The Law Handbook 2024

816 Section 8: Disability, mental illness and the law and the community – considering the risks to the person if detained, the appropriateness of residential placement, and the availability of rehabilitation programs (s 166(7)). The DOJ Secretary must also have received a statement that the person has an intellectual disability and a treatment plan (s 166(3)). Section 166(4) provides for an interim order to assesswhether the personhas an intellectual disability. An authorised program officer must, at regular intervals of not more than 12 months, apply to the Victorian Civil and Administrative Tribunal ( VCAT ) for a review of the treatment plan and security order (s 168). A person with an intellectual disability detained in prison under the CMIUT Act may be transferred to a residential treatment facility or residential institution as a forensic resident (s 180). Similar considerations apply to orders under section 166. Reviews and applications for leave for forensic residents are heard by the Forensic Leave Panel and governed by the CMIUT Act (see ‘Leave’, above). Infringements and special circumstances Under the Infringements Act 2006 (Vic) (‘ Infringements Act ’) (s 22(1)) (as amended in 2016), a person with special circumstances can ask for an internal review of an infringement notice. Special circumstances have been widened since the Enforcement Review Program was repealed. Medical evidence requirements have been withdrawn in favour of a broader conception of mental disability as it relates to control of conduct. Special circumstances include any mental or intellectual disability, disorder, disease or illness that results in the person being unable to understand that their conduct constitutes an offence, or that results in the person being unable to control the conduct that constitutes an offence (s 3). Special circumstances also include a serious addiction to drugs, alcohol, or other volatile substance where that addiction results in a similar lack of understanding or control. Homelessness or other exceptional cases may also be considered to be special circumstances. Note that although family violence is defined as a special circumstance in section 3 of the Infringements Act, a person cannot apply for an internal review of an infringement on the grounds of family violence. Where a person applies for an internal review on the grounds that they have special circumstances, their application must: • be in writing; • include the applicant’s address; • clearly describe the applicant’s special circumstances; and • be submitted before the date the infringement is to be registered (s 22(2)). An enforcement agency may ask for additional information about the applicant’s special circumstances (s 23). The applicant has 14 days to either provide the extra information, or to ask for more time (s 22(3)). If the additional information is not provided on time, the enforcement agency may review the decision without it. Enforcement agencies conduct internal reviews following the procedure in section 24 of the Infringements Act, and decide whether to confirm or withdraw the infringement notice under section 25(2). For more information about the infringements system and applying to have infringements revoked, see Chapter 3.1: Fines and infringements. More information More information about aspects of disability – including relevant legislation, and disability related services – is contained in Chapter 8.1: Understanding disability and the law. Chapter 8.2: Disability: Asserting your rights has contact information for specialist legal services that deal with particular areas of disability, and on advocacy services that assist people with disabilities. Chapters 8.4 and 8.5 contain more detailed coverage of the law relating to people with a psychiatric and intellectual disability, respectively. Chapter 8.5: Guardianship and medical treatment, deals with issues of guardianship and administration affecting people with disabilities. See also Chapter 8.6: Understanding powers of attorney.