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Children, Youth and Families
Amendment (Youth Offender
Compliance) Bill 2018
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill amends the Children, Youth and Families Act 2005 to--
• require the Youth Parole Board to include in its Annual Report
a statement of the purpose of parole and the general principles
and factors the Board takes into account when making
decisions about parole;
• make clear the Youth Parole Board's power to impose special
conditions on a parole order and validate past decisions of the
Youth Parole Board to impose special conditions on parole
orders and any decisions made in relation to those conditions;
• establish a trial of electronic monitoring as a condition on
parole orders for certain young people on parole for serious
offences;
• establish a trial of an alcohol and other drug testing regime for
youth parolees;
• require the Secretary to have those trials evaluated and
reports presented to the Minister within two years of their
commencement and for the Minister to table the evaluation
reports in Parliament;
• repeal the electronic monitoring and alcohol and other drug
testing provisions after three years of operation (unless the
Parliament determines to continue or vary their operation
after consideration of the evaluation report);
581502 1 BILL LA INTRODUCTION 25/7/2018
• ensure that Youth Parole Board decisions to transfer a person
from a youth justice custodial facility to prison will continue to
apply to new custodial sentences imposed on appeal;
• make clear that family law jurisdiction conferred upon
the Children's Court under the Family Law Act 1975 of the
Commonwealth would be exercised in the Family Division of
the Court, and allow the Children's Court to make rules for the
purpose of exercising that jurisdiction; and
• make some statute law revisions.
The Bill also makes--
• amendments to address some issues that have emerged with
amendments made to the Children, Youth and Families
Act 2005 and the Bail Act 1977 by the Children and Justice
Legislation Amendment (Youth Justice Reform) Act 2017;
• a consequential amendment to the Surveillance Devices
Act 1999 to enable the conduct of the electronic monitoring
trial; and
• an amendment to the Children Legislation Amendment
(Information Sharing) Act 2018 to exclude courts, tribunals
and other persons and bodies specified in section 41T of the
Child Wellbeing and Safety Act 2005 from the definition of
information holder in the Children, Youth and Families
Act 2005.
Clause Notes
Part 1--Preliminary
Clause 1 sets out the main purposes of the Bill. These are to amend the
Children, Youth and Families Act 2005 in relation to parole
together with some other matters, which are summarised in the
overview above.
Clause 2 is the commencement provision. It provides--
• Part 1 and clauses 5 and 22 and Division 4 of Part 2 of
the Bill commence on the day the Bill receives Royal
Assent;
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• Parts 4 and 6 and Division 5 of Part 2 of the Bill
commence on the day after the day on which the Bill
receives Royal Assent;
• the other provisions in the Bill (other than Part 7) will
commence on 30 June 2019 if they have not already
been proclaimed to commence on an earlier day or days;
and
• Part 7 of the Bill, which sets out repeal provisions for
the electronic monitoring and alcohol and drug testing
provisions in the Bill, will commence on 30 June 2022.
Clause 3 provides that in the Bill the Children, Youth and Families
Act 2005 is called the Principal Act.
Part 2--Amendment of the Children, Youth and
Families Act 2005
Division 1--Purpose and principles of, and conditions on, parole
Clause 4 amends section 452(1) of the Principal Act by inserting a new
paragraph (c), which will require the Youth Parole Board to
include in its annual report a statement of the purposes of parole
and the general principles and factors the Board takes into
account when making decisions in relation to parole.
Clause 5 amends section 458(4) of the Principal Act by inserting a
new paragraph (c), which makes clear the Youth Parole Board
has power to impose special conditions on a parole order.
Special conditions may involve, e.g. a curfew, geographic
exclusion zones or attendance at treatment, counselling or
programs.
Division 2--Electronic monitoring
Clause 6 applies the broader definition of conviction in the Principal Act
to Part 5.5 in addition to Part 5.4. This definition includes a
finding of guilt, whether or not a conviction is recorded.
Clause 7 amends section 455(1) of the Principal Act by inserting a new
paragraph (c), which extends the Youth Parole Board's obligation
to notify Victoria Police of the release of a youth parolee
convicted of one or more serious youth offences to include
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advice on whether an electronic monitoring requirement has been
attached to a condition of the parole order.
