Western Australia: Criminal Law (Mental Impairment) Act 2023 (WA)

Western Australia Criminal Law (Mental Impairment) Act 2023 Western Australia Criminal Law (Mental Impairment) Act 2023 Contents Part 1 — Preliminary Division 1 — Introduction 1. Short title 1 2. Commencement 1 Division 2 — General overview 3. Overview of Act 1 4. Overview: supervision orders 1 5. Overview: appeals and internal review 1 6. Overviews are guide only 1 Division 3 — Objects, principles and paramount consideration 7. Objects and principles 1 8. Paramount consideration 1 Division 4 — Interpretation 9. Terms used 1 10. Child‑specific considerations 1 11. Commission of offence: persons who have been acquitted on account of mental impairment 1 Division 5 — Other provisions 12. Act binds Crown 1 13. Application of Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 1 Part 2 — General provisions Division 1 — Courts' procedures 14. Application of Criminal Procedure Act 2004 to proceedings under Pt. 3 and 5 1 15. Adjournments 1 Division 2 — Interaction with Mental Health Act 2014 16. Criminal law applies to involuntary patients 1 17. Person in custody may be made involuntary patient 1 18. Supervised person in community may be made involuntary patient 1 19. Court may make hospital order in respect of accused 1 Division 3 — Communication with accused and supervised persons 20. Communication and support measures 1 21. Appointment of communication partner for accused or supervised person 1 Division 4 — Submissions by close family members and carers 22. Submission by close family members and carers 1 Division 5 — Reports under this Act 23. Reports to include information about treatment, training or other measures 1 Part 3 — Accused who are unfit to stand trial Division 1 — Preliminary matters 24. Overview of Part 1 25. Application of Part 1 Division 2 — Raising and deciding question of fitness of accused 26. Accused who is unfit to stand trial 1 27. Presumptions as to fitness to stand trial 1 28. When the question of fitness to stand trial may be raised 1 29. Deciding question of fitness to stand trial 1 30. Chief Mental Health Advocate to be notified 1 31. Determining question of fitness if charge to be dealt with on indictment 1 32. Fit to stand trial with support measures 1 Division 3 — Procedure following finding of unfitness Subdivision 1 — Application of Division 33. Division applies to accused found unfit 1 34. Application of Young Offenders Act 1994 1 Subdivision 2 — General procedure 35. Opportunity for accused to become fit to stand trial 1 36. Chief Mental Health Advocate to be notified 1 37. Court to make orders as to how charge against unfit accused to be dealt with 1 38. Legal representation of unfit accused 1 39. Procedure for deciding if accused has become fit to stand trial 1 40. Trial to continue if accused found fit to stand trial 1 Subdivision 3 — Special proceedings 41. Nature of special proceedings 1 42. Conduct of special proceedings 1 43. Effect of findings 1 Part 4 — Persons required to be dealt with under this Act 44. Persons acquitted on account of mental impairment or found to have committed offence 1 Part 5 — Court‑ordered dispositions Division 1 — Overview of Part 45. Overview of Part 1 Division 2 — Orders that may be made by court 46. Orders that may be made 1 47. Orders that may be made: considerations 1 48. Court to notify Tribunal and Chief Mental Health Advocate of orders 1 Division 3 — Custody orders 49. Custody orders 1 50. Limiting term for custody order 1 51. When custody order ceases to have effect 1 Division 4 — Community supervision orders 52. Community supervision orders 1 53. Term of community supervision order 1 54. Conditions of community supervision order: statutory conditions 1 55. Conditions of community supervision order: court imposed conditions 1 56. When community supervision order ceases to have effect 1 Part 6 — Administration of supervision orders by Tribunal Division 1 — Preliminary matters 57. Overview of Part 1 58. Representative of supervised person 1 59. Non‑compliance with conditions of orders 1 Division 2 — Declared places 60. Minister may make order as to declared places 1 Division 3 — Custody orders: places of custody 61. Place of custody to be determined 1 62. Limitations on place of custody 1 63. Tribunal to notify determination of place of custody 1 64. Place of custody may be changed 1 Division 4 — Tribunal to review orders 65. Terms used 1 66. Initial and periodic review 1 67. Application for review by supervised person, representative or legal practitioner 1 68. Review by Tribunal on its own initiative 1 69. Review at request of Minister 1 70. Time of review may be extended in certain cases 1 71. Notice to supervised persons and CEO of review proceedings 1 72. Matters to be considered on review 1 73. Orders the Tribunal may make after carrying out review 1 74. Court may cancel certain orders 1 75. Truncated review in serious and urgent cases 1 76. Copy of order and reasons for decision to be given to certain persons 1 Division 5 — Custody orders: leave of absence 77. Leave of absence orders 1 78. Tribunal making or varying leave of absence orders 1 79. Effect of certain leave of absence orders 1 80. Notifying Tribunal about breach of leave of absence order 1 81. Breach of conditions of leave of absence order 1 82. Cancelled leave of absence order 1 83. Absence without leave from place of custody 1 84. Relationship of Division to other Acts 1 Division 6 — Community supervision orders 85. Tribunal to designate supervising officer 1 86. Tribunal varying conditions on community supervision order 1 87. Notifying Tribunal about breach of conditions of community supervision order 1 88. Breach of conditions of community supervision order 1 89. Court's powers to deal with breach of conditions of community supervision order 1 Division 7 — Review of and appeals against certain decisions Subdivision 1 — Internal review by Tribunal 90. Term used: reviewable decision 1 91. Internal review of Tribunal decision 1 92. Nature of review proceedings 1 Subdivision 2 — Appeals to Supreme Court 93. Appeals against certain decisions 1 94. Arrest of person subject to custody order 1 95. Grounds of appeal 1 96. Dealing with appeal 1 97. Effect of appeal on decision appealed against 1 Subdivision 3 — Effect of decisions made on, or as a consequence of, review or appeal 98. Effect of decisions made on, or as a consequence of, review or appeal 1 Division 8 — Supervising officers 99. Supervising officers 1 Part 7 — Extended custody and community supervision orders Division 1 — Preliminary matters 100. Overview of Part 1 101. Nature of court proceedings under Part 1 102. References to orders include extended orders 1 Division 2 — Tribunal to consider and report on need for extended orders 103. Tribunal to consider and report on need for extended custody orders 1 104. Tribunal to consider and report on need for extended community supervision orders 1 Division 3 — Applications for extended orders 105. Minister may apply for extended order 1 106. Report to be prepared for application 1 Division 4 — Interim orders pending determination of applications 107. Interim custody orders 1 108. Interim community supervision orders 1 Division 5 — Making extended custody orders 109. Extended custody orders 1 110. Supreme Court may make extended custody order 1 111. Leave of absence orders and conditions carried over 1 112. When extended custody order has effect 1 Division 6 — Making extended community supervision orders 113. Extended community supervision orders 1 114. Supreme Court may make extended community supervision order 1 115. Conditions carried over 1 116. When extended community supervision order has effect 1 Division 7 — Review of extended custody orders 117. Periodic review on application by Minister 1 118. Application by supervised person for review 1 119. Dealing with application for review 1 120. Report to be prepared for review 1 121. Court's powers on review of extended custody order 1 Division 8 — General 122. Court to notify