In New South Wales, mental health diversion is governed by section 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

A section 14 application allows a person charged with a criminal or traffic offence to have their matter dismissed if the court is satisfied that:

• They are suffering from a mental health impairment or cognitive impairment, and
• It is more appropriate to deal with them under section 14 than through normal criminal proceedings.

If successful, the court can dismiss the charge outright or impose conditions for up to 12 months, such as:

• Attending treatment or counselling,
• Taking prescribed medication,
• Engaging with a psychologist or psychiatrist, or
• Avoiding drugs, alcohol, or certain places.

At the end of the conditional period, if the person complies, the matter is considered finalised without a criminal conviction.

When you’re charged with a Commonwealth offence, such as social security fraud, child exploitation material, telecommunications offences, or importation offences, the NSW diversion laws (like section 14) don’t apply.

Instead, the relevant provision is section 20BQ of the Crimes Act 1914 (Cth).

Under section 20BQ, the court can:

• Dismiss the charge, and
• Discharge the person into the care of a responsible person (such as a doctor, psychologist, or family member),
  with or without conditions related to treatment or supervision.

There is a slight difference in the test, which is that the accused “is” at the time of the application, suffering from a mental illness, rather than suffering from one at the time of the offence, or any other time.

Like section 14, this process focuses on rehabilitation rather than punishment, ensuring the person receives appropriate medical care and support instead of a criminal conviction.

Prior to 2021, these applications were made under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

Section 14 replaced section 32, modernising the legislation and expanding it to include both mental health and cognitive impairments.

Although the wording changed, the purpose remains the same — to provide people with mental health conditions a pathway out of the criminal justice system and into care.

If you’ve heard lawyers or magistrates refer to an old “section 32 application”, they are now referring to what is known as a section 14 application.

A successful section 14 or section 20BQ application can:

• Prevent a criminal conviction from being recorded,
• Enable access to appropriate treatment and mental health support,
• Reduce the risk of reoffending, and
• Support long-term recovery and rehabilitation.

For many clients, this process offers a second chance to address mental health issues in a therapeutic rather than punitive environment.

I am very experienced in these particular matters, having provided a lecture to other lawyers at the time of transition from section 32 to section 14.

I have extensive experience preparing and presenting section 14 applications and section 20BQ applications in the Local and District Courts.

We can assist by:

• Assessing your eligibility for a mental health diversion,
• Obtaining medical or psychological reports to support your application,
• Preparing persuasive legal submissions, and
• Representing you in court to achieve the best possible outcome.