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CHILDREN AND YOUNG PERSONS (MISCELLANEOUS AMENDMENTS) BILL 2005

   Children and Young Persons (Miscellaneous
               Amendments) Bill

                         Introduction Print

              EXPLANATORY MEMORANDUM


                              Clause Notes

                        PART 1--PRELIMINARY
Clause 1   sets out the purposes of the Bill, which are--
             ·      to amend the Children and Young Persons Act
                    1989--
                    ·      to establish a system for the Children's Court to
                           deal with unpaid infringement notices issued to
                           children;
                    ·      to clarify the jurisdiction of the Criminal
                           Division of the Children's Court and change the
                           operation of sentencing orders; and
                    ·      to make other miscellaneous amendments to that
                           Act;
             ·      to amend the Bail Act 1977 to provide for the holding
                    of certain persons in youth training centres rather than
                    prison;
             ·      to amend the Road Safety Act 1986 and certain other
                    Acts to provide for the enforcement of infringement
                    notices against children; and
             ·      to make consequential and minor amendments to the
                    Children and Young Persons (Age Jurisdiction) Act
                    2004 and the Children and Young Persons (Koori
                    Court) Act 2004.




                                     1
551259                                      BILL LA INTRODUCTION 20/4/2005

 


 

Clause 2 is the commencement clause. It provides that most of the provisions of the Bill commence on a day or days to be proclaimed or by default on 1 July 2005. The following provisions, however, commence on the days indicated-- · Part 1 and section 61 on the day after the day on which the Bill receives the Royal Assent; · section 8(2) on the day on which section 10 of the Children and Young Persons (Koori Court) Act 2004 comes into operation; · section 57(2) on the day on which section 23(32) of the Road Safety (Drug Driving) Act 2003 comes into operation; and · section 62 is deemed to have come into operation on 7 December 2004, the day on which the Children and Young Persons (Koori Court) Act 2004 received Royal Assent. Clause 3 provides that the Children and Young Persons Act 1989 is the Principal Act for the purposes of this amending Bill. PART 2--AMENDMENT OF CHILDREN AND YOUNG PERSONS ACT 1989 Clause 4 amends section 3 of the Principal Act by-- · amending the definition of "child" to clarify that the age of the child when a criminal proceeding is commenced in the Children's Court is the relevant age for determining the Court's jurisdiction; · inserting a definition of "proceeding" which excludes the exercise of any jurisdiction, power or authority by a registrar under the new Schedule 2A. New Schedule 2A deals with infringement notices issued to children (see notes on clauses 50 and 54 below); and · inserting a definition of "progress report". Clause 5 inserts a new sub-section (1B) into section 7 of the Principal Act to enable the Secretary to the Department of Human Services to delegate the power to approve the isolation of a child in a remand centre, youth residential centre or youth training centre for a period of more than 24 hours to a public service executive of the level of EO-2 or above. 2

 


 

Clause 6 inserts new sub-sections (5) and (6) into section 16 of the Principal Act. Sub-section (5) provides that, unless exceptional circumstances exist, the Children's Court must hear and determine a charge against a defendant who is aged 19 years or more, if at the commencement of proceedings the defendant was a child. The matters to be considered in determining if exceptional circumstances exist are set out in sub-section (5). Sub-section (6) requires the Court to discontinue a proceeding if it considers that exceptional circumstances exist and to transfer the proceeding to the Magistrates' Court. In the meantime, the Court may permit the defendant to go at large, grant the defendant bail pending his or her appearance before the Magistrates' Court or remand the defendant in custody. Clause 7 inserts a new section 24(2A) into the Principal Act. That section applies section 58 of the Magistrates' Court Act 1989 concerning the recall and cancellation of warrants to the Children's Court as if-- · the reference to "penalty enforcement warrant" in section 58 were a reference to a warrant to seize property under section 155(1)(c) or Schedule 2A of the Principal Act; and · the reference to 5 years in section 58 were a reference to 3 years. Clause 8 amends section 26 of the Principal Act which restricts the publication of proceedings that may lead to the identification of a person involved in proceedings. The amendment excludes the Koori Court (Criminal Division) from the prohibition on publication of the particular venue of proceedings without permission of the President of the Children's Court, until such time as section 10 of the Children and Young Persons (Koori Court) Act 2004 comes into operation. Clause 9 amends section 38 of the Principal Act to include progress reports as a report to which Division 8 of Part 2 of the Principal Act applies. Clause 10 amends section 73(1) of the Principal Act to include the reservation of a question of law under section 115A for the opinion of the Supreme Court as a basis on which the Court may make an interim accommodation order. 3

 


 

Clause 11 inserts a new Division 7A in Part 3 of the Principal Act. Section 115A, which constitutes the new Division, enables the Family Division of the Court, of its own motion or on the application of a party to proceedings, with the consent of the President, to reserve a question of law in the form of a special case stated for the opinion of the Supreme Court. If such a question is reserved, the Children's Court cannot finally determine the matter until the Supreme Court has given its opinion, nor can the Court proceed in a manner or make a determination inconsistent with the Supreme Court's opinion. Clause 12 inserts sub-section (4A) in section 129 of the Principal Act. The new sub-section means that any extension of a period that a child is remanded in custody must not be more than 21 days. Clause 13 inserts a new sub-section (3A) in section 137 of the Principal Act. It provides that the Court must not make a restitution, compensation or costs order a special condition of another sentencing order. Clause 14 amends section 140 of the Principal Act concerning non- accountable undertakings by-- · removing the limitation on such an undertaking applying beyond the child's eighteenth birthday; and · providing that such an undertaking may be given in relation to one or more offences. Clause 15 amends section 143 of the Principal Act concerning the breach of an accountable undertaking by-- · providing that a court other than the Children's Court can also direct that a child (and if the child is under 15 years, the child's parents) appear before the Court; · inserting new sub-sections (2A) and (2B). These new sub-sections require the child alleged to have breached an accountable undertaking to appear before the magistrate who made the order under section 142, if that magistrate still holds his or her office, or another magistrate if the original magistrate no longer holds office and the child consents. 4

