JKL by his tutor Jennifer Thompson v Justice Health and Forensic Mental Health Network

1. [1]

   BELL P: This case raises an important question of construction in relation to s 48 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the MHFP Act). That Act was repealed by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act), but the power conferred by s 48 of the MHFP Act is now to be found in s 82 of the MHCIFP Act, albeit not in identical form.

2. [2]

   Section 48 of the MHFP Act provided that, on a review under Pt 5 of the Act, relating to “Forensic patients and correctional patients”, the Mental Health Review Tribunal (the Tribunal):

3. [3]

   As will become apparent, the ultimate question between the parties is whether that section authorised the Tribunal to make an order that a forensic patient (within the meaning of the MHFP Act) be transferred to a specified mental health facility “when a bed becomes available”. An order of this kind was made by the Tribunal in March 2020 when it ordered that the applicant (JKL) be transferred “to the Forensic Hospital when a bed becomes available” (the March Order). The Forensic Hospital is a mental health facility declared as such pursuant to s 109(1)(c) of the Mental Health Act 2007 (NSW) (the MH Act) on 26 November 2008 (see New South Wales Government Gazette, No 151, 26 November 2008, at 11319).

4. [4]

   The Tribunal’s power to make an order in the nature of the March Order was challenged by JKL but confirmed by the Tribunal in a decision made on 7 December 2020 in the context of a statutory periodic review pursuant to s 46 of the MHFP Act. It is from that decision that leave to appeal is sought by JKL’s tutor. Leave to appeal (which was not opposed) should be granted.

5. [5]

   The gist of the argument advanced on behalf of JKL was that, whilst the Tribunal has explicit power to make an order transferring a forensic patient to a mental health facility within the meaning of the MHFP Act, s 48 conferred on the Tribunal a power to transfer simpliciter and did not extend to conditioning a transfer on the availability of a bed. Rather, it was contended, by analogy with this Court’s decision in Winters v Attorney-General (NSW) (2008) 182 A Crim R 107; [2008] NSWCA 33 (Winters), that the Tribunal should proceed on the basis that the executive government will ensure that space is available in a mental health facility in the event that the Tribunal made a transfer order pursuant to s 48 of the MHFP Act. It was further contended that on the proper construction of the MHFP Act, it is not part of the Tribunal’s role or within the scope of its discretionary power to have regard to matters of resourcing when considering whether or not to order the transfer of a forensic patient to a mental health facility from a correctional centre or vice versa.

6. [6]

   Winters was relied upon as authority for the proposition that it is no business of a court which has jurisdiction to make an order that may place a fiscal burden on the executive to concern itself with the executive’s ability to meet that burden. The consequence of this was that when considering whether or not to impose a custodial sentence, for example, a court should not have regard to the availability of places in a correctional centre, but should proceed on the assumption that the executive will provide sufficient correctional facilities to accommodate the State’s prison population from time to time.

7. [7]

   On the other hand, the respondent, Justice Health and Forensic Mental Health Network (Justice Health), contended that the Tribunal’s power under s 48 of the MHFP Act was not so constrained. Justice Health emphasised that the question turned on matters of statutory construction and noted that Winters was decided in a different statutory context to the present case. Justice Health is a statutory health corporation established under s 41 and Sch 2 to the Health Services Act 1997 (NSW), and the entity administratively responsible for effecting orders for the transfer of forensic patients to the Forensic Hospital and for the running of that Hospital

8. [8]

   The appeal was argued with considerable skill and command of the complex legislative framework by Dr Lucy, on behalf of JKL, and by Ms Heger, on behalf of Justice Health.

9. [9]

   Before turning to consider the competing arguments in greater detail, it is necessary to note the nature and role of the Tribunal, relevant statutory provisions and to provide some further background to the matter.

The Tribunal

1. [10]

   The Tribunal is constituted under s 140 of the MH Act. As explained by Johnson J in A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal [2010] NSWSC 1363 at [56] (A v MHRT), the Tribunal is a specialist statutory body charged with important responsibilities concerning forensic patients, including persons who have been found not guilty of serious crimes by reason of mental illness (see also Attorney-General (NSW) v X (2013) 235 A Crim R 17; [2013] NSWSC 1392 at [95]). In A v MHRT at [59], Johnson J noted that:

2. [11]

   In Director of Public Prosecutions (NSW) v Khoury (2014) 238 A Crim R 251; [2014] NSWCA 15 at [132], this Court explored some of the differences between the functions of the court and the Tribunal, as follows:

3. [12]

   Pursuant to s 141(1) of the MH Act, the membership of the Tribunal is to consist of the President of the Tribunal, one or more Deputy Presidents, and other members (if any), to be appointed by the Governor. By s 141(2), the “other members” who may be appointed must be either Australian lawyers, psychiatrists or persons having, in the opinion of the Governor, other suitable qualifications or experience. By s 141(3), the members are to include one or more women, and one or more persons of an ethnic background.

