Victorian Current Acts Victorian Current ActsSchedule 3––Savings and transitional provisions
1 Definitions
In this Schedule—
"commencement day" means the day on which this Schedule comes into operation;
"existing detainee" means a person who, immediately before the commencement day, was subject to an order under section 393 or 420 of the Crimes Act 1958 (whether by the court or by the Governor).
2 Existing detainees
(1) Each existing detainee is, on and after the commencement day, deemed to be subject to a custodial supervision order under this Act.
(2) The nominal term of the custodial supervision order is to be determined in accordance with section 28 as if the maximum penalty for the offence which led to the person becoming an existing detainee were the maximum penalty attaching to that offence on the commencement day.
(3) If the offence referred to in subsection (2) no longer exists—
(a) the Supreme Court, on application by the existing detainee or the Director of Public Prosecutions, must determine whether there is an existing offence, as at the commencement day, with which the existing detainee could have been charged had it existed at the time of the original charge; and
(b) if there is such an offence, the nominal term is to be determined by reference to the maximum penalty for that offence as at the commencement day.
(4) The nominal term runs from the day on which the existing detainee was made subject to the order under section 393 or 420 of the Crimes Act 1958 .
Sch. 3 cl. 2(5) amended by No. 43/1998 s. 40(b)(i).
(5) If the nominal term has expired, a major review must be held within 6 months after the commencement day.
3 Leave
(1) Subject to this clause, an existing detainee who, immediately before the commencement day, was on leave from the place of detention that corresponds to leave that may be granted under Part 7 is deemed to be on the corresponding leave as if granted under that Part, and any conditions to which the leave was subject immediately before the commencement day continue to apply.
Sch. 3 cl. 3(2) amended by No. 43/1998 s. 40(b)(ii).
(2) Subclause (1) applies for the period of 12 months commencing on, and including, the commencement day.
(3) For the purposes of this clause, leave granted before the commencement day corresponds to leave that may be granted under Part 7 if it is substantially similar to that leave.
Sch. 3 cl. 3(4) inserted by No. 7/2002 s. 33(1).
(4) Sections 53 and 54, as in force immediately before the commencement of sections 24 and 25 of the Forensic Health Legislation (Amendment) Act 2002 , continue to apply in relation to any limited off-ground leave granted before that commencement, until the expiry of that leave.
4 Revocation of supervision order
(1) Despite anything to the contrary in Part 5, an existing detainee who has been, or is deemed to have been, on extended leave for a period of at least 12 months may apply to the court that made the original order under which he or she was detained for revocation of his or her supervision order.
(2) On an application under subclause (1) the court may revoke the supervision order if satisfied on the evidence available that the safety of the existing detainee or members of the public will not be seriously endangered as a result of the revocation of the order.
(3) In considering an application for revocation of a supervision order in respect of an existing detainee the court may take into account any reports on the existing detainee made by, or submitted to, the Adult Parole Board before the commencement day.
5 Persons released under section 498 of Crimes Act 1958
Despite the repeal of section 498 of the Crimes Act 1958 , any conditions imposed on a person under that section that were in force immediately before the commencement day continue to apply on and after the commencement day.
6 Unfitness to stand trial
(1) Part 2 applies with respect to an offence that is alleged to have been committed, whether before, on or after the commencement day.
(2) If a person has been found unfit to stand trial but no order has been made in respect of the person before the commencement day, the court must proceed to hold a special hearing under Part 3 in respect of the person.
7 Mental impairment and insanity
(1) Despite section 25, the defence of insanity continues to apply with respect to any offence alleged to have been committed before the commencement day.
(2) If a jury returns a verdict of not guilty on account of insanity in relation to a person charged with an offence alleged to have been committed before the commencement day, that verdict is to be taken for all purposes to be a finding of not guilty because of mental impairment under Part 4.
Sch. 3 cl. 8 inserted by No. 7/2002 s. 33(2).
8 Periodic major reviews
Section 35, as amended by section 14 of the Forensic Health Legislation (Amendment) Act 2002 , applies to a supervision order made before, on or after the commencement of that section 14.
