The central question in the recent Charter-focused Mental Health Review Board ruling was what happens when this provision is breached:
30(4) The Board must conduct a review of the extension of a community treatment order within 8 weeks after the order is extended.
The respondent had been on a CTO since 2005, but the extension of his CTO in early 2007 was not only not reviewed within 8 weeks, but not reviewed at all prior to a further extension early this year. So, was his CTO still valid?
Ordinary law is good at posing questions like this but not at answering them. As the Brennan High Court observed in Project Blue Sky v ABA  HCA 28:
An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. Unfortunately, a finding of purpose or no purpose in this context often reflects a contestable judgment. The cases show various factors that have proved decisive in various contexts, but they do no more than provide guidance in analogous circumstances. There is no decisive rule that can be applied; there is not even a ranking of relevant factors or categories to give guidance on the issue.
Various High Court cases refer to such hard to pin down tests as parliament’s intent, the consequences of the various options and (in the unfortunate Gleeson era) circular tests about jurisdiction. The Mental Health Act has its own interpretative provision, but it also pushes in competing directions on this issue:
4(2) It is the intention of Parliament that the provisions of this Act are to be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that-
(a) people with a mental disorder are given the best possible care and treatment appropriate to their needs in the least possible restrictive environment and least possible intrusive manner consistent with the effective giving of that care and treatment; and
(b) in providing for the care and treatment of people with a mental disorder and the protection of members of the public any restriction upon the liberty of patients and other people with a mental disorder and any interference with their rights, privacy, dignity and self-respect are kept to the minimum necessary in the circumstances.
Unsurprisingly, the MHRB favoured the interpretation that s30(4) had no effect on the validity of CTOs, a reading it said would preserve the best possible care of the mentally ill (continued compulsory treatment, naturally) while allowing the Board ‘an appropriate degree of flexibility’. (It did, however, hold that s30(4) required substantial compliance, although apparently this could be met by not doing a review at all for twelve months!)
This sort of interpretative neverland is the raison d’être of the Charter’s interpretation mandate:
32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
But there’s a problem: the Charter only contains a review right for criminal convictions and sentences (Charter s. 25(4)) or to a review of the lawfulness of detention (Charter s. 21(7)). Even if CTOs were considered to involve detention (because of either the requirement to attend a medical facility for treatment or the potential for an order on where to live), Charter s. 21(7) wouldn’t assist in interpreting s. 30(4) because it is only satisfied by review by a court (rather than a tribunal like the MHRB.) So, what rights are engaged by a provision requiring a review? Continue reading