Tribunal of orders 1 123. Evidence in extended order proceedings 1 124. Court may give directions 1 125. Appearance at hearings 1 Part 8 — Mental health advocacy services for unfit accused and supervised persons Division 1 — Preliminary matters 126. Overview of Part 1 127. Terms used 1 Division 2 — Access to mental health advocacy services 128. Access to mental health advocacy services 1 129. Request for CLMI identified person to be contacted 1 130. Duty to contact CLMI identified person 1 Division 3 — Functions and powers of mental health advocates 131. Functions of Chief Mental Health Advocate 1 132. Directions to Chief Mental Health Advocate about general matters 1 133. Delegation by Chief Mental Health Advocate 1 134. Functions of mental health advocates 1 135. Powers of mental health advocates relating to CLMI identified persons 1 136. Issues arising out of inquiries and investigations 1 137. Documents to which access is restricted 1 138. Disclosure by mental health advocate 1 Division 4 — Interaction with Mental Health Act 2014 139. Interaction with Mental Health Act 2014 1 Division 5 — Reporting in relation to mental health advocacy services 140. Annual reports 1 Part 9 — Victim considerations Division 1 — Preliminary matters 141. Overview of Part 1 142. Terms used 1 Division 2 — Victim impact statements may be given to court 143. Term used 1 144. Victim impact statements may be given to court 1 145. Content of victim impact statements 1 146. Availability of victim impact statements 1 Division 3 — Victim submissions may be made to Tribunal 147. Victim submissions may be made to Tribunal 1 Division 4 — Victim submissions may be made to court 148. Victim submissions may be made to court 1 149. Content of victim's submission 1 150. Availability of victim's submissions 1 Division 5 — Notice of Tribunal review given to victims 151. Notice to victims of review proceedings 1 152. Delegation by CEO 1 Division 6 — Miscellaneous 153. Disclosing information to victims 1 Part 10 — Mental Impairment Review Tribunal Division 1 — Preliminary matters 154. Overview of Part 1 155. Terms used 1 Division 2 — Mental Impairment Review Tribunal 156. Tribunal established 1 157. Tribunal's jurisdiction 1 158. Constitution of Tribunal 1 159. Contemporaneous exercise of jurisdiction 1 Division 3 — Proceedings of Tribunal 160. Conduct of proceedings 1 161. Who presides 1 162. Decision of Tribunal 1 163. Questions of law 1 164. Evidence generally 1 165. Appearance in review proceedings 1 166. Summons to give evidence or produce documents 1 167. Power to examine on oath 1 168. Privilege against self‑incrimination 1 169. Confidentiality orders 1 170. Publication of names 1 Division 4 — Membership of Tribunal 171. Tribunal members 1 172. Qualifications of certain members 1 173. Terms and conditions of appointment 1 174. Remuneration 1 175. Deputy President acting as President 1 176. Leave of absence from office 1 177. Vacating office prematurely 1 178. Conditions for public service members 1 179. Resignation of members 1 180. Terminating appointment of members 1 181. Training of members 1 Division 5 — General powers of Tribunal 182. Exercise and performance of Tribunal's administrative powers and duties 1 183. Tribunal may use experts 1 184. Tribunal may require examination of supervised person 1 185. Issue of warrants by Tribunal 1 186. Power to obtain information and records 1 187. Extension of time in which to give report or other information 1 Division 6 — Registrar, staff and facilities of Tribunal 188. Registrar, staff and facilities to be made available 1 Division 7 — Miscellaneous 189. Offences relating to information and records 1 190. Tribunal to notify Public Advocate of orders 1 191. Tribunal to report death of supervised person to coroner 1 192. Tribunal may request information from SAT about supervised person's guardian or administrator 1 193. Seal 1 194. Orders 1 195. President may issue practice notes 1 196. Delegation by President 1 197. Judicial notice and evidence of certain matters 1 198. Annual report 1 Part 11 — Transfer into and out of the State Division 1 — Preliminary matters 199. Overview of Part 1 200. Terms used 1 201. Informed consent 1 202. Nature of proceedings under this Part 1 Division 2 — Transfer of persons from Western Australia 203. Transfer of persons from Western Australia to a participating jurisdiction 1 Division 3 — Transfer of persons to Western Australia 204. Transfer of persons from a participating jurisdiction to Western Australia 1 205. Interim dispositions for persons transferred to Western Australia 1 206. Review of persons transferred to Western Australia 1 207. Limiting term for custody order 1 208. Court to make orders if person has been in custody longer than limiting term 1 Division 4 — Interaction with other transfer related laws 209. Interaction with Mental Health Act 2014 1 210. Interaction with Prisoners (Interstate Transfer) Act 1983 1 211. Persons subject to international supervision orders 1 Part 12 — Appeals to Court of Appeal Division 1 — Preliminary matters 212. Overview of Part 1 213. Term used: deciding court 1 Division 2 — Appeals to Court of Appeal 214. Appeals against certain decisions 1 215. Grounds of appeal 1 216. Dealing with appeal 1 217. Appeal does not stay decision 1 218. Effect of decisions made on, or as a consequence of, appeal 1 Part 13 — Miscellaneous Division 1 — Preliminary matters 219. Terms used 1 Division 2 — Electronic monitoring and curfew 220. Term used: approved electronic monitoring device 1 221. Electronic monitoring 1 222. Curfew 1 223. Enforcement of electronic monitoring and curfew 1 Division 3 — Protection of information 224. Protection of information about persons covered by this Act 1 Division 4 — Cooperation and sharing of information between supporting agencies 225. Cooperation between supporting agencies 1 226. Disclosure of information between supporting agencies 1 Division 5 — Interactions between supervision orders and sentences 227. Interactions between supervision orders and sentences 1 228. Interactions between supervision orders and Commonwealth sentences 1 Division 6 — General 229. Giving notice, information, summonses and other documents 1 230. Issue and execution of warrants 1 231. Protection from liability 1 232. Regulations 1 233. Rules of court 1 234. Review of Act 1 Part 14 — Repeals and transitional provisions Division 1 — Repeals 235. Criminal Law (Mentally Impaired Accused) Act 1996 repealed 1 236. Criminal Law (Mentally Impaired Accused) Regulations 1997 repealed 1 Division 2 — Transitional provisions for Criminal Law (Mental Impairment) Act 2023 Subdivision 1 — Preliminary matters 237. Terms used 1 238. Interpretation Act 1984 not affected 1 Subdivision 2 — General provisions 239. Completion of things commenced before commencement day 1 240. Continuing effect of things done before commencement day 1 241. Continuation of duties of Board or registrar 1 242. References to repealed Act and old provisions 1 243. Relationship of this Subdivision to other transitional provisions 1 Subdivision 3 — Court proceedings 244. Proceedings generally 1 245. Question of fitness raised under repealed Act s. 11 1 246. Inquiries and appeals under repealed Act s. 12 1 247. Adjournments and other matters under repealed Act s. 16 or s. 19 1 248. Previous finding of unfitness 1 249. Requirement to make order under repealed Act s. 22 1 Subdivision 4 — Orders and other things to continue 250. Purpose of Subdivision 1 251. Hospital orders 1 252. Bail and custody under repealed Act s. 14 1 253. Existing community orders 1 254. Existing custody orders 1 255. Leave of absence orders 1 256. Absence without leave 1 257. Release orders 1 258. Breaches of conditions of release orders 1 259. Warrants 1 Subdivision 5 — Setting limiting term for existing custody orders 260. Application of this Subdivision 1 261. Application to set limiting term 1 262. Limiting term in cases of murder and manslaughter 1 263. Procedural matters 1 264. Court to set limiting term 1 265. Where