Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Children and Justice Legislation
Amendment (Youth Justice Reform)
Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out that the purposes of the Bill, which are--
• to amend the Crimes Act 1958 to create an offence of
recruiting a child to engage in criminal activity;
• to amend the Children, Youth and Families Act 2005
(referred to as the Principal Act in this Explanatory
Memorandum)--
• to create particular rules around eligibility for
"dual-track" sentencing, uplift of cases from the
Children's Court to the higher courts, requiring
community safety considerations in sentencing
and mandatory parole conditions that will apply
to young people who commit specific serious
offences;
• to clarify when a young person can be returned
to a youth justice facility when they are charged
with offending in the facility;
• to allow the Secretary to authorise publication of
identifying information when a child or young
person escapes from a facility;
581434 1 BILL LA INTRODUCTION 23/5/2017
• to establish a new sentencing option for children
that is an alternative to detention and will involve
intensive supervision and monitoring;
• to protect Youth Justice staff from liability for
using reasonable force and require reporting on
use of force to the Secretary;
• to increase flexibility in deciding where children
and young people are housed within youth
justice facilities;
• to improve information sharing about young
offenders between the Secretary, Department of
Justice and Regulation, the Youth Parole Board,
Victoria Police and the community;
• to create a tailored legislative basis for a
diversion program in the Criminal Division of
the Children's Court; and
• to enable the Secretary of the Department of
Justice and Regulation or the Secretary of the
Department of Health and Human Services to
issue a written instruction to a person directing
them to not communicate with a child under the
relevant Secretary's care or in detention.
• to amend the Principal Act, the Sentencing Act 1991,
the Bail Act 1977 and the Criminal Procedure
Act 2009 to--
• strengthen the criminal justice system response
to young offenders, particularly in relation to
serious youth offences, offences committed
within youth justice facilities and dealing with
issues of remand.
Clause 2 is the commencement provision. The Bill will come into
operation on a day or days to be proclaimed. If a provision of the
Bill does not come into operation before 1 June 2018, it will
come into operation on that day.
Clause 3 provides that in the Bill, Principal Act means the Children,
Youth and Families Act 2005.
2
Part 2--Criminal justice changes
Division 1--Recruiting children to engage in criminal activity
Clause 4 inserts new Division 11A of Part 1 after Division 11 of Part 1 of
the Crimes Act 1958.
New section 321LA provides a definition of a child for the
purpose of the recruiting offence, noting that the age of a child
under this definition is different to the definition used by the
Principal Act.
Criminal activity is defined to mean conduct that constitutes an
offence punishable on first conviction with imprisonment for life
or for a term of 5 years or more.
Recruit is defined to mean incite, direct or induce, noting that
incite is defined in section 2A of the Crimes Act 1958.
New section 321LB contains the offence of recruiting a child to
engage in criminal activity. It provides that the offence can only
be committed by an adult aged 21 years or more. The adult is to
be age 21 years or more because it is this age that may enable the
adult to recruit the child. The ages of the adult and the child will
be ascertained at the time of the recruitment.
The offence provides that an adult must not recruit another
person to engage in criminal activity, knowing that the other
person is a child. The offence requires the adult to know that it is
likely the child will engage in the criminal activity that is the
subject of the recruiting. The adult must also know that the
recruited person is a child.
New section 321LC provides that the offence does not require the
child to have engaged in criminal activity, or be prosecuted for,
or found guilty, of any offence. This will ensure that the offence
targets the conduct of recruiting a child, rather than the resulting
actions of the child.
New section 321LD provides that a person is not liable for
conviction for both the offence of recruiting a child to engage in
criminal activity and incitement to commit an offence, in respect
of the same conduct. This will avoid twice criminalising the
same conduct, while enabling an adult to be convicted of inciting
a child to commit a specific offence, and recruiting that same
child to engage in more general "criminal activity", provided that
the specific inciting offence does not form part of the more
3
general criminal activity that is the subject of the recruiting
offence.
Division 2--When certain proceedings may be heard
in higher courts
Clause 5 inserts new section 356A into the Principal Act.
New section 356A prescribes the matters that the Court must
have regard to in considering whether exceptional circumstances
exist for the purpose of determining whether a charge is
unsuitable to be determined summarily under section 356 of the
Principal Act.
Exceptional circumstances exist where the sentencing options
available to the Court are not adequate to respond to the child's
offending.
In determining whether the available sentencing options are
inadequate, the Court must have regard to certain matters.
Division 3--Consistent magistrate to oversee proceedings
Clause 6 inserts new section 522A after section 522 of the Principal Act.
New section 522A provides that when criminal proceedings are
brought in the Court against a child and the child has previously
been brought before the Criminal Division of the Court
constituted by a particular magistrate, the proceeding must be
heard by the same magistrate. Exceptions are available if the
magistrate no longer holds office as a magistrate, it is otherwise
impracticable, or the child consents.
New section 522A will not apply to contested proceedings to
enable the child to appear before a Magistrate who has not been
involved in their prior proceedings.
The provision aims to ensure that a consistent magistrate
oversees criminal proceedings for children, where practicable.
4
Division 4--Aggregate sentences
Clause 7 inserts new section 362B after section 362A of the Principal Act.
New section 362B permits the Court to impose an aggregate
sentence of detention in relation to two or more related offences.
The maximum period of detention that can be imposed by the
Children's Court will not be affected by this provision.
Currently, the Court must impose a separate period of detention
in relation to each charge, and give directions regarding
concurrency and cumulation to reach a total effective sentence.
The provision aims to improve efficiency for the Court in
sentencing procedures.
Clause 8 inserts new section 32A after section 32 of the Sentencing
Act 1991.
New section 32A replicates in the Sentencing Act 1991 new
section 362B in clause 7 of the Bill. It is inserted into the
Sentencing Act 1991 to enable a higher court to impose an
aggregate sentence of detention.
Part 3--Youth control orders
Clause 9 inserts new definitions into section 3(1) of the Principal Act for a
youth control order, youth control order plan, youth control order
planning meeting and youth control order planning meeting
report.
The definitions refer to the sections of the amended Principal Act
that establish each of the defined terms. This enables the terms to
be used with clarity by other sections of the Principal Act.
Clause 10 inserts new section 358(ba) after section 358(b) of the Principal
Act to allow the Court to, in considering sentence if a child is
found guilty of an offence, take into account a youth control
order planning meeting report.
Clause 11 inserts new sections 360(1)(ha) after section 360(1)(h) of the
Principal Act to add a youth control order to the list of sentences
available if the Court finds a child guilty of an offence, whether
indictable or summary.
5
Clause 12 inserts new section 362(4A) and 362(7) after section 362(4)
and 362(6) of the Principal Act, respectively.
New section 362(4A) provides that the Court must not impose a
more severe sentence if sentencing of a child is deferred for the
purpose of a child's participation in a youth control order
planning meeting and the child fails to participate in the meeting.
This provision is similar to section 362(4) that relates to
sentencing after a child fails to participate in a group conference.