Sch. 3 cl. 9 inserted by No. 7/2002 s. 33(2).
9 Notification requirements
Sections 38A, 38B, 38C and 38E, as inserted by section 17 of the Forensic Health Legislation (Amendment) Act 2002 , apply to—
(a) applications that are made after the commencement of that section 17; and
(b) reviews that are listed by the court after the commencement of that section 17.
Sch. 3 cl. 10 inserted by No. 7/2002 s. 33(2).
10 Appeals
(1) An order for unconditional release can be appealed under section 19A or 24A (as the case may be) whether the order was made before or after the commencement of that section, unless—
(a) the order had been appealed before that commencement; or
(b) any time limit for appealing the order had expired before that commencement.
(2) A supervision order can be appealed under section 28A whether the order was made before or after the commencement of that section, unless—
(a) the order had been appealed before that commencement; or
(b) any time limit for appealing the order had expired before that commencement.
(3) An order confirming, varying or revoking a supervision order can be appealed under section 34 (as substituted by section 13 of the Forensic Health Legislation (Amendment) Act 2002 ) or section 34A (as the case may be) whether the order was made before or after the commencement of that section, unless—
(a) the order had been appealed before that commencement; or
(b) any time limit for appealing the order had expired before that commencement.
(4) A refusal to grant extended leave or a grant of extended leave can be appealed under section 57B whether the refusal or grant was made before or after the commencement of that section.
(5) A revocation of extended leave or a refusal to revoke extended leave can be appealed under section 58A whether the revocation or refusal was made before or after the commencement of that section.
(6) Any appeal referred to in subclause (1)(a), (2)(a) or (3)(a) that has not been determined before the commencement referred to in that subclause is to be determined in accordance with this Act as in force immediately before that commencement.
Sch. 3 cl. 11 inserted by No. 68/2009 s. 97(Sch. item 39.52).
11 Transitional provisions— Criminal Procedure Act 2009
(1) Section 14A as inserted by section 423 of the Criminal Procedure Act 2009 applies to a finding on an investigation under Part 2 that an accused is unfit to stand trial made on or after the commencement of section 423 of that Act.
(2) Section 24AA as inserted by section 424 of the Criminal Procedure Act 2009 applies to a verdict of not guilty because of mental impairment recorded on or after the commencement of section 424 of that Act.
Sch. 3 cl. 12 inserted by No. 68/2009 s. 97(Sch. item 39.52).
12 Transitional provisions—Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009
(1) Section 19A as amended by item 39.17 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.
(2) Section 24A as amended by item 39.24 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.
(3) Section 28A as amended by item 39.25 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.
(4) Section 34 as amended by item 39.28 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.
(5) Section 34A as amended by item 39.31 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal against the revocation of a non-custodial supervision order where the order revoking the supervision order is made on or after the commencement of that item.
(6) Section 57B as amended by item 39.38 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the application for extended leave is refused or granted, as the case may be, on or after the commencement of that item.
(7) Section 58A as amended by item 39.40 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the extended leave is revoked or the application for revocation of extended leave is refused, as the case may be, on or after the commencement of that item.
(8) Section 73H as amended by item 39.44 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.
(9) Section 73N as amended by item 39.46 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.
Sch. 3 cl. 13 (Heading) amended by No. 29/2011 s. 3(Sch. 1 item 23).
Sch. 3 cl. 13 inserted by No. 29/2010 s. 36.
13 Transitional provision—Health and Human Services Legislation Amendment Act 2010
Any act matter or thing of a continuing nature that was done by or in relation to, or any proceeding brought by or against, the Secretary to the Department of Human Services before the commencement of Division 1 of Part 5 of the Health and Human Services Legislation Amendment Act 2010 is to be taken to be done by or in relation to, and may be brought by or against, the Secretary to the Department of Health after that commencement if the act matter or thing or proceeding relates to—
(a) a forensic patient; or
(b) an approved mental health service.
Sch. 3 cl. 15 inserted by No. 55/2014 s. 131.
