KP v Minister for Mental Health

1. [1]

   BASTEN AJA: The applicant, KP, [1] seeks leave to challenge a decision of the Mental Health Review Tribunal (Tribunal) revoking an order made by the Tribunal on 17 November 2023 which provided for his conditional release from Bloomfield Hospital, where he had been detained as a forensic patient. The proposed appeal is limited to a question of law which may be shortly identified as whether the Tribunal had power to revoke its release order for breach of a condition of release where it had not made an order for KP’s apprehension pursuant to s 109 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (Forensic Provisions Act).

2. [2]

   The applicant’s status as a forensic patient [2] resulted from a finding in August 2011 that he was not guilty of an offence of causing grievous bodily harm with intent, by reason of mental illness, pursuant to s 39 of the predecessor to the Forensic Provisions Act. He was initially detained pursuant to an order made by the District Court, and continued to be detained in mental health facilities from 2011 until his release in November 2023, pursuant to orders made by the Tribunal under the Forensic Provisions Act (and its predecessor). At the time that he came before the Tribunal on 9 January 2024, the applicant was in detention having been scheduled as a mentally ill person requiring inpatient management, under s 19 of the Mental Health Act 2007 (NSW).

3. [3]

   There was no challenge to the factual premise of the revocation order, namely that there had been a material breach of the conditions of the applicant’s release. The circumstances are fully set out by Price AJA below. There was also no challenge to the following findings made by the Tribunal:

4. [4]

   As a matter of statutory construction, the proposition that the Tribunal has no power to revoke an order for release unless it has first made an order for the person’s apprehension is implausible. Such a reading of the statute has no practical purpose, provides no additional protection to the mentally ill person, and may have a detrimental effect by creating confusion and uncertainty. The reason why such a construction should not be adopted is apparent from the structure of the Forensic Provisions Act.

5. [5]

   Part 5 of the Forensic Provisions Act deals with forensic patients. Part 5 has 10 divisions, with the following headings, which are not merely descriptive, but form part of the Act [3] :

6. [6]

   The structure of these divisions is to set out in an orderly fashion the functions, powers and matters to be considered when the Tribunal is dealing with forensic patients (and others). Division 9 confers additional powers; its purpose is not to limit the powers already conferred.

7. [7]

   Section 109, in Div 9, reads as follows:

8. [8]

   The note, which is not part of the section, [4] confirms that the section does not restrict other powers. The purpose of Div 9 generally, and s 109 specifically, is self-evident: it provides power to apprehend a person who has been released (or escaped) from detention and, where the person is apprehended, requires the Tribunal to review the person’s case. Without such express statutory power, there would be no mechanism for apprehending such persons and bringing them before the Tribunal for review. Nothing in s 109 expressly, or by implication, restricts or qualifies the general powers conferred on the Tribunal in earlier divisions.

9. [9]

   Further, there is no need to apprehend a person who is already detained in a mental health facility. For someone who is so detained (and possibly for someone who is not), there is nothing in s 109 which limits the power of the Tribunal under s 79 to “carry out a review of a forensic patient at any time”. Section 81 provides the powers of the Tribunal carrying out such a review:

10. [10]

    These powers are not restricted to some reviews and disapplied from others. The purpose of any review is to allow the Tribunal to consider whether the orders under which a forensic patient is currently detained remain apposite, or should be varied. KP’s conditions have been changed from time to time over the last 15 years, pursuant to reviews which must be carried out at least on a six-monthly basis: s 78(d). It is inevitable that a varied order will be inconsistent with the previous order. An order for conditional release will be inconsistent with an existing order for detention. It does not follow that the previous order must be “revoked” whenever a new order is made. As the Tribunal found, the only appropriate order available in the circumstances before the Tribunal as of 9 January 2024 was some form of detention order. That order was made. It would have been effective whether or not the previous order was formally revoked.

11. [11]

    It is not clear why the Tribunal thought it was necessary to revoke the earlier order, but two possibilities may be noted. First, clarity and transparency may have persuaded the Tribunal to take that step, which, in a practical sense, was clearly desirable. Secondly, the Tribunal may have perceived that there was an inconsistency with the status of the applicant as a person who had been involuntarily admitted as a mentally ill person under the Mental Health Act, whilst subject to an order for conditional release under the Forensic Provisions Act.