New section 362(7) clarifies that this excludes from the operation
of subsections (3) and (4) a group conference ordered during,
as opposed to before, the operation of a youth control order.
Subsections (3) and (4) require a child's participation or
otherwise in a group conference to be taken into account in
imposing a sentence, whereas a group conference that occurs
during a youth control order cannot be taken into account
because it occurs after sentence.
Clause 13 inserts new Division 8A after Division 8 of Part 5.3 of Chapter 5
of the Principal Act.
New section 409A provides for the objects of a youth control
order in respect of a child.
New section 409B provides for the circumstances in which the
Court may make a youth control order, that is, the child must be
convicted of one or more offence and the Court considers the
child would otherwise be sentenced to detention as a result of
the gravity or habitual nature of the child's unlawful behaviour.
A youth control order must not exceed 12 months and not extend
beyond the child's twenty-first birthday.
New section 409C restricts the power of the Court to make a
youth control order unless the offence or one of the offences
committed by the child is punishable by imprisonment, the Court
has made enquiries of the Secretary and is satisfied that the child
is a suitable person to be placed on a youth control order, the
child has consented to a youth control order being made and a
youth control order plan has been developed for the child.
New section 409D provides that the Court must order a youth
control order planning meeting if the Court is considering making
a youth control order. The Court may also order that a youth
control order planning meeting is held if a youth control order is
in force and the Court considers that such a meeting is necessary.
6
Before ordering that a youth control order planning meeting is
held, the Court must make various inquiries about who should
attend the meeting, having regard to the objects of a youth
control order and the purpose of the meeting.
New section 409E requires the Court to have regard to certain
matters in determining whether to make a youth control order.
New section 409F requires the Court to attach certain mandatory
requirements to a youth control order. The Court may also attach
certain additional requirements to a youth control order, having
regard to the child's youth control order plan and personal
circumstances. The Court must attach requirements to a youth
control order in accordance with the principle of proportionality
and the objects of a youth control order. If a requirement of a
youth control order is that the child participate in a group
conference, the group conference is to be held in accordance with
section 415(2) to (11) of the Principal Act.
New section 409G enables the Court, in making a youth control
order, to order that the child's parent give an undertaking, with or
without conditions, to support the child to comply with the youth
control order. This provision is intended to assist the child
comply with the requirements of a youth control order.
New section 409H provides that if an undertaking made by a
parent under section 409G is breached, the Court must not take
any action.
New section 409I(1) limits the aggregate period of any youth
control order to 12 months or not beyond the child's twenty-first
birthday, if a child is convicted of more than one offence on the
same day or in the same proceeding. New section 409I(1) also
provides that if the Court makes a youth control order and a
youth justice centre order, the aggregate term in respect of all
offences must not exceed 4 years.
New section 409I(2) and (3) require a youth control order to be
served concurrently with any uncompleted youth control order,
unless the court directs that the order is served concurrently, in
whole or in part.
New section 409I(4) provides that if the Court sentences a child
to a youth control order and detention in a youth residential
centre, the aggregate term of detention and youth control orders
must not exceed two years.
7
New section 409J requires a youth control order to be in the
prescribed form and that the Court must give or send a copy of
the order to the child, and if the child is aged under 15 years, the
child's parent, and the Secretary.
New section 409K requires a court other than the Children's
Court of Victoria to remit matters in respect of the reporting and
monitoring, variation and revocation of a youth control order to
the Children's Court of Victoria.
New section 409L requires a child to attend the Court from time
to time as directed by the Court for the Court to consider the
child's compliance with a youth control order and the ongoing
suitability of the requirements of the order. The child must
attend the Court at least monthly for the first half of the order and
the Secretary must first provide a report about the child's
compliance. Reports are to be filed 3 working days before the
attendance, or otherwise as directed by the Court, and provided to
the child and, if the child is aged under 15 years, the child's
parents, and the legal practitioner representing the child, and any
other person the Court has ordered is to receive a copy of the
report. When the child attends the Court, the Court must
consider whether the order should be varied. The Court is to be
constituted by the magistrate who sentenced the child, unless that
magistrate does not still hold office, the matters were remitted to
the Court, or it is otherwise impracticable.
New section 409M enables a youth control order to be suspended
if the child is in, or taken into, a remand centre, youth residential
centre, youth justice centre or prison either at the time a youth
control order is made, or after the making of a youth control
order. The Secretary may suspend the child's service of the
order throughout the period of the custody and must determine
when a person must recommence service of the order.
Before suspending an order the Secretary must consult with the
appropriate parole board, or superintendent of a youth residential
centre or youth justice centre. The Secretary may, with the
consent of the appropriate parole board, direct that the term of
operation of a youth control order be served concurrently with a
period of parole, but that service must not be a condition of the
parole.
New section 409N provides that the Court may vary a youth
control order if the Court considers it appropriate to do so, based
on its assessment of the child's compliance having regard to
8
reports and discussions at attendances at Court for reporting and
monitoring. The Court may vary an order of its own initiative
or on the application of the child, or if the child is aged under
15 years, the child's parent, or the Secretary. An application for
variation can be made orally or by filing and serving an
application. Variations may make the order more restrictive if
the Court considers that the child's compliance is unsatisfactory
and a more restrictive order would assist the child's compliance.
Variations may make the order less restrictive if the Court
considers that the child's compliance is satisfactory, or the child's
compliance is unsatisfactory but that making the order less
restrictive would assist the child's compliance. When varying a
youth control order the Court must have regard to the
requirements that can be attached to a order, the principle of
proportionality and the objects of a order.
New section 409O allows the Court to give a warning to a child
when the child attends the Court for reporting and monitoring.
The Court may warn the child that it may at a later time vary a
youth control order if the Court considers the child is failing to
comply and the Court considers it appropriate to give such a
warning. The provision is intended to encourage compliance and
remind a child that non-compliance may result in variation of the
youth control order.
New section 409P provides that a youth control order can be
varied or revoked without the consent of the child, or without a
warning being given under new section 409O.
New section 409Q requires the Court to revoke a youth control
order if an application has been made and the Court is satisfied
that the child has breached the order, by failing to comply with
the order to such an extent that he or she is no longer suitable, or
the child commits an offence punishable on first conviction by
imprisonment for a term of 5 years or more during the youth
control order. An application for revocation may be made by the
child or, if the child is aged under 15 years, the child's parent, the
Secretary or a police officer. The Secretary may only make an
application for revocation if it appears to the Secretary that the
child has breached the order for any reason. A police officer may
only make an application for revocation if the child has been
convicted of an offence punishable on first conviction for a term
or 5 years or more during the youth control order. Time limits
apply to applications for revocation and applications are to be
9
made by filing and serving a copy of the application, with a
notice of hearing and the application to be served on the child
and, if the child is aged under 15 years, on the child's parents.
The Court is to be constituted by the magistrate who sentenced
the child, unless that magistrate no longer holds office, the
matters were remitted to the Court under new section 409K, or it
is otherwise impracticable.
