Tribunal Orders

A custody order is an order that a person be detained in custody at a place determined by the Mental Impairment Review Tribunal (the Tribunal) for the protection of the community.

A custody order must be made in respect of a person if the offence that the person is found to have committed was a serious offence, unless:

• The court is satisfied on the balance of probabilities that any risk to the person appears to present to the safety of the community can be adequately managed under a community supervision order.
• The person was, at the time of the commission of the offence, a child and the Court is satisfied that there are exceptional circumstances.

A custody order must not be made unless the statutory penalty for the offence is or includes imprisonment.

A court making a custody order may impose any conditions on the order that it considers are necessary to protect the community.

A community supervision order is an order that a person, while residing in the community, must comply with the conditions of the order for the protection of the community.

The term of a community supervision order must be set by the court and must not be more than five years.

A court making a community supervision order may impose any conditions on the order that it considers are necessary to protect the community.

The Tribunal can, at any time, vary or cancel all of the conditions of the community supervision order.

If a court makes a custody order or a community supervision order, the court must set a limiting term for the order, being the best estimate of the term of imprisonment or term of detention that the court, in all the circumstances, would have imposed if:

• The court were sentencing the person for the offence. 
• Any mental impairment of the person was not taken into account.

A custody order or community supervision order ceases to have effect under the earliest of the following:

• The limiting term expires.
• The custody order is cancelled.
• Cancelling all of the conditions of a leave of absence order.

The Tribunal must determine a place of custody for a supervised person subject to a custody order, interim custody order, extended custody order, or a relevant interim disposition within five working days after which the custody order is made.

Limitations on place of custody:

• The Tribunal must not determine that a supervised person is to be detained in an authorised hospital unless:
  • it is satisfied that the person has a mental illness
  • is satisfied that because of the mental illness there is a significant risk to the health or safety of the person or to the safety of another person, or is a significant risk of serious harm to the person or to another person
  • the Tribunal is satisfied that the treatment can only be provided satisfactorily at an authorised hospital
  • the constitution of the Tribunal includes a member who is a psychiatrist.
• The Tribunal must not determine that a supervised person is to be detained in a prison or a detention centre unless satisfied that there is no alternative place of custody that would be suitable.
• The Tribunal must not determine that a supervised person is to be detained in a declared place unless:
  • the Tribunal is satisfied that the person is a person with a disability, and the predominant reason which is not mental illness
  • the person has reached 16 years of age
  • has regard to the degree of risk that the persons detention in the declared place appears to present to the safety of the community
  • the Tribunal has a member employed by Disability Services present at the meeting.

The place of custody of a supervised person may be changed by the Tribunal at any time.

Within five working days after the day on which a court makes a community supervision order, the Tribunal must, under section 99, designate a person as a supervising officer for the supervised person.

If the Tribunal makes a leave of absence order for a supervised person subject to a custody order, the Tribunal must include a condition that the supervised person be under the supervision of a supervising officer. The Tribunal must appoint the supervising officer under section 99 of the Act.

A leave of absence order is an order that a supervised person be released from a place of custody for period/periods for a purpose/purposes specified by the Tribunal. Purposes that may be specified include:

• receiving medical or dental treatment
• cultural or compassionate purposes
• reintegration into the community.

The Tribunal can make or cancel a leave of absence order or vary or cancel all of the conditions of a leave of absence order.

It is a condition of any leave of absence order that the supervised person be under the supervision of a supervising officer designated for the person, which includes complying with the lawful directions of the officer.

The Tribunal must carry out a review of a reviewable order:

• For a child - no later than three months after the order is made.
• For a supervised person who is not a child – no later than 12 months after the order is made.
• In every other case, as soon as practicable, but no later than four weeks after the order is made.

A supervised person, their representative or their legal practitioner may, in writing, make an application to the Tribunal for review of a reviewable order.

The Tribunal may, at any time, carry out a review of a reviewable order if the Tribunal considers that there are circumstances that justify it doing so.

The Minister may, at any time, request the Tribunal carry out a review of a reviewable order and report to the Minister on the outcome of that review.

If the Tribunal reasonably suspects that a condition of a leave of absence order has not been complied with, the Tribunal may review the order.

If the Tribunal cancels a leave of absence order made under a custody order, the supervised person must again be detained under the underlying custody order.

If a supervised person breaches a community supervision order, an application must be made to the court that originally imposed the community supervision order. The court can then:

• make a custody order that replaces a community supervision order – a limiting term must be imposed, or
• confirm the community supervision order.

The Tribunal must, before a custody order, community supervision order or extended order expires, consider and report to the minister on the need for an extended order to replace the existing order.

The Minister may, after having regard to a report produced by the Tribunal on the need for an extended custody order or extended community supervision order, apply to the Supreme Court for an extended order in respect of the supervised person.

The Supreme Court may, on application by the Minister, make an extended custody order or community supervision order if satisfied that it is necessary on grounds that relate to the protection of the community.

The Supreme Court may make an interim custody order or community supervision order pending the resolution of an application for an extended custody order or community supervision order.

An extended custody order must be periodically reviewed by the Supreme Court, which must either confirm the order or cancel it.

If, on initial application or on review, the Supreme Court is not satisfied that an extended custody order is necessary, it may make a community supervision order instead.