Section 32 applications are often spoken of in Court, being an application made in the Local Court which provides a diversionary option for defendants who are found to be suffering from a mental illness or condition.

Further information on section 32 applications can be found here.

In NSW, persons can be charged under either:

• NSW law – for example, assault, possession of drugs, theft.

or

• Commonwealth law – for example, tax offences.

However, section 32 applications are for offences which occur under NSW law only. For Commonwealth offences, such as failure to lodge an income tax return under the Taxation Administration Act 1953 (Cth) or using a carriage service to menace under the Criminal Code (Cth), a section 32 application cannot be made, instead it is a ‘Section 20BQ’ Application.

A Section 20BQ Application is one which is almost the same as a section 32 application. The main differences are:

1. The period of treatment and supervision can exceed 6 months (which is the maximum time under section 32) and can be as long as 3 years;

and

2. The person making a section 20BQ application must be suffering from a mental illness at the time of the application.

The major difference between a section 20BQ application and a section 32 application is the second point. If for example, someone is suffering from a mental illness at the time of the offence, but then there is a delay between the offence and the application, and during that time, the person undergoes significant treatment which means that they are no longer suffering from a mental illness, then they will become ineligible for a section 20BQ application.

However, the major benefit of a section 20BQ application over its NSW equivalent is the longer period of treatment, which can often mean that Magistrates who are considering the application feel more comfortable granting it, knowing the length of time of the treatment will be longer than 6 months.

Ultimately, section 20BQ provides for the same result as a state section 32 application – it will mean that the defendant is diverted away from the criminal justice system to receive ongoing treatment. The practical reality of this is that if the application is granted, the person will not have a criminal conviction. For more on avoiding convictions, click here.

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