 


 

Clause 16 amends section 144 of the Principal Act concerning good behaviour bonds by-- · substituting a new sub-section (2), which specifies that an adjournment must not exceed 12 months or, if the child is 15 years or more on the day of the adjournment and the circumstances are exceptional, 18 months; · specifying that a bond must be for an amount less than half the maximum fine that can be imposed on the child under section 150, rather than the current "nominal amount"; and · inserting sub-section (3A), which indicates that a bond may be entered into for one or more offences. Clause 17 substitutes a new section 149 in the Principal Act. The new section specifies the time limits within which proceedings for breach of a bond must be initiated. Where the breach is constituted by a charge, the breach proceedings must start within 3 months after a finding of guilt on that charge. In any other case, the breach proceedings must start within 14 working days after the alleged breach and before the expiry of the adjournment under section 144. Clause 18 inserts a new definition of "child" into section 152(1) of the Principal Act. The new definition of "child" makes it clear that a person on whom the Court has imposed a fine is not precluded from applying for time to pay, for an instalment order or for variation of an instalment order under section 154 if they are 19 years of age or older at the time of the application. Clause 19 amends section 155(1) of the Principal Act, which concerns what the Court may do if a child defaults in payment of a fine or instalment of a fine, by-- · inserting a new paragraph (aa) to permit the Court to determine that any outstanding part of a fine not be enforced; · inserting paragraph (ab) enabling the Court to order the variation of a fine; · substituting a new paragraph (d) allowing the Court to release a child on probation or a youth supervision order for a period not greater than 3 months, but in no case extending beyond the child's 21st birthday; 5

 


 

· repealing paragraph (e) concerning weekend detention. (See note on clause 20 below.) Clause 20 repeals sections 156, 156A, 157(1) and 267(1)(ba) of the Principal Act, all of which relate to weekend detention. Clause 21 inserts a new heading, "Reduction of order by payment of portion of fine", to section 157 of the Principal Act. It also amends section 157(2) by-- · substituting a new paragraph (a) applying the sub- section to a child released on probation, or a youth supervision order made, under section 155(1)(d); and · making it refer to the total term of the period of probation or youth supervision order that must be reduced proportionately to the amount of the fine paid. Clause 22 substitutes section 158(1) in the Principal Act. The new sub- section enables the Court to place on probation, with or without conviction, a child it has found guilty of one or more offences, whether indictable or summary. The term of such probation must not be more than 12 months or, in the case any of the offences being punishable by more than 10 years' imprisonment, 18 months and must not extend beyond the child's 21st birthday. Clause 23 inserts new sections 159A and 159B in the Principal Act. New section 159A(1) limits the aggregate period of probation for more than one offence found proven on the same day or in the same proceeding to 18 months or not extending beyond the person's 21st birthday. New section 159A(2) provides that, unless the Court otherwise orders, any new probation order is to be served concurrently with the uncompleted portion of any existing probation order(s). New section 159A(3) enables the Court to order that a new probation order be served in part concurrently with an existing order or wholly cumulatively on the existing order. New section 159B allows the Court to require the Secretary of the Department of Human Services to prepare a report where a person on probation has been found guilty of an offence. The Court may take that report into account in dealing with the matter, but must not impose a penalty greater than the penalty for that offence. 6

 


 

Clause 24 amends section 160 of the Principal Act by-- · inserting a new sub-section (2A). That sub-section requires the person alleged to have breached the probation order to appear before the magistrate who made the order, if that magistrate still holds his or her office, or another magistrate if the original magistrate no longer holds office and the person consents; · adding a paragraph (g) to sub-section (3) enabling the Court, if the probation order has expired, to impose any sentencing order the Court thinks fit; · amends sub-section (4)(a) by inserting a reference to the Secretary's report under section 160A. (See note on clause 25 below); and · repealing sub-sections (5) and (6). Clause 25 inserts a new section 160A in the Principal Act. That section imposes an obligation on the Secretary to prepare a report on a person alleged to have breached his or her probation order. It specifies the matters that the report must include. After the Court is satisfied that the person has breached his or her probation order, but before it makes an order under section 160(3), a copy of the report must be provided to the Court, the person about whom the report is written, that person's legal representatives and any other person the Court orders should receive it. Clause 26 repeals section 161 of the Principal Act. Clause 27 amends section 162(b) of the Principal Act by omitting the requirement that proceedings for a breach of a probation order for any act other than an offence be commenced before the expiry of the probation order. Clause 28 substitutes a new sub-section (1) in section 163 of the Principal Act. The new sub-section enables the Court to release on a youth supervision order a child it has found guilty of one or more offences, whether indictable or summary, and with or without conviction. The term of such an order must not be more than 12 months or, in the case of any of the offences being punishable by more than 10 years' imprisonment, 18 months and must not extend beyond the child's 21st birthday. 7

 


 