4. [13]

   Section 150 of the MH Act provides for the composition of the Tribunal, with sub-section (1) providing that the Tribunal is to be constituted by one or more members nominated by the President for the exercise of its functions. Section 150(2A) outlines that, for the purpose of conducting a mental health inquiry, the Tribunal must consist of at least one member who is to be the President or a Deputy President, or a member qualified to be appointed as a Deputy President. Under s 37(1) of the MH Act, a mental health inquiry includes periodic reviews of “involuntary patients”, which s 4 defines to include “correctional patients” and “forensic patients”. These terms in the MH Act were similarly defined in ss 41 and 42 of the MHFP Act (see [17] below).

5. [14]

   Section 151(1) of the MH Act provides that meetings of the Tribunal are to be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act, the MHCIFP Act, the regulations, and as the proper consideration of the matters before the Tribunal permit. Section 151(2) provides that in determining any matter relating to a forensic patient, correctional patient or other patient or a person detained in a mental health facility, or any matter relating to a community treatment order, the Tribunal is not bound by the rules of evidence but may inform itself of any matter in such manner as it thinks appropriate and as the proper consideration of the matter before the Tribunal permits.

6. [15]

   Pursuant to s 161, headed “Contempt of Tribunal”, a person must not “refuse, neglect or for any reason fail to obey or comply with an order, direction, decision or determination, under this or any other Act, of the Tribunal”, with a maximum penalty of 50 penalty units for breach of this section.

7. [16]

   Part 5 of the MHFP Act [now Pt 5 of the MHCIFP Act] dealt with forensic patients and correctional patients. The objects of Pt 5 were set out in s 40 of the MHFP Act [1] as follows:

8. [17]

   “Forensic patients” was defined under s 42 of the MHFP Act, [2] as follows:

9. [18]

   Of the sections referred to in s 42(a)(i), s 39 of the MHFP Act is relevant for present purposes. It provided:

10. [19]

    Part 5 Div 2 Sub-div 1 of the MHFP Act [3] dealt with the review of forensic patients by the Tribunal.

11. [20]

    In relation to persons found “not guilty by reason of mental illness”, s 44(1) of the MHFP Act [4] provided for a forensic patient’s initial review by the Tribunal to take place “as soon as practicable after the person is found not guilty of an offence by reason of mental illness, after a special hearing, a trial or on an appeal, and ordered to be detained in a mental health facility or other place or to be released from custody subject to conditions”. By s 44(2), the Tribunal must, after reviewing a person’s case, make an order (a) as to the person’s care, detention or treatment, or (b) as to the person’s release (either unconditionally or subject to conditions).

12. [21]

    Consistent with s 37(1) of the MH Act, s 46(1) of the MHFP Act [5] required the Tribunal to review the case of each forensic patient every six months, but also permitted review in the case of any forensic patient at any time. Sub-sections 46(4) and (5) provided that:

13. [22]

    Section 47 of the MHFP Act, [6] headed “Orders and recommendations on further Tribunal reviews”, provided as follows:

14. [23]

    Section 48 of the MHFP Act, [7] the critical provision in the present case, was headed “Transfer of patients” and provided that:

15. [24]

    Section 55 of the MHFP Act [8] provided that:

16. [25]

    Section 56 of the MHFP Act [9] provided that:

17. [26]

    Section 74 of the MHFP Act [10] provided for the matters that the Tribunal must have regard to when determining what order to make about a person under Pt 5 of the Act, as follows:

18. [27]

    Section 76A of the MHFP Act provided for “[o]ther matters relating to Tribunal functions”, as follows:

19. [28]

    Section 76B(1) of the MHFP Act [11] fell within Div 8 of Pt 5 of the Act headed “General”. It provided as follows:

20. [29]

    Section 68 of the MH Act provides:

21. [30]

    Section 76E of the MHFP Act [12] provided that:

22. [31]

    The terms of s 77C of the MHFP Act should also be noted. That section provided that:

Background

1. [32]

   In November 2003, JKL was found not guilty by reason of mental illness in relation to the offences of steal from a person, steal from a dwelling house and assault. Following this finding, the Court made an order that he be detained at a mental health facility until released by due process of law under s 39 of the (then) Mental Health (Criminal Procedure) Act 1990 (NSW). He thereby became a “forensic patient” within the meaning of the MH Act, which at that time governed the review of forensic patients and, upon commencement of Pt 5 of the MHFP Act, became a “forensic patient” within the meaning of that Act.