New section 409R requires the Court to impose a sentence of
detention on the child if the Court revokes a youth control order,
unless the Court considers that detention is not appropriate
because exceptional circumstances exist. The sentence of
detention must not be for a period longer than the remaining
period of the youth control order. In sentencing the child, the
Court must have regard to the period in which the youth control
order has been in force and the extent of the child's compliance
with the order.
New section 409S provides for the purpose of youth control order
planning meetings.
New section 409T requires that a youth control order planning
meeting must be chaired by an approved convenor who is to fix
the date, time and place of the meeting. The meeting must be
attended by the child, the child's legal practitioner, a youth justice
officer (other than an honorary youth justice officer), the
convenor and any other person directed by the Court. The
meeting may also be attended by others as directed by the Court.
New section 409U provides for the purposes of a youth control
order plan and requires that a youth control order plan must be
agreed to by the child.
New section 409V requires the convenor of a youth control order
planning meeting to prepare a report of the meeting for the Court
and include in the report a copy of the youth control order plan.
New section 409W requires a youth control order planning
meeting report to be filed with the appropriate registrar at least
3 working days before the return date.
New section 409X requires the author of a youth control order
planning meeting report to, at least 3 working days before the
return date, send a copy of the report to the child, and if the child
is aged under 15 years, the child's parents, and the legal
10
practitioner representing the child, and any other person the
Court has ordered to receive a copy of the report.
New section 409Y provides that the proceedings of a youth
control order planning meeting are confidential except with the
leave of the Court or consent of all the people who attended the
meeting, in accordance with requirements to provide a report of
the meeting and the youth control order plan to the Court, or in
accordance with the provisions about reports to the Court in
Division 1 of Part 7.8 of the Principal Act.
New section 409Z provides that an appellate court must order a
youth control order planning meeting report if it finds a person
guilty of an offence and adjourns the proceedings for the purpose
of a youth control order planning meeting. The report must be
prepared by the convenor of a youth control order planning
meeting and the provisions about variation and warnings about
variation apply.
New section 409ZA provides that all references to "Secretary" in
this Division means the Secretary of the Department of Justice
and Regulation.
Clause 14 amends section 415(1) of the Principal Act to insert new
section 415(1)(f).
New section 415(1)(f) enables the Court, having convicted
the child, to defer sentencing for the child to attend a group
conference if the Court is considering a youth control order.
Clause 15 inserts new section 480A after section 480 of the Principal Act.
New section 480A provides that the Secretary of the Department
of Justice and Regulation can approve or authorise a service to
operate a youth control order planning meeting program and
withdraw an approval if that a program is unable to provide
services of an adequate standard.
The purpose of this new section is to ensure the quality of youth
control order planning meeting programs.
Clause 16 amends section 481 of the Principal Act to include a reference to
new section 480A, which permits the Minister to issue directions
and establish procedures relating to the standard of services of an
approved or authorised youth control order planning meeting
program.
11
Clause 17 inserts new section 525(2)(da) after section 525(2)(d) of the
Principal Act to provide that a child must be legally represented
in proceedings in respect of varying a youth control order to
make the order more restrictive, revoking a youth control order,
or an application in respect of a breach of a youth control order.
Clause 18 amends section 527(4) of the Principal Act to include an order
varying a youth control order in the list of orders that the Court
must explain and provide reasons.
Clause 19 amends section 547 of the Principal Act to add youth control
order planning meeting reports and reports about a child's
compliance with a youth control order to the list of reports that
are subject to the other requirements of Part 7.8 of the Principal
Act regarding reports to the Court.
Part 4--Serious youth offences
Division 1--Amendments of the Sentencing Act 1991
Clause 20 inserts the definitions of Category A serious youth offence and
Category B serious youth offence into section 3(1) of the
Sentencing Act 1991.
Category A serious youth offence is defined to include murder,
attempted murder, manslaughter, child homicide, intentionally
causing serious injury in circumstances of gross violence,
aggravated home invasion, aggravated carjacking, arson causing
death, culpable driving causing death and a terrorism offence in
Division 101 of the Criminal Code of the Commonwealth.
Category B serious youth offence is defined to include recklessly
causing serious injury in circumstances of gross violence, rape,
rape by compelling sexual penetration, home invasion and
carjacking.
These new definitions are relevant to the application of serious
youth offence provisions created in this Part that will be
introduced to the Sentencing Act 1991.
Clause 21 amends section 32 of the Sentencing Act 1991 to insert new
provisions relating to the eligibility of youth justice centre and
youth residential centre orders for serious youth offenders.
Subclause (1) inserts references into section 32(1) of the
Sentencing Act 1991 to new section 32(2C) and (2D).
12
Subclause (2) inserts new section 32(2C) which provides that a
court is not to sentence a young offender for a category A serious
youth offence to a youth justice centre or youth residential centre
order unless the court is satisfied that exceptional circumstances
exist. Subclause (2) also inserts new section 32(2D) which will
apply to sentencing a young offender for a category B serious
youth offence, where the young offender has previously been
convicted of a category A or category B serious youth offence.
Similar to the application of new section 32(2C), new section
32(2D) will limit the making of youth justice centre and youth
residential centre orders unless the court is satisfied that
exceptional circumstances exist.
These amendments will mean that a court which is considering
imposing a sentence of confinement in respect of a young
offender in the circumstances outlined in new section 32(2C)
and (2D) will have to impose a sentence of imprisonment
unless the court is satisfied that exceptional circumstances exist.
This reform intends to limit the circumstances in which young
adults who have committed serious youth offences are sent to
detention in a youth justice facility.
Division 2--Amendments of the Children, Youth and Families
Act 2005
Clause 22 inserts the definitions of Category A serious youth offence and
Category B serious youth offence into section 3(1) of the
Principal Act.
Category A serious youth offence is defined to include murder,
attempted murder, manslaughter, child homicide, intentionally
causing serious injury in circumstances of gross violence,
aggravated home invasion, aggravated carjacking, arson causing
death, culpable driving causing death and a terrorism offence in
Division 101 of the Criminal Code of the Commonwealth.
Category B serious youth offence is defined to include recklessly
causing serious injury in circumstances of gross violence, rape,
rape by compelling sexual penetration, home invasion and
carjacking.
These new definitions are relevant to the application of serious
youth offence provisions created in this Part that will be
introduced to the Principal Act.
13
Clause 23 amends section 356 of the Principal Act to insert new provisions
relating to the eligibility for indictable offences that may be heard
and determined summarily.
Subclause (1) inserts into section 356(3) a reference to new
section 356(6). Subclause (2) inserts new sections (356)(6) to (9)
in the Principal Act.
New section 356(6) provides that the Court must not hear and
determine a charge summarily for a Category A serious youth
offence committed when the child was aged 16 years or over,
unless the child or prosecution request that the charge be heard
and determined summarily, the Court is satisfied that sentencing
options under the Principal Act are adequate, and it is either in
the interests of the victim/s, the accused is particularly vulnerable
because of a cognitive impairment or mental illness, or there are
substantial and compelling reasons why the charge should be
heard and determined summarily.