12. [12]

    This reasoning is partly reflected in s 109(4). Thus, it is only under par (c) that the section provides for the Tribunal to “revoke the order for release and order the person’s detention …”. Orders for temporary detention, for release or for leave, conditionally or unconditionally, pursuant to pars (a) and (b) may well be inconsistent with the terms of the previous order, but do not require its revocation. It is not clear why the distinction in relation to revocation should be drawn between temporary detention and detention. In short, the reference to “revok[ing] the order” in s 109(4)(c) does not suggest that revocation cannot be made in other cases, nor that it necessarily need be made when imposing a further detention order.

13. [13]

    Whilst, as a matter of statutory construction, the applicant’s submissions must be rejected, I accept that it is an appropriate case in which to grant leave to appeal.

14. [14]

    It is also appropriate to express a significant level of disquiet as to the time taken for this matter to come before the Court. For 15 months, everyone has proceeded on the basis that there was no invalidity in the order made on 9 January 2024. Indeed, there is a real sense in which the present application appears to lack utility. As noted above, forensic patients are reviewed every six months. The chronology suggests that two statutory reviews were adjourned whilst the applicant was taking steps to appeal the January 2024 decision. Whether that course was either lawful or desirable is not a matter for this Court, but it is one to which proper consideration should be given in future matters.

15. [15]

    The chronology demonstrates that it took more than eight months for the proceedings to be commenced in this Court. Although an explanation of the delay has been provided in support of the need for an extension of time, the delay was not justifiable. There was a further six months before the matter was listed for hearing. That is partly the fault of the Court, but legal representatives on both sides of the record should have taken steps to ensure an earlier listing, which would undoubtedly have happened if someone had noted that the matter was properly one of urgency.

16. [16]

    I agree with the orders proposed by Price AJA. The Minister, appropriately, sought that, if the appeal were dismissed, there should be no order as to costs.

17. [17]

    GRIFFITHS AJA: I agree with Price AJA and the orders he proposes. I also agree with the additional reasons by Basten AJA.

18. [18]

    PRICE AJA: These proceedings arise from a determination made by the Mental Health Review Tribunal (“the Tribunal”) on 9 January 2024 which revoked the applicant’s conditional release and ordered his detention at the “Forensic Hospital” [5] in Malabar for care and treatment with escorted day care leave.

19. [19]

    There is no dispute that the applicant is a “forensic patient” within the meaning of s 72(1)(c) and for the purposes of s 150 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“MHCIFPA”).

20. [20]

    The applicant (by his tutor) seeks leave pursuant to s 150(1)(a) of the MHCIFPA to appeal the Tribunal’s determination (“the Determination”) on a question of law alone. The proposed ground of appeal in the applicant’s further amended draft notice of appeal is:

21. [21]

    The applicant seeks the following orders:

22. [22]

    The applicant requires an extension of time for filing the summons for leave to appeal pursuant to s 152(2) of the MHCIFPA.

23. [23]

    As the Deputy President of the Tribunal which made the determination is a Judge of the Drug Court of NSW and an Acting Judge of the District Court of NSW, the appeal is from a “specified tribunal” within the meaning of s 48(1) of the Supreme Court Act 1970 (NSW) (“SCA”) and these proceedings are assigned to be heard in this Court pursuant to s 48(2)(f) of the SCA.

Extension of time and leave to appeal should be granted

1. [24]

   The questions of law raised by the applicant are:

2. [25]

   The present appeal involves an important question of statutory construction in relation to ss 81 and 109 of the MHCIFPA, and as such raises issues of principle and questions of general public importance: PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6] (Bell P and Simpson AJA) and the authorities there cited. The respondent does not oppose the granting of leave and extension of time, nor does it oppose hearing the leave application and appeal concurrently under the Uniform Civil Procedure Rules 2005 (NSW) r 51.13(2)(b)(iv). Accordingly, leave should be granted and time extended.