2. [33]

   In July 2008, whilst on conditional release as a forensic patient, JKL committed the offences of take and detain a person with intent to obtain advantage, and aggravated sexual assault inflicting actual bodily harm. Having been found guilty of these offences, he was sentenced on 21 August 2009 in the District Court of New South Wales to 5 years’ imprisonment for the detaining for advantage offence and 14 years’ imprisonment with a non-parole period of 10 years in respect of the aggravated sexual assault offence. His non-parole period expired on 30 July 2020, and his sentence expires on 30 July 2024. He has not been released on parole.

3. [34]

   JKL is a “dual status” patient, being both a “forensic patient” by virtue of the Court’s order made in 2003, as well as a sentenced inmate by virtue of the sentences imposed in 2009. As a “forensic patient”, he was subject to review by the Tribunal every 6 months, pursuant to s 46(1) of the MHFP Act and such reviews will continue under s 78 of the MHCIFP Act, the MHFP Act having now been repealed, as noted earlier in these reasons.

4. [35]

   At a review hearing conducted on 20 March 2020, JKL applied to be transferred from the Junee Correctional Centre to the Forensic Hospital on or before the expiry of his non-parole period, being 30 July 2020. The evidence from Dr Spencer, Psychiatrist, was that “it had been resolved that [JKL] needs to go to the Forensic Hospital”.

5. [36]

   The Tribunal observed that “a large number of patients have been waiting a long time for transfer to the Forensic Hospital” and it did “not consider it reasonable to make the order sought by” JKL’s legal representative. However, the Tribunal determined “to make an order for [JKL’s] transfer to the Forensic Hospital for care, treatment and detention when a bed becomes available and that in the meantime, he should remain detained in a Correctional Centre”. The formal orders of the Tribunal made on 27 March 2020 under the heading “Order for Transfer and Detention” were as follows:

6. [37]

   A review hearing was scheduled for 17 September 2020. In his Notice of Intent, JKL had sought an order for his immediate transfer to the Forensic Hospital. Dr Lucy, also JKL’s legal representative before the Tribunal, filed submissions to the effect that the Tribunal did not have power to make an order for his transfer to a mental health facility “when a bed becomes available”.

7. [38]

   The Tribunal listed the matter for a special hearing on 5 November 2020 to hear what it described as a preliminary argument, namely, whether or not it possessed the power to make an order for transfer to the Forensic Hospital “when a bed becomes available” i.e. an order of the kind that was made at the March 2020 review and which, as the Tribunal recorded, JKL’s treating team was not seeking to disturb. Justice Health sought and was granted leave to appear and make submissions in support of the Tribunal’s power to make the March Order. Those submissions were upheld in reasons published by the Tribunal on 7 December 2020.

8. [39]

   Beyond the publication of reasons on this question, it was not clear on the materials before the Court of Appeal whether the September review was finalised following the publication of the Tribunal’s reasons on 7 December 2020. No orders made subsequent to the publication of those reasons were before the Court.

9. [40]

   Section 150(1) of the MHCIFP Act provides that:

10. [41]

    The term “determination” is not defined under the MHCIFP Act, although the phrase “determination of the Tribunal” is defined under s 4 of the MH Act to include “an order, direction or decision of the Tribunal”. The application for leave to appeal identified the relevant “decision” from which leave to appeal was being sought as the “decision” of the Tribunal of 7 December 2020. Whether or not the Tribunal’s reasons of 7 December 2020 amounted to a “determination” within the meaning of s 150(1) of the MHCIFP Act was not put in issue, although there was some confusion, at least in the written submissions, as to whether what was in fact the subject of the appeal was the March 2020 Order to transfer JKL to the Forensic Hospital “when a bed becomes available” or the “determination” of the question of power and the scope of s 48 of the MHFP Act.