New section 356(7) provides guidance on the determination of
whether there is a substantial and compelling reason to hear and
determine a charge summarily, stating that the Court must have
regard to Parliament's intention that a charge for a Category A
serious youth offence should not normally be heard and
determined summarily.
New section 356(8) applies to a child charged with a Category B
serious youth offence committed when the child was aged
16 years or over, and provides that the Court must consider
whether section 356(3) has the effect that the offence should
not be heard and determined summarily.
New section 356(9) applies to charges which have been
transferred from the Supreme Court or the County Court under
section 168 of the Criminal Procedure Act 2009, because of
the operation of new section 168A of the Criminal Procedure
Act 2009. New section 356(9) provides that where a charge has
been transferred in these circumstances, the child or prosecution
may apply for the charge not to be heard or determined
summarily, and that if such an application has been made the
Court must not hear and determine the charge summarily unless
new sections 356(6) or (8) apply.
These new provisions to section 356 intend to limit the
circumstances in which the Children's Court hears charges for
serious youth offences.
14
Clause 24 substitutes section 362(1)(g) of the Principal Act. New section
362(1)(g) is a factor that a Court must have regard to in
determining which sentence to impose on a child. New section
362(1)(g) specifies that the need to protect the community, or any
person from the violent or wrongful acts of the child in all
Category A and B serious youth cases, and if it is appropriate to
do so in any other case.
This will mean that courts, when imposing sentence, will have to
have regard to community protection, in particular from the
violent acts of children who have been convicted of a serious
youth offence.
Division 3--Amendments of the Criminal Procedure Act 2009
Clause 25 inserts the definitions of Category A serious youth offence and
Category B serious youth offence into section 3(1) of the
Criminal Procedure Act 2009.
Category A serious youth offence is defined to include murder,
attempted murder, manslaughter, child homicide, intentionally
causing serious injury in circumstances of gross violence,
aggravated home invasion, aggravated carjacking, arson causing
death, culpable driving causing death and a terrorism offence in
Division 101 of the Criminal Code of the Commonwealth.
Category B serious youth offence is defined to include recklessly
causing serious injury in circumstances of gross violence, rape,
rape by compelling sexual penetration, home invasion and
carjacking.
These new definitions are relevant to the application of serious
youth offence provisions created in this Part that will be
introduced to the Criminal Procedure Act 2009.
Clause 26 amends section 168(2) of the Criminal Procedure Act 2009
by specifying that section 168(2), which relates to transfer of
charges, will be subject to new section 168A of the Criminal
Procedure Act 2009.
Clause 27 inserts section 168A in to the Criminal Procedure Act 2009,
which provides for the transfer of charges to the Children's Court
for Category A and B serious youth offences.
15
New section 168A(1) provides that despite section 168(2) of the
Criminal Procedure Act 2009, a court may transfer a charge for
an accused child to the Children's Court if the charge is for a
Category A serious youth offence (excluding some offences)
committed when the child was aged 16 years or over, the
Children's Court has refused to hear and determine the charge
summarily, the child or prosecution requests that the charges be
heard or determined summarily, the court is satisfied that
sentencing options under the Principal Act are adequate, and it is
either in the interests of the victim/s, the accused is particularly
vulnerable because of a cognitive impairment or mental illness,
or there are substantial and compelling reasons why the charge
should be heard and determined summarily.
New section 168A(2) provides guidance on the determination of
whether there is a substantial and compelling reason to hear and
determine a charge summarily, stating that the Court must have
regard to Parliament's intention that a charge for a Category A
serious youth offence should not normally be heard and
determined summarily.
New section 168A(3) applies to a child charged with a Category
B serious youth offence committed when the child was aged
16 years or over, and provides that the court must consider
whether section 356(3) of the Principal Act has the effect that
the offence should not be heard and determined summarily.
These new provisions intend to limit the circumstances in which
the Children's Court hears charges for serious youth offences.
Division 4--Mandatory parole conditions
Clause 28 substitutes section 458(4) of the Principal Act to provide that
subject to any determination of the Youth Parole Board, a parole
order is subject to the prescribed terms and conditions and any
conditions imposed under new section 458A of the Principal Act.
Clause 29 inserts section 458A into the Principal Act to provide that certain
parole conditions are to be imposed in relation to certain
offences.
16
New section 458A(1) provides that the Youth Parole Board must
impose parole order conditions referred to in section 458A(3) if
the person was detained in a youth justice centre or a youth
residential centre or was otherwise subject to the Youth Parole
Board's jurisdiction, and the person was detained either for a
Category A serious youth offence when the person was aged
16 years or over, or for a category B serious youth offence
committed when the person was aged 16 years or over if the
person had previously been convicted of a category A or
category B serious youth offence.
New section 458A(2) provides that despite section 458A(1),
the Youth Parole Board does not have to impose the conditions
referred to in section 458A(3) if the Board considers that the
person has demonstrated a history of good behaviour and positive
engagement with rehabilitation programs throughout the relevant
period of detention.
New section 458A(3) lists, for the purposes of section 458A(1),
a number of conditions that the Youth Parole Board must impose.
These are--
• the person must not break any law;
• the person must be supervised by a parole officer;
• the person must obey any lawful instructions of that
parole officer;
• the person must report as and when reasonably directed
by that parole officer;
• the person may be interviewed by that parole officer at
any reasonable time and place directed by that parole
officer;
• the person, must within 2 days of changing address,
advise that parole officer of the change of address;
• the person must not leave Victoria without the written
permission of the Youth Parole Board;
• any other condition the Youth Parole Board considers
necessary for the protection of any victim of a relevant
offence;
17
• if the Youth Parole Board considers it appropriate in the
circumstances for a relevant offence, one or more of the
following--
• that the person not visit particular places or
areas, or only visit at specified times;
• that the person not contact specified persons or
classes of person;
• that the person undergo rehabilitation and
treatment ordered by the Youth Parole Board;
• that the person attend a day program specified by
the Youth Parole Board.
New section 458A requires the Youth Parole Board to impose
certain parole conditions when granting parole to an offender
serving detention for a serious youth offence. The Youth Parole
Board will have to impose the conditions unless satisfied that it is
not necessary due to the person's behaviour and engagement with
programs. These changes will ensure that the risk a serious youth
offender poses to the community following release from
detention is properly managed.
Part 5--Custodial management powers
Clause 30 inserts new section 487A into the Principal Act to provide that an
officer is not personally liable for injury or damage caused by the
use of force that has been used in accordance with section 487(b)
of the Principal Act. Section 487(b) of the Principal Act
prohibits the use of force unless it is reasonable and necessary to
prevent the person or child from harming himself or herself or
anyone else or from damaging property or is necessary for the
security of the centre or police gaol or is otherwise authorised by
or under this or any other Act or at common law.