person subject to existing custody order has been, or soon will have been, in custody longer than limiting term 1 266. Legal representation of person subject to existing custody order 1 267. Functions of Director of Public Prosecutions 1 Subdivision 6 — Matters relating to Board and its functions 268. Proceedings generally 1 269. Places of custody 1 270. Supervising officers 1 271. Examination required by Board 1 272. Members of Board 1 273. Registrar 1 Subdivision 7 — Miscellaneous 274. Final annual report to Minister 1 275. Records of Board 1 276. Tribunal to provide Chief Mental Health Advocate with details of supervised persons 1 277. Notice to Public Advocate 1 278. Declared places 1 Subdivision 8 — Transitional regulations 279. Transitional regulations 1 Part 15 — Consequential amendments to other Acts Division 1 — Bail Act 1982 amended 280. Bail Act 1982 amended 1 281. Schedule 1 Part C amended 1 Division 2 — Children's Court of Western Australia Act 1988 amended 282. Children's Court of Western Australia Act 1988 amended 1 283. Section 21 amended 1 Division 3 — Community Protection (Offender Reporting) Act 2004 amended 284. Community Protection (Offender Reporting) Act 2004 amended 1 285. Section 3 amended 1 286. Section 4 amended 1 287. Section 70 amended 1 288. Section 85A amended 1 Division 4 — Coroners Act 1996 amended 289. Coroners Act 1996 amended 1 290. Section 3 amended 1 Division 5 — Court Security and Custodial Services Act 1999 amended 291. Court Security and Custodial Services Act 1999 amended 1 292. Section 3 amended 1 293. Section 4 amended 1 294. Section 16 amended 1 295. Section 96 amended 1 296. Schedule 2 amended 1 Division 6 — Criminal Appeals Act 2004 amended 297. Criminal Appeals Act 2004 amended 1 298. Section 4 amended 1 299. Section 6 amended 1 300. Section 8 amended 1 301. Section 11 amended 1 302. Section 12 amended 1 303. Section 14 amended 1 304. Section 24 amended 1 305. Section 25 amended 1 306. Section 25A inserted 1 25A. Rights of appeal relating to Criminal Law (Mental Impairment) Act 2023 1 307. Section 30 amended 1 308. Section 31 amended 1 309. Section 32 amended 1 310. Sections 32A and 32B inserted 1 32A. Decision on appeal under s. 25A(a) or (b) 1 32B. Decision on appeal under s. 25A(c) or (d) 1 311. Section 41A inserted 1 41A. Custody orders under Criminal Law (Mental Impairment) Act 2023 1 312. Section 46A amended 1 313. Various references to "unsoundness of mind" amended 1 Division 7 — Criminal Injuries Compensation Act 2003 amended 314. Criminal Injuries Compensation Act 2003 amended 1 315. Section 15 amended 1 Division 8 — Criminal Investigation (Identifying People) Act 2002 amended 316. Criminal Investigation (Identifying People) Act 2002 amended 1 317. Section 67 amended 1 Division 9 — Criminal Procedure Act 2004 amended 318. Criminal Procedure Act 2004 amended 1 319. Section 126 amended 1 320. Section 130 amended 1 Division 10 — Cross‑border Justice Act 2008 amended 321. Cross‑border Justice Act 2008 amended 1 322. Part 9 heading replaced 1 Part 9 — Persons with mental impairment Division 11 — Declared Places (Mentally Impaired Accused) Act 2015 amended 323. Declared Places (Mentally Impaired Accused) Act 2015 amended 1 324. Long title replaced 1 325. Section 1 amended 1 326. Section 3 amended 1 327. Section 18 replaced 1 18. CEO's functions as to residents 1 328. Section 19 amended 1 329. Section 20 amended 1 330. Section 53 amended 1 331. Section 57 amended 1 332. Part 12 replaced 1 Part 12 — Transitional provisions for Criminal Law (Mental Impairment) Act 2023 65. Terms used 1 66. Provision of information about residents 1 Division 12 — Disability Services Act 1993 amended 333. Disability Services Act 1993 amended 1 334. Section 3 amended 1 335. Section 12 amended 1 336. Section 21 amended 1 Division 13 — Electoral Act 1907 amended 337. Electoral Act 1907 amended 1 338. Section 18 amended 1 339. Section 59 amended 1 Division 14 — Evidence Act 1906 amended 340. Evidence Act 1906 amended 1 341. Section 100A amended 1 342. Section 106A amended 1 Division 15 — Fines, Penalties and Infringement Notices Enforcement Act 1994 amended 343. Fines, Penalties and Infringement Notices Enforcement Act 1994 amended 1 344. Section 52C amended 1 Division 16 — Guardianship and Administration Act 1990 amended 345. Guardianship and Administration Act 1990 amended 1 346. Section 98 replaced 1 98. Supervised persons under Criminal Law (Mental Impairment) Act 2023 1 Division 17 — High Risk Serious Offenders Act 2020 amended 347. High Risk Serious Offenders Act 2020 amended 1 348. Section 6 amended 1 349. Section 79 amended 1 Division 18 — Juries Act 1957 amended 350. Juries Act 1957 amended 1 351. Section 5 amended 1 Division 19 — Magistrates Court Act 2004 amended 352. Magistrates Court Act 2004 amended 1 353. Section 11A inserted 1 11A. Limitations on exercise of certain jurisdiction 1 Division 20 — Mental Health Act 2014 amended 354. Mental Health Act 2014 amended 1 355. Section 4 amended 1 356. Section 82 replaced 1 82. Application of this Part 1 357. Section 105 amended 1 358. Section 127 amended 1 359. Section 145 amended 1 360. Part 9 Division 4 inserted 1 Division 4 — Notification of Mental Impairment Review Tribunal about absence of supervised persons 145A. Notification about absence of supervised persons 1 361. Section 177 amended 1 362. Section 185 amended 1 363. Section 196 amended 1 364. Section 198 amended 1 365. Section 199 amended 1 366. Section 200 amended 1 367. Section 201 amended 1 368. Section 204 amended 1 369. Section 209 amended 1 370. Section 224 amended 1 371. Section 240 amended 1 372. Section 241 amended 1 373. Section 242 amended 1 374. Section 243 amended 1 375. Section 249 amended 1 376. Section 258 amended 1 377. Section 288 amended 1 378. Section 289 amended 1 379. Section 348 amended 1 380. Section 357 amended 1 381. Section 409 amended 1 382. Section 423 amended 1 383. Section 515 amended 1 384. Section 520 amended 1 385. Section 527 amended 1 386. Section 536 amended 1 387. Part 30 inserted 1 Part 30 — Transitional matters for Criminal Law (Mental Impairment) Act 2023 678. Terms used 1 679. Functions in respect of Board 1 680. Duty to contact identified person 1 388. Various headings amended 1 Division 21 — National Disability Insurance Scheme (Worker Screening) Act 2020 amended 389. National Disability Insurance Scheme (Worker Screening) Act 2020 amended 1 390. Section 7 amended 1 Division 22 — Parliamentary Commissioner Act 1971 amended 391. Parliamentary Commissioner Act 1971 amended 1 392. Section 19H amended 1 Division 23 — Prisoners (Release for Deportation) Act 1989 amended 393. Prisoners (Release for Deportation) Act 1989 amended 1 394. Section 6A inserted 1 6A. Persons under custody orders under Criminal Law (Mental Impairment) Act 2023 1 Division 24 — Prisons Act 1981 amended 395. Prisons Act 1981 amended 1 396. Section 67 amended 1 397. Section 113 amended 1 Division 25 — Restraining Orders Act 1997 amended 398. Restraining Orders Act 1997 amended 1 399. Section 44E amended 1 Division 26 — Security and Related Activities (Control) Act 1996 amended 400. Security and Related Activities (Control) Act 1996 amended 1 401. Section 4B amended 1 Division 27 — Sentence Administration Act 2003 amended 402. Sentence Administration Act 2003 amended 1 403. Section 98 amended 1 404. Section 119 amended 1 Division 28 — Working with Children (Criminal Record Checking) Act 2004 amended 405. Working with Children (Criminal Record Checking) Act 2004 amended 1 406. Section 8 amended 1 Division 29 — Young Offenders Act 1994 amended 407. Young Offenders Act 1994 amended 1 408. Section 16 amended 1 Division 30 — Various Acts amended 409. Various references to Criminal Law (Mentally Impaired Accused) Act 1996 amended 1 410. Various references to Declared Places (Mentally Impaired Accused) Act 2015 amended 1 411. Various references to "Mentally Impaired Accused Review Board" amended 1 412. Various references to "unsoundness of mind" amended 1 Schedule 1 — Serious offences Division 