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CLAUSE NOTES
Youth Justice (Miscellaneous Amendments) Bill 2012
Part 1 Preliminary
Clause 1 Short Title
Provides that the Bill will be cited as the Youth Justice (Miscellaneous Amendments) Act
2012
Clause 2 Commencement
Provides for the Bill to commence on a day or days to be proclaimed.
Part 2 Principal Act
Clause 3 Provides that, in the Bill, the Youth Justice Act 1997 is referred to as the Principal
Act.
Clause 4 Long title amended
The long title of the Principal Act is amended by omitting the word `punishment'
and replacing it with `sanctioning'. This amendment is for consistency with the
amendments to section 5 of the Principal Act by clause 7.
Clause 5 Section 3 amended (Interpretation)
This clause amends section 3 of the Principal Act, which contains definitions of
terms used in the Principal Act, by inserting the following definitions:
`Commissioner for Children' means the Commissioner for Children as
appointed under the Children, Young Persons and Their Families Act 1997.
'Community service' means attending or undertaking a community service
activity.
'Community service activity' means an activity that is approved under section
6A of the Principal Act.
`Controlled substance' has the same meaning as the Misuse of Drugs Act 2001.
`Director, Monetary Penalties Enforcement Service' is as defined under the
Monetary Penalties Enforcement Act 2005.
`Government Agency' is as defined under the Children, Young Persons and Their
Families Act 1997.
`Information-Sharing Entity' is as defined under the Children, Young Persons and
Their Families Act 1997.
`Nominated adult' provides a definition for the adults a youth may nominate.
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Clause 5 also amends section 3 of the Principal Act by inserting a new
subparagraph 3(b) (iiia) into the definition of `prescribed offence' so it is a
prescribed offence for a person who is 14 years of age or older to maintain a
sexual relationship with a young person under the age of 17 years as defined under
section 125A of the Criminal Code 1924. Prescribed offences are the most serious
offences a youth can commit and are heard in the Supreme Court.
The intent of this amendment is to not punish young people of a similar age who
are in a consenting sexual relationship that would not otherwise be criminal; this
provision is intended for the most serious offending and will provide greater
protections for the youngest and most vulnerable children in our society, by
allowing for appropriate sentences on older youths that commit these types of
offences.
Clause 5 substitutes the definition of 'responsible adult' to mean a nominated adult
in relation to the youth; or a justice of the peace if there is no nominated adult.
Clause 6 Section 4 amended (Objectives of Act)
Clause 6 amends the Objectives in section 4 of the Principal Act to replace
references to `punishment' with references to `sanctions'.
In the broadest sense a sanction is a penalty for wrongful action. However, unlike
punishment, which is only ever punitive, a sanction can be either reparative or
punitive. A reparative sanction links the nature of the penalty to the offence to be
sanctioned and can encourage the young person to take responsibility for his/her
actions. The use of `sanction' in the Objectives of the Act encourages the use of
reparative sanctions.
Clause 6 also amends section 4 by inserting a new paragraph (i) to emphasise the
Act's reparative justice focus. The new paragraph (i) ensures that a youth who has
committed an offence is provided with opportunities to repair any harm caused
and to reintegrate him/herself into the community.
Clause 7 Section 5 amended (General principles of youth justice)
Clause 7 amends the Principles in section 5 of the Principal Act to replace
references to `punishment' with references to `sanctioning', consistent with the
amendments made under Clause 6.
In addition the Principles have been amended by inserting a new paragraph (f) in
subsection (2) to encourage more involvement of an Aboriginal youth's cultural
community.
Clause 8 Section 6A inserted
After section 6 of the Principal Act, the following section is inserted in Part 1:
6A. Activities that may be performed as community service
Clause 8 inserts a new section 6A in the Principal Act. This clause strengthens the
requirements in respect of those activities that can be performed as a community
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service. The proposed new section 6A specifies that:
The Secretary is to approve the types of activities that can be undertaken for
the purpose of community service, other than for the purposes of section 10;
and
The Commissioner of Police is to approve the types of activities that can be
undertaken for the purpose of section 10 (Formal Caution)
This clause also provides for a non-exhaustive list of the types of activities that may
be approved. These include:
Education and training programs
Reintegration programs
Health and personal development programs
This clause also inserts paragraph 6A (4) which explains that the Secretary or
Commissioner for Police may not approve an activity under this section unless he
or she is of the opinion that the activity is suitable for youths to perform as
community service, and unless the activity is able to be provided to youths and
youths won't be paid for performing it.