This provision does not affect the liability of the Crown or any
other body or person.
Section 482A of the Principal Act defines an officer as any
person employed or engaged in a youth justice facility with
duties in relation to ensuring the security or good order of the
facility or the safety and security of any detainee in the facility.
Fulfilling these duties may require the use of reasonable force.
This means that the officer is not able to be sued for any resulting
18
injury or damage provided that the officer has used reasonable
force in accordance with section 487 of the Principal Act.
The protection from liability for officers does not extend to
the use of unreasonable force.
Clause 31 inserts new section 488AA into the Principal Act requiring that
an officer who uses physical force or places a detainee in
isolation in the interests of security at a remand centre, youth
residential centre or youth justice centre, must, as soon as
possible, report the use to the officer in charge and the officer in
charge must, in turn as soon as possible, report the use to the
Secretary.
The Principal Act does not currently require reporting of the use
of force or isolation under section 488(7) of the Principal Act.
This provision ensures that any use of force or isolation under
section 488(7) of the Principal Act are reported to the Secretary.
Part 6--Amendments relating to youth justice
placement decisions
Division 1--Amendments relating to transfer and co-location
Clause 32 substitutes section 482(1)(c)(ii) in the Principal Act. New section
482(1)(c)(ii) provides an additional exception to the requirement
that persons on remand are accommodated separately from
persons in detention: that either the persons on remand consent,
or the persons on remand have previously served a period of
detention, it is in the best interests of each individual affected by
co-location, and it is reasonably necessary to accommodate these
persons together.
This additional exception will promote the safe management of
youth justice facilities and enable the Secretary to balance the
best interests of remandees, with all other detainees, staff and
the capabilities of the facilities to ensure everyone's safety.
The Secretary can respond quickly to violent events within a
facility, which could compromise the safety of everyone present.
19
Clause 33 amends section 484 of the Principal Act, by inserting new
sections 484(6) and 484(7). New section 484(6) specifies what
matters the Secretary, on a discretionary basis, can take into
account when making a decision to transfer a detainee between
youth justice facilities.
New section 484(7) provides that the Secretary is not required to
afford any procedural fairness when making a decision under
section 484 of the Principal Act. This means that the Secretary
can make the decision without consulting the child, however as it
is an administrative decision, the child can seek review.
Division 2--Amendments relating to remand
Clause 34 inserts new section 6A(2A) into the Corrections Act 1986.
New section 6A(2A) clarifies that once an adult remand warrant
is ordered, the person will be in the custody of the Secretary of
the Department of Justice and Regulation.
The purpose of this provision is to provide that when the person
is brought back before the Children's Court on the youth charges
at a later date, the adult remand warrant remains in force. This
will apply to a child charged with criminal offences, but who is
no longer a "child" for the purposes of the Principal Act and is
serving a sentence of detention.
New section 6A(2) applies despite any order for the Children's
Court or any other court making directions that the person be
remanded in custody as a child.
Clause 35 substitutes the note at the foot of section 331(2) of the Criminal
Procedure Act 2009.
The new note contains three notes. New note 1 repeats what is
currently in the Criminal Procedure Act 2009.
New note 2 clarifies that if the accused on an adult remand
warrant is released, released on bail or their bail is extended, the
youth remand warrant will remain in place. This means the
person would be returned to youth remand, rather than being
released.
New note 3 provides that if an accused is remanded in custody,
that remand will take effect despite the existence of a youth
remand warrant.
20
The purpose of these notes is to make clear the consequences of
the court granting the accused bail in circumstances where the
accused is already detained in a youth remand centre.
Clause 36 amends section 333(1) of the Criminal Procedure Act 2009 to
ensure that the decision made under section 333(1) is subject to
the new considerations listed in new section 333(2) discussed
below.
Clause 36 also inserts new section 333(2) into the Criminal
Procedure Act 2009.
New section 333(2) provides greater clarity about the
consequences of the court granting the accused bail in
circumstance where the accused is already detained in a youth
remand centre. Currently, the consequence is that the accused is
returned to the youth remand centre pursuant to the existing
remand warrant.
The purpose of new section 333(2) is to provide that the court
may return a person aged over 18 to a youth remand centre if the
court has considered particular factors. These factors are only
relevant if the prosecution objects to the person being returned to
the youth justice facility.
Clause 37 inserts new section 3C into the Bail Act 1977.
New section 3C provides that when the bail application is made
under that Act, an accused who is currently serving remand in a
youth remand centre, and the criminal proceeding relates to acts
committed when the accused was of or over 18 years, the court
must consider new, additional and particular factors when
considering granting bail. These factors will not replace the
usual factors to consider when deciding to apply a remand or
bail decision.
The purpose of this provision is to ensure the person is
appropriate to be held in a youth remand centre.
Clause 38 amends section 5A(1) of the Bail Act 1977 to provide that the
decision to return an accused to a youth justice centre is subject
to consideration of new section 5A(3) discussed below.
Clause 38 inserts new section 5A(3) in the Bail Act 1977 and
provides that the County Court or the Supreme Court may only
order an accused to be returned to a youth justice entre if they
have considered a list of factors relevant to the special nature of
21
youth justice facilities. The purpose of this provision is to ensure
the person is appropriate to be held in a youth justice centre.
These factors will not replace the usual factors to consider when
deciding to apply a remand or bail decision.
Part 7--Information sharing
Clause 39 inserts section 454 into the Principal Act to provide for
information sharing by the Secretary in relation to incidents in a
youth residential centre or youth justice centre.
New section 454(1) provides that the Secretary must notify the
Youth Parole Board in writing within 48 hours of becoming
aware that a person in a youth residential centre or youth justice
centre has been involved in an incident or engaged in conduct
that has threatened the safety of any person or the security of the
centre or damaged property at the centre.
The Youth Parole Board has jurisdiction over all children and
young people detained in a youth residential centre or youth
justice centre. To assist the Youth Parole Board to determine the
appropriateness of releasing a child or young person on parole, it
is necessary for the Youth Parole Board to have up to date
information about the child or young person's behaviour whilst in
custody. This provision ensures that the Youth Parole Board
receives consistent and contemporaneous information about the
child or young person's behaviour whilst in custody.
New section 454(2) provides that once the Youth Parole Board
has received notification of an incident by the Secretary, the
Youth Parole Board can request additional information about the
incident or conduct and specify a reasonable period in which that
information is to be provided.
This provision enables the Youth Parole Board to obtain greater
detail about the incident or conduct.
New section 454(3) provides that the Secretary must provide the
additional information requested under subsection (2) within the
time specified.
New section 454(4)(a) provides that the Secretary must inform
the child or young person, if the Secretary provides information
about the child or young person's involvement in an incident or
conduct to the Youth Parole Board.
22
New section 454(4)(b) provides that the Youth Parole Board
must give the young person the subject of the notification the
opportunity to comment on their involvement in the incident or
the conduct they are alleged to have engaged in.