1 — Offences that are serious offences in all circumstances Subdivision 1 — Offence under Bush Fires Act 1954 Subdivision 2 — Offence under Children and Community Services Act 2004 Subdivision 3 — Offences under The Criminal Code Subdivision 4 — Offences under Prostitution Act 2000 Subdivision 5 — Offence under Road Traffic Act 1974 Subdivision 6 — Offences under Western Australian Marine Act 1982 Division 2 — Offences that are serious offences if committed in specified circumstances Subdivision 1 — Offence under The Criminal Code Subdivision 2 — Offence under Prostitution Act 2000 Notes Compilation table 1 Uncommenced provisions table 1 Other notes 1 Defined terms Western Australia Criminal Law (Mental Impairment) Act 2023 An Act — * to make provision in relation to criminal proceedings involving persons with mental impairment; and * to provide for special criminal proceedings for persons who are unfit to stand trial; and * to provide for the supervision of persons who, in special criminal proceedings, are found to have committed an offence; and * to provide for the supervision of persons acquitted on account of mental impairment; and * to provide for the safe reintegration into the community of persons supervised under this Act; and * to repeal the Criminal Law (Mentally Impaired Accused) Act 1996 and the Criminal Law (Mentally Impaired Accused) Regulations 1997; and * for related purposes. Part 1 — Preliminary Division 1 — Introduction 1. Short title This is the Criminal Law (Mental Impairment) Act 2023. 2. Commencement This Act comes into operation as follows — (a) Part 1 — on the day on which this Act receives the Royal Assent; (b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions. Division 2 — General overview 3. Overview of Act (1) This Part provides for preliminary matters, including — (a) the objects of this Act and the principles and considerations to which persons performing functions under this Act must have regard; and (b) the interpretation of terms and expressions used in this Act. (2) Part 2 provides for certain general matters appropriately dealt with at the beginning of this Act, including provisions that — (a) address matters that can take place in the initial stages of criminal proceedings; or (b) have a bearing on many of the provisions that follow including, importantly, aspects of the interaction of this Act with the Mental Health Act 2014. (3) Part 3 provides for — (a) raising and deciding the question of whether an accused is fit to stand trial; and (b) the court procedures, including special proceedings, for dealing with an unfit accused. (4) If a person is acquitted on account of mental impairment in an ordinary criminal proceeding or is so acquitted on appeal, and therefore must be dealt with under this Act, Part 4 provides that the court must deal with the accused under Part 5 of this Act. Note for this subsection: The Criminal Procedure Act 2004 section 149(1) and the Criminal Appeals Act 2004 sections 30(5), 32(7) and 32A(6) set out the requirement to deal with such acquitted accused under this Act. (5) Part 5 provides for the orders that can be made by a court in relation to an accused who — (a) has been acquitted on account of mental impairment; or (b) although not fit to stand trial, has been found to have committed an offence. Note for this subsection: The court can release the person unconditionally (in some circumstances), or impose a community supervision order or custody order. (6) Part 6 provides for the administration, by the Mental Impairment Review Tribunal, of the orders to which supervised persons are subject. Note for this subsection: A supervised person is a person subject to a supervision order made under this Act. (7) Part 7 provides, in effect, for the extension of custody and community supervision orders by the Supreme Court if the court is satisfied that it is necessary on grounds that relate to the protection of the community. (8) Part 8 provides for mental health advocacy services for unfit accused and supervised persons, unless those services can be provided under the Mental Health Act 2014 or the Declared Places (Mental Impairment) Act 2015. (9) Part 9 provides for victim impact statements and victim submissions to be given or made to a relevant court or the Mental Impairment Review Tribunal. (10) Part 10 provides for the Mental Impairment Review Tribunal, its jurisdiction, membership, procedures and related matters. (11) Part 11 provides for — (a) the transfer of supervised persons to another State or Territory in which a corresponding law is in force; and (b) the transfer to the State and disposition of persons subject to an interstate supervision order; and (c) the interaction between that Part and other transfer related laws. (12) Part 12 provides for appeals to the Court of Appeal against certain decisions of courts other than courts of summary jurisdiction. (13) Part 13 includes provisions relating to electronic monitoring of supervised persons, the protection and sharing of information, interactions between supervision orders and sentences, and other provisions of general application. (14) Part 14 repeals the Criminal Law (Mentally Impaired Accused) Act 1996 and provides for the transition from the repealed Act to this Act. 4. Overview: supervision orders (1) Supervision orders are — (a) custody and community supervision orders made under Part 5; (b) custody orders made under Part 6 in the course of the administration of a supervision order under that Part; see section 89(1); (c) interim and extended custody and community supervision orders made under Part 7; (d) community supervision orders made under Part 7 in the course of the review of an extended custody order under that Part; see section 110(4) or 121(3); (e) interim dispositions made under Part 11 for a person subject to an interstate supervision order who is transferred to the State; (f) custody and community supervision orders made under Part 11 on review by the Supreme Court of an interim disposition; see section 206(3)(a) and (b). (2) Other than interim dispositions, which are made by the Minister, supervision orders are made by a court. (3) The custody and community supervision orders referred to in subsection (1)(a) can be made following — (a) an ordinary criminal proceeding in which the accused is acquitted on account of mental impairment; or (b) an appeal under the Criminal Appeals Act 2004 in which the offender is acquitted on account of mental impairment; or (c) a special proceeding under Part 3 Division 3. (4) Although custody and community supervision orders referred to in subsection (1)(b), (d) and (f) are not made under Part 5, Part 5 (to the extent relevant) applies to their making; see sections 89(5), 110(5), 121(4) and 206(5). (5) Although interim and extended custody and community supervision orders, and interim dispositions, are not custody or community supervision orders as defined, Part 6 (to the extent relevant) applies to the administration of them; see sections 107(4), 108(4), 109(2), 113(2) and 205(4) and (5). 5. Overview: appeals and internal review (1) Relevant decisions, findings and orders of courts in ordinary criminal proceedings and in proceedings under Parts 3 and 5 are appealable under the Criminal Appeals Act 2004. (2) The results of those appeals can include that the accused must be dealt with under this Act; see Part 4. (3) Part 6 Division 7 provides for — (a) internal review of decisions of the Tribunal in the administration of supervision orders under Part 6; and (b) appeals to the Supreme Court against decisions of courts of summary jurisdiction relating to making, cancelling or confirming custody orders and community supervision orders; and (c) appeals to the Supreme Court against some initial decisions of the Tribunal and most internal review decisions of the Tribunal. (4) Part 12 provides for appeals to the Court of Appeal against certain decisions of courts other than courts of summary jurisdiction. 