Clause 29 inserts a new section 163A in the Principal Act. New section 163A(1) limits the aggregate period of any youth supervision orders for more than one offence found proven on the same day or in the same proceeding to 18 months or not extending beyond the person's 21st birthday. New section 163A(2) provides that, unless the Court otherwise orders, any new youth supervision order is to be served concurrently with the uncompleted portion of any existing youth supervision orders. New section 163A(3) enables the Court to order that a new youth supervision order be served in part concurrently with an existing order or wholly cumulatively on the existing order. Clause 30 inserts a new sub-section (4A) in section 164 of the Principal Act. That new sub-section requires that the dates and times that the Secretary may require a person released on a youth supervision order to report to the Secretary must, as far as practicable, avoid interfering with the person's attendance at his or her place of education, employment, training or religious observance or his or her religious beliefs. Clause 31 inserts new sections 164A and 164B in the Principal Act. New section 164A (1) provides that the Secretary may, by written notice, suspend a person's youth supervision order where the person is in custody at the time the order was made or is taken into custody after the order was made. New section 164A(2) requires the Secretary, following consultation with the appropriate parole board, superintendent of a youth residential centre or youth training centre or the Secretary to the Department of Justice, to advise a person when he or she shall commence or re-commence service of a youth supervision order. New section 164A(3) permits the Secretary, with the consent of the appropriate parole board, to direct that the term of a youth supervision order be served concurrently with parole, but the service of the order must not be a condition of parole. New section 164B enables the Court, where it finds a person against whom a youth supervision order is in force guilty of an offence, to require the Secretary to prepare a report on the extent and manner of the person's compliance with the order. The Court may take that report into account in dealing with the matter, but must not impose a penalty greater than the penalty for that offence. 8

 


 

Clause 32 repeals sections 165(2) and 165(3) of the Principal Act. Clause 33 amends section 166(1) of the Principal Act by-- · adding to paragraph (d) a requirement that in varying an order the Court may not extend its term; · adding to paragraph (e) the requirement that the Court confirm the order before directing the person to comply with it; · deleting "other" from paragraph (f), which will have the effect of allowing the court to also impose any sentencing order including a new youth supervision order; and · adding a new paragraph (g) allowing the Court to impose any sentencing order it thinks fit if the original youth supervision order has expired. This clause also repeals sections 166(2) and 166(3) of the Principal Act. Clause 34 amends section 168(b) of the Principal Act by omitting the requirement that proceedings for a breach of a youth supervision order for any act other than an offence be commenced before the expiry of the youth supervision order. Clause 35 repeals the definitions of "project" and "youth attendance project" in section 169 of the Principal Act. Sub-clause (2) amends section 170 of the Principal Act by-- · allowing the Court to consider a youth attendance order where it convicts a child of more than one offence; and · increasing the age limit beyond which the term of such an order should not run to 21. Sub-clause (3) amends section 171 of the Principal Act by-- · providing that the Court may consider a youth attendance order if one of the offences is punishable by imprisonment; and · substituting a new paragraph (b) requiring the Court to make enquiries of the Secretary and be satisfied that the child is suitable to be placed on a youth supervision order. 9

 


 

The clause replaces the term "youth attendance project" with "youth supervision order" or "youth supervision unit" (as the case requires) in sections 172(1), 177(2), 177(5), 181, 182, 184(1) and 185(10) of the Principal Act. Sub-clause (4)(b) omits the exception of the person subject to a youth attendance order being in custody at the time the order is made from the initial reporting requirements under an order in section 172(1)(c) of the Principal Act. Sub-clause (6) amends section 178(2) of the Principal Act by replacing the obsolete term "Office of Corrections" with "Secretary to the Department of Justice". Sub-clause (7) inserts a new heading, "Court may require Secretary to report", to section 179 of the Principal Act. Sub-clause (12) amends section 280(1) of the Principal Act by-- · repealing paragraphs (p) and (q); and · omitting or replacing the redundant term "youth attendance project" in paragraphs (s), (t) and (u). Clause 36 repeals section 180 of the Principal Act. Clause 37 amends section 174(1)(a) of the Principal Act by increasing the age limit beyond which the aggregate period of any youth attendance orders should not run to 21. Clause 38 amends section 184 of the Principal Act by-- · adding to sub-section (2)(a) a requirement that in varying an order the Court may not extend its term; · adding to sub-section (2)(b) the requirement that the Court confirm the order before directing the person to comply with it; · altering sub-section (2)(c) to allow the Court to impose any sentencing order it thinks fit whether or not the original youth supervision order has expired; · omitting the requirement that proceedings for a breach of a youth attendance order for any act other than an offence be commenced before the expiry of the youth attendance order from sub-section (3)(b); 10

 


 

· inserting new sub-sections (8) and (9). These sub- sections require the person alleged to have breached the youth attendance order to appear before the magistrate who made the order, if that magistrate still holds his or her office, or another magistrate if the original magistrate no longer holds office and the person consents; and · repealing sub-sections (11), (12) and (13). Clause 39 amends section 188(1)(b) of the Principal Act by increasing the maximum age of the person on the day of sentencing to 21. Clause 40 inserts new sections 190(2A) and 190(2B) in the Principal Act. New section 190(2A) allows the Court, on the application of the child, to re-list an adjourned case at short notice if the Court considers it appropriate to do so. New section 190(2B) requires notice of the application under sub-section (2A) to be given to the Court, the informant and, if appropriate, the Secretary. Clause 41 amends section 191 of the Principal Act by-- · adding section 87J(1) of the Sentencing Act 1991 to the other provisions in that Act where "must" is required to be substituted for "may" for the purposes of the Criminal Division of the Children's Court; and · capping the maximum amount the Court may order an offender to pay under Part 4 of the Sentencing Act 1991 to $1000. Clause 42 inserts a new section 192 in the Principal Act. That section enables a person in whose favour the Court has made an order under section 191 (e.g. for restitution or compensation) to enforce the order for up to 5 years after it was made through application to a court with the jurisdiction to enforce the order. The Children's Court does not have the necessary civil jurisdiction, therefore such enforcement proceedings would need to be taken in an adult court. 11