This provides the young person with the opportunity to explain
their behaviour and ensures that the Youth Parole Board receives
all relevant information.
New section 455 provides that the Youth Parole Board must
inform Victoria Police of the release, or scheduled release on
parole of a child or young person who has been detained for a
Category A or Category B serious youth offence. The Youth
Parole Board must also inform Victoria Police of any conditions
of parole.
For all other children or young people detained in a youth
residential centre or youth justice centre, the Youth Parole Board
may, in their discretion, inform Victoria Police of the release or
scheduled release on parole of the child or young person and any
conditions of the parole.
This provision clarifies when information about a young person's
parole can be shared with Victoria Police. This will assist
Victoria Police to protect the community.
Clause 40 amends section 534 of the Principal Act by inserting new
subsections (3A), (3B) and amends (4) by inserting reference to
new subsections (3A) and (3B).
New section 534(3A) allows the Secretary to grant permission for
the publication of any identifying information about a child or
young person who has escaped from a remand centre, youth
residential centre or youth justice centre.
Prior to granting permission for publication, the Secretary must
be satisfied that the publication is reasonably necessary for the
safety of the child or young person or any other person or the
publication of the identifying information will assist in
apprehending the child or young person or the protection
of the community.
Section 534 of the Principal Act prohibits the publication of
proceedings in or arising from the Children's Court, including
any particulars likely to lead to the identification of a child or
other party to the proceeding without the permission of the
Children's Court.
23
Section 534(1A) of the Principal Act provides that on application
to the Children's Court permission may be granted if the
magistrate is satisfied that the circumstances giving rise to
the request to publish information is an emergency and the
publication is reasonably necessary for the safety of the person or
community. In circumstances where a child or young person has
escaped from a centre, it is preferable that the process can be
expedited by allowing the Secretary to grant permission for
publication.
New section 534(3B) provides that in deciding to grant
permission for publication, the Secretary must have regard to the
desirability of minimising the stigma to the person or their family
and only grant permission to the extent necessary to apprehend
the person.
This ensures that the Secretary has balanced the benefits in
releasing this information with any detrimental impacts the
release of information may have on the child or young person
before granting permission for the publication.
Subclause (2) amends section 534(4) of the Principal Act to
include new subsections (3A) and (3B). Section 534(4) of the
Principal Act sets out the particulars that are deemed to be
particulars likely to lead to the identification of a person.
Part 8--Responding to offences in remand centres, youth
residential centres and youth justice centres
Division 1--Consequences of assaults on staff
Clause 41 inserts the definitions of offence involving an assault, offence
involving property damage and youth justice custodial worker
into section 3(1) of the Principal Act.
Offence involving an assault means an offence against sections
15A (intentionally causing serious injury in circumstances of
gross violence), 15B (recklessly causing serious injury in
circumstances of gross violence), 16 (intentionally causing
serious injury), 17 (recklessly causing serious injury) and
18 (intentionally or recklessly causing injury) of the Crimes
Act 1958.
24
Offence involving property damage means an offence against
section 197 of the Crimes Act 1958 (criminal damage) or the
offence against section 9(1)(c) of the Summary Offences
Act 1966 (wilful damage).
Youth justice custodial worker means a person who is employed
or engaged by the Secretary to the Department of Justice and
Regulation in a remand centre, a youth residential centre or youth
justice centre and has duties in relation to detainees in the
custody of the Secretary.
Subclause (2) inserts new section 3(5) which provides that a
youth justice custodial worker is considered to be on duty at any
time when the youth justice custodial worker is performing a
function or exercising a power as a youth justice custodial
worker.
The definition does not encompass other staff that work at the
same location as youth justice custodial workers, for example,
staff with health, cleaning or culinary duties at a remand centre,
youth residential centre or youth justice centre.
Clause 42 amends section 362(1) of the Principal Act by inserting new
paragraph (h) to include a new matter that the Court must have
regard to when determining which sentence to impose on a child.
New section 362(1)(h) provides that if appropriate, the Court
must have regard to the need to deter the child from committing
offences in remand centres, youth residential centres or youth
justice centres.
This new consideration will be particularly relevant in
circumstances where the Court is determining the sentence to
impose on a child who has been convicted of an offence
committed in a centre.
Clause 43 subclause (1) amends section 411 of the Principal Act to provide
for new subsection (2A). Section 411 of the Principal Act
provides for a child to be detained in a youth residential centre.
Subclause (2) inserts new section 411(2A) to provide that where
a child is convicted on the same day, or in the same proceeding,
of more than one offence involving an assault on a youth justice
custodial worker while on duty or an escape from or property
damage to a remand centre, youth residential centre or youth
justice centre, the period of detention imposed on the child is to
be cumulative with any other period of detention, unless the
25
Court, at the time of sentencing, states that the sentences are
concurrent and gives reasons for its decision.
Subclause (3) amends 411(5) by inserting a reference to new
section 32A of the Sentencing Act 1991.
Clause 44 subclause (1) amends section 413(3) of the Principal Act to
provide for new subsection (3A). Section 413 of the Principal
Act provides for a child to be detained in a youth justice centre.
Subclause (2) inserts new section 413(3A) to provide that where
a child is convicted on the same day, or in the same proceeding,
of more than one offence involving an assault on a youth justice
custodial worker while on duty or an escape from or property
damage to a remand centre, youth residential centre or youth
justice centre, the period of detention imposed on the child is to
be cumulative with any other period of detention, unless the
Court, at the time of sentencing, states that the sentences are
concurrent and gives reasons for its decision.
Subclause (3) amends section 413(4) of the Principal Act by
inserting a reference to new subsection (4A).
Subclause (4) inserts new section 413(4A) to provide that a term
of detention in a youth justice centre imposed on a child for an
offence involving an assault on a youth justice custodial worker
while on duty or an offence involving escape from, or property
damage to, a centre, the period of detention for that offence or
those offences must be served cumulatively with any
uncompleted sentence or sentences of detention in a youth justice
centre, unless the Court, at the time of sentencing, states that the
sentences are concurrent and gives reasons for its decision.
Clause 45 inserts the definitions of offence involving an assault and
offence involving property damage into section 3(1) of the
Sentencing Act 1991.
Offence involving an assault means an offence against sections
15A (intentionally causing serious injury in circumstances of
gross violence), 15B (recklessly causing serious injury in
circumstances of gross violence), 16 (intentionally causing
serious injury), 17 (recklessly causing serious injury) and
18 (intentionally or recklessly causing injury) of the Crimes
Act 1958.
26
Offence involving property damage means an offence against
section 197 of the Crimes Act 1958 (criminal damage) or the
offence against section 9(1)(c) of the Summary Offences
Act 1966 (wilful damage).
Clause 46 subclause (1) amends section 10AA(1), (2), (4) and (5)(a) of the
Sentencing Act 1991 to add youth justice custodial workers to
provisions relating to offences committed against emergency
workers and custodial officers on duty.
Subclause (2) amends sections 10AA(5)(b) of the Sentencing
Act 1991 to add youth justice custodial workers to provisions
relating to offences committed against emergency workers and
custodial officers.