Clause 9 Section 10 amended (Formal Caution)
This clause amends section 10(2) of the Principal Act by substituting a new
paragraph (c). This new paragraph differs from the current paragraph (c) by
specifying that the minimum age limit relating to youths undertaking community
service is 13 years and that an undertaking may include the new types of activities
specified in proposed new section 6A(3). This paragraph also provides that the
maximum amount of hours that can be entered into as community service after
one offence is 35 hours.
In addition subsection (2)(a)(ca) is inserted to enable a youth who is less than13
years of age to be subject to an undertaking to perform a specified period (of not
more than 35 hours) of community service programs that consist of training,
education, or health and personal development under proposed new section
6A(3)(a) or (c).
This clause also inserts a new subsection 10(2A) specifying that the maximum
number of hours that can be entered into for multiple offences is 70 hours, if the
youth is less than 16 (section 10(2A)(a)) or 210 hours if the youth is 16 years old
or more (section 10(2A)(b)).
The clause also inserts new subsection (2B) to provide that hours are to be applied
cumulatively to every undertaking.
The clause also amends subsection (8) and inserts a new subsection (8A). These
relate to the operation of new section 12A inserted by clause 11, where a youth
who does not substantially fulfil an undertaking, without reasonable excuse, may be
subject to further action under the Act.
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Clause 10 Section 11 amended (Caution administered by an Aboriginal Elder or
representative)
Clause 10 amends section 11 so that a formal caution `is to be, if practicable'
provided to an Aboriginal youth by an Aboriginal Elder or representative. This
emphasizes that the caution should be administered if practicable by an Aboriginal
Elder or representative. Currently the Principal Act only provides the caution `may'
be so administered.
Clause 11 Section 12A inserted
After section 12 of the Principal Act, the following section is inserted in Division 2:
12A. Where undertakings in formal caution not substantially performed
Clause 11 inserts a new section 12A. The purpose of this section is to provide an
appropriate response for a youth, who is 13 years or older, who fails without
reasonable excuse to substantially fulfil an undertaking that he or she was required
to enter under section 10. Currently, no further action can be taken. Under the
amendments, the authorised police officer;-
may decide to take no further action;
after consultation with the Secretary, may deal with the youth again under
section 9 of the Principal Act in relation to the offence. For example, the
policy officer could issue another formal caution, consider a community
conference, or file a complaint before the Court. In this event, the previous
undertakings in relation to the offence cease and the failure is disregarded, in
favour of the new actions to be taken.
Subsections (4) and (5) provide for an extension of time for a complaint for the
offence to be filed in the Court. This is because the usual limit is six months from
the date of the offence, and a youth's failure to fulfil an undertaking might occur
after that six month period had expired.
Clause 12 Section 14 amended (Convening of community conference)
Clause 12 amends section 14(2) (c) (ia) of the Principal Act to ensure that Youth
Justice Workers must be invited to a Community Conferences.
Clause 13 Section 16 amended (Powers of community conference)
This clause amends section 16(1)(e) of the Principal Act to reflect that a
community conference can only require a youth of 13 years or older to enter into
community service undertakings.
This clause substitutes section 16(3) of the Principal Act specifying that an
undertaking must not be required if the effect is that a youth's total undertakings
amount to more than 70 hours if the youth is aged between 13, 14 and 15; or 210
hours if the youth is 16 years old or more.
The clause also inserts into section 16 a new subsection (4) to provide that hours
are to be applied cumulatively to every undertaking.
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Clause 14 Section 19 amended (Procedure after a community conference)
Clause 14:
(a) omits paragraph (a) from subsection (1) and substituting it with (a) "file with the
district registrar each undertaking to pay compensation or make restitution
entered into by the youth ; and
(b) inserting subsection (1A) after (1) to provide if a undertaking is filed with the
District Registrar under (1)(a) the District Registrar must:
refer the undertaking to the Director of the Monetary Penalties
Enforcement Service for collection of the amount of compensation or
restitution; and
notify the Director of the Monetary Penalties Enforcement Service of
the date the undertaking was entered into.