 


 

Clause 43 inserts a new section 196A in the Principal Act. That section provides that proceedings for breach of a sentencing order, regardless of the Court in which the order was made, must be dealt with in the Children's Court where the person is under 19 years of age when the breach proceedings commence unless-- · the sentencing court was the County or Supreme Court and the person does not consent to the Children's Court hearing the breach proceedings; or · if in all the circumstances the Children's Court considers it appropriate to transfer the matter to the sentencing court. If the person is 19 years of age or more when the breach proceedings commence, the Children's Court must transfer the proceeding (other than for breach of an accountable undertaking) to the Magistrates' Court or sentencing court unless, in all the circumstances having regard to the matters set out in sub- section (5), the Court considers that it should hear and determine the matter. If the breach hearing is to be transferred to the Magistrates' Court or sentencing court, the Children's Court must-- · permit the person to go at large; or · grant bail conditional on the person's appearance in the court to which the matter has been transferred; or · remand the person in custody under section 49 of the Magistrates' Court Act 1986. If the breach proceeding is transferred to the Magistrates' Court, the Magistrates' Court may sentence the person as if it had just been satisfied of the person's guilt for which the breached sentencing order was made and it had the jurisdiction to make the original order. Clause 44 inserts a new Division 7A in Part 4 of the Principal Act. Section 196B, which constitutes the new Division, enables the Criminal Division of the Court, of its own motion or on the application of a party to proceedings, with the consent of the President to reserve a question of law in the form of a special case stated for the opinion of the Supreme Court. If such a question is reserved, the Children's Court cannot finally determine the matter until the Supreme Court has given its opinion, nor can the Court proceed in a manner or make a determination inconsistent with the Supreme Court's opinion. 12

 


 

Clause 45 amends section 197(9) of the Principal Act by making 21 years the upper age limit of a person in respect of whom the County Court can make an order on appeal. Clause 46 amends sections 240 and 244B of the Principal Act. Sub-clause (1) inserts the age and maturity of the person as a further factor the Youth Parole Board is to have regard to in considering whether or not to direct the transfer of a detainee in a youth training centre to a prison to serve the unexpired portion of his or her sentence. Sub-clause (2) requires that the Secretary's report to the Youth Parole Board on the possible transfer of a youth detainee back to prison from a juvenile justice centre must set out the steps that have been taken to avoid the need to transfer the detainee. Clause 47 amends section 252(1)(c) of the Principal Act to permit the Secretary not to separate persons on remand from those serving a period of detention in a juvenile justice centre when-- · the Secretary considers non-separation is appropriate having regard to the best interests, rights and entitlements of the remandees; and · the remandees consent to the non-separation. Clause 48 replaces sections 253(2) and 253(3) of the Principal Act with a power for the officer in charge of a youth residential centre or youth training centre to photograph a detainee upon reception at the centre for identification and record keeping purposes. Clause 49 amends section 259(2) of the Principal Act by-- · providing for the non-application of section 5A of the Bail Act 1977 (see note on clause 60 below) to a detainee in a youth training centre, who has been arrested by the police under sub-section (1); and · adds the County and Supreme Courts as Courts that may be satisfied that the defendant has behaved in a manner threatening the good order and safe operation of a youth training centre or is unable to be properly controlled in such a centre. 13

 


 

Clause 50 inserts a new Division 13 in Part 4 of the Principal Act concerning the Children and Young Persons Infringement Notice System. New section 260A provides that the procedure set out in Schedule 2A (see note on clause 54 below) may be used instead of commencing a proceeding against a child for an offence for which an infringement notice could be issued. It also deems a reference to "enforcement" or "a courtesy letter served" under Schedule 7 of the Magistrates' Court Act 1989 in an Act to include a reference to the same terms under Schedule 2A of the Principal Act when a child may be prosecuted for an offence for which an infringement notice may be issued. New section 260B empowers certain agencies to provide information (upon written request from a Court registrar, the sheriff or a contractor or sub-contractor supporting the functions of the sheriff) for the purpose of the enforcement of court orders and fines. Clause 51 amends section 275(1) of the Principal Act so that the transfer of proceedings from the Magistrates' Court to the Children's Court can occur if the person was a child at the time the proceedings commenced in the Magistrates' Court. Clause 52 amends section 280 of the Principal Act by-- · inserting a paragraph (ya) in sub-section (1) to enable regulations to be made for fees, costs and charges in respect of the processes under Schedule 2A; and · inserting paragraphs (ba) and (bb) in sub-section (2) to permit the regulations to-- · confer discretionary authority on specified court officials; and · provide for exemptions for persons or classes of persons or proceedings providing for the imposition of fees. Clause 53 amends section 280D(1) of the Principal Act to enable the President of the Children's Court to issue practice notes in relation to the exercise of any jurisdiction, power or authority by a registrar under Schedule 2A. 14

 


 