Clause 8 amends section 458A of the Principal Act by inserting new
subsections (2A), (3)(i)(v) and (4) to (8). Section 458A of the
Principal Act lists mandatory parole conditions for a class of
serious youth offenders, who are defined in that section.
These new subsections require the Youth Parole Board to
impose an electronic monitoring requirement on a person to
monitor their compliance with a condition in that list if the
Youth Parole Board is satisfied of certain matters.
The new subsections also add a curfew condition to the list of
parole conditions that the Youth Parole Board must impose on
certain serious youth offenders if it considers it appropriate in
the circumstances of the relevant offence.
The new section 458A(2A) requires the Youth Parole Board to
attach an electronic monitoring requirement to a condition of a
youth parole order where the Board is satisfied it is appropriate
to do so in all the circumstances taking into account--
• the risk of the parolee re-offending;
• the extent to which the electronic monitoring and parole
condition to which it is attached may assist to reduce the
risk of the parolee re-offending;
• the extent to which electronic monitoring may have a
negative effect on the parolee's rehabilitation; and
• whether the Secretary to the Department of Justice and
Regulation has the necessary resources and facilities
available to enable electronic monitoring of the parolee.
New section 458(3)(i)(v) includes a curfew condition in the
list of conditions that the Youth Parole Board must consider
imposing on certain serious youth offenders. This enables
the condition, when imposed, to be subject to an electronic
monitoring requirement.
New section 458A(4) includes the following additional
conditions on a parole order to which the Youth Parole Board
has attached an electronic monitoring requirement--
• the parolee must comply with any direction given by the
Board or the Secretary under subsection (5);
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• with limited exceptions (dealt with in subsections (6)
and (7) below), the parolee must be monitored and wear
an electronic monitoring device 24 hours a day;
• the parolee must not tamper with, damage, disable or
remove a monitoring device or other equipment used
for electronic monitoring (such as a base station used to
monitor their presence at their residence under a curfew
condition); and
• the parolee must allow the Secretary to visit their
residence at any reasonable time and for any purpose
including installing, repairing, fitting or removing any
monitoring device or related equipment (Note: the
Secretary is able to delegate this power under existing
section 17 of the Principal Act).
New section 458A(5) empowers the Youth Parole Board or
the Secretary to give a parolee subject to an electronic monitoring
condition such directions as the Board or Secretary considers
necessary for the electronic monitoring of compliance with the
condition.
New section 458A(6) gives the Secretary the power to grant
the parolee a temporary exemption from the 24 hour electronic
monitoring condition and allow the temporary removal of a
monitoring device in appropriate circumstances.
New section 458A(7) allows the removal of a monitoring device
without explicit permission in emergency circumstances that
make removal of the device necessary. The accompanying
example notes the need for surgery or other medical attention as
a potential emergency circumstance.
New section 458A(8) makes clear that if an electronic monitoring
device is removed under subsection (7), this is intended to be a
temporary removal and the device must be fitted again as soon as
is practicable in all the circumstances.
Clause 9 inserts a reference to new section 460D into section 460 of the
Principal Act, stating that the power to cancel parole is subject to
new section 460D.
Clause 10 inserts new section 460D, which establishes particular
consequences for the breach of parole while subject to an
electronic monitoring condition. The Youth Parole Board
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must determine to cancel parole in certain situations, unless it is
satisfied that circumstances exist that justify the continuation of
parole.
The new section provides that these situations are--
• a failure to comply with any condition of the parole
order to which an electronic monitoring requirement has
been attached;
• a failure to comply with one of the conditions of parole
that new section 458A(4) inserts in any parole order that
features an electronic monitoring condition; and
• the person, while on parole, is charged with or
convicted of any further Category A serious youth
offence or Category B serious youth offence committed
or alleged to have been committed when the young
person was aged 16 years or over.
Clause 11 inserts new Divisions 6 and 7 in Part 5.5 of the Principal Act.
New Division 6 deals with the removal of electronic monitoring
devices and equipment.