6. Overviews are guide only The overviews in this Division and the overviews in other Parts of this Act are intended only as a guide to the general scheme and effect of this Act, and do not limit or otherwise affect the other provisions of this Act. Division 3 — Objects, principles and paramount consideration 7. Objects and principles (1) The objects of this Act are as follows — (a) to ensure the protection of the community; (b) to ensure persons with mental impairment who are charged with an offence — (i) are identified early in their contact with the justice system; and (ii) are given a reasonable opportunity to become fit to stand trial; and (iii) are given a fair hearing even if they are unfit to stand trial in accordance with ordinary procedures; and (iv) are not found to have committed the offence unless, on the evidence available, it can be proved to the ordinary criminal standard of proof that the person committed the offence; and (v) are subject to the least possible interference with their rights and dignity; (c) to ensure that persons who are subject to supervision orders — (i) are afforded procedural fairness in relation to the administration and management of those orders; and (ii) are reintegrated into the community in a safe manner. (2) A person performing a function under this Act (including when constituting or a member of a court or tribunal) must have regard to the following principles — (a) that persons with mental impairment should be subject to the least possible restriction on their freedom consistent with the protection of the community; (b) that persons with mental impairment in the justice system should have access to advocacy services; (c) that persons with mental impairment in the justice system should be provided with the best possible treatment, care and support; (d) that persons with mental impairment in the justice system should be dealt with in a manner that is culturally appropriate; (e) that persons with mental impairment in the justice system should not be subject to outcomes under this Act that restrict their freedom more severely than if they had been convicted of the offence that they have been found to have, or are alleged to have, committed; (f) that there should be special provision to ensure the fair treatment of children with mental impairment who have been found to have, or are alleged to have, committed offences; (g) that detaining a child with mental impairment for an offence, whether before or after the child is found to have committed the offence, should only be used as a last resort and, if required, should only be used for as short a time as is necessary; (h) that the detention of a child, if required, should be in a facility that is for, and suitable for, children; (i) that if a child who has not reached the age of 16 years is detained in a facility in which an adult is detained, the child should not be exposed to contact with an adult detained in the facility; (j) that if a child who has reached the age of 16 years is detained in a facility in which an adult is detained, the child should not share living quarters with an adult detained in the facility; (k) that victims of offences committed by persons with mental impairment should have the opportunity to be acknowledged and heard; (l) that the role of carers and families in the treatment, care and support of persons with mental impairment should be recognised. 8. Paramount consideration The paramount consideration of a person when performing a function under this Act (including when constituting or a member of a court or tribunal) is the protection of the community. Division 4 — Interpretation 9. Terms used (1) In this Act — accused means a person charged with an offence, and includes a person — (a) acquitted on account of mental impairment or in respect of whom a finding under section 41(2)(c) has been made; but (b) in respect of whom no order has yet been made under section 46; administrator means — (a) an administrator as defined in the Guardianship and Administration Act 1990 section 3(1); and (b) a donee of an enduring power of attorney as those terms are defined in the Guardianship and Administration Act 1990 section 102; advocacy services officer has the meaning given in the Mental Health Act 2014 section 374(1); audio link has the meaning given in the Criminal Procedure Act 2004 section 3(1); authorised hospital has the meaning given in the Mental Health Act 2014 section 4; carer has the meaning given in the Carers Recognition Act 2004 section 5; CEO means the chief executive officer of the Department; CEO (Corrections) means the chief executive officer of the department of the Public Service principally assisting in the administration of the Sentence Administration Act 2003 Part 8; CEO (Young Offenders) means the chief executive officer of the department of the Public Service principally assisting in the administration of the Young Offenders Act 1994; charge has the meaning given in the Criminal Procedure Act 2004 section 3(1); Chief Mental Health Advocate has the meaning given in the Mental Health Act 2014 section 4; Chief Psychiatrist has the meaning given in the Mental Health Act 2014 section 4; child means a person who is under 18 years of age; child‑specific considerations means the considerations set out in section 10; close family member has the meaning given in the Mental Health Act 2014 section 281; community has a meaning affected by subsection (3); community corrections officer has the meaning given in the Sentence Administration Act 2003 section 4(2); Community Services Department means the department of the Public Service principally assisting in the administration of the Children and Community Services Act 2004; community supervision order (CSO) means an order of a kind referred to in section 52 made under — (a) section 46(1)(b); or (b) section 110(4); or (c) section 121(3); or (d) section 206(3)(b); custody order (CO) means an order of a kind referred to in section 49 made under — (a) section 46(1)(a); or (b) section 89(1); or (c) section 206(3)(a); declared place means a place to which a declaration under section 60 applies; Department means the department of the Public Service principally assisting in the administration of this Act; Deputy President means a Deputy President of the Tribunal; detention centre has the meaning given in the Young Offenders Act 1994 section 3; Disability Services Commission means the Disability Services Commission referred to in the Disability Services Act 1993 section 6; DSC declared place means a declared place that is controlled and managed by or on behalf of the Disability Services Commission under the Declared Places (Mental Impairment) Act 2015; enduring guardian has the meaning given in the Guardianship and Administration Act 1990 section 3(1); experienced lawyer has the meaning given in section 155; extended community supervision order means an order made under section 114(1); extended custody order means an order made under section 110(1); extended order means an extended community supervision order or an extended custody order; guardian means — (a) a guardian as defined in the Guardianship and Administration Act 1990 section 3(1); and (b) an enduring guardian; health professional has the meaning given in the Mental Health Act 2014 section 4; hospital order means an order made under section 19; inpatient treatment order has the meaning given in the Mental Health Act 2014 section 4; interim community supervision order means an order made under section 108(2); interim custody order means an order made under section 107(2); interim disposition has the meaning given in section 200; involuntary inpatient has the meaning given in the Mental Health Act 2014 section 4; involuntary patient has the meaning given in the Mental Health Act 2014 section 4; leave of absence order has the meaning given in section 77(1); limiting term — (a) for a custody order — means the term set under section 50(2); and (b) for an extended custody order — means the term set under section 110(1); member means a member of the Tribunal; mental health advocate has the