(c) amends section 19(2) to provide that the Director of the Monetary Penalties
Enforcement Service, rather than the district registrar, must notify the Secretary if
a youth does not complete payment of compensation or the making of restitution
as required by the undertaking; and
(d) amends section 19(3) to provide that the Director of the Monetary Penalties
Enforcement Service, rather than the district registrar, must notify the Secretary if
a youth does not complete payment of compensation or the making of restitution
as required by the undertaking; and
(e) amends section 19(6) to legislate that when a youth has fulfilled all undertakings
the Secretary must file with the Commissioner of Police, rather than the district
registrar, a certificate stating this fact.
Clause 15 Section 22 amended (Confidentiality)
Clause 15 provides for the insertion of subsection (4A) into section 22 of the
Principal Act. This subsection provides that the confidentiality requirements of
subsection (1) do not apply if:
the youth consents in writing to their information being used for the purpose
of their rehabilitation or other related purposes; or
the information is shared between an information-sharing entity and a
Government Agency for the purpose of the rehabilitation of a youth or a
related purpose; or
the information is shared between an information-sharing entity and the
Commissioner for Children, or a Government Agency and the Commissioner
for Children.
This clause will provide increased clarity regarding the ability to share information
between Information-Sharing entities, Government Agencies and/or the
Commissioner for Children; which will assist Government during the policy making
process and result in better outcomes for young people.
Clause 16 Part 3: Heading amended
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Clause 16 amends the previous title of Part 3 of the Principal Act by changing the
title the title from `arrest and custody of suspected offenders', to `arrest, search,
bail and custody of youth'.
Clause 17 Section 24 amended (Limit on power of arrest)
Section 24 of the Principal Act limits the arrest powers given to police officers,
such as arrest powers under other Acts. Section 24 only applies in circumstances
where the police officer already has a power to arrest. A police officer can arrest
an adult for an offence, for example, in circumstances where section 24 limits the
officer's power to arrest a youth for the same offence.
In relation to section 24(a), a police officer may only arrest a youth in relation to
an offence if:
the arresting officer believes the offence that has been committed is serious
enough to warrant an arrest, and
also believes, on reasonable grounds, that the arrest is necessary to prevent
the continuation or repetition of the offence.
Section 24(a) may appear to limit the arrest to preventing repetition of an offence
that is the same as the original offence. Clause 17 amends section 24(a) to clarify
the intention that police may arrest an offending youth in relation to an offence if:
the arresting officer believes the offence that has been committed is serious
enough to warrant an arrest, and
also believes, on reasonable grounds, that the arrest is necessary to prevent
the continuation or repetition of the offence, or the commission of
another offence that (if it were committed by the youth) would be
sufficiently serious to warrant the youth being arrested in relation to that
offence.
Clause 18 Section 24A, 24B and 25C inserted
Clause 18 inserts new proposed sections 24A, 24B and 24C into the Principal Act.
24A. Duties of arresting police office
Proposed new section 24A explains that if a youth is arrested, the Criminal Law
(Detention and Interrogation) Act 1995, which provides for general provisions for
detention and interrogation, is modified so that:
a reference in that Act to the youth contacting a `friend' means the youth can
also contact a responsible adult.
a police officer must as soon as practicable inform the youth they have the
right to refuse to answer questions, or participate in investigations, except
where required to do so by or under an Act or an Act of the
Commonwealth; and ensure if practicable that the youth's guardian is notified
of the arrest.
For the avoidance of doubt, proposed new section 24A also stipulates that it does
not derogate from any other duties the police officer has under any law of the
State relating to investigation, interrogation, arrest, bail, remand and custody.
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24B. Conditions of bail
Section 24B provides that a court, justice or police officer who intends to admit a
youth to bail must have regard to the principles of the Principle Act so far as they
may apply to the youth's circumstances in deciding the conditions, if any, that are
to be placed on the bail. This is in addition to the limitations on conditions of bail
that apply under other laws.