11. [42]

    The Tribunal, which noted at [4] of its reasons that JKL has a “diagnosis of substance abuse disorder, personality disorder and drug induced psychosis (in remission)”, observed at [33] that:

12. [43]

    In terms of the factual and practical context in which the MHFP Act had been passed, the Tribunal had noted at [24] that it was useful to provide context in considering the purpose and objects of the Act and, in that respect, identified the “problem of bed shortages and a lack of sufficient facilities for the care and treatment of mentally ill patients”. At [23] of its reasons, the Tribunal noted its awareness, as a specialist body dealing in mental health, that “the Forensic Hospital is the only high secure mental health facility for mentally ill patients who have come into contact with the criminal justice system and high risk civil patients.” The Tribunal noted that the Forensic Hospital had five wards and a limited bed capacity and noted that it was the “norm rather than the exception that there is a waitlist for patients to have access to the high secure facility”, being the Forensic Hospital: at [23].

13. [44]

    At [57], the Tribunal concluded that:

14. [45]

    The Tribunal also rejected a submission that the March Order was an “impermissible delegation to the Waitlist Committee of its power to determine ‘whether and when’ [JKL] should be transferred”, together with a submission that the March Order was void for uncertainty: at [61]. The Tribunal ultimately concluded that the March Order to transfer JKL to the Forensic Hospital when a bed became available was a valid order: at [62]. In doing so it rejected JKL’s application to revoke or otherwise amend the March Order. That is the determination from which the appeal to this Court is brought.

Grounds of appeal

1. [46]

   JKL’s amended notice of appeal relies on the following grounds:

Consideration

1. [47]

   The question raised on appeal is in essence one of statutory construction, namely whether or not s 48 of the MHFP Act authorised the making of an order that a forensic patient be transferred to a specific mental health facility “when a bed becomes available”. The section is to be construed in the context of the MHFP Act and cognate legislation read as a whole: see Attorney General for New South Wales v Melco Resorts and Entertainment Ltd (2020) 102 NSWLR 47; [2020] NSWCA 40 at [82].

2. [48]

   If s 48 authorised the making of such an order, then having regard to the actual availability of beds in a given mental health facility would not render invalid a Tribunal decision which conditioned the transfer of a forensic patient upon such availability. Such a decision would not be vitiated by the taking into account of such a consideration because a transfer order so conditioned would not lie beyond the statutory remit of the Tribunal so as to amount to jurisdictional error. In other words, grounds (a) and (c) of the grounds of appeal are in truth two sides of the same coin.

3. [49]

   The power to order a transfer under s 48 is accompanied by a broad discretion. A transfer order is one that the Tribunal may, but is not required to, make in any given case. No express limitations or restrictions are placed upon the Tribunal in exercising the power other than that it be exercised in relation to a “forensic patient” and, to the extent that it permits transfer to a “mental health facility” within the meaning of the MHFP Act.

4. [50]

   The conferral of that express power carried with it an implied incidental power to do everything necessary to give effect to, or facilitate the exercise of, the express statutory power.

5. [51]

   In Grassby v The Queen (1989) 168 CLR 1 at 16-17; [1989] HCA 45 (Grassby), speaking of inferior courts which lacked inherent jurisdiction, Dawson J (with whom Mason CJ, Brennan, Deane and Toohey JJ relevantly agreed) said that every court (which included the Magistrates Court in that case):

6. [52]

   In Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [51] (Pelechowski), a majority of the High Court (Gaudron, Gummow and Callinan JJ) traced the origin of this test of “necessity” in this context as follows:

7. [53]

   More recently and by reference to Pelechowski, Gageler J has referred to power implied from an express grant as “founded on the principle of construction that an express conferral of power carries with it all that is reasonably necessary to ensure its effective exercise”: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (2018) 262 CLR 157; [2018] HCA 3 at [52], see also at [40] and [118] (ABCC v CFMEU). In the same case, his Honour observed at [56] that “[a]n implied statutory power that inheres in an express conferral of statutory power might be expected at a minimum to cohere with the statutory scheme of which that conferral forms part.” In their joint judgment in the same case, Keane, Nettle and Gordon JJ at [115] referred to an “implied power to make such other orders as are necessary for or facilitative of the type of orders expressly provided for”.

8. [54]

   The observations in Grassby, Pelechowki and ABCC v CFMEU, although all expressed in the contexts of courts, apply equally in my opinion to a body such as the Tribunal cf. Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [68]–[69] in relation to the distinction between courts and tribunals.