Background to the hearing before the Tribunal

1. [26]

   The applicant has been a forensic patient pursuant to s 72(1)(c) of the MHCIFPA. On 23 August 2011, Blanch CJ DC in the District Court of New South Wales found the applicant not guilty by reason of mental illness pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“MHFP Act”) (repealed) for an offence of causing grievous bodily harm with intent to do so, being occasioned by an assault of a City Rail employee at Central Station in May 2010. The applicant has a long history of schizophrenia, substance use disorder, attention deficit hyperactivity disorder (“ADHD”), antisocial and narcissistic personality traits.

2. [27]

   Between that date and November 2023, the applicant was detained in different mental health facilities pursuant to orders made by the Tribunal.

3. [28]

   Following a review by the Tribunal on 15 November 2023, the applicant was granted conditional release from Bloomfield Hospital which allowed him to reside in a supported high-intensity transitional residential accommodation in the community in Carlingford (“HASI Plus”). The relevant conditions included his acceptance of Dr Basson as his treating psychiatrist and Ms Miller as his case manager and obligations not to “engage in … conduct that could give rise to a reasonable apprehension that the safety of himself or of any member of the public is, or could be seriously endangered”. The applicant was also not to take any illegal drugs or substances and not to consume alcohol. The Tribunal made these orders under ss 78, 81 and 85 of the MHCIFPA.

4. [29]

   On 28 December 2023, Ms Miller directed the applicant to attend the Emergency Department of Westmead Hospital as concerns had been raised by the applicant’s family about his mental state. The applicant had also admitted to Ms Miller that he had ceased taking his schizophrenia medication and injected an illicit drug. In a subsequent search of his HASI Plus accommodation, a standard size axe and hammer were discovered.

5. [30]

   Following the applicant’s voluntary compliance with Ms Miller’s direction he was scheduled under s 19 of the Mental Health Act 2007 (NSW) (“MH Act”) after certification by two psychiatric registrars at Westmead Hospital that he was a “mentally ill person” within the meaning of the MH Act requiring inpatient management: MH Act ss 14, 19.

6. [31]

   The applicant was transferred from Westmead Hospital to Blacktown Hospital the following day where he was detained as an involuntary patient in the “B22 ward”, which is an acute mental health ward.

7. [32]

   On 2 January 2024, Ms Miller submitted a form entitled “Notice of Potential Breach or Deterioration in Mental Conditions” (“Notice of Potential Breach”) to the Tribunal. The reason provided by Ms Miller for the Notice of Potential Breach was “to seek an apprehension order”. On that same day, the Mental Health Advocacy Service (“MHAS”) received an email from the Senior Forensic Officer of the Tribunal advising that the applicant was detained as an involuntary patient at Blacktown Hospital and that he would be the subject of an early review by the Tribunal on 9 January 2024.

8. [33]

   On the following day, Ms Miller submitted a form to the Tribunal entitled “Forensic Patient Review Notice of Intent” (“Notice of Intent”). The Notice of Intent contained a “Note” which included: “[t]he Tribunal must give notice of applications to the Minister for Health and Medical Research and to the Attorney General who have a right to appear and/or make submissions to the Tribunal in relation to the possible release or grant of leave of absence of a forensic patient”. The orders sought by Ms Miller included: “[the applicant] to remain in hospital due to breach of conditional release order”. The Notice of Intent was emailed by the Senior Forensic Officer of the Tribunal to the MHAS.

9. [34]

   The applicant was detained at Yaralla Mental Health Unit at Cumberland Hospital, which is a high dependency mental health unit. He remained detained at the Yaralla Unit at the time of the Tribunal’s review on 9 January 2024.

10. [35]

    Dr Basson provided a medical report dated 5 January 2024 to the Tribunal assessing the applicant’s mental state and risk factors, appropriateness of mental health facilities and transition back into the community. In discussing his mental health and treatment, the applicant was “dismissive of concerns” and “minimises the seriousness of circumstance[s] or actions”, noting that Dr Basson’s impression was that “personality features were more in play than psychosis”. In Dr Basson’s view, the applicant was unsuitable and not appropriate to be considered for transfer to any Medium Security Unit (“MSU”) facilities with a mix of civil and forensic patients and acute psychiatric units.

11. [36]

    Dr Basson concluded that the applicant “should return to the Forensic Hospital for further stay and then when [his] medication regime is clearly established, and behaviour settled, he can … endeavour to transition back to the [c]ommunity”.