The new section 461AA(1) sets out the circumstances in which
an electronic monitoring device or equipment can be removed.
The removal provisions apply if--
• the condition to which the electronic monitoring
requirement is attached to is varied to remove the
requirement or revoked;
• the parolee's parole is cancelled or elapses;
• the Secretary has given the parolee a temporary
exemption from wearing the device under the new
section 458A(6); or
• its removal is necessary under the new section 458A(7)
due to emergency circumstances.
New section 461AA(2) establishes that the removal provisions
also apply if a parolee subject to an electronic monitoring
condition is under arrest on suspicion of having committed an
offence.
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The new section 461AA(3) provides that an officer may, subject
to subsection (6), remove a device worn by the parolee as soon
as practicable or any equipment used for electronic monitoring
at the parolee's residence or on their body or in their possession
after the variation or revocation of the relevant condition or
cancellation or elapse of the parole order. Officer is defined at
subsection (11).
The new section 461AA(4) provides that an officer may remove
a device worn by parolee as soon as practicable or any equipment
used for electronic monitoring at the parolee's residence or on
their body or in their possession after the temporary exemption is
given under subsection (1)(d).
In the case of an emergency removal under subsection
461AA(1)(e), new subsection (5) makes it clear that any person
can remove the device in an emergency.
The new section 461AA(6) provides that an officer may only
exercise the powers under the new subsection (3) on the direction
of the Youth Parole Board or the Secretary.
The new section 461AA(2) and (7) provide that a police officer
may remove an electronic monitoring device from a parolee for
any purpose when the parolee is arrested on suspicion of having
committed an offence. The fact of the arrest is enough to justify
the removal of the device.
The new section 461AA(8) requires an officer, if practicable,
before removing an electronic monitoring device worn by a
parolee or equipment used to monitor a parolee, to inform the
parolee--
• about the removal;
• that they may consent to the removal; and
• if they don't consent to the removal, reasonable force
may be used to remove the device or equipment or enter
the parolee's residence to remove the device or
equipment.
The new section 461AA(9) empowers an officer, where a parolee
does not consent, to use reasonable force to remove the device or
equipment or enter the parolee's residence to remove the device
or equipment.
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The new section 461AA(10) provides that nothing in the
new section 461AA affects the power to remove a device or
equipment used for electronic monitoring of a parolee under,
or for a purpose referred to in, the new section 458A(4).
The new section 461AA(11) defines the following terms for the
purpose of the new section 461AA--
• officer to mean a police officer, a police custody officer
or a person or category or class of person authorised
under the new section 461AB;
• police custody officer to have the same meaning as in
the Victoria Police Act 2013.
The new section 461AB empowers the Secretary to authorise,
by instrument the following people to exercise the powers of an
officer under the new section 461AA--
• a specified Departmental employee or employee holding
a specified position in the Department;
• a specified category of Departmental employees;
• a specified contractor or sub-contractor of the
Department or specified employees or category of
employees of the specified contractor or sub-contractor.
The new Division 7 of Part 5.5 of the Principal Act regulates
the use and disclosure of information about, or derived from,
the electronic monitoring of youth parolees and includes new
sections 461AC to 461AF.
The new section 461AC defines the following terms for the
purposes of the new Division 7--
• electronic monitoring information
• relevant person.
The new section 461AD provides that a relevant person may use
or disclose electronic monitoring information where--
• such use or disclosure is reasonably necessary for--
• the relevant person to perform their duties or
functions in providing advice to and assisting the
Youth Parole Board; or
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• the administration or implementation of a parole
order by the relevant person; or
• the relevant person believes on reasonable grounds that
such use or disclosure is necessary--
• to reduce the risk of a parolee committing a
serious offence; or
• to minimise or prevent a threat to any person's
life, health, safety or welfare; or
• for law enforcement purposes, including
detecting, investigating, prosecuting, preventing
or reducing the risk of offending and other
breaches of the law; or
• to prepare for, conduct or participate in criminal
proceedings before any court, legal proceedings
before a tribunal or a coronial inquest or
investigation; or
• the parolee who is being electronically monitored
requests or grants permission for the use or disclosure;
• the Minister authorises the use or disclosure;
• the use or disclosure is for the purpose of reporting to,
or briefing, the Minister.