9. [55]

   The applicability of the principle of statutory construction identified in these cases to tribunals is supported by the distinction, highlighted in Grassby, between inferior and superior courts and by the fact, as emphasised by Dawson J, that the implied incidental power arises from an express legislative grant of power and, as such, differs from a power inherent in a body such as a superior court. Grants of power to statutory corporations, such as the power to approve exports of live sheep, have also been held to carry with them authority to effectuate the purpose of the approval by all steps reasonably incidental to that purpose: see Fares Rural Meat and Livestock Co Pty Ltd v Australian Meat and Live-stock Corporation (1990) 96 ALR 153 at 162 citing Small v Smith (1884) 10 App Cas 119 at 129.

10. [56]

    The proposition that a grant of power carries with it everything that is reasonably necessary for its effective exercise has been described as “an aspect of the presumption that legislatures intend to enact legislation that is not futile”: see P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [9.210]. Consonant with the cognate notion that courts and tribunals “should not make orders knowing that they are likely to be futile” (Winters at [62] per Giles JA), there may readily be attributed to the legislature an intention that a court or tribunal invested with powers to make certain orders should, by implication, also be invested with the power to craft or express its orders so as to ensure their efficacy.

11. [57]

    A power to include in a transfer order under s 48 provision as to when the transfer is to take effect is one which may, in my view, be implied from the express power to transfer a forensic patient. It may fairly be described as reasonably necessary to ensure the effective exercise of the s 48 transfer power or to facilitate the effectuation of a transfer order made under that section.

12. [58]

    The matter may be tested in this way. Assume that the Tribunal reached the conclusion that a particular forensic patient not only should be transferred to a mental health facility but should be transferred immediately or urgently. The logical extension of JKL’s argument – namely that the s 48 power was confined to a power to order a transfer simpliciter – would be that the Tribunal could not make an order that the patient in question be transferred immediately or with urgency. It is most unlikely that this was intended by Parliament which entrusted to the Tribunal the regular review of forensic patients and the appropriateness of their care, both in their own interests and in the interests of the public.

13. [59]

    If the Tribunal has power to order that a transfer occur immediately or on an urgent basis, there is no reason why, in a less urgent case, there would not be power to order that a patient be transferred “when a bed becomes available”. Moreover, an analysis of a particular forensic patient’s actual mental condition may make it desirable that he or she be transferred to a mental health facility, but that same analysis may suggest that such a transfer is not necessary immediately. Therefore, an order that a patient be transferred to a mental health facility when a bed becomes available may reflect the Tribunal’s expert assessment of what was appropriate or desirable for the particular patient in their specific circumstances.

14. [60]

    The statutory context also supports such considerations of practicability being relevant to the exercise of the s 48 power. Section 74 of the MHFP Act, which identified particular matters which the Tribunal was required to have regard to (“must”) when determining what order to make about a person under Pt 5, is prefaced with the words “[w]ithout limiting any other matters the Tribunal may consider”. True it is that the matters which the Tribunal must consider under s 74 are by and large focussed upon the forensic patient and his or her condition, but that is not to say that other matters may not be taken into account. The effect of the expression “[w]ithout limiting any other matters the Tribunal may consider” on its face permits the Tribunal to have regard to all relevant considerations. It is plainly relevant to a body invested with the discretionary power to order that a forensic patient be transferred to a mental health facility to know whether such a facility has, or facilities have, the capacity to accommodate and treat the patient.

15. [61]

    In this regard, s 76B(1) of the MHFP Act (see [28] above) makes the “[p]rinciples for care and treatment” contained in s 68 of the MH Act applicable “to the administration” of Pt 5 of the MHFP Act “with respect to forensic patients and correctional patients”. Although there was a faintly pressed argument that the expression “administration of” Pt 5 of the MHFP Act did not extend to or include the role of the Tribunal in exercising its important review functions under Pt 5 (which is the occasion upon which a transfer order under s 48 may be made), in my opinion, it does. It follows from this that the “[p]rinciples for care and treatment” contained in s 68 of the MH Act inform what is relevant to the Tribunal’s consideration under s 48, which in turn informs a consideration of the extent of the s 48 power.

16. [62]

    What is of most significance for present purposes is that the chapeau to s 68 of the MH Act (see [29] above) qualifies the legislative intention that the principles there set out are to be given effect to with the expression “as far as practicable”. That indicates that considerations of “practicability” are expressly recognised as relevant to determinations concerning the care and treatment of forensic patients and correctional patients with a mental illness or mental disorder. An obvious consideration of “practicability” is the availability of suitable treatment or accommodation. The concern with practicability is further reinforced in a number of sub-sections of s 68 of the MH Act: see, for example, (a) “best possible care”; (c) “wherever possible”; and (h) and (h1) “every effort that is reasonably practicable”.