24C. Breach of condition of bail
Section 24C provides for breaches of conditions of bail. Subsection (1) defines a
"relevant contravention" as a contravention by a youth, without reasonable cause,
of any condition of bail that has effect after the release of the youth from custody,
other than a contravention consisting of a failure to appear before a justice; or to
appear and surrender to a court as required under sections 5 or 7 of the Bail Act
1994'.
Subsection 2(a) has the effect that a relevant contravention is not an offence under
the Bail Act. However, subsection 2(b) clarifies that a court may take the
contravention into account in sentencing the youth for the offence in relation to
which the bail was granted. That is, a contravention could be considered an
aggravating sentencing factor.
While relevant contraventions will not be offences, the powers of arrest under
section 5(5A) or 10 of the Bail Act for contraventions of bail continue to apply. A
youth may therefore be arrested and have bail reconsidered in the usual way. This
is similar to the position in other jurisdictions such as New South Wales. To
ensure that bail can be reconsidered in the usual way, certain references to
offences in relevant Acts are modified by subsections (3) and (4).
Section 24C is designed so that conduct that would not otherwise be criminal
(such as breach of curfew conditions and so on) is not criminalised. The current
arrangement leads to additional police and court time proving bail offences, and an
extended criminal record for youths who contravene bail. The amendments
remedy this, while providing the contravening conduct can lead to arrest and
reconsideration of bail, and is relevant to sentencing for the original offence.
Clause 19 Section 25A inserted
After section 25 of the Principal Act, the following section is inserted in Part 3:
25A. Searches of youths
Clause 19 inserts section 25A into the Principal Act. Section 25A does not in itself
authorise searches, but provides for additional requirements to be prescribed in
regulations to apply where section 131 of the Principal Act, or another Act,
authorises a search of a youth in custody in custodial premises. For example, the
regulations might provide for who may conduct the search, observe the search,
detailed requirements for how and where a search is conducted, specific
requirements for different kinds of searches (for example, frisk searches, strip
searches, body cavity searches) and so on. Regulations may be scrutinised by
Parliament in the usual way.
Subsection (1) defines terms used in the section (body cavity search, custodial
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premises) and subsection (2) provides the section only applies to those youths held
in custody in custodial premises.
Subsection (3) provides that a search authorised by section 131 or any other Act
to which section 25A applies is only authorised if it is carried out in accordance
with the regulations. Subsection (4) clarifies that nothing in this section or the
regulations is to be taken to authorise a person to carry out a search if the search
is not authorised under section 131 or the Principal Act, or a provision of another
Act. Subsection (5) goes further, to specifically provide that neither section 25A or
the regulations can authorise a body cavity search, unless the the body cavity
search is specifically authorised under the other Act.
Clause 20 Section 31 amended (Restrictions on reporting proceedings)
Clause 20 amends section 31 of the Principal Act by inserting subsections (5) and
(6). These subsections enable information about youths obtained in legal
proceedings to be shared, if:
in relation to the restriction in subsection (1), relating to a general restriction
on publication, where the youth consents in writing to their information
being used for the purpose of their rehabilitation or other related purposes;
or
in relation to the restrictions in subsection (1) and (3), relating to Court
prohibition of publication:
o the information is only to be shared between an information-sharing
entity and a Government Agency for the purpose of the rehabilitation
of a youth or a related purpose; or
o the information is only to be shared between an information-sharing
entity and the Commissioner for Children, or a Government Agency
and the Commissioner for Children.
This clause will provide increased clarity regarding the ability to share information
between Information-Sharing entities, Government Agencies and/or the
Commissioner for Children; which will assist Government during the policy making
process and result in better outcomes for young people.
Clause 21 Section 33AA Inserted
33AA. Court may request oral presentence report
Clause 21 inserts section 33AA into the Principal Act to provide Courts with the
power to request oral presentence reports provided the Court believes it is
appropriate to do so.