Clause 54 inserts new Schedule 2A into the Principal Act. In his second reading speech for the Children and Young Persons (Age Jurisdiction) Act 2004 on 16 September 2004, the Attorney- General made reference to the need for the development of a new regime through which the Children's Court can deal with unpaid infringement penalties that are, in respect of adults, enforceable through the Penalty Enforcement by Registration of Infringement Notice (PERIN) system. At present, where an enforcement agency such as Victoria Police or the Department of Infrastructure issues an infringement notice to a child and the child does not pay the penalty, the agency must file a charge against the child in the Children's Court if the agency wishes to pursue the matter. A summons is then issued and the charge is heard in open court before a judicial officer. This is in contrast to the PERIN system in the Magistrates' Court, which, pursuant to Schedule 7 of the Magistrates' Court Act 1989, allows for automated enforcement of unpaid infringement penalties against adults. The increase in the age jurisdiction of the Criminal Division of the Children's Court will result in an increase in the workload of the Court, particularly in terms of unpaid infringement penalties involving 17 year olds. The Children and Young Persons Infringement Notice System (CAYPINS) aims to-- · provide flexibility and discretion in decision-making, which takes into account a child's age, personal and financial circumstances; and · maximise efficiencies of the resources of the Children's Court and issuing agencies. The new process will provide a method for agencies to enforce unpaid penalty infringements in the Children's Court as an alternative to proceeding by way of charge and summons. The process does not exclude proceeding by way of charge and summons. This process does not graft the adult PERIN process onto the Children's Court, as it is recognised that a more flexible process than PERIN is needed when dealing with children. In addition to the proposed process, it is anticipated that issuing agencies will consider the wider application of cautions and diversionary options before issuing infringement notices to children and young people. 15

 


 

PART 1--INTRODUCTORY Clause 1 of Schedule 2A provides for the application of Schedule 2A. It provides that the procedures set out in the Schedule may be used for the enforcement of infringement penalties and penalties imposed by penalty notices. This sub- clause also provides that if the procedures set out in the Schedule are used, that they apply without prejudice to the application of so much of any other procedure as is consistent with the Schedule. The Schedule is divided into Parts: Part 2 outlines the procedures that may be used in relation to any infringement notice, whenever issued, and Part 3 outlines the procedures that apply to penalty notices and prescribed offences despite anything to the contrary in a Code. Clause 2 of Schedule 2A provides the definitions that will apply to the Schedule. PART 2--INFRINGEMENT NOTICES Clause 3 of Schedule 2A provides for courtesy letters. The clause provides that an appropriate officer may serve a courtesy letter on the child if an infringement penalty has not been paid before the end of the time specified in the infringement notice. A courtesy letter served on a child must state that the child on whom it is served has a further 28 days from the date of service of the courtesy letter in which to pay the infringement penalty together with any prescribed costs, although it is recognised that the addition of costs with respect to children, particularly younger children, should not be routine. The infringement penalty together with the prescribed costs may be paid within the extended period as if the infringement notice or law under which the notice was served also required the payment of those costs. The courtesy letter must also state that if the child continues to default in payment that they may be dealt with under the CAYPINS, and that the child may obtain further information from a person or agency specified in the letter. A courtesy letter may contain any other information that is prescribed for the purposes of the clause. The clause also provides that if the enforcement agency is prepared to accept payment of the infringement penalty and costs by instalments and the payment of the infringement penalty would result in the loss of demerit points under the Road Safety Act 1986, the courtesy letter must also contain a warning that entering into an arrangement to pay the infringement penalty and 16

 


 

costs by instalments will result in the loss of demerit points under that Act. Clause 3 also provides that a child who has been served with a courtesy letter may decline to be dealt with under CAYPINS by serving a written statement to that effect on the officer or person specified for that purpose in the letter within 28 days after service of the letter. Clause 4 of Schedule 2A provides that for the purposes of the Road Safety Act 1986, the child is to be taken as paying the infringement penalty in respect of the offence on entering into an arrangement to pay the infringement penalty and any costs by instalments, and that the clause also applies in respect of an offence that would result in a child losing demerit points under the Road Safety Act 1986 if the child were convicted of the offence. It is one of the specific intentions of CAYPINS not to interfere with the disqualifications and disabilities that apply to drivers issued with infringement notices under the Road Safety Act 1986. Clause 5 of Schedule 2A outlines the process for the registration of infringement penalties in the Children's Court. Unlike the PERIN system, registration does not automatically trigger an enforcement order for the amount that remains unpaid. The clause provides that an enforcement agency may seek to have an infringement penalty registered by providing to a registrar a document in the form required by the regulations containing the details required by the regulations in relation to a child who has either not paid the infringement penalty or who has failed to comply with an instalment arrangement that has been arranged. The enforcement agency must also provide a certificate in the prescribed form signed by an appropriate officer and certifying that in respect of the child referred to in the document certain specific requirements contained in the sub-clause, together with any other prescribed requirements, have been satisfied. Sub-clause (2) sets out a number of requirements that need to be satisfied. Sub-clause (3) provides that the registrar may register the infringement penalty or the part remaining unpaid of the infringement penalty together with any prescribed costs for the purpose of enforcement under CAYPINS if it appears to the registrar from the certificate provided that the requirements listed in sub-clause (2) and any other prescribed requirements have been satisfied in relation to a child referred to in the document provided with the certificate. 17

 


 

