by an Australian legal practitioner or, with the approval of the Tribunal, by another person of his or her choice, unless the Tribunal decides that it is in the best interests of the person to proceed without the person being so represented.
(5)  This section applies to a patient or person who is absent from proceedings held by the Tribunal in relation to the patient or person in the same way as it applies to a patient or person who appears before the Tribunal.
155   Adjournments
(cf 1990 Act, s 271)
(1)  The Tribunal may from time to time adjourn its proceedings to such times, dates and places and for such reasons as it thinks fit.
(2)  If the Tribunal adjourns proceedings, a person having a matter before the Tribunal who is detained in a mental health facility is to continue to be detained in the facility unless the person is discharged or allowed to be absent from the facility under another provision of this Act or the Mental Health (Forensic Provisions) Act 1990.
156   Inspection etc of medical records
(cf 1990 Act, s 276)
(1)  A patient or person having any matter before the Tribunal is, unless the Tribunal otherwise determines, entitled to inspect or otherwise have access to any medical records in the possession of any person relating to the patient or person.
(2)  A representative of a person having any matter before the Tribunal is entitled, at any time before or during the consideration of that matter by the Tribunal, to inspect or otherwise have access to any medical records in the possession of any person relating to the firstmentioned person.
(3)  Subject to any order or direction of the Tribunal, in relation to an inspection under subsection (2) of, or other access under that subsection to, any medical record relating to a person—
(a)  if a medical practitioner warns the representative of the person that it may be harmful to communicate to the person, or any other person, specified information contained in those medical records, the representative is to have full and proper regard to that warning, and
(b)  the representative is not obliged to disclose to the person any information obtained by virtue of the inspection or other access.
157   Production of evidence
(cf 1990 Act, s 278)
(1)  The Tribunal may of its own motion or on the application of a person having any matter before the Tribunal issue a summons in the prescribed form requiring the person to whom the summons is addressed to do either or both of the following things—
(a)  to attend as a witness at a meeting of the Tribunal,
(b)  to attend at a meeting of the Tribunal and to produce any documents in the possession or under the control of the person relating to any matter before the Tribunal and specified in the summons.
(2)  For the purposes of subsection (1), a summons is issued by the Tribunal if it is signed by the President or a Deputy President.
(3)  The regulations may make provision for or with respect to authorising compliance with a summons to produce any documents by the production of the documents at a place specified in the summons at any time before the meeting of the Tribunal at which the documents are required to be produced.
(4)  A person to whom a summons is addressed is entitled to receive—
(a)  if the summons was issued by the Tribunal of its own motion, from the Tribunal, or
(b)  if the summons was issued by the Tribunal on the application of a person having any matter before the Tribunal, from the person,
the amounts payable for compliance with a subpoena under the Uniform Civil Procedure Rules 2005.
(5)  A person—
(a)  who is served with a summons addressed to the person under this section, and
(b)  to whom, at the time of service, is tendered an amount that is sufficient to cover the person’s travelling and other out-of-pocket expenses in attending the meeting of the Tribunal specified in the summons and producing anything required by the summons to be produced,
must not, without cause, fail or refuse to obey the summons.
Maximum penalty—50 penalty units.
158   Assistance of interpreters
(cf 1990 Act, s 275)
A person having any matter before the Tribunal who is unable to communicate adequately in English but who is able to communicate adequately in another language is entitled to be assisted, when appearing before the Tribunal in relation to the matter, by a competent interpreter.
159   Record of proceedings
(1)  Proceedings before the Tribunal are to be recorded.
(2)  Regulations may be made for or with respect to the manner in which the evidence may be recorded and the authentication of evidence or of transcripts of evidence given in proceedings.
(3)  The regulations may provide for the circumstances in which evidence given in proceedings is to be transcribed.
160   Tribunal procedure generally
(1)  Subject to this Part and the regulations, the procedure for the calling of, and for the conduct of business at, any meeting of the Tribunal is to be as determined by the Tribunal.
(2)  The regulations may make provision for or with respect to the following matters—
(a)  the procedure for the calling of, and for the conduct of business at, any meeting of the Tribunal,
(b)  the provision of assistance to the Tribunal by relevant qualified persons for the purposes of determining any matter,
(c)  representations that may be made by victims in relation to proceedings before the Tribunal and victim impact statements,
(d)  notification of family members, designated carers, principal care providers and victims of persons of proceedings before the Tribunal,
(e)  reports and information required to be provided to the Tribunal, including provisions relating to the matters to be dealt with in reports and the making of reports available to the Tribunal,
(e1)  conditions for the use of audio or audio visual links and other matters relating to the use of audio or audio visual links in Tribunal proceedings,
(f)  the recording of proceedings and determinations of the Tribunal,
(g)  the service of documents on the Tribunal,
(h)  making written reasons for decisions or determinations of the Tribunal available,
(i)  the establishment and use of a victims’ register,
(j)  notification of victims of Tribunal decisions in proceedings relating to forensic patients or correctional patients,
(k)  notification of victims of termination of status of persons as forensic patients.
(3)  The President may issue practice directions, not inconsistent with this Act or the Mental Health (Forensic Provisions) Act 1990 or any regulations under this Act or that Act, for or with respect to the practice and procedure of the Tribunal.
161   Contempt of Tribunal
(cf 1990 Act, s 291)
A person must not refuse, neglect or for any reason fail to obey or comply with an order, direction, decision or determination, under this or any other Act, of the Tribunal.
Maximum penalty—50 penalty units.
162   Publication of names
(1)  A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person—
(a)  to whom a matter before the Tribunal relates, or
(b)  who appears as a witness before the Tribunal in any proceedings, or
(c)  who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health (Forensic Provisions) Act 1990,
whether before or after the hearing is completed.
Maximum penalty—
(a)  in the case of an individual—50 penalty units or imprisonment for 12 months, or both, or
(b)  in the case of a corporation—100 penalty units.
(2)  This section does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3)  For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or material that identifies the person or is likely to lead to the identification of the person.
162A   Tribunal may request information or services from other agencies
(1)  The Tribunal may request the Ministry of Health, a local health district, the Commissioner of Corrective Services, the Secretary of the Department of Justice or any other person or body prescribed by the regulations to provide the Tribunal with information as to whether or not action has been taken, and what actions have been taken, in relation to orders made by the Tribunal under this Act or the Mental Health (Forensic Provisions) Act 1990.
(2)  A person or body must comply with any reasonable request made by the Tribunal of the person or body under this section.