If such a report is requested the Court may ask the Youth Justice Worker
questions, and the following sections of the Principal Act, which apply to written
reports, would not apply:
Presentence report (Section 33)
Disclosure of presentence report (Section 34)
Presentence report evidence (Section 35)
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Disputed presentence reports (Section 36)
If a presentence report is provided orally the youth, his or her legal representative
or the prosecutor:
may dispute the whole or any part of the report during the hearing; and
may provide evidence on any disputed matters, and if necessary request that
the matter be adjourned to enable this to occur; and
may require a person whose opinion is referenced by the Youth Justice
Worker to attend Court for the purpose of providing more information,
and if necessary the hearing is to be adjourned to enable this to occur; and
may ask the Youth Justice Worker or a person asked to attend questions;
and
must be allowed to cross examine the Youth Justice Worker regarding the
contents of the report.
Clause 22 Section 36A inserted
After section 36 of the Principal Act, the following section is inserted in Division 3:
36A. Victim Impact Statements
Clause 22 inserts section 36A into the Principal Act and defines terms used in the
section (immediate family, indictable offence, victim).
Section 36A provides that the victim of an indictable offence will be given an
opportunity to provide a written statement, if the youth is found guilty of an
offence punishable on indictment or an offence prescribed for this section, and
explains that the statement can include:
details of any injury, loss or damage suffered as a direct consequence of the
offence; and
describes the effects on victim that the offence has caused.
This section also allows for another person, other than the victim to provide a
written statement, which provides the same details as outlined above, if the Court
considers it appropriate.
This section stipulates that all statements made under subsections (2) and (3) must
comply with and be provided in accordance with the Rules of Court, which is
defined under subsection (6) to include the Rules of Court made under section 12
of the Criminal Code and the Rules of Court made under section 144 of the
Justices Act 1959.
The purpose of this is to ensure that the victim (or their nominated representative)
adheres by the rules of the Court when providing their impact statement, and
provide clarity as to procedures that are put in place for victim impact statements
from time to time.
Subsection (5) provides that if a victim impact statement is provided, the Court
must allow the victim, the person who wrote the statement or another person
who is nominated by either of these parties, to read the statement, if this was
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requested when it was provided to the Court.
Courts can consider Victim Impact Statements when determining the appropriate
sanctions that should be imposed.
Clause 23 Section 38 amended (Convening of community conference)
Clause 23 amends section 38 of the Principal Act by inserting subsection (da), to
ensure that Youth Justice Workers must be invited to Community Conferences.
Clause 24 Section 40A inserted
After section 40 of the Principal Act, the following section is inserted in Division 4:
40A. Additional requirements for court-ordered community conference
Clause 24 inserts section 40A into the Principal Act to provide, in subsection (1),
that if a Court-ordered community conference does not reach a decision that
requires the youth to enter into an undertaking, the facilitator must file a copy of
the decision with the district register.
It also provides in subsection (2) that the Secretary must file a certificate with the
district register as soon as practicable following the completion of all Court-
ordered conference undertakings.
Clause 25 Section 41amended (Dismissal of charge)
Clause 25 amends section 41 of the Principal Act so that section 41 integrates with
the proposed new section 40A inserted by clause 24.
Clause 26 Section 45 amended (Confidentiality of community conferences)
Clause 26 amends section 45 of the Principal Act by inserting subsection (3A). This
subsection enable information about youths obtained in community conferences to
be shared, if:
the youth consents in writing to their information being used for the purpose
of their rehabilitation or other related purposes; or
the information is only to be shared between an information-sharing entity
and a Government Agency for the purpose of the rehabilitation of a youth or
a related purpose; or
the information is only to be shared between an information-sharing entity
and the Commissioner for Children, or a Government Agency and the
Commissioner for Children.
This clause will provide increased clarity regarding the ability to share information
between Information-Sharing entities, Government Agencies and/or the
Commissioner for Children; which will assist Government during the policy making
process and result in better outcomes for young people.
Clause 27 Section 47 amended (Sentences and other orders that may be imposed)
Page 10 of 20
Clause 27 amends section 47 of the Principal Act by inserting:
subsection (1)(ha), to allow the Court to impose an order under the inserted
section 161A in clause 47 relating to certain sentences under the Sentencing
Act 1997.
subsection (1)(j), to allow the Court to adjourn proceedings and grant bail
under the Bail Act 1994, and defer sentence in accordance with the inserted
Division 7A in clause 31;
subsection (1A), so that proceedings can not be adjourned for more than 12
months from the date of the finding of guilt; and
subsection (1B), which clarifies that section 47 does not limit the power of
the