12. [37]

    A similar opinion was expressed by Ms Miller in her report dated 4 January 2024 provided to the Tribunal. In her report, Ms Miller assessed the applicant’s risk of reactive aggression and violence as “increased” but acknowledged it was “currently mitigated by inpatient admission”. Ms Miller opined that the applicant would “benefit from continued hospitalisation”, and support for this view was identified by salient factors such as “multiple breaches of his forensic conditional release order, continued mental health deterioration, nil stability of medication regime or satisfactory risk mitigation”.

13. [38]

    Ultimately, Ms Miller concluded that the applicant should “remain detained in hospital due to breaching the conditions of release” and “pharmaceutical and therapeutic intervention” should be recommenced to minimise risks to others and himself.

14. [39]

    On 9 January 2024, the Tribunal constituted by three members determined that the applicant’s conditional release should be revoked and that he be detained at the Forensic Hospital. In the Tribunal’s written reasons for its decision (dated 19 January 2024), the Tribunal referred to ss 75, 81 and 94 of the MHCIFPA.

15. [40]

    During the hearing, the applicant’s legal representative submitted that “the Tribunal would not make a breach order on the basis that currently … [the applicant] is detained under [MH Act] in a civil setting”. [6] He further submitted that “… if the Tribunal were to make a breach order we would then argue in the alternative that the Tribunal only make … an order for temporary detention at the civil hospital given that he’s already there where he is and he seems to be quite content where he is”. [7]

16. [41]

    At a later stage in the proceedings, the following exchange took place between the Deputy President and the applicant’s legal representative:

17. [42]

    The Deputy President in discussion with Dr Basson, the applicant’s treating psychiatrist, relevantly said:

18. [43]

    The Tribunal relevantly noted at [4]-[7] that:

19. [44]

    The Tribunal at [13] referred to the applicant’s non-compliance with his medication; his illicit drug use; his appearance to his family members of being drug affected, paranoid and voicing persecutory delusions; the discovery of the axe and hammer; and his diagnosis of schizophrenia, substance use disorder, ADHD, antisocial and narcissistic personality traits and his positive symptoms of schizophrenia.

20. [45]

    The Tribunal acknowledged the seriousness of revoking the applicant’s conditional release and the lack of options for his placement. The Tribunal stated at [15]:

21. [46]

    The Tribunal made the following determinations at [17]:

22. [47]

    The Tribunal’s sealed orders dated 9 January 2024, included the applicant’s detention but surprisingly did not contain an explicit order for revocation of his conditional release. The applicant did not contend that anything turns on this omission. The Tribunal’s sealed orders were noted as having been made under ss 79, 81 and 94 of the MHCIFPA.

Were the determinations by the Tribunal revoking the applicant’s conditional release and ordering his detention invalid?

1. [48]

   The issue that arises on the appeal is whether the revocation order and detention order made by the Tribunal pursuant to ss 79 and 81 of the MHCIFPA were valid. If they were invalid, the applicant’s detention is unlawful.

2. [49]

   The applicant’s case is that s 109 of the MHCIFPA provides a mandatory scheme which must be followed when there has been a breach of a conditional release order. The applicant argued that it did not matter that at the time of the Tribunal’s review, he had been scheduled under s 19 of the MH Act. He contends it was necessary for an apprehension order to be issued under s 109(1) of the MHCIFPA for any step to be taken in respect of the applicant’s conditional release or his further continuing detention. The applicant submitted that s 81 of the MHCIFPA did not permit the Tribunal to make such orders.

3. [50]

   These arguments were not advanced on the applicant’s behalf before the Tribunal. As seen from [41] above, the applicant’s legal representative accepted that the Tribunal had the power under s 81 of the MHCIFPA to hear the matter. As a general rule, issues which were not raised at the hearing below, should not be raised on appeal: Bird v DP (a pseudonym) [2024] HCA 41; (2024) 419 ALR 552 at [39] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ) (“Bird”). However, the plurality in Bird mentioned that rule is “not absolute” and as the respondent does not object to the new issues being raised on appeal accepting that it involves an important question of statutory construction “it is expedient in the interests of justice” that it be determined: O’Brien v Komesaroff (1982) 150 CLR 310 at 319 (Mason J); [1982] HCA 33; Coulton v Holcombe (1986) 162 CLR 1 at 7-9 (Gibbs CJ, Wilson, Brennan and Dawson JJ); [1986] HCA 33.

