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Mental Health Applications in the Local Court for Commonwealth Offences

Mental Health Applications in the Local Court for Commonwealth Offences are made under section 20BQ of the Crimes Act 1914 (Cth).

Your application will succeed if the court is persuaded that:

  1. You suffer from a mental illness or intellectual disability, and
  2. It is more appropriate to deal with you under the section than otherwise in accordance with law.

You can only make a section 20BQ application if you are facing a Commonwealth offence, such as an offence under:

  1. The Criminal Code Act 1995
  2. The Customs Act 1901, or
  3. The Corporations Act 2001.

‘Mental illness’ is defined as a condition that seriously impairs, either temporarily or permanently, your mental functioning, and is characterised by the presence of:

  1. Delusions
  2. Hallucinations
  3. Serious disorder of thought-form
  4. Severe disturbance of mood, and/or
  5. Sustained or repeated irrational behaviour indicating the presence of any one or more of the above symptoms.

‘Intellectual disability’ has been defined as a condition which:

  1. Is characterised by significant limitations in your intellectual functioning and adaptive behaviour
  2. Covers many everyday social and practical skills, and
  3. Originates before the age of 18.

When deciding whether it is more appropriate to deal with you under the section than otherwise in accordance with the law, the magistrate may consider:

  1. The nature and severity of your mental illness or intellectual disability
  2. The nature, seriousness and circumstances of your alleged offending
  3. Any relevant change in your circumstances since the alleged offending
  4. Your criminal history or lack thereof
  5. Whether you have previously received an order under the section or an equivalent section
  6. Whether a treatment or support plan has been prepared for you, and
  7. Whether it is in the community’s interests to divert you from the criminal justice system.

Your mental state at the time of the hearing is relevant for the purposes of the application, rather than your mental state at the time of the alleged offence.

If your application is successful, the magistrate may dismiss the charge and discharge you:

  1. Unconditionally
  2. Unconditionally into the care of a responsible person
  3. Conditionally into the care of a responsible person, or
  4. Conditionally on undergoing assessment or treatment.

A conditional discharge may require you to comply with a treatment or support plan, which may direct you to do such things as:

  1. See your general practitioner and take prescribed medication
  2. Consult a treating psychologist on a regular basis, and/or
  3. Engage in therapy, such as cognitive behavioural therapy.

The treatment or support plan can last for up to 3 years.

A successful section 20BQ application will mean you avoid a criminal conviction and also avoid a finding that you are guilty of the offence.

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