15 Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014
This Act as amended by Division 1 of Part 5 of the Criminal Organisations Control and Other Acts Amendment Act 2014 applies to—
(a) a proceeding for an offence that is commenced on or after the commencement of Division 1 of Part 5 of that Act; and
(b) a proceeding for an offence that, on the commencement of Division 1 of Part 5 of that Act, is before the Children's Court, irrespective of when the proceeding was commenced.
Sch. 3 cl. 16 inserted by No. 6/2017 s. 12.
16 Transitional provision—Crimes Legislation Further Amendment Act 2017
This Act as amended by Part 3 of the Crimes Legislation Further Amendment Act 2017 applies to an investigation into the fitness of an accused to stand trial that commences on or after the day on which that Part comes into operation.
Sch. 3 cl. 16A inserted by No. 11/2020 s. 31.
16A Transitional provision—COVID-19 Omnibus (Emergency Measures) Act 2020—investigations into fitness to stand trial
(1) Despite the repeal of Part 11, an investigation into the fitness of an accused—
(a) that, immediately before that repeal, was being conducted by the court, without a jury, in accordance with that Part; and
(b) in which the court had not yet made a finding—
is to continue, after that repeal, to be conducted by the court, without a jury, in accordance with that Part.
(2) For the purposes of an investigation that continues in accordance with subsection (1), Part 11 continues to have effect despite its repeal.
(3) After the conclusion of an investigation that was continued in accordance with subsection (1), sections 95, 96, 97 and 98 continue to apply in relation to that investigation despite their repeal.
(4) Subject to this section, on and after the repeal of Part 11, a finding of a court, on an investigation conducted in accordance with that Part, that an accused was or was not fit to stand trial has, for all purposes, the same effect as a finding of a jury.
Sch. 3 cl. 16B inserted by No. 11/2020 s. 31.
16B Transitional provision—COVID-19 Omnibus (Emergency Measures) Act 2020—special hearings
(1) Despite the repeal of Part 11, a special hearing by judge alone in which judgment was not delivered before that repeal may continue to be held by judge alone, without a jury, after that repeal.
(2) For the purposes of a special hearing that continues in accordance with subsection (1), Part 11 continues to have effect despite its repeal.
(3) On and after the repeal of section 103, a finding of a judge at a special hearing by judge alone has, for all purposes, the same effect as a finding of a jury.
(4) Subsection (3) has effect despite the repeal of section 103.
(5) In this section—
"special hearing by judge alone" means a special hearing held in accordance with an order under section 101 as in force immediately before its repeal.
Sch. 3 cl. 16C inserted by No. 11/2020 s. 31.
16C Transitional provision—COVID-19 Omnibus (Emergency Measures) Act 2020—special hearings
On and after the repeal of section 121, that section continues to apply, despite its repeal, in relation to any issue, application or review that a court—
(a) has determined to decide or determine entirely on the basis of written submissions and without the appearance of the parties; and
(b) has not yet so decided or determined.
Sch. 3 cl. 16D inserted by No. 11/2022 s. 7.
16D Transitional provision—Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022
(1) If an application for an order under section 94 is made before the repeal of Part 11, and is not determined before that repeal, then despite that repeal—
(a) the application may be heard and determined as if Part 11 had not been repealed; and
(b) for the purposes of the application, and any order made on the application, and any special hearing to which that order relates, Part 11 as in force immediately before its repeal continues to have effect.
(2) If, immediately before the repeal of Part 11, there was in force an order under section 94 and judgment had not yet been delivered in the special hearing to which that order relates, then despite that repeal—
(a) the order continues to have effect as if Part 11 had not been repealed; and
(b) for the purposes of the order and the special hearing to which it relates, Part 11 as in force immediately before its repeal continues to have effect.
(3) Subsection (2) applies in relation to an order whether or not the special hearing to which the order relates commenced before the repeal of Part 11.
(4) On and after the repeal of section 96, a finding of a judge at a special hearing by judge alone has, for all purposes, the same effect as a finding of a jury.
(5) Subsection (4) has effect despite the repeal of section 96.
(6) Nothing in this section limits section 14 of the Interpretation of Legislation Act 1984 .
(7) In this section—
"special hearing by judge alone" means a special hearing held in accordance with an order under section 94 as in force before its repeal.
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