4. [51]

   Section 81 of the MHCIFPA which is found in Division 3 of Part 5 is as follows:

5. [52]

   Section 81 is relevantly preceded by ss 78 and 79 which are as follows:

6. [53]

   Section 109 of the MHCIFPA is found in Division 9 of Part 5. The chapeau to Division 9 is “Enforcement”. Section 109 is as follows:

7. [54]

   The applicant submitted that Division 9 of Part 5 of the MHCIFPA contains a comprehensive suite of provisions aimed specifically at the situation in which the applicant has found himself. Section 109, in particular, is targeted to cases where a person is suspected to have breached a condition of their release, or it is otherwise necessary to reconsider that release because of a suspected deterioration in their mental health condition. The applicant argued that the MHCIFPA should be interpreted in a way which gives s 109 some meaningful purpose distinct from ss 78 and 81. The purpose of s 109 is to provide the means by which an order for conditional release is enforced. That was submitted to be consistent with the structure of the MHCIFPA.

8. [55]

   The applicant referred to the additional safeguards which are intended to apply where a forensic patient is at risk of having their conditional release revoked. These safeguards include the issue of the apprehension order in s 109(1) of the MHCIFPA being vested in the President of the Tribunal; the two-step process whereby the President of the Tribunal makes an initial determination which is followed by a further review by the Tribunal; the availability under s 112 for a person who is “apprehended” to seek “reconsideration” by the Tribunal of an apprehension order; and the entitlement in s 147(2)(c) for the Minister for Mental Health and the Attorney General to be heard on a review of a person the subject of an apprehension order (although not on a review conducted under s 79).

9. [56]

   The applicant submitted that it is unlikely that the legislation intended that those safeguards could be bypassed by reliance on the general powers under ss 79 and 81 of the MHCIFPA.

10. [57]

    Section 112 of the MHCIFPA is as follows:

11. [58]

    Section 147 of the MHCIFPA is as follows:

12. [59]

    It is to be accepted that s 81 of the MHCIFPA provides a general power for the Tribunal to make orders as to the forensic patient’s detention, care or treatment, or the patient’s release. However, the section does not mention the revocation of an order for release which is expressly found in s 109(4)(c).

13. [60]

    The applicant’s case is, to an extent, based on the line of authority which began with the statement enunciated by Gavan Duffy CJ and Dixon J in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7; [1932] HCA 3 (“Anthony Hordern”):

14. [61]

    In Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672; [1979] HCA 26, Mason J referred to the statement of principle discussed by Gavan Duffy CJ and Dixon J in Anthony Hordern and said at 678:

15. [62]

    In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; [2006] HCA 50 (“Nystrom”), Gummow and Hayne JJ considered the principle stated in Anthony Hordern and explained at [59]:

16. [63]

    Their Honours had earlier observed at [54]:

17. [64]

    At first blush, there appears to be some strength in the applicant’s argument based upon the principle of statutory construction as applied in Anthony Hordern. It might be said that s 109 of the MHCIFPA contains a special power for the enforcement of orders for release that are breached. That special power is subject to the limitations in ss 109(1) and 109(3)-(4). As a consequence, the general power in s 81 cannot be exercised when a person has breached a conditional release order.

18. [65]

    Recently, in State of Queensland v Mr Stradford (a pseudonym) [2025] HCA 3; (2025) 99 ALJR 396 (“Stradford”), the plurality of the High Court observed at [64] (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ):

19. [66]

    Accordingly, the principle of construction in Anthony Hordern, is to be weighed with other applicable principles of construction and “like all such principles … must be applied subject to the particular text, context and purpose of the statute to be construed”: Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 at [50] (French CJ); see also SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (Kiefel CJ, Nettle and Gordon JJ).

20. [67]

    Sections 79, 81 and 109 of the MHCIFPA should not be considered in isolation but the Act should be read as a whole and these specific provisions are to be construed in the context of the Act and cognate legislation: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ); JKL v Justice Health and Forensic Mental Health Network (2021) 104 NSWLR 592; [2021] NSWCA 94 at [47] (Bell P, Macfarlan and Meagher JJA agreeing) (“JKL”); Attorney General for the State of New South Wales v XY [2014] NSWCA 466 at [90] (Beazley P) (“XY”).