17. [63]

    There is also the fact that, by reason of s 46 of the MHFP Act, the Tribunal is required to review the case of each forensic patient every six months, or at such other times provided for under s 46. The Tribunal is thus charged with the oversight of all forensic patients in New South Wales, and must review all of them on a regular basis. It was submitted by Justice Health that it is:

18. [64]

    A further matter of statutory context that is relevant arises from the fact that s 161 of the MH Act renders it a criminal offence to fail to comply with an order of the Tribunal. To use the language of Gageler J in ABCC v CFMEU, it “coheres” with the cognate MH Act to construe s 48 of the MHFP Act as permitting the Tribunal to specify when a transfer order is to take effect so as to ensure that persons bound by such an order are not unwittingly exposed to criminal sanction or liability. In this context, there was a degree of tension in the arguments advanced on behalf of JKL. As reflected in para (b) of the grounds of appeal (see [46] above), JKL submitted that an order that a forensic patient be transferred “when a bed became available” generated a degree of uncertainty, submitting that:

19. [65]

    The specification of when a transfer is to occur adds certainty to a transfer order, especially in circumstances where demand for beds in mental health facilities may exceed supply.

20. [66]

    In the course of oral argument, the question whether or not it was within the Tribunal’s power to make a s 48 transfer order to a specific mental health facility or correctional facility was addressed. In this context, it is to be recalled that the March Order nominated a specific mental health facility, namely the Forensic Hospital, as the mental health facility to which JKL was to be transferred “when a bed becomes available”; and the primary order sought on appeal is an unqualified order that JKL be transferred to that Hospital.

21. [67]

    This issue bears upon the answer to the more general question as to whether a transfer order under s 48 may be temporally conditioned. This is because, if s 48 does authorise the transfer of a forensic patient to a specific mental health facility or specific correctional facility, it is more likely that Parliament intended that regard could be had to, and an order conditioned upon, the provision and availability of necessary or desired treatment and care in the particular facility in question in deciding whether to make an order, and to condition such an order on the availability of a place at that facility.

22. [68]

    Both parties furnished further written submissions in relation to this issue and, although arguments going either way were canvassed, both parties indicated that the better view of the matter was that s 48 permitted the Tribunal to transfer a forensic patient to a specific correctional centre or mental health facility. That view was, in my opinion, correct cf. Secretary, New South Wales Ministry of Health v W (2020) 102 NSWLR 969; [2020] NSWCA 212 at [69], in the different context of s 38(4) of the MH Act.

23. [69]

    The most powerful textual indication in support of this conclusion was s 77C of the MHFP Act, the terms of which have been noted at [31] above: see, in particular, the expression “transferred to a specified correctional centre or detention centre” in the context of orders for the transfer of forensic patients. Whilst it is correct that s 77C does not refer to “a specified mental health facility”, that is to be explained by the fact that s 77C is directed towards what the Commissioner of Corrective Services or the Secretary of the Department of Justice may do by way of lateral transfer between correctional centres or detention centres. The key point, however, is that it would be passing strange if the Tribunal could make an order for the transfer of a forensic patient to a specified correctional centre pursuant to s 48 (which is the type of order to which s 77C refers) but could not, using the same power, make a transfer order to a specified mental health facility.

24. [70]

    If, as I consider to be the case, the s 48 power permits the transfer of a forensic patient to a specified mental health facility, given that Parliament must be taken to have intended that the exercise of the Tribunal’s powers would be efficacious, Parliament should be taken also to have intended that the Tribunal could specify in its order when the patient should be transferred to that specific facility.

25. [71]

    In this context, s 40(e) of the MHFP Act provides that one of the objects of Pt 5 of the Act is to provide forensic patients with “an opportunity … to have access to appropriate care”. “Appropriate care”, still less “necessary” or “ideal” care, is not guaranteed under the Act. An order conditioning the transfer of a forensic patient to a particular mental health facility on the availability of a bed at that facility would advance the object referred to in s 40(e) of the MHFP Act. The “opportunity” of securing appropriate care would be facilitated by an order of the kind under consideration, because a transfer would occur when the opportunity arose, namely when the bed became available.

26. [72]

    Any provision or qualification in a transfer order as to the timing of any transfer does not involve or require an extension of the statutory power to transfer conferred by s 48 of the MHFP Act. A transfer order which is so qualified does not lose its character as a transfer order by reason of any such qualification. Qualifying a transfer order by reference to the availability of a bed is simply a practical recognition by the Tribunal that there is a finite number of mental health beds available in the State generally, and in any given mental health facility, in particular.