Subclause (3) inserts a definition of youth justice custodial
worker into section 10AA of the Sentencing Act 1991.
Youth justice custodial worker means a person who is employed
or engaged by the Secretary to the Department of Justice and
Regulation in a remand centre, a youth residential centre or
youth justice centre and has duties in relation to detainees in the
custody of the Secretary.
Subclause (4) inserts a new section 10AA(11) into the
Sentencing Act 1991 which provides for when a youth justice
custodial worker will be on duty. A youth justice custodial
worker will be on duty when they are performing a function or
exercising a power as a youth justice custodial worker.
Subclause (5) substitutes the heading of section 10AA of the
Sentencing Act 1991 to include youth justice custodial workers.
Clause 47 adds youth justice custodial workers to provisions relating to
custodial officers on duty in section 10A(2A) of the Sentencing
Act 1991.
Clause 48 adds youth justice custodial workers to provisions relating to
emergency workers on duty and custodial officers on duty in
section 31(1)(b), 31(1)(ba) and 31(2A) of the Crimes Act 1958.
Section 31 of the Crimes Act 1958 provides for the offence of
assault. Section 31(1)(b) and (ba) in particular make it an
offence to assault, threaten to assault, resist or intentionally
obstruct an emergency worker or custodial worker while on duty,
or a personal lawfully assisting an emergency worker custodial
27
worker. Clause 47 extends these provisions to youth justice
custodial workers on duty.
Clause 49 inserts definitions of youth justice custodial worker and youth
justice custodial officer on duty into section 51(1) of the
Summary Offences Act 1966, and adds youth justice custodial
workers and youth justice custodial workers on duty to provisions
relating to emergency workers and custodial officers in
section 51(2), (4) and (5) of the Summary Offences Act 1966.
These provisions in section 51 of the Summary Offences
Act 1966 relate to the summary offence of assaulting an
emergency worker, custodial officer or local authority staff
on duty.
Clause 50 amends section 16(1A) of the Sentencing Act 1991 to include a
young offender who commits an offence under section 33(1A) of
the Sentencing Act 1991. Section 16(1A) of the Sentencing
Act 1991 provides that every term of detention imposed on a
young offender must be served cumulatively with any
uncompleted sentence or sentences of detention or imprisonment
imposed on the young offender.
Clause 51 amends section 33(1) of the Sentencing Act 1991.
Subclause (1) amends section 33(1) of the Sentencing Act 1991
to insert a reference to new subsection (1A).
Subclause (2) inserts new section 33(1A) to provide that in
circumstances where a young person is convicted of more than
one offence, if one or more of the offences involve an escape
from, or property damage to, a remand centre, youth residential
centre or youth justice centre, the period of detention imposed on
the young offender is to be cumulative with any uncompleted
sentence or sentences of detention in a youth justice centre,
unless the Court, at the time of sentencing, states that the
sentences are concurrent and gives reasons for its decision.
Division 2--Increase in penalties
Clause 52 amends section 413(2) of the Principal Act to increase the
maximum period of a youth justice centre order from 2 years
to 3 years so that when a child is convicted of a single offence,
the term of detention in a youth justice centre must not exceed
3 years.
28
Section 413(3)(b) of the Principal Act is amended to increase the
aggregate term of detention in a youth justice centre from 3 years
to 4 years so that when a child is convicted of more than one
offence on the same day or in the same proceeding, the aggregate
term of detention in a youth justice centre must not exceed
4 years.
Clause 53 increases the penalties for offences against section 498(1) of the
Principal Act regarding offences to escape or attempt to escape
detention or custody from--
• 3 months to 6 months detention in a youth residential
centre for children under 15 years;
• 6 months to 12 months detention in a youth justice
centre for a child who is 15 years and above; and
• 6 months to 12 months imprisonment or detention in a
youth justice centre in all other cases.
Clause 54 increases the penalty for offences against section 499 of the
Principal Act for harbouring or concealing, or assisting in same, a
person who has escaped detention or custody from 15 penalty
units or imprisonment for 3 months to 120 penalty units or
imprisonment for 12 months.
Clause 55 increases the penalty for offences against section 500 of the
Principal Act for directly or indirectly withdrawing a person
without legal authority from, or counselling or inducing a person
to escape from detention from 15 penalty units or imprisonment
for 3 months to 120 penalty units or imprisonment for 12 months.
Clause 56 amends the penalties for offences against section 501(1) and (2)
of the Principal Act in relation to a remand centre, youth justice
centre, youth residential centre and youth justice unit and persons
held there.
Subclause (1) increases the maximum penalty applicable to a
child for an offence against section 501(1) of the Principal Act
from 15 penalty units or imprisonment for 3 months to 120
penalty units or imprisonment for 12 months.
Subclause (2) increases the maximum penalty applicable to a
child for an offence against section 501(2) of the Principal Act
from 15 penalty units or imprisonment for 3 months to
120 penalty units or imprisonment for 12 months.
29
Clause 57 increases the penalty for the offence against section 503 of the
Principal Act regarding obstructing the Secretary or any
employee in the exercise of duties under the Principal Act from
15 penalty units or imprisonment for 3 months to 120 penalty
units or imprisonment for 12 months.
Clause 58 amends section 32(3)(b) of the Sentencing Act 1991 to increase
the maximum period for which the Supreme Court or County
Court may direct that a young offender be detained in a youth
justice centre or youth residential centre from 3 years to 4 years.
Part 9--Youth diversion and other amendments
Clause 59 introduces a new Division 3A into Part 5.2 of the Principal Act.
The division is divided into ten sections, numbered 356B to
356K.
New section 356B excludes various offences from the operation
of the diversion scheme, specifically offences punishable by
minimum or fixed sentences or penalties (including road safety
offences of this type) and drink or drug driving offences.
The section makes it clear that diversion does not affect the
imposition of licence demerit points.
New section 356C sets out the overall purposes of diversion that
are to guide the operation of this Division.
New section 356D describes how the diversion scheme operates.
That is; with the consent of the child and the prosecutor, and at
any time before taking a formal plea, the Court may adjourn the
proceeding for not more than four months to allow the child to
undertake a diversion program. The Court may start this process
of its own motion if it thinks it appropriate to do so. If the Court
considers it necessary to consider diversion, it may refuse to
accept a plea of guilty or grant leave to a child to withdraw a plea
despite no application for adjournment having been made,
however this can only occur prior to evidence having been heard
in the proceeding and in circumstances where the Court is
satisfied that the prosecutor does not object to diversion.
The Court may not adjourn a proceeding if the prosecutor or
child does not consent. The section also outlines the matters the
Court must take into account when determining whether to grant
the adjournment for the purposes of participating in diversion.
30
New section 356E reinforces the requirement that the child
consent to participation in diversion, and requires that the child
acknowledge to the Court their responsibility for the offence.