21. [68]

    Section 69 of the MHCIFPA sets out the objects of Part 5 which includes “to protect the safety of members of the public” (s 69(1)(a)); “to provide for the care, treatment and control” of any forensic patients (s 69(1)(b)); “to give an opportunity for [forensic patients] to have access to appropriate care” (s 69(1)(e)) and “to protect the safety of victims of forensic patients and acknowledge the harm done to victims” (s 69(1)(f)).

22. [69]

    Section 70 of the MHCIFPA relates to the treatment, care and detention of forensic patients and relevantly provides that “the principles set out in s 68 of the [MH Act] apply to the administration of this Act with respect to forensic patients and correctional patients” (s 70(1)) and “forensic patients, who are detained should, so far as practicable, be detained in a mental health facility that is appropriate to the forensic patient’s needs and safety, and the safety of other persons” (s 70(2)).

23. [70]

    Section 74 of the MHCIFPA identifies that ss 69 and 70 are intended “to give guidance in the administration” and “do not create, or confer on any person, any right or entitlement enforceable at law”.

24. [71]

    Section 75 of the MHCIFPA sets out the matters on any review which the Tribunal “must have regard to … when determining what orders to make about the person” as the following:

25. [72]

    The general principles for care and treatment of people with a mental illness or mental disorder are set out in s 68 of the MH Act and relevantly include receipt of “the best possible care and treatment in the least restrictive environment” (s 68(a)); provision “with timely and high quality treatment and care” (s 68(b)); “the provision of care and treatment … designed to assist people with a mental illness … wherever possible, to live, work and participate in the community” (s 68(c)) and “any restriction on the liberty of patients … with a mental illness … and any interference with their rights, dignity and self-respect … to be kept to the minimum necessary in the circumstances” (s 68(f)).

26. [73]

    The applicant submitted that s 81 of the MHCIFPA does not confer a power on the Tribunal to order a person’s detention but only to make orders after initial detention orders have been made by a court. The applicant relied on what was said by Simpson J (in dissent) at [132] in Director of Public Prosecutions (NSW) v Khoury [2014] NSWCA 15; (2014) 306 ALR 86 (“Khoury”). The applicant contended that a conferral of the power in s 109(1) on the President or their delegate, and the right of review that s 109 brings with it in s 112, reflects the fact that the Tribunal applying s 109 is exercising a power which would ordinarily be considered a quintessentially judicial function as expressed by Simpson J in Khoury at [132].

27. [74]

    The applicant’s reliance on Khoury is misconceived. Khoury concerned the construction of Part 2 of the MHFP Act. Section 47 of the MHFP Act authorised the Tribunal after reviewing the case of a forensic patient to make an order as to the patient’s “continued detention” or release. Section 81 of the MHCIFPA is not in the same terms as s 47 of the MHFP Act. Section 81 makes no mention of “continued detention”. As the High Court observed in Stradford (at [65] above), generally provisions granting powers should not be read down by imposing limitations not found in the express words of the legislation. This is not a case of a “simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision”: Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531; [2014] HCA 9 at [38] (French CJ, Crennan and Bell JJ). There is no justification for the additional words proposed by the applicant.

28. [75]

    It is clear that under s 81 of the MHCIFPA the Tribunal is given a broad discretionary power to make orders “as to” a forensic patient’s detention, care or treatment in a mental health facility, correctional centre, detention centre or other place. There is no express limitation placed on the Tribunal’s power to make a detention order. This is to be contrasted with the Tribunal’s power to make a release order (either conditionally or unconditionally) which is subject to limitations imposed under ss 82(2) and 82(3).

29. [76]

    In JKL, Bell P (as the Chief Justice then was) considered the power of the Tribunal to order a transfer of a forensic patient under s 48 of the MHFP Act. His Honour observed at [50]:

30. [77]

    After reviewing the following High Court authorities of Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45, Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19, Australia Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 (“CFMEU”) and Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, Bell P found at [54]-[55] that the principle of statutory construction identified in these cases applied to tribunals. His Honour said at [56]:

31. [78]

    In my opinion, the power to revoke a forensic patient’s conditional release may be implied from the express power of detention as it makes little sense that a detention order may be made but a conditional release order may not be revoked.