Sub-clause (4) of clause 5 of Schedule 2A provides that notwithstanding sub-clause (3), the registrar must not register an infringement penalty that is for an amount less than the amount, if any, specified by the regulations. The Registrar is also guided by the operation section 150 of the Children and Young Persons Acts 1989, which provides for the maximum fines that may be imposed by the Court. Sub-clause (5) of clause 5 of Schedule 2A provides that the relevant enforcement agency may request the registrar not to register the infringement penalty or part. This request must be made by notice in the prescribed form and must be filed with the registrar at any time before an infringement penalty or a part of an infringement penalty is registered. Sub-clause (6) of clause 5 of Schedule 2A provides that a registrar must comply with a request made in accordance with sub-clause (5). Clause 6 of Schedule 2A outlines the child's options once an infringement penalty together with any prescribed costs has been registered. This clause provides that the registrar must post to the child a notice in writing setting out the child's options with respect to the registered infringement penalty. These options are detailed in sub-clause (2) and are that a child may-- · pay to the Court the amount of the infringement penalty or part and any prescribed costs on or before the date specified in the notice; or · make an application referred to in clause 7 of Schedule 2A; or · provide to the registrar information in writing in relation to-- (a) the child's employment or school attendance; or (b) the child's personal and financial circumstances; or · appear before the registrar on the date specified in the notice; or · request that consideration of the matter be deferred to another date so that the child may appear before the registrar (for instance to enable a parent to attend with the child); or 18

 


 

· decline to be dealt with by the registrar and request that the matter of the alleged offence in respect of which the infringement notice was issued be heard and determined by the Court (for instance where the child wishes to contest the infringement penalty, or wishes to place greater reliance on the facts that underpin the infringement penalty); or · do nothing and leave the matter of the infringement notice to be dealt with by the registrar on the date specified in the notice. Sub-clause (3) of clause 6 of Schedule 2A provides that the child must notify the registrar on or before the date specified in the notice if he or she wishes to have the infringement notice dealt with by the Court and that on receipt of the child's notification, the registrar must cancel the registration of the infringement penalty and remit the infringement notice to the enforcement agency. It then becomes a matter for the enforcement agency as to whether a charge is filed with the Court. Sub-clause (4) of this clause provides that nothing in Part 2 of Schedule 2A prohibits an enforcement agency from filing a charge with the Court in respect of an infringement notice that has been remitted to it. Clause 7 of Schedule 2A outlines the applications a child may make to the registrar concerning payment of an infringement penalty (or part of an infringement penalty) that has been registered in the Court. These applications include applying for: · an order that the time within which the fine is to be paid be extended; or · an order that the fine be paid by instalments; or · an order for the variation of an instalment order; or · an order that payment of the fine not be enforced. This application must be made in the prescribed form, and is intended to be used for children who are destitute or suffering undue hardship. The form will ascertain from the child their financial circumstances and other relevant information as to their capacity to pay the registered infringement penalty. 19

 


 

Sub-clause (3) of clause 7 provides that the registrar has a number of options where a child makes an application following the registration of an infringement penalty. These options are that the registrar may: · allow additional time for the payment of the fine or the balance of the fine; or · direct payment of the fine to be made by instalments; or · direct payment of the fine or instalments to be made at the time or times specified by the registrar; or · vary the amount of instalments; or · order that the fine not be enforced. If, on the basis of the prescribed form provided by the child in support of an application not to enforce a fine, the registrar orders that a fine not be enforced, the registrar must give notice of the order and a copy of the child's application for the order to the enforcement agency within 3 working days after the making of the order. Clause 8 of Schedule 2A provides that where the child against whom an infringement penalty or part of an infringement penalty has been registered-- · has not paid the infringement penalty; and · has not made an application under clause 7; and · does not decline to be dealt with by the registrar-- the registrar must consider the matter on the date specified in the notice posted to the child pursuant to clause 6. Sub-clause (2) of clause 8 provides that after hearing the child, if the child appears before the registrar, and after considering any information provided to the registrar under clause 6, the registrar may cancel the registration of the infringement penalty and remit the infringement notice to the enforcement agency if the child either declines to be dealt with by a registrar or contests the matter of the alleged offences in respect of which the infringement notice was issued. If this occurs, it is a matter for the enforcement agency as to whether they wish to file a charge with the Court or not. Alternatively, the registrar may defer making a decision to a later date on which the child is to appear before the registrar. This may be to allow a child's parent to attend, or for the child to receive a formal caution from the enforcement agency. The registrar may also confirm the 20

 


 

infringement penalty or make an order that the child pay to the Court the amount of the infringement penalty or part as so reduced and any prescribed costs. If the registrar confirms or reduces the infringement penalty, the registrar must not require the payment of an amount that exceeds the limits that apply to fines under section 150 of the Principal Act. Finally, the registrar may order that payment of the amount of the infringement penalty and any costs that remain unpaid not be enforced if the registrar is satisfied that it is appropriate to do so having regard to the child's application. Sub-clause (3) of clause 8 provides that a registrar must have regard to the age and personal and financial circumstances of the child in exercising his or her discretion under sub-clause (2). This is consistent with the general sentencing principles contained in section 139 and the financial circumstances provision contained in section 151 of the Children and Young Persons Act. Sub-clause (5) of clause 8 provides that an enforcement order is deemed to be an order of the Court-- · in the case of an order reducing or varying the infringement penalty, on the expiry of 28 days after the making of the order unless an application is made under clause 9 within that period; or · in the case of an order that the infringement penalty not be enforced under either clause 7 or sub-clause (2) of clause 8, on the expiry of 14 days after the making of the order unless an application is made under clause 9 within that period. Sub-clause (6) of clause 8 provides that the registrar must, within 3 working days after the making of an order cause a notice in the prescribed form to be sent by post to the child against whom the order is made at the address contained in the document provided for the purposes of registration or at any other address given by the child (such as when the child appeared before the registrar). Sub-clause (7) of clause 8 provides that in the case of an order that the infringement penalty not be enforced, the registrar must give notice of the order and a copy of the child's application to the enforcement agency within 3 working days after the making of the order. Sub-clause (8) of clause 8 provides that a child against whom an enforcement order is made may apply for an order as set out under clause 7 of Schedule 2A. 21