meaning given in the Mental Health Act 2014 section 4; mental illness has the meaning given in the Mental Health Act 2014 section 4; mental impairment means any of, or a combination of, the following — (a) an intellectual disability; (b) a mental illness as defined in The Criminal Code section 1(1); (c) an acquired brain injury; (d) dementia; Minister for Corrective Services means the Minister to whom the administration of the Prisons Act 1981 is committed; parent, in relation to a child, includes any person who has parental responsibility (as defined in the Family Court Act 1997 section 68) for the child; personal information means information or an opinion, whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion; prescribed means prescribed by regulations made under this Act; President means the President of the Tribunal; prison has the meaning given in the Prisons Act 1981 section 3(1); psychiatrist has the meaning given in the Mental Health Act 2014 section 4; psychologist has the meaning given in the Mental Health Act 2014 section 4; Public Advocate has the meaning given in the Guardianship and Administration Act 1990 section 3(1); remuneration has the meaning given in the Salaries and Allowances Act 1975 section 4(1); representative, of a supervised person, means any of the following — (a) a guardian of the person; (b) a person recognised by the Tribunal under section 58 as a representative of the supervised person; safety of the community has a meaning affected by subsection (4); serious offence means an offence listed in Schedule 1; special proceeding means a proceeding under Part 3 Division 3 Subdivision 3; specified, in relation to an order, instrument or other document made under or referred to in this Act, means specified in that order, instrument or document; statutory penalty has the meaning given in the Sentencing Act 1995 section 4(1); supervised person means a person subject to a supervision order; supervising officer, for a supervised person, means a person designated under section 99 for the supervised person and, where relevant, includes a person referred to in section 54(2)(a); supervision order means any of the following — (a) a community supervision order; (b) a custody order; (c) an extended community supervision order; (d) an extended custody order; (e) an interim community supervision order; (f) an interim custody order; (g) an interim disposition; supporting agency has the meaning given in section 219; support measure means any measure that may facilitate participation of an accused or supervised person in proceedings before a court or the Tribunal, including (without limitation) any of the following — (a) that the accused or supervised person, while before the court or Tribunal, have near them a person approved by the court or Tribunal who may provide them with support; (b) that the accused or supervised person have a communication partner (as defined in section 21) while communicating with the court or Tribunal; (c) that the accused or supervised person communicate with the court or Tribunal through the use of any device (for example, a communication board) approved by the court or Tribunal; trial does not include — (a) a proceeding in relation to bail; or (b) a sentencing proceeding; or (c) a special proceeding; Tribunal means the Mental Impairment Review Tribunal established by section 156; underlying custody order, in relation to a leave of absence order, means the custody order in respect of which the leave of absence order is made; unfit accused means an accused who is currently unfit to stand trial or in respect of whom the question of fitness to stand trial has been raised but has yet to be resolved; victim, of an offence, has the meaning given in section 142; video link has the meaning given in the Criminal Procedure Act 2004 section 3(1); working day means a day other than a Saturday, a Sunday or a public holiday. (2) A reference to varying conditions of an order includes a reference to — (a) imposing new conditions on the order; and (b) cancelling 1 or more, but not all, conditions of the order. (3) A reference to the community includes any community and is not limited to the community of Western Australia or Australia. (4) A reference to the safety of the community includes a reference to the safety of an individual in the community. 10. Child‑specific considerations For the purposes of this Act, the child‑specific considerations are — (a) the age and level of maturity of the child; (b) the availability of a responsible person (as defined in the Bail Act 1982 Schedule 1 Part C clause 2) to care for the child; (c) any requirement that the child attend school or educational or vocational training; (d) the availability of accommodation for the child; (e) any involvement in relation to the child of the Community Services Department; (f) the best interests of the child. 11. Commission of offence: persons who have been acquitted on account of mental impairment (1) A reference in this Act to the commission of an offence includes, in relation to a person who has been acquitted of the offence on account of mental impairment, a reference to the doing of the act or the making of the omission that would have constituted the offence of which the person was acquitted. (2) A reference in this Act to an offence that a person is found to have committed includes a reference to an offence of which the person was acquitted on account of mental impairment. (3) This section applies unless the contrary intention appears. Division 5 — Other provisions 12. Act binds Crown This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities. 13. Application of Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 The Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies to this Act. Part 2 — General provisions Division 1 — Courts' procedures 14. Application of Criminal Procedure Act 2004 to proceedings under Pt. 3 and 5 (1) The Criminal Procedure Act 2004 applies, with the necessary modifications, to and in relation to proceedings under Parts 3 and 5 and a court may, for the purposes of particular proceedings, modify the application of that Act to and in relation to the proceedings. (2) Without limiting subsection (1), the definition of prosecution in the Criminal Procedure Act 2004 section 3(1) is to be read as including proceedings under Part 3. (3) Regulations may modify the application of the Criminal Procedure Act 2004 to and in relation to proceedings under Parts 3 and 5. (4) To the extent of any inconsistency between this Act and the Criminal Procedure Act 2004, this Act prevails. 15. Adjournments (1) A court has a general power to adjourn proceedings under this Act at any time. (2) A court that adjourns proceedings under this Act in respect of a person may — (a) remand the person in custody subject to the Bail Act 1982; or (b) grant the person bail in accordance with the Bail Act 1982; or (c) make a hospital order; or (d) if the person is an involuntary inpatient — order that the person be returned to the hospital at which they are detained. Division 2 — Interaction with Mental Health Act 2014 16. Criminal law applies to involuntary patients Except to the extent that this Act provides otherwise, the fact that a person is an involuntary patient under the Mental Health Act 2014 does not affect the operation of this Act, or the operation of the criminal law, in respect of the person. 