When Safety Assessments Go Wrong: The High Court’s Course Correction in KMD v CEO (Department of Health NT)
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Published: 19 November 2025 | Reviewed: 19 November 2025
(3-minute read)
Case Summary
KMD v CEO (Department of Health NT) [2025] HCA 4 (27 February 2025) is a significant 2025 decision examining how courts review custodial supervision orders for people found not guilty due to mental impairment. The case turned on whether the Northern Territory Court of Criminal Appeal (NTCCA) lawfully set aside a non-custodial supervision order (NCSO) and reinstated custody.
The High Court allowed the appeal. Central to its reasoning was that the NTCCA acted without the evidence required by the statutory framework and treated the primary judge’s review as having “miscarried” simply because KMD did not cooperate with medical experts.
The clearest statement of error is:
“KMD was under no statutory obligation to cooperate with the medical experts… the necessary evaluation was not precluded by the failure of cooperation.”
Key holdings included:
Non-cooperation is not a basis for deeming a review invalid.
The NTCCA was required to apply ss 43ZH(2), 43ZM and 43ZN of the Criminal Code (NT).
Any appellate intervention must be based on the most recent and accurate information, including KMD’s 12 months in the community.
Because the NTCCA lacked that evidence and did not undertake the statutory assessment, its orders could not stand.
The High Court restored the NCSO (subject to a short stay) and remitted the matter for a fresh appellate hearing before a differently constituted bench.
Why It Still Matters
This case highlights an enduring problem in complex statutory frameworks:
decision-makers may take shortcuts when evidence is incomplete, processes are burdensome, or a party’s behaviour complicates proceedings.
In KMD, the NTCCA assumed that because the appellant declined to speak to experts, the entire review process was “nugatory”. The High Court rejected that approach and emphasised that:
statutory rights cannot be overridden by assumptions,
non-cooperation does not erase mandatory criteria,
decisions must be made on available evidence, and
fairness includes assessing the present situation — not an outdated record.
These observations resonate well beyond the mental-impairment context. Clients often describe situations where agencies, tribunals, or opposing parties rely on partial information, do not seek updated evidence, or make procedural leaps that bypass the safety mechanisms built into the law.
KMD is a reminder that fairness is not optional. It is a structural requirement that must be actively ensured.
How to Avoid the Same Trap:
Independence & Fair-Process Safeguards
The risk exposed in KMD is the risk of procedural drift:
decision-makers relying on incomplete evidence,
failing to consider mandatory statutory factors,
allowing assumptions (such as non-cooperation) to replace proper assessment, and
treating the absence of perfect information as justification for harsh outcomes.
Clean Law’s independence safeguards are designed to prevent these exact failures.
The structure includes:
a dedicated lawyer whose only role is to monitor fairness, evidence flow, and compliance with statutory requirements;
separation between oversight and advocacy, so no single practitioner is responsible for both roles;
externally supervised governance, Law Society trust-account audits and ACNC-governed transparency;
and a strict no-referral-fee and no-profit-sharing policy, ensuring impartial guidance.
These safeguards ensure that decisions are not based on assumptions or incomplete information. Mandatory criteria are addressed, evidence gaps are identified and escalated early, and the client’s position remains visible in every procedural step.
Because KMD shows how quickly fairness mechanisms can be overlooked when roles blur or evidence is patchy, many clients want to understand how Clean Law’s independence model protects the process itself. Our governance explainer sets that out clearly.
Learn more → Independence & Safeguards Framework
The High Court’s decision reinforces that statutory protections cannot be bypassed because a case becomes difficult or evidence is imperfect. Fairness requires structure, documentation and independence. That is why Clean Law’s governance model emphasises transparent oversight, publicly accountable systems, and clear role separation.
If you are dealing with a tribunal, agency or court process where evidence is incomplete, the burden of proof feels uneven, or statutory safeguards appear overlooked, a confidential discussion can help clarify your safest options.
Book a confidential discussion → Secure a Private Consultation
By Nicky Wang
Principal Solicitor
Legal Liaison Ltd (trading as Clean Law)
Prepared in accordance with public-interest governance,
annual Law Society trust-account audits, and ACNC-reported standards.
Disclaimer: This page is intended to provide general information only and is not legal advice. The contents may not reflect the most current legal developments and do not take into account your individual circumstances. You should not act or refrain from acting on the basis of this information without obtaining legal advice tailored to your situation.