 


 

Clause 9 provides for Court review of enforcement orders. This clause provides that where a registrar has made an order confirming or reducing the infringement penalty under clause 8, the child may, by notice in writing to the Court within 28 days after the registrar's decision, apply to the Court for a review of the registrar's order. In addition, this clause allows an enforcement agency to apply for a review where a registrar makes an order that an infringement penalty should not be enforced. This application must be made by notice in writing to the Court within 14 days of the making of the order. Sub-clause (3) of clause 9 provides that on receipt of a notice from either the child or an enforcement agency seeking a review, the registrar must cause notice of the time and place of hearing of the review to be given or sent to the child and the enforcement agency. Sub-clause (4) of clause 9 provides that on a review under this clause, the child and the enforcement agency are entitled to appear. The review is conducted by a judicial officer who, under sub-clause (5), may make an order-- · confirming the registrar's order; or · requiring the child to pay an amount not exceeding the amount that the Court may impose under section 150; or · that payment of the amount of the infringement penalty and any costs that remain unpaid not be enforced. Clause 10 provides for enforcement hearings where a child defaults for more than one month in the payment of an amount that has been ordered to be paid, or of any instalment under an instalment order. If this occurs, the Court may, by notice in writing served on the child, require the child to appear before the Court at a specified time and place for an enforcement hearing. Sub-clause (2) provides that on an enforcement hearing, the Court may make any order that it could make under section 155 of the Principal Act. Section 155 outlines the options available to the Court on a default in the payment of a fine or of an instalment under an instalment order made under the Principal Act. These options include determining that the matter should no longer be enforced; that the matter should be adjourned for up to six months on any terms the Court thinks fit; that the fine or instalment order be varied; that the fine then unpaid be levied by a warrant to seize property or that the child be released on a probation order or a youth supervision order for a period not exceeding 3 months. If the child fails to appear, the Court may 22

 


 

adjourn the proceeding and order that a warrant to arrest the child be issued. Clause 11 of Schedule 2A provides for the effect of an enforcement order in identical terms to clause 9 of Schedule 7 to the Magistrates' Court Act 1989 (save for references to clause 10 of Schedule 7). Clause 11 of Schedule 2A provides that if an enforcement order is made in relation to an offence alleged to have been committed by a child-- · the child is not thereby to be taken to have been convicted of the offence; and · the child is not liable to any further proceedings for the alleged offence; and · the making of the order does not in any way affect or prejudice any civil claim, action or proceeding arising out of the same occurrence; and · payment in accordance with the order is not an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence. Sub-clause (2) provides that any amount recovered as a result of the making of an enforcement order is to be dealt with in the same way as an amount recovered as a result of a conviction. Sub-clause (3) provides that despite anything to the contrary in this clause, the making of an enforcement order in relation to an offence which is a traffic infringement within the meaning of the Road Safety Act 1986 does not prevent the incurring of demerit points under section 25 of that Act in relation to that infringement. Sub-clause (4) provides that despite anything to the contrary in this clause, the making of an enforcement order-- · may be recorded for the purposes of a heavy vehicle registration suspension scheme within the meaning of section 89(7) of the Road Safety Act 1986; and · does not prevent the suspension of the registration of a vehicle under that scheme. Other disqualifications and disabilities under the Road Safety Act 1986 flow by virtue of clause 56 and clause 57 of this Bill. It is not intended that CAYPINS will affect the operation of any of those provisions. 23

 


 

Clause 12 of Schedule 2A provides for the expiry of enforcement orders. It has been drafted in similar terms to clause 14A of Schedule 7 to the Magistrates' Court Act 1989. Clause 12 provides that an enforcement order expires-- · on the payment in full of the fine; · if one or more payments are made under the order but the fine is not paid in full, 3 years after the receipt of the last payment; · in any other case, 3 years after the making of the enforcement order. This clause also provides that if a warrant to seize property has been issued in respect of the order, the order expires on that warrant becoming void under section 58(2) of the Magistrates' Court Act 1989 as applied by section 24(2A) of the Children and Young Persons Act 1989. The effect of section 24(2A) is that a warrant to seize property will expire after 3 years. Where an order has been made directing that an infringement penalty and any costs that remain unpaid not be enforced, the enforcement order expires on the making of that order. In any other case, an enforcement order expires 3 years after the order was made. Sub-clause (3) provides that if an enforcement order expires as a result of this clause, any amount still outstanding in respect of the fine for which it was made ceases to be enforceable or recoverable. Clause 12 also provides that on the expiry of an enforcement order, any warrant to seize property that was issued in respect of that order is void. Sub-clause (5) of clause 12 allows a registrar to reinstate an enforcement order that has expired on the application of the enforcement agency. Under sub-clause (6), if an enforcement order is reinstated, the fine in respect of which it was made again becomes enforceable or recoverable as if there had been no cessation. A reinstated enforcement order expires 3 years after it was reinstated. Finally, sub-clause (9) provides that clause 12 does not apply to an enforcement order in respect of which a warrant has been issued under the Service and Execution of Process Act 1992 of the Commonwealth. Clause 13 of Schedule 2A provides for the service of documents relating to Part 2 of Schedule 2A. This clause has been drafted in identical terms to clause 14 in Schedule 7 to the Magistrates' Court Act 1989 which governs service of documents in the PERIN system. 24