17. Person in custody may be made involuntary patient (1) In this section — custodial order means any of the following — (a) an order remanding an accused in custody; (b) a hospital order under which a person is in custody in accordance with section 19(3)(c)(ii); (c) a custody order; (d) an interim or extended custody order; (e) an interim disposition under section 205(1)(a). (2) This Act does not prevent a person who is in custody under a custodial order from being made an involuntary patient. (3) If an inpatient treatment order is made in respect of a person who is in custody under a custodial order, the person must be detained at a hospital in accordance with the Mental Health Act 2014. (4) If a person to whom subsection (3) applies is released from the hospital, the person must be detained in custody in accordance with the custodial order. (5) Subsection (3) does not apply to a supervised person required to be detained at an authorised hospital under — (a) a custody order; or (b) an interim or extended custody order; or (c) an interim disposition under section 205(1)(a). Note for this subsection: The detention, leave of absence and release of such a person is governed by this Act and not the Mental Health Act 2014 Part 7; see section 82 of that Act. 18. Supervised person in community may be made involuntary patient This Act does not prevent a person living in the community under 1 of the following from being made an involuntary patient — (a) a community supervision order; (b) an interim or extended community supervision order; (c) a leave of absence order; (d) an interim disposition under section 205(1)(b). 19. Court may make hospital order in respect of accused (1) This section applies if an accused has been refused bail under the Bail Act 1982. (2) A judicial officer (as defined in the Bail Act 1982 section 3(1)) may make an order under this section (a hospital order) in respect of the accused if the judicial officer reasonably suspects that — (a) the accused has a mental illness for which the accused is in need of treatment; and (b) because of the mental illness there is — (i) a significant risk to the health or safety of the accused or to the safety of another person; or (ii) a significant risk of serious harm to the accused or to another person; and (c) the accused does not have the capacity to consent to treatment. (3) A hospital order is an order that the accused — (a) must be taken to and detained at an authorised hospital; and (b) must be examined by a psychiatrist; and (c) following the examination, must, until brought before the court in accordance with subsection (4), be detained — (i) if, as a result of the examination, an inpatient treatment order is made in respect of the accused — at a hospital; (ii) in any other case — in custody. (4) A hospital order must specify a day, that is not more than 7 days after the day on which the order is made, for the accused to be brought before the court specified in the order. (5) A hospital order has effect as if the accused had been referred under the Mental Health Act 2014 section 26(2) for an examination by a psychiatrist at an authorised hospital and, subject to subsections (3) and (4), that Act applies accordingly. (6) An accused who, while required to be detained at an authorised hospital under a hospital order, is away from the hospital without lawful authority, may be apprehended and returned, either under an order under the Mental Health Act 2014 Part 7 Division 5 or on the basis that they have escaped lawful custody. (7) A hospital order must not be made if the accused is subject to an inpatient treatment order. Division 3 — Communication with accused and supervised persons 20. Communication and support measures (1) For the purposes of this section, communication with a person includes the provision to a person of any advice, explanation, information, notification or reasons. (2) Communication with an accused or supervised person under this Act must be in a language, form of communication and terms that the person is likely to understand using any means of communication that is practicable and using an interpreter if necessary and practicable. (3) For the purposes of proceedings before a court or the Tribunal, the court or Tribunal may order that an accused or supervised person be provided with any support measure that is reasonably available. 21. Appointment of communication partner for accused or supervised person (1) If, during proceedings before a court or the Tribunal, an accused or supervised person is to give evidence or otherwise communicate with the court or Tribunal, the court or Tribunal may appoint a person (a communication partner) to perform the function described in subsection (2). (2) The function of a communication partner is, when requested by the court or Tribunal, to — (a) communicate and explain to the accused or supervised person, any questions put to the accused or supervised person; and (b) communicate and explain to the court or Tribunal, the information given by the accused or supervised person. (3) The court or Tribunal can only appoint a person as a communication partner if it considers that the person is suitable and competent. (4) A communication partner must take an oath or make a declaration, in a form that the court or Tribunal considers appropriate, that they will faithfully perform their function under subsection (2). (5) A communication partner who, while performing or purportedly performing a function under subsection (2), makes a statement to the accused or supervised person or to the court or Tribunal that the person knows is false or misleading in a material particular commits a crime. Penalty for this subsection: imprisonment for 5 years. Summary conviction penalty for this subsection: imprisonment for 2 years and a fine of $24 000. (6) The regulations may provide for matters relating to communication partners, including the kinds of qualifications and experience that a court or the Tribunal must have regard to when considering whether to appoint a communication partner. Division 4 — Submissions by close family members and carers 22. Submission by close family members and carers (1) This section applies in relation to proceedings before a court or the Tribunal under Part 5, 6, 7 or 11. (2) A close family member or carer of the accused or supervised person may make a submission to the court or Tribunal in relation to the treatment, care and support of the person. (3) A submission must be in writing. (4) A submission may include suggestions about the conditions that should apply to the accused or supervised person. (5) A court may rule as inadmissible the whole or any part of a submission. (6) The Tribunal must establish procedures for the giving of submissions. (7) In exercising its jurisdiction, the Tribunal may have regard to a submission received by it and may give the submission such weight as it sees fit. Division 5 — Reports under this Act 23. Reports to include information about treatment, training or other measures If, under this Act, a person is required to make an assessment of, or report on, the mental state of an accused or a supervised person, the person must include in the report the following information — (a) the nature of any treatment, training or other measures provided in relation to the person's condition; (b) the reasons for the treatment, training or other measures; (c) the response to the treatment, training or other measures; (d) the prescribed information. Part 3 — Accused who are unfit to stand trial Division 1 — Preliminary matters 24. Overview of Part (1) Division 2 deals with raising and deciding the question of whether an accused is fit to stand trial. (2) Division 3 provides for the procedure for dealing with an unfit accused, which includes — (a) in the case of a charge of a simple offence or an indictable offence that was to be dealt with summarily — the court deciding whether to discharge the accused from the charge; and (b) a special proceeding in which the court is to decide the charge against the accused, on the evidence available. (3) This Part includes requirements, at sections 30 and 36, to notify the Chief Mental Health Advocate of adjournment of proceedings in relation to unfit accused. Note for this section: An unfit accused includes a person in respect of whom the question of fitness to stand trial has been raised but has yet to be resolved. 