Victorian Current Acts Victorian Current ActsSchedule 2—Interstate transfer of young offenders
1 Definitions
In this Schedule—
"agreement" means an agreement between the Minister and a Minister of another State under clause 2;
"arrangement" means an arrangement made under clause 3 for the transfer of a young offender from Victoria to another State, or to Victoria from another State;
"Minister", in relation to a State other than Victoria, means—
(a) except where the other State is the Australian Capital Territory or the Northern Territory of Australia—a Minister of the Crown of that State; and
(b) where the other State is the Australian Capital Territory—a Minister of the Crown of the Commonwealth; and
(c) where the other State is the Northern Territory of Australia—a person holding Ministerial office, as defined in section 4(1) of the Northern Territory (Self-Government) Act 1978 of the Commonwealth;
"receiving State" means the State to which a young offender is transferred;
"sending State" means the State from which a young offender is transferred;
"State" means any State or Territory of the Commonwealth;
"young offender" means a person—
(a) in another State who—
(i) is under the age of 18 years; or
(ii) is of or above the age of 18 years but under the age of 21 years and who has committed or is alleged to have committed an offence when the person was under the age of 18 years—
and who has been dealt with under a law which applies in that State and which relates to the welfare or punishment of such a person; or
(b) in Victoria who—
(i) is subject to an order made under paragraph (f), (g), (h), (i) or (j) of section 360(1), whether the order was made by the Children's Court or by some other court; or
(ii) is under the age of 21 years and is serving a sentence of detention in a youth justice centre; or
(iii) is under the age of 21 years and has been released on parole under this Act; or
(c) who is in Victoria and is subject to an arrangement for the transfer of the person to Victoria or is being transferred through Victoria from one State to another under an agreement.
2 Minister may enter into general agreement
The Minister may enter into a general agreement with a Minister of another State for the transfer of young offenders—
(a) into or out of Victoria; and
(b) through Victoria from one State to another.
3 Secretary may make arrangements
If the Minister enters into an agreement with a Minister of another State, the Secretary may make an arrangement with the Minister of the other State, or with a person authorised by that Minister as provided in the agreement, for the transfer of a particular young offender—
(a) to that State from Victoria; or
(b) to Victoria from that State.
4 Arrangement for transfer out of Victoria
(1) The Secretary must not make an arrangement for the transfer of a young offender from Victoria to another State unless—
(a) the young offender or a parent of the young offender applies for the transfer to be made; and
(b) the Secretary is of the opinion that the transfer is appropriate in all the circumstances including—
(i) the place or intended place of residence of the parents; and
(ii) the education, further education, training or employment; and
(iii) the medical or other needs—
of the young offender; and
(c) the young offender has been given independent legal advice as to the effect of the arrangement and consents to it; and
(d) the Secretary is satisfied that there is no appeal pending against an order of a court to which the young offender is subject.
(2) For the purposes of deciding whether or not to arrange for the transfer of a young offender from Victoria to another State, the Secretary may ask—
(a) the young offender; or
(b) the parents of the young offender—
for any necessary information, and the young offender or parents must supply the information within the time specified by the Secretary.
5 Arrangement for transfer to Victoria
The Secretary must not make an arrangement for the transfer of a young offender from another State to Victoria unless the Secretary is satisfied that there are adequate facilities in Victoria for the young offender to be accepted and dealt with as provided in the arrangement.
6 Provisions to be made in each arrangement
(1) An arrangement for the transfer of a young offender to or from Victoria must—
(a) provide for the acceptance and means of dealing with the young offender in the receiving State; and
(b) specify each order of a court of the sending State to which the young offender is subject (including an order deemed by a previous arrangement with Victoria or with another State to have been made by a court of the sending State); and
(c) for each order specified under paragraph (b)—
(i) specify the way in which it is to operate in the receiving State, which must be as similar as possible to the way in which it would operate in the sending State if the arrangement were not made; and
(ii) specify the maximum time for which it is to operate, which must not be longer than the maximum time for which it would operate in the sending State if the arrangement were not made.