 


 

PART 3--PENALTY NOTICES Clause 14 provides that Part 2 of Schedule 2A applies, with any necessary modifications, to penalty notices and prescribed offences as if any reference in Part 2 to an infringement notice were a reference to a penalty notice. Clause 14 also provides that the reference to non-conviction in clause 11 in Part 2 is qualified by the application of clause 15. Clause 15 provides, in identical terms to clause 16 of Schedule 7 to the Magistrates' Court Act 1989 that a person is deemed to be convicted in certain circumstances in relation to a penalty notice. Clause 55 inserts new clauses 29 to 34 in Schedule 3 to the Principal Act to provide for the following transitional arrangements-- 29. Section 58 of the Magistrates' Court Act 1989 as applied by section 24(2A) of this Act applies to a warrant to seize property issued in accordance with an order made under section 155(1)(c) of this Act before the commencement of section 7 of the Children and Young Persons (Miscellaneous Amendments) Act 2005 if the warrant has not been executed before that commencement or the fine in respect of which it was issued has not been paid before that date. This arrangement has the effect of limiting the life of any outstanding warrants to seize property to 3 years from the commencement of section 24(2A) of the Children and Young Persons Act 1989. 30. An amendment made to this Act by a provision of the Children and Young Persons (Miscellaneous Amendments) Act 2005 (other than sections 50 and 54) applies to a proceeding for an offence or for a breach of a sentencing order commenced on or after the commencement of that provision, regardless of when the offence to which the proceeding relates is alleged to have been committed or the sentencing order was made. 31. An amendment made to this Act by a provision of sections 50 and 54 of the Children and Young Persons (Miscellaneous Amendments) Act 2005 applies to an infringement notice issued on or after the commencement of that provision. This transitional arrangement means that, on the commencement of sections 50 and 54 of this Act, existing unpaid infringement penalties will continue to be processed by way of charge and summons for persons between the ages of 10 years and 17 years, and through the PERIN system for persons aged 17. 25

 


 

32. Despite their repeal by section 20 of the Children and Young Persons (Miscellaneous Amendments) Act 2005, sections 156, 156A, 157(1) and 267(1)(ba) as in force immediately before their repeal continue to apply in relation to orders made under section 155(1)(e) before its repeal. This ensures that any weekend detention orders in operation on the commencement of section 20 will not be affected by the repeal of weekend detention orders as from the commencement of this Act. 33. A reference to a youth attendance project in an order made under section 170 is deemed, on and after the commencement of section 35(1) of the Children and Young Persons (Miscellaneous Amendments) Act 2005, to be a reference to a youth supervision unit. 34. A person who is remanded in custody in a prison, police gaol or youth training centre by a court or a bail justice and is under the age of 18 years on or after the commencement of section 3 of the Children and Young Persons (Age Jurisdiction) Act 2004 must, on that commencement, be placed in a remand centre and section 130 applies to the person as if the person were a child. This transitional provision will have the effect of ensuring that all 17 year olds will be remanded in a youth training centre on the commencement of this Act notwithstanding the fact that the change to the age jurisdiction to the Criminal Division of the Children's Court by virtue of the operation of section 3 of the Children and Young Persons (Age Jurisdiction) Act 2004 is not intended to apply to proceedings that have already been commenced prior to the commencement of that Act. PART 3--AMENDMENT OF OTHER ACTS Clause 56 inserts a new section 89F in the Road Safety Act 1989 which excludes the application of clauses 3(7), 5(2)(f) and (h) and 11(1)(a) and (b) under Schedule 2A to excessive speed, drink-driving or drug-driving infringements. The principal effect of these exclusions is to ensure that the non-conviction aspect of the infringement notice system does not apply to any disqualification or disability elements of the road safety regime for these types of driving offences, such as licence suspension or cancellation. Notwithstanding these exclusions, section 89F permits the balance of Schedule 2A to be used to enforce these types of infringement notices. 26

 


 

Clause 57 provides for a series of other amendments to the Road Safety Act 1986 to reflect the establishment of a discrete infringement notice regime for children under the Principal Act. Sub-clause (2) provides for the amendment of the new section 89F (see note on clause 56 above) by removing references to "a drug-driving infringement" as these provisions in the Road Safety Act 1989 are scheduled to sunset. Clause 58 amends the Melbourne City Link Act 1995 to reflect the establishment of a discrete infringement notice regime for children under the Principal Act. Clause 59 amends the Mitcham-Frankston Project Act 2004 to reflect the establishment of a discrete infringement notice regime for children under the Principal Act. Clause 60 amends the Bail Act 1977 by inserting a new section 5A. That section empowers the County or Supreme Court upon adjournment of criminal proceedings involving a defendant undergoing a sentence in a youth training centre to direct that the defendant be returned to that centre until the resumption of the hearing or expiry of the sentence of detention, whichever occurs sooner. It also permits the Court, upon the end of a sentence of detention where the proceedings have been adjourned, to either grant bail or refuse bail and direct that the defendant be brought before it for a bail hearing. Clause 61 repeals sections 7, 8, 9, 11, 13(b), 14, 16 and 17(b) of the Children and Young Persons (Age Jurisdiction) Act 2004. Clause 62 makes a statute law revision to section 10(3) of the Children and Young Persons (Koori Court) Act 2004 by adding a reference to section 8(3)(c). 27

 


 

 


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