25. Application of Part This Part applies in respect of an accused before a court exercising criminal jurisdiction. Division 2 — Raising and deciding question of fitness of accused 26. Accused who is unfit to stand trial An accused is unfit to stand trial on a charge of an offence if the accused, because of mental impairment, is unable to do 1 or more of the following — (a) understand the nature of the charge; (b) give instructions to a legal practitioner representing the accused; (c) understand the requirement to plead to the charge or the effect of a plea; (d) understand the purpose of a trial; (e) understand or exercise the right to challenge jurors; (f) follow the course of the trial; (g) understand the substantial effect of evidence presented by the prosecution in the trial; (h) decide whether to give evidence, or to give evidence if they wish to do so; (i) properly defend the charge. 27. Presumptions as to fitness to stand trial (1) An accused is presumed to be fit to stand trial until the contrary is found under this Division. (2) An accused found under this Division to be unfit to stand trial is presumed to remain unfit until the contrary is found under this Division. 28. When the question of fitness to stand trial may be raised (1) The question of whether an accused is unfit to stand trial may be raised at any time before or during a trial. (2) The question may be raised by the defence, the prosecution or the court on its own initiative. (3) The question may be raised more than once but, if the question is raised a second or subsequent time, it need not be considered unless the court is satisfied that new facts have been discovered, new circumstances have arisen or the circumstances have changed since the question was last raised. 29. Deciding question of fitness to stand trial (1) The question of whether an accused is unfit to stand trial is to be decided on the balance of probabilities by a court constituted by a magistrate or judge sitting alone. (2) The court deciding the question may inquire into the question and inform itself in any way that it considers appropriate. (3) For the purpose of the inquiry the court may do any of the following — (a) order that the accused be examined by a psychiatrist, psychologist or other appropriate expert; (b) order that a report about the accused by an expert be submitted to the court; (c) adjourn the proceedings and, if there is a jury, discharge it; (d) make any other order the court considers appropriate. (4) The court may make a report about the accused available to the prosecutor and to the accused, on any conditions the court considers appropriate. (5) In deciding the question, the court may have regard to the extent to which support measures that are, in the court's opinion, reasonably available would enable the accused to be fit to stand trial. 30. Chief Mental Health Advocate to be notified If proceedings are adjourned under section 29(3)(c), the court must immediately notify, and give the prescribed information to, the Chief Mental Health Advocate. 31. Determining question of fitness if charge to be dealt with on indictment (1) Subsection (2) applies if the question of whether an accused is unfit to stand trial is raised in 1 of the following circumstances — (a) the accused is before the Magistrates Court and — (i) the accused is charged with an indictable offence; and (ii) the charge is to be dealt with on indictment by the District Court or the Supreme Court; (b) the accused is before the Children's Court and — (i) the accused is charged with an indictable offence; and (ii) the charge is, because of the Children's Court of Western Australia Act 1988 section 19B(1) or 19C(1), to be dealt with on indictment by the District Court or the Supreme Court; (c) the accused is before the Children's Court and — (i) the accused is charged with an indictable offence; and (ii) the charge is, because of the Children's Court of Western Australia Act 1988 section 19D, to be dealt with by the Magistrates Court. (2) If this subsection applies the court must reserve the question for determination by the court that is to deal with the charge. 32. Fit to stand trial with support measures If a court finds that an accused is fit to stand trial while the accused has access to support measures, those support measures, to the extent that they remain necessary for the person to be fit, must be made available to the accused throughout the trial. Division 3 — Procedure following finding of unfitness Subdivision 1 — Application of Division 33. Division applies to accused found unfit This Division applies when a court finds an accused to be unfit to stand trial. 34. Application of Young Offenders Act 1994 Nothing in this Division prevents an accused who is a young person (as defined in the Young Offenders Act 1994 section 3) from being dealt with under Part 5 of that Act unless a finding has been made under section 41(2) of this Act. Subdivision 2 — General procedure 35. Opportunity for accused to become fit to stand trial (1) If, after making the finding that the accused is unfit to stand trial (the finding of unfitness), the court is satisfied on the balance of probabilities that the accused will not become fit to stand trial within 6 months, the court must make an order under section 37. (2) If the court is not satisfied under subsection (1), the court must adjourn the proceedings in order to see whether the accused will become fit to stand trial. (3) The court may adjourn proceedings under subsection (2) for any period or periods that the court considers appropriate, but not beyond the period of — (a) 6 months after the finding of unfitness; or (b) if the court is satisfied that there are exceptional circumstances that justify a longer period or periods of adjournment — 12 months after the finding of unfitness. (4) If, at any time after adjourning the proceedings under subsection (2), the court becomes satisfied on the balance of probabilities that the accused will not become fit to stand trial within the period of 6 months after the finding of unfitness, or any period of adjournment extending beyond the 6 months, the court must make an order under section 37. (5) If the accused has not become fit at the end of the period of 6 months after the finding of unfitness, or any period of adjournment extending beyond the 6 months, the court must make an order under section 37. 36. Chief Mental Health Advocate to be notified If proceedings are adjourned under section 35(2), the court must immediately notify, and give the prescribed information to, the Chief Mental Health Advocate. 37. Court to make orders as to how charge against unfit accused to be dealt with (1) This section applies if the court must, under section 35, make an order under this section. (2) In the case of a charge of a simple offence or an indictable offence that was to be dealt with summarily, the court must either — (a) discharge the accused from the charge; or (b) order that a special proceeding take place under Subdivision 3. (3) In any other case, the court must order that a special proceeding take place under Subdivision 3. (4) If the accused is discharged under subsection (2)(a), the accused cannot be charged with or tried for an offence which, on the charge, the accused might have been found to have committed. 38. Legal representation of unfit accused (1) If it appears to the court that the accused should have legal representation, the court may (on application or its own initiative) adjourn proceedings until the accused is represented by a legal practitioner. (2) If the accused is unable to instruct their legal practitioner, the legal practitioner may exercise an independent discretion and, in doing so, must act in a way that they reasonably believe to be in the accused's best interests. (3) If there is a question as to the extent to which the accused is able to instruct a legal practitioner or is able to make admissions, the question must be determined by the court. 39. Procedure for deciding if accused has become fit to stand trial Sections 28 and 29 apply, with the necessary modifications, in relation to the question of whether the accused has become fit to stand trial. 40. Trial to continue if accused found fit to stand trial If, after finding that the accused is unfit to stand trial, the court finds that