The new section 461AE makes it an offence to use or disclose
electronic monitoring information in circumstances other than
those authorised under the new section 461AD. The maximum
penalty for such an offence is 120 penalty units.
The new section 461AF provides that new Division 7 does not
affect the use or disclosure of information--other than electronic
monitoring information--that would otherwise be permitted
under the Privacy and Data Protection Act 2014, Health
Records Act 2001, the Principal Act or any other legislation.
Clause 12 inserts a new Schedule 1A to the Principal Act.
New Schedule 1A sets out the persons authorised to use or
disclose electronic monitoring information, i.e. a relevant person
for the purposes of the new Division 7 of Part 5.5. It is divided
into two Parts. Part 1 lists such persons from Victorian entities
and Part 2 such persons from entities outside of Victoria.
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Division 3--Alcohol and drug testing
Clause 13 inserts a new section 458B in the Principal Act. The new
section 458B establishes an alcohol and drug testing regime
for youth parolees.
The new section 458B(1) empowers the Secretary to the
Department of Justice and Regulation to direct a youth parolee
subject to an abstinence, treatment or testing condition under
their parole order, to submit to tests to assess whether they have
consumed or used alcohol, drugs of dependence, a Schedule 8
Poison or a Schedule 9 Poison. These latter two terms are
defined in the new section 458(B)(6) to have the same meaning
as under the Drugs, Poisons and Controlled Substances
Act 1981.
The new section 458B(2) provides that the tests referred to under
the new section 458B(1)--
• must be of a kind approved by the Secretary;
• may include the taking of samples of urine; and
• may be conducted or supervised by an officer where the
Secretary so directs.
The Secretary is empowered under the new section 458B(3) to
give a direction that an officer conduct or supervise a test where
the Secretary considers it necessary to ensure the reliability and
accuracy of the test.
The new section 458B(4) requires an officer of the same gender
as the parolee to conduct or supervise a urine test unless the
parolee requests that the officer be of a different gender.
The new section 458B(5) provides that the new subsection (4)
need not be complied with where it is impracticable to do so.
The new section 458B(6) defines the following terms for the
purposes of the new section 458B--
• abstinence, treatment or testing condition to mean a
condition of parole that requires the parolee to do one or
more of the following--
• not consume alcohol;
• be assessed or treated for alcohol or drug abuse
or dependency; or
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• submit to alcohol or drug tests while released
on parole.
• officer to mean a person who is a youth justice
officer, an officer within the meaning of Part 9 of
the Corrections Act 1986 (such as a community
corrections officer) or a person or class of person
authorised by the Secretary.
And as noted above, Schedule 8 Poison and Schedule 9 Poison
are given the same meaning as under the Drugs, Poisons and
Controlled Substances Act 1981.
Division 4--Continuation of direction to transfer young person
to prison
Clause 14 inserts a note after section 426(2) of the Principal Act directing
readers to new sections 467(5), 468(4) and 473(9).
Clause 15 inserts an identical note to the one inserted by clause 14 at the
foot of section 429(2) of the Principal Act.
Clause 16 inserts an identical note to the one inserted by clause 14 at the
foot of section 429C(2) of the Principal Act.
Clause 17 amends section 467 of the Principal Act which details the Youth
Parole Board's power to transfer a young person to prison.
New subsection (5) states that if such a direction has been
made, and if it is current at the time the young person appeals the
sentence in respect of which they have been transferred to prison,
then a new sentence imposed on appeal will not displace the
Board's direction. Without this subsection, any new sentence
of detention substituted by an appellate court would operate to
return the young person to a youth justice centre and require the
Board to re-make that direction.
New subsection (6) clarifies that a direction of the Youth Parole
Board referred to in new subsection (5) remains current at the
time of an appeal, irrespective of whether the person referred
to in new subsection (5) is released on bail pending the
determination of the appeal.
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New subsection (7) clarifies that a direction of the Youth
Parole Board that is continued under new subsection (5) does not
displace sections 471 and 472 of the Principal Act, which allow
the Adult Parole Board to transfer a young person in a prison to a
youth justice centre or youth residential centre.