32. [79]

    The applicant’s argument that s 109 of the MHCIFPA provides a mandatory scheme which must be followed gives rise to the making of an order for the apprehension of a forensic patient by the President which is known to be unnecessary and to be futile in the applicant’s case as he had been scheduled under s 19 of the MH Act and was detained as an involuntary patient: Winters at [62]. The inflexibility of the applicant’s approach does not sit comfortably with the intent of s 68 of the MH Act, embodied by s 70 in the MHCIFPA to ensure that the interference with the rights, dignity and self-respect of the forensic patient is kept to a minimum. The service of an order for apprehension on a mentally ill person who is already detained is no small matter and is likely to lead to confusion and agitation. Such a person is often in a very vulnerable position.

33. [80]

    The power to revoke a forensic patient’s conditional release which may be implied from the express power of detention conferred by s 81 of the MHCIFPA coheres with the statutory scheme of which that conferral forms part: CFMEU at [56] (Gageler J); JKL at [53] (Bell P).

34. [81]

    When a forensic patient is already in detention and is alleged to have breached a conditional release order the Tribunal may move swiftly to review the forensic patient without the necessity of the President making an order for apprehension which is inutile. Such a flexible approach is consistent with the protection of the safety of members of the public and the victims of forensic patients, and the care, treatment and control of the forensic patient themselves. Notwithstanding the forms used by the applicant’s case officer (see [32]-[33] above) the Tribunal adopted the sensible approach of conducting an early Review.

35. [82]

    What was said to be a safeguard under s 112 of the MHCIFPA applies to an order of apprehension made by the President. Such a review has no use when a forensic patient has been already detained under s 19 of the MH Act. A forensic patient who is detained under the MH Act must be presented for a mental health inquiry as soon as practicable after admission under s 27 of the MH Act or the Tribunal may conduct a review at any time under s 79 of the MHCIFPA.

36. [83]

    Section 147(2) of the MHCIFPA is not confined to a review conducted by the Tribunal under s 109(4). The Minister for Health and the Attorney General may appear or make submissions to the Tribunal in relation to “the possible release of a forensic patient”. In the present case, it was open to the Tribunal to notify the Minister of the review of the applicant under ss 79 and 81 and for the Minister to appear or to make submissions as to the applicant’s possible release.

37. [84]

    It does not follow that s 109 of the MHCIFPA has no role to play. Where the forensic patient is not detained and is on conditional release, the President may issue an apprehension order authorising the detention of the forensic patient at the mental health facility, correctional centre, detention centre or other place specified in the order and the Tribunal must conduct the review under s 109(4). In such a case, s 109 applies and not ss 79 and 81.

38. [85]

    Whilst having some initial attraction (see [64] above), the Anthony Hordern principle of construction does not give effect to the purpose and objects of Part 5 of the MHCIFPA nor does it cohere with the objects of the MH Act.

39. [86]

    At the hearing, the parties mentioned but did not express a position on whether pursuant to s 162 of the MH Act this judgment should not use the applicant’s name. It is appropriate that the applicant’s name be anonymised to “KP” in this judgment for the reasons provided by Basten JA in XY at [185]-[187] (see also Z v Mental Health Review Tribunal (No 3) [2023] NSWCA 38).

Conclusion

1. [87]

   The Tribunal had the power to make the revocation order and detention order under ss 79 and 81 of the MHCIFPA. The orders were valid and the applicant’s detention is not unlawful.

2. [88]

   Time should be extended to file the summons seeking leave to appeal and leave to appeal should be granted. But the appeal must be dismissed. The respondent appropriately sought that if the appeal were dismissed there should be no order as to costs. Accordingly, the orders I propose are:

   1. (1)

      Grant the applicant an extension of time within which to commence proceedings up to and including 23 September 2024.

   2. (2)

      Grant the applicant leave to appeal from the orders made by the Mental Health Review Tribunal on 9 January 2024.

   3. (3)

      Direct that the applicant file the draft notice of appeal contained in the White Folder within seven days.

   4. (4)

      Dismiss the appeal.

   5. (5)

      No order as to costs.