Today’s correspondent tells us:

Victoria has a new mental health Act (Mental Health and Wellbeing Act 2022), the NSW mental health regulations that allow Victorian Paramedics reciprocal powers if they are sent into NSW to detain and transport involuntary mental health patients to Victoria still refers to the old Victorian act. Ambulance Victoria insists we still have reciprocal powers but can’t point to anything in the NSW act or regulations that actually allows that?

The Mental Health and Wellbeing Act 2022 (Vic) came into force on 1 September 2023 (s 2(2)). On its commencement the Act repealed the Mental Health Act 2014 (Vic) (s 761).

The Mental Health and Wellbeing Transitional Regulations 2023 (Vic) provide for the continuation of orders and proceedings as if they were made or commenced under the new Act. Regulation 49 says:

49. Person subject to interstate order taken to Victoria

On and after 1 September 2023, a person who, immediately before that date, is being taken to an authorised psychiatrist in this State under section 324 [Person subject to interstate compulsory order taken to Victoria to determine suitability for Temporary Treatment Order] of the old Act is taken as being transported to the authorised psychiatrist under section 606 [Transfer of a person to Victoria] of the new Act.

That’s all well and good in Victoria but doesn’t deal with the power of a Victorian paramedic in NSW.  In NSW the Mental Health Act 2007 (NSW) is headed ‘Interstate Application of Mental Health Laws’.  Section 176 says:

(1) A person who is detained as an involuntary patient or forensic patient in a mental health facility in this State may be transferred to a mental health facility in another State, if the transfer is permitted by or under a provision of a corresponding law of the other State and is in accordance with the regulations…

(3) A person may be taken to a mental health facility in another State under this section by a person who is authorised to do so by the regulations or under a provision of a corresponding law of the other State.

What are the ‘corresponding laws’ is set out in the Mental Health Regulations 2019 (NSW) r 20. It says, relevantly:

The following laws and any regulations made under those laws are corresponding laws for the purposes of Chapter 8 of the Act–

(a) the Mental Health Act 2014 of Victoria…

As noted above, since 1 September 2023 the Mental Health Act 2014 of Victoria no longer exists.  That means that for anyone detained after that date, no transfer is permitted, and no person is authorised to transfer the patient, under the Mental Health Act 2014 (Vic) so no-one is authorised by ‘a provision of a corresponding law of’ Victoria.

It would appear that no-one in either NSW Health or VicHealth take the provisions of corresponding laws very seriously.  NSW Health publishes on its website the ‘NSW-Victoria agreement for the return of absconding forensic patients’. This agreement is dated 19 February 2002 ie before either the Mental Health Act 2014 (Vic) or the Mental Health Act 2007 (NSW) had been enacted but it would appear to be the agreement that continues to be relied. Also available is the signed, but not dated, NSW-Victoria agreement for the transfer of civil patients between NSW and Victoria. It was meant to be dated sometime in 2011.  That agreement refers to the Mental Health Act 2007 (NSW) and the Mental Health Act 1986 (Vic) (also no longer in force).

Victoria used the recent amendments to change its definition of corresponding laws. Regulation 39 of the Mental Health and Wellbeing Transitional Regulations 2023 (Vic) refers to the order ‘made under section 314 of the old Act on 26 September 2017 and published in the Government Gazette on 28 September 2017’. It is said to continue save that:

in paragraph (b), for the reference to “Mental Health Forensic Provisions Act 1990 (New South Wales)” there were substituted ” Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (New South Wales)”

That is, they have updated their list of ‘corresponding laws’ to refer to a NSW law that was assented to on 23 June 2020 and commenced on 27 March 2021 so only 2 years and 7 months since that Act came into force.

NSW has had from 6 September 2022 (when the Mental Health and Wellbeing Act 2022 (Vic) received royal assent) to 1 September 2023 (when it came into force) to amend its definition of ‘corresponding law’.  The Act has been in force for nearly 2 months so relatively, a very short time.

I suspect this is an issue where people are being transferred and no-one’s complaining so there is no urgent need to fix it. Further the principle in the Acts and the agreements is that interstate orders are to be honoured and transfers arranged and that is for the benefit of those that need transfer interstate. Because the transfer is intended to be beneficial a court would look for ways to facilitate them. I would argue that a court would (or should) find that references to the 2014 Act should be read as references to the 2022 Act.  This could be justified because the Australian Constitution s 118 says ‘Full faith and credit shall be given, throughout the Commonwealth to the laws… of every State.’  Further the Interpretation of Legislation Act 1984 (Vic) s 117 says:

A reference in an Act to … any other Act or to any provision of any other Act …shall, unless the contrary intention appears, be construed—

(a) …

(b) if the Act, … or provision in question has been re-enacted or re-made (with or without modification), as a reference to the Act … or provision as re-enacted or re-made and in force for the time being;

And Act is said to include an Act of another state.

That means where the NSW Act refers to the Mental Health Act 2014, to the extent that Act has been ‘re-enacted or re-made’ then the NSW Act should be read as referring to the ‘re-enacted or re-made Act’. The fact that the transitional provisions give the cross reference ie an order under the old s 324 is now an order under the new s 606 suggests that the new Act – dealing with the same subject matter as the 2014 Act – represents an Act and provisions that have been ‘re-enacted or re-made’. 

A NSW court accepting that an authorisation under the Mental Health and Wellbeing Act 2022 (Vic) is sufficient for the purposes of the Mental Health Act 2007 (NSW) s 176 would be giving ‘full faith and credit’ to both the 2022 Act and the Interpretation of Legislation Act 1984.

It is I agree, pretty poor form that NSW has not amended its regulation to refer to the Mental Health and Wellbeing Act 2022 (Vic) and that both states still rely on agreements that reference out of date legislation, but these things can take time (2 ½ years in Victoria’s case). I don’t think it will be a real issue for paramedics. It will become an issue if someone sues one of the States (not the paramedics) for false imprisonment.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.