27. [73]

    Indeed, as Justice Health submitted, the absence in s 48 of any positive requirement that the Tribunal specify when a transfer is to occur suggests that the legislature was content to leave it to the Tribunal’s discretion either to specify a date or occasion for the transfer to occur, or to specify no such date, in which case it would be implied that the transfer was to be effected within a reasonable time.

28. [74]

    The strongest argument advanced on behalf of JKL derived from this Court’s decision in Winters and drew on passages in the judgments of Mason P and Hodgson JA in particular to the effect that, when legislation contemplated that there should be incarceration, the Court should presume that correctional facilities will be available, and practical concern as to the availability of a place at a correctional facility should be irrelevant in the exercise of any sentencing discretion.

29. [75]

    By analogy it was contended that it would be irrelevant for the Tribunal to have regard to the availability of places at a mental health facility in deciding whether or not to order the transfer of a forensic patient to such a facility, and (as I understood JKL’s argument) if this was an irrelevant consideration, s 48 should not be construed as permitting a transfer order to be conditioned upon the availability of a bed in a mental health facility. The argument at its high point was that, as s 48 was concerned with transfers of forensic patients to mental health facilities or correctional centres, if it was not appropriate to have regard to questions of capacity at a correctional facility, it must equally have been inappropriate to have regard to questions of capacity at a mental health facility.

30. [76]

    It is important, before turning to consider the particular passages from Winters relied upon in support of JKL’s argument, to understand the precise statutory setting and procedural context in which Winters was decided. As shall be seen, it was far removed from the circumstances of the present case.

31. [77]

    Winters was concerned with the making of an extended supervision order under the Crimes (Serious Sex Offenders) Act 2006 (NSW) following the completion of Mr Winters’ sentences in relation to various sex offences. Proceedings had been commenced by the Attorney-General seeking, inter alia, an order that the defendant be detained in a correctional centre for five years from the date of the order pursuant to s 17(1)(b) of the Crimes (Serious Sex Offenders) Act (a continuing detention order). In the alternative, the Attorney sought an extended supervision order for five years pursuant to s 17(1)(a) on various conditions. One of the types of conditions which the Act contemplated could be imposed in s 11(d) was participation in treatment and rehabilitation programs.

32. [78]

    At first instance, McClellan CJ at CL made reference to a draft Risk Management Plan, noting that the appropriateness of an extended supervision order would depend upon the effectiveness of that plan. His Honour noted that the plan contemplated a program of intensive one-on-one treatment with a Ms Howell, or another appropriate psychologist, and that Ms Howell was available to provide that treatment, and was confident that it would be effective. The Attorney had also made it clear that, in the event that the Court were to make an extended supervision order as opposed to a continuing detention order, the conditions should include intensive one-on-one treatment with Ms Howell, or another appropriate psychologist.

33. [79]

    There was evidence that Mr Winters could not afford to pay for that treatment and that the State would not make funds available for the treatment. McClellan CJ at CL noted that “the capacity to fund Ms Howell’s services has proved an ultimate stumbling block in this case” and the Court was informed that “no funds are available from the Government to provide for her fees, with the consequence that the contemplated treatment would not be available.” His Honour concluded that, without intensive counselling, the risk of Mr Winters re-offending would remain largely undiminished; that, given no funding was available for such treatment, the primary judge could not be satisfied that “adequate supervision” would be provided by the extended supervision order; and that in the circumstances, a continuing detention order should be made instead of an extended supervision order.

34. [80]

    In the course of the hearing, Mr Winters had filed a notice of motion, seeking “to temporarily stay proceedings until such time as government funding is made available or services otherwise provided for the psychological treatment the defendant should receive pursuant to the post release plan recommended upon the evidence.” This application was refused and a continuing correction order for one year was made. It was from this order and the rejection of the stay application that an appeal came before the Court of Appeal. One of the grounds of appeal was that the primary judge erred “by having regard to, or giving too much weight to, evidence that there was a policy not to provide or fund treatment for offenders in the community.”