Clause 18 amends section 468 of the Principal Act which allows a young
person to request a transfer to prison.
New subsection 468(4) states that if such a request has been
granted, and if the direction is current at the time the young
person appeals the sentence in respect of which they have been
moved to prison, then a new sentence imposed on appeal will
not displace the Youth Parole Board's direction. Without this
subsection, any new sentence of detention substituted by an
appellate court would operate to return the young person to a
youth justice centre and require the young person to re-make
their request for a transfer to prison.
New subsection (5) clarifies that a direction of the Youth Parole
Board referred to in new subsection (4) remains current at the
time of an appeal, irrespective of whether the person referred
to in new subsection (4) is released on bail pending the
determination of the appeal.
New subsection (6) clarifies that a direction of the Youth Parole
Board that is continued under new subsection (4) does not
displace sections 471 and 472 of the Principal Act, which allow
the Adult Parole Board to transfer a young person in a prison to a
youth justice centre or youth residential centre.
Clause 19 amends section 473 of the Principal Act which details the
Youth Parole Board's power to return a young person to prison,
following a transfer to youth detention from prison.
New subsection (9) states that if such a direction has been
made, and if it is current at the time the young person appeals the
sentence in respect of which they have been returned to prison,
then a new sentence imposed on appeal will not displace the
Board's direction. Without this subsection, any new sentence
of detention substituted by an appellate court would operate to
return the young person to a youth justice centre and require the
Board to re-make that direction.
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New subsection (10) clarifies that a direction of the Youth
Parole Board referred to in new subsection (9) remains current
at the time of an appeal, irrespective of whether the person
referred to in new subsection (9) is released on bail pending the
determination of the appeal.
New subsection (11) clarifies that a direction of the Youth
Parole Board that is continued under new subsection (9) does not
displace sections 471 and 472 of the Principal Act, which allow
the Adult Parole Board to transfer a young person in a prison to a
youth justice centre or youth residential centre.
Division 5--Exercise of jurisdiction conferred under the
Family Law Act 1975 of the Commonwealth
Clause 20 inserts section 515(3) into the Principal Act to provide that the
Family Division of the Children's Court has any jurisdiction
given to the Children's Court by or under the Family Law
Act 1975 of the Commonwealth.
Clause 21 inserts section 588(1)(ba) into the Principal Act to empower the
Children's Court to make rules in relation to any matter relating
to the jurisdiction of the Family Division of the Court granted
under new section 515(3) of the Principal Act.
Division 6--Transitional and validation provisions
Clause 22 inserts new sections 632 and 633 in the Principal Act.
New section 632 validates--
• the Youth Parole Board's imposition of special
conditions on any past parole orders from 23 April 2007
(when the Board's power to make parole orders under
the Principal Act came into operation) until the day
clause 5 of the Bill comes into operation, i.e.: the day
the Bill receives Royal Assent under clause 2 of the Bill
(defined as the relevant period for the purposes of this
clause); and
• any decisions the Board made or action it took over the
relevant period in relation to an alleged or purported
breach of such a special condition.
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New section 633 sets out the transitional operation of the
provisions relating to the Youth Parole Board directions to
transfer a young person to prison. New sections 467(5), 468(4)
and 473(9) operate to ensure that any Youth Parole Board
direction that is in force when a new custodial sentence is
imposed on appeal will continue to operate. This transitional
provision applies the new provisions to any sentence imposed
following an appeal on or after the day these provisions
commence. These provisions will commence on the day
this Act receives Royal Assent.
Clause 23 inserts new sections 638 and 639 in the Principal Act.
New section 638 sets out the transitional operation of the
provisions that establish electronic monitoring. New section
638(1) provides that the provisions will apply to any parole order
made on or after the day on which the provisions commence.
The Youth Parole Board will be able to include an electronic
monitoring condition on any eligible parole order made on or
after that day, regardless of when the offence to which the parole
order relates was committed. This will be the case whether this is
a grant of parole (either new or repeated), or an amendment or
variation of parole.