An acknowledgement of responsibility or a plea that has been
withdrawn under section 356D(2) are not admissible as evidence
in a proceeding for that offence.
Section 356F enumerates a variety of factors which must be
considered by the prosecutor in determining whether to give or
withhold their consent to diversion.
New section 356G sets out the factors which must be considered
by the Court in determining the type of diversion.
New section 356H allows the Court to make a further
adjournment, up to 2 months in duration, if appropriate to allow
the child to complete their diversion program. The total of the
initial adjournment and an adjournment granted under this
section may not exceed 6 months.
New section 356I explains the effect of successful participation
in diversion to the satisfaction of the Court--the child is
discharged without any finding of guilt (although participation in
the program may be taken as a finding of guilt in some limited
circumstances to do with confiscation, forfeiture of prohibited
weapons under the Control of Weapons Act 1990; and the
Firearms Act 1996 and disposal and ancillary orders under the
Sentencing Act 1991). It is noted that when applying Part 4
of the Sentencing Act 1991, reference should be made to
section 417 of the Principal Act. The section also provides
that participation in diversion is also a defence to a later
charge for the same or similar offence arising out of the same
circumstances. In circumstances where the child does not
successfully complete diversion, the Court must still take the
extent to which the child complied with diversion into account in
sentencing.
New section 356J extends certain protections applicable to
children performing community service under a youth attendance
order, such as accident compensation, to apply to children
performing community service as part of their diversion.
New section 356K makes it clear that the requirements of natural
justice must continue to be met in the administration of the
diversion scheme.
31
Clause 60 amends an offence contained within section 497 of the Principal
Act. Currently, section 497(c) requires that a person not without
lawful authority or excuse, contrary to the instructions of the
Secretary, attempt to have contact with a child placed under an
interim accommodation order or placed by the Secretary in the
exercise of parental responsibility under section 173.
New section 497(2) and (3) confer a power upon the Secretary
to issue these instructions in writing, and require that any such
written instruction be served upon the recipient. The
modification of the section will also result in a consequential
renumbering of section 497, the existing portion becoming
section 497(1).
Clause 61 has a similar effect to Clause 59, in this case amending
section 501 of the Principal Act. That section requires that a
person not without lawful authority or excuse, communicate or
attempt to communicate with a person held in a remand centre,
youth residential centre, youth justice centre or youth justice unit
in contravention of a clear instruction from the Secretary not to
do so.
New section 501(5) and (6) confer a power upon the Secretary
to issue these instructions in writing, and require that any such
written instruction be served upon the recipient.
No consequential renumbering is necessary in this case.
Clause 62 extends the existing jurisdiction of the Koori Court (Criminal
Division) to hear diversion matters where the matter relates to a
breach of sentence. Previously, these matters could only be
heard where the child had pleaded, intended to plead, or had been
found guilty. Post-amendment, it will now also include the
circumstance that the child intends to participate in a diversion
program. Other existing restrictions on this jurisdiction (that the
child is Aboriginal, that the offence is not in an excluded
category, and that the child consents) remain in place.
Clause 63 extends the jurisdiction of the Koori Court (Criminal Division)
to hear diversion matters where the matter relates to a certain
offence. Provided that all other eligibility requirements are met,
the Koori Court will now be able to deal with matters where the
child intends to participate in a diversion program, in addition to
matters where the child has pleaded, intends to plead, or has been
found guilty.
32
Part 10--Transitional provisions
Clause 64 inserts section 161 into the Sentencing Act 1991.
Section 161 provides transitional provisions that relate to
sentencing.
Section 161(1) provides that sentencing of an offender under
sections 32(2C) and (2D), which apply to category A or B
offences, will apply to an offence committed on or after the
commencement of this section. This is regardless of whether an
offence detailed in section 32(2D)(b) was committed prior to the
commencement of the section.
Section 161(2) provides that Divisions 1 and 2 of Part 8 of the
Bill, which relate to consequences of assaults on staff and
increase in penalties, will apply respectively to the sentencing or
the hearing of a charge of an offender for acts committed on or
after the commencement of the provision.
Section 161(3) provides that in relation to sections 161(2) and
(3), if the situation arises where one offence is committed before
commencement, and one after commencement, the offence will
be considered as occurring before commencement and the
sections will not apply.
Clause 64(2) inserts Schedule 6 into the Principal Act.
Section 1(1) of Schedule 6 provides that Division 2 of Part 4 of
the Bill, which stipulates the procedure for indictable offences to
be heard and determined summarily, will apply to the sentencing
of an offender for an offence committed on or after the
commencement of the Part.
Section 1(2) of Schedule 6 provides that section 29 of the Bill,
which provides the parole conditions that must be imposed by the
Youth Parole Board in certain circumstances, will apply to a
person detained in relation to an offence for which they were
convicted on or after commencement of the section. This will
apply regardless of when the prior category A or B offence
referred to in section 458(1)(b)(ii) was committed, when the
person was 16 years or over.
33
Section 1(3) of Schedule 6 provides that the amendments made
by Part 8 of the Bill, excluding section 52, will apply to the
sentencing of an offender or the hearing of a charge, for an
offence alleged to have been committed on or after the
commencement of Part 8.
Clause 64(3) inserts section 64 into the Summary Offences
Act 1966.
Section 64(1) provides that the amendments made by Division 1
of Part 8 of the Bill, which applies to the consequences of
assaults on staff, will apply to the sentencing of an offender for
an offence alleged to have been committed on or after the
commencement of Part 8.
Section 64(2) provides that in relation to section 64(1) above,
if an offence is alleged to have been committed before and a
subsequent offence after the commencement of Part 8, the
offence is alleged to have been committed before commencement
and Part 8 will not apply.
Clause 64(4) inserts new Schedule 5 in the Criminal Procedure
Act 2009.
Section 1(1) of Schedule 2 provides that the amendments made
by Division 3 of Part 4 of the Bill apply to the hearing of a charge
for an offence alleged to have been committed on or after the
commencement of that Division. Division 3 of Part 4 of the Bill
provides for the Court to transfer certain charges to the
Magistrates' Court or Children's Court.
Section 1(2) of Schedule 2 provides that in relation to the
amendments made by Division 3 of Part 4 of the Bill, if the
situation arises where one offence is committed before
commencement, and one after commencement, the offence will
be considered as occurring before commencement and the
amendments will not apply.
Clause 64(5) inserts section 629 into the Crimes Act 1958.
Section 629 provides transitional provisions that relate to
sentencing.
Section 629(1) provides that Division 1 of Part 8 of the Bill,
which relates to consequences of assaults on staff and increase in
penalties, will apply to the sentencing of an offender for acts
committed on or after the commencement of the provision.
34
Section 629(2) provides that for the purposes of section 629(1),
if the situation arises where one offence is committed before
commencement, and one after commencement, the offence will
be considered as occurring before commencement of the
provision and the sections will not apply.
Part 11--Repeal of amending Act
Clause 65 provides for the repeal of this Act on 1 June 2019, one year after
its commencement date.
35