35. [81]

    Although this argument was rejected and the appeal dismissed, in the course of their judgments, both Mason P and Hodgson JA made observations that were embraced by Dr Lucy on JKL’s behalf in the current appeal. Thus, Hodgson JA, who delivered the principal judgment, observed that:

36. [82]

    At [121], his Honour continued:

37. [83]

    JKL submitted that:

38. [84]

    A transfer order under s 48 of the MHFP Act is very different to an order for imprisonment. A forensic patient the subject of such an order will already be in the criminal justice system and the s 48 power confers a broad discretion on a specialist tribunal as to the appropriate location of a forensic patient within that system. Section 48 should not be construed in such a way as to constrain the flexibility of the Tribunal in formulating a transfer order in a given case by reference to practical realities. Nothing in the observations of Hodgson JA in Winters, made in a very different statutory and procedural context, warrants a different view.

39. [85]

    Dr Lucy also relied upon the following passages from the judgment of Mason P in Winters:

40. [86]

    His Honour ultimately held that s 11(d) of the Crimes (Serious Sex Offenders) Act did not provide a statutory basis for assuming that the cost of providing for a program of one-on-one counselling would be met by the State, and that there was no authority under the Act for the Court to direct the State to pay for Ms Howell’s services: at [30]-[31]. Mason P continued at [32]-[34] as follows:

41. [87]

    The reference to “futility” in [32] of Mason P’s judgment was echoed in the separate judgment of Giles JA, the third of the judges who sat in Winters. His Honour made the very valid observation at [58] that the adequacy of supervision for the purposes of considering the making of an extended supervision order is not determined in a vacuum, before continuing (at [58]-[59]):

42. [88]

    There is much force and common sense in these observations.

43. [89]

    One further passage from Giles JA’s decision should be noted because it was also relied upon in support of JKL’s contentions. At [61], his Honour said:

44. [90]

    JKL submitted that:

45. [91]

    The ability of the State to declare premises that belong to or are under the control of the Crown to be a mental health facility (see Div 1 of Pt 2 of Ch 5 of the MH Act) does not, in my opinion, translate to or equate with the taking up of “the responsibility to provide sufficient accommodation for prisoners”. As desirable as it obviously would be in an ideal world of unlimited resources for there to be more beds available for forensic patients in the State’s mental health facilities, nothing in the MHFP Act prevents or precludes the Tribunal from having regard to the practical realities surrounding the availability of beds at the State’s mental health facilities in exercising its power to order a transfer under s 48 of the MHFP Act.

46. [92]

    Importantly, this observation is not to deny the power of the Tribunal to make an order that a particular forensic patient be transferred forthwith if the Tribunal considers that such an order is necessary. Such an order may be premised on an assumption that a bed is or will be made available, but there is a difference between holding that there is power to make such an order so premised, and holding that there is no power to order that a transfer should take place when a bed becomes available or that it is not open to the Tribunal when exercising the s 48 power to take such a consideration into account.

47. [93]

    Indeed, as I have suggested earlier in these reasons, it would be somewhat perverse or “foolish”, to borrow the language of Giles JA in Winters, to interpret the power of the Tribunal under s 48 in a vacuum in which the practical realities surrounding the availability of accommodation in mental health facilities are not permitted to be taken into account or factored in to the making of an order under that section.

48. [94]

    JKL also sought to invoke the principle of legality together with Australia’s international law obligations, in particular, art 14(1)(b) of the United Nations Convention on the Rights of Persons with Disabilities (2006), which provides that States shall ensure that persons with disabilities, on an equal basis with others, are not deprived of their liberty unlawfully or arbitrarily and that any deprivation of liberty is in conformity with the law. It was submitted that the construction of s 48 contended for on behalf of JKL “avoids the arbitrary detention of forensic patients in prison, where the Tribunal has decided they should be detained in a mental health facility, and is thus most consistent with Australia’s international obligations towards persons with disabilities”.

49. [95]

    These arguments do not advance JKL’s case, nor did the argument based upon uncertainty to which reference has been made at [65] above. There will be sufficient certainty where an order specifies that there is to be a transfer, identifies the patient who is to be transferred, and also identifies the patient’s destination. Specification of the timing of the transfer adds to, rather than detracts from, the certainty of the order.

50. [96]

    So, too, and contrary to a further argument advanced on behalf of JKL, an order that a transfer be made when a bed becomes available does not impermissibly delegate to Justice Health the power to order a transfer. As stated at [72] above, a transfer order does not lose its character by the recognition of the practical limitations as to the availability of beds reflected in a proviso that the transfer is to occur when a bed becomes available.

Conclusion

1. [97]

   The question raised by this appeal is ultimately one of statutory construction, with principal guidance to be derived from considerations of text and context. Those considerations require that the appeal must be dismissed.

2. [98]

   MACFARLAN JA: I agree with Bell P.

3. [99]

   MEAGHER JA: I agree with Bell P.