New section 638(2) explains the transitional operation of the
provisions that require the Youth Parole Board to cancel parole in
certain situations. When a young person subject to an electronic
monitoring condition is charged with or convicted of a Category
A serious youth offence or Category B serious youth offence, it is
irrelevant whether that offence was committed or alleged to have
been committed before or after the commencement of these
provisions. However, new section 460(D)(1)(c) does require that
the young person be aged 16 years or over at the time the offence
was committed or was alleged to have been committed.
New section 639 sets out the transitional operation of the
provisions that establish alcohol and drug testing. Once the
provisions commence, they will apply to any current parole order
that contains an abstinence, treatment or testing condition--
regardless of when that parole order was made.
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Division 7--Miscellaneous
Clause 24 gives effect to some minor statute law revisions to the Principal
Act.
Part 3--Report on electronic monitoring and alcohol and
drug testing provisions
Clause 25 requires--
• the Secretary to provide the Minister evaluation reports
of the trials of electronic monitoring and drug and
alcohol testing in the youth parole system within two
years of the commencement of those trials; and
• the Minister to table those reports in both Houses of
Parliament within five sitting days of the Minister
receiving the reports.
Part 4--Amendments related to Children and Justice
Legislation Amendment (Youth Justice Reform) Act 2017
Division 1--Amendment of the Children, Youth and Families
Act 2005
Clause 26 amends the definition of offence involving an assault in
section 3(1) of the Principal Act to refer to section 18
(intentionally or recklessly causing injury) of the Crimes
Act 1958.
Clause 27 amends the service requirements for applications for revocations
of youth control orders in section 409Q of the Principal Act.
Subclause (1) provides for a streamlined service model in
section 409Q(4) of the Principal Act. An application for
revocation is to be filed in the Children's Court by the applicant,
and, if the applicant is a child, the principal registrar is to serve a
copy of the notice of hearing on the Secretary to the Department
of Justice and Regulation. If the applicant is the Secretary to the
Department of Justice and Regulation, the Secretary to the
Department of Justice and Regulation is to serve a copy of the
notice of hearing on the child and, if the child is aged under
15 years, on the child's parent. If the applicant is a police officer,
the police officer is to serve a copy of the notice of hearing on the
Secretary to the Department of Justice and Regulation and the
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child and, if the child is aged under 15 years, on the child's
parent.
Subclause (2) maintains the power of the Children's Court
in section 409Q(6) of the Principal Act to order that a warrant to
arrest be issued against a child who does not attend for a hearing
of a youth control order revocation application.
Subclause (3) repeals Note 2 at the end of section 409Q(6) of the
Principal Act that relates to the service of documents. The same
note remains at the foot of section 409Q(4) of the Principal Act.
Clause 28 amends section 409R of the Principal Act which requires the
Children's Court to impose a sentence of detention on a child if
the Children's Court revokes a youth control order, unless the
Children's Court considers that detention is not appropriate
because exceptional circumstances exist.
Clause 28 requires the Children's Court to have regard to a
report on the child prepared by the Secretary to the Department
of Justice and Regulation when sentencing the child, in addition
to the existing requirements to 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.
Clause 29 amends section 413(3A)(b) of the Principal Act to provide
that where a child is convicted on the same day, or in the
same proceeding, of more than one offence, including an escape
from a youth residential centre, the period of detention imposed
on the child is to be cumulative with any other period of
detention, unless the Children's Court, at the time of sentencing,
states that the sentences are concurrent and gives reasons for its
decision.
Clause 29 also amends section 413(4A)(b) and (c) of the
Principal Act to provide that a term of detention in a youth justice
centre that is imposed on a child for an offence involving escape
from, or property damage to, a youth residential centre, must be
served cumulatively with any uncompleted sentence or sentences
of detention in a youth justice centre, unless the Children's Court,
at the time of sentencing, states that the sentences are concurrent
and gives reasons for its decision.
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Clause 30 inserts transitional provisions into the Principal Act.
New section 634 provides that the amendment made to the
definition of offence involving an assault in section 3(1) of
the Principal Act applies to the sentencing of an offender for an
offence alleged to have been committed on or after the day on
which the amendment commences.
New section 635 provides that the amendments made to
section 409Q of the Principal Act apply to an application for
revocation of a youth control order that is made on or after the
day on which those amendments commence, irrespective of
when the youth control order that is the subject of the revocation
application was made.
New section 636 provides that the amendments made to
section 409R of the Principal Act apply to the sentencing
of a person on or after the day on which those amendments
commence, irrespective of when the youth control order that has
been revoked was originally made or when the application for
revocation of the youth control order was made.
New section 637 provides that the amendments made to
section 413 of the Principal Act apply to the sentencing of an
offender for an offence alleged to have been committed on or
after the day on which those amendments commence.
Division 2--Amendment of Bail Act 1977
Clause 31 amends section 3C in the Bail Act 1977 by clarifying that when
a bail application is made under that Act in criminal proceedings
that relate to offences alleged to have been committed when an
accused was 18 years or older, and the accused was remanded in
custody as a child in a different criminal proceeding, the court
must consider particular factors when considering granting bail.
These factors do 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 32 inserts a transitional provision into the Bail Act 1977 that
provides for the amendment made to section 3C of the Bail
Act 1977 by clause 31 of the Bill to apply to a determination
made under the Bail Act 1977 that is made on or after the day on
which clause 31 commences, irrespective of whether the offences
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alleged to have been committed by the accused when the accused
was 18 years or older were committed prior to the day on which
clause 31 commenced.
Part 5--Amendment of Surveillance Devices Act 1999
Clause 33 amends section 8(2) of the Surveillance Devices Act 1999 by
inserting a new paragraph (ae). This provides an exemption
from the prohibition on installing, using or maintaining tracking
devices under that Act for the trial of the electronic monitoring
regime for serious youth offenders established under the Bill.
Part 6--Amendment of Children Legislation Amendment
(Information Sharing) Act 2018
Clause 34 amends the changes to the definition of information holder
made by section 16 of the Children Legislation Amendment
(Information Sharing) Act 2018 to section 3(1) of the Principal
Act, by clarifying that a person or body specified in section 41T
of the Child Wellbeing and Safety Act 2005 will not constitute
an information holder under the Principal Act. A person or body
specified in section 41T is excluded from the definition whether
or not the person or body is exercising a judicial or quasi-judicial
function.
Part 7--Repeal of electronic monitoring and alcohol and
drug testing provisions
Note: Clause 2(5) of the Bill commences the operation of Part 7 of the Bill on
30 June 2022, which is three years after the default commencement date of
the provisions it repeals and means the trial of electronic monitoring and
alcohol and drug testing will be conducted over a period of at least three
years.
Division 1--Repeal of electronic monitoring and alcohol and
drug testing provisions in the Principal Act
Clause 35 sunsets the trial of the electronic monitoring of serious
youth parolees on 30 June 2022. It does this by repealing the
amendments to the Principal Act that establish the trial.
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Clause 36 sunsets the trial of alcohol and drug testing of youth parolees on
30 June 2022. It does this by repealing the amendment to the
Principal Act made by clause 13 of the Bill, which establishes
the trial.
Division 2--Repeal of electronic monitoring provision in
Surveillance Devices Act 1999
Clause 37 sunsets the exemption from the prohibition on installing, using
or maintaining tracking devices under the Surveillance Devices
Act 1999 for the trial of the electronic monitoring regime for
serious youth offenders established under the Bill on 30 June
2022. It does this by repealing the amendment to that Act made
by clause 33 of the Bill.
Part 8--Repeal of amending Act
Clause 38 repeals this Bill on 30 June 2023. This is a longer period than
generally allowed for the repeal of a Bill amending a Principal
Act. However, it is necessary in this instance to ensure that the
requirements in Part 3 of the Bill to evaluate and report on the
trials of electronic monitoring and alcohol and drug testing in the
youth parole system, which are discrete from the Principal Act,
operate as intended. The note at the foot of this clause clarifies
that the repeal of the Bill will not affect the continuing operation
of the amendments made by it in accordance with section 15(1)
of the Interpretation of Legislation Act 1984.
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