(2) An arrangement made by the Secretary for the transfer of a young offender from Victoria to another State must provide for the escort under clause 7(1)(b) to be authorised in that State to hold, take and keep custody of the young offender for the purpose of transferring the young offender to the place and the custody specified in the arrangement.
(3) A reference in subclause (1) to an order of a court of a sending State is a reference to any sentence, period of detention, probation, parole or other order which could be made or imposed by that court.
7 Transfer order made under an arrangement
(1) If the Secretary makes an arrangement under this Schedule for the transfer of a person to another State, he or she must make a transfer order which—
(a) directs the person who has the custody of the young offender to deliver the young offender to the custody of the escort; and
(b) authorises the escort to take and keep custody of the young offender for the purpose of transferring the young offender to the place in the receiving State and to the custody specified in the arrangement.
(2) A reference in subclause (1) to a person having the custody of a young offender is a reference to—
(a) a person in charge of a remand centre, youth residential centre, youth justice centre or youth justice unit; or
(b) a person in charge of any other establishment conducted and managed by the Department; or
(c) any other person who has custody of the young offender.
(3) A reference in subclause (1) to an escort is a reference to a youth justice officer, a member of the police force or a person appointed by the Secretary by an instrument in writing to be an escort for the purposes of this Schedule, or any two or more of them.
8 Transfer to Victoria in custody of escort
If under an arrangement for the transfer of a young offender to Victoria an escort authorised under the arrangement brings the young offender to Victoria, the escort, while in Victoria, is authorised to hold, take and keep custody of the young offender for the purpose of transferring the young offender to the place in Victoria and to the custody specified in the arrangement.
9 Reports
(1) For the purpose of forming an opinion or exercising a discretion under this Schedule, the Secretary may be informed as he or she thinks fit and, in particular, may have regard to reports from any person who has or has had the custody or supervision of a young offender in Victoria or in another State.
(2) Reports of any person who has or has had the custody or supervision of a young offender may be sent to a Minister of another State who has entered into an agreement or to a person authorised under an agreement to make arrangements with the Secretary.
10 Transfer of sentence or order with transferee
If under an arrangement a young offender is transferred from Victoria to another State, then from the time the young offender arrives in that State any sentence imposed on, or order made in relation to, the young offender in Victoria before that time ceases to have effect in Victoria except—
(a) in relation to any period of detention served by the young offender before that time; or
(b) in relation to any part of the order carried out in respect of the young offender before that time; or
(c) in relation to the remittance of money to the Minister which is paid in discharge or partial discharge of a sentence of default detention or default imprisonment originally imposed on the young offender by a court in Victoria.
11 Sentence etc. deemed to have been imposed in this State
If under an arrangement a young offender is transferred to Victoria from another State, then from the time the young offender arrives in Victoria—
(a) any sentence imposed on, or order made in relation to, the young offender by a court of the sending State and specified in the arrangement is deemed to have been imposed or made; and
(b) any sentence or order deemed by a previous arrangement with Victoria or with another State to have been imposed or made by a court of the sending State and specified in the arrangement under which the young offender is transferred to Victoria is deemed to have been imposed or made; and
(c) any direction or order given or made by a court of the sending State concerning the time when anything to be done under an order made by a court of that State commences is, so far as practicable, deemed to have been given or made—
by the court in Victoria specified in the arrangement and, except as otherwise provided in this Schedule, has effect in Victoria as specified in the arrangement in accordance with clause 6, and the laws of Victoria apply, as if that court had had power to impose the sentence and give or make the directions or orders, and did in fact impose the sentence and give or make the directions or orders.
12 Lawful custody for transit through Victoria
(1) The Secretary may authorise the person in charge of a remand centre, youth residential centre, youth justice centre or youth justice unit or any other person to receive young offenders being transferred through Victoria from one State to another.
(2) If under an agreement for the transfer of young offenders through Victoria from one State to another, a young offender is brought into Victoria by an escort authorised as provided in the agreement—
(a) while in Victoria, the escort is authorised to take, hold and keep custody of the young offender for the purposes of the transfer; and
(b) a person authorised under subclause (1) may at the request of the escort and on receiving from the escort written authority for the transfer as provided in the agreement—
(i) receive and detain the young offender in the custody and for the time the escort requests, if it is reasonably necessary for the purposes of the transfer; and
(ii) at the end of that time deliver the young offender into the custody of the escort.
13 Escape from custody of person being transferred
(1) A young offender being transferred through Victoria from one State to another in the custody of an escort and who escapes from that custody may be apprehended without warrant by the escort, any member of the police force or any other person.
(2) If a young offender being transferred through Victoria from one State to another in the custody of an escort—
(a) has escaped and been apprehended; or
(b) has attempted to escape—
the young offender may be taken before a magistrate who may by warrant under his or her hand order the young offender to be detained in custody at a remand centre, youth residential centre or youth justice centre.
(3) A warrant issued under subclause (2) may be executed according to its tenor.
(4) A young offender who is the subject of a warrant under subclause (2) must as soon as possible be brought before the Magistrates' Court or the Children's Court (as the case requires) which may order—
(a) that the young offender be delivered to the custody of an escort; or
(b) that the young offender be detained for no longer than 7 days until an escort is available from the sending State to carry out the arrangement or any orders made by a court of that State.
(5) If a young offender who is the subject of an order under subclause (4)(b) is not, in accordance with the order, delivered into the custody of an escort within a period of 7 days from the making of the order, the order has no further effect.
(6) A reference in this clause to an escort in relation to a young offender being transferred through Victoria from one State to another under an agreement is a reference to—
(a) the escort authorised in the manner provided for in the agreement; or
(b) if the young offender has escaped or attempted to escape—
(i) that escort; or
(ii) a member of the police force of the sending State; or
(iii) a person appointed by the Minister of the sending State by instrument in writing to be an escort for the purposes of carrying out any orders of a court of the sending State—
or any two or more of them.
14 Escape from custody—penalty
(1) A young offender—
(a) who is in custody under an arrangement made for his or her transfer from Victoria to another State; and
(b) who was subject before the arrangement to detention in Victoria; and
(c) who escapes or attempts to escape from that custody while he or she is not within Victoria or the receiving State—
is guilty of an offence and is liable to imprisonment for a term not exceeding six months or to detention in a youth residential centre or youth justice centre for a term not exceeding six months, to be served after the end of any term of detention to which he or she was subject at the time of the escape or attempt to escape.
(2) Without limiting the generality of section 483, that section applies to a person—
(a) who is in custody under an arrangement for the transfer of the person from Victoria to another State; and
(b) who escapes from that custody while he or she is not within Victoria or the receiving State—
in the same way as it applies to a person who escapes, attempts to escape or is absent without lawful authority from a remand centre, youth residential centre or youth justice centre in which he or she is lawfully detained or from the custody of any person in whose custody the person may be.
15 Revocation of order of transfer on escape from custody
The Magistrates' Court or Children's Court may revoke an order made under an arrangement for the transfer of a young offender from Victoria to another State on application made to it under this clause by the Secretary that the young offender has, while being transferred, committed—
(a) the offence of escaping or attempting to escape; or
(b) any other offence—
whether—
(c) the offence was an offence against the law of Victoria or of the receiving State or of a State through which the young offender was being transferred; or
Sch. 2 cl. 15(d) amended by No. 68/2009 s. 87(2).
(d) a charge-sheet has been filed or a conviction secured in respect of the offence or not.
16 Revocation of order of transfer by consent
(1) The Secretary may revoke an order for the transfer of a young offender from Victoria to another State—
(a) at any time before the young offender is delivered in the receiving State into the custody specified in the arrangement; and
(b) only with the consent of the young offender and of the Minister or other person in the receiving State with whom the Secretary made the arrangement.
(2) If the Secretary revokes an order under
subclause (1), the Secretary may make a further arrangement with the
receiving State for the return of the young offender to Victoria.
Sch. 3 substituted by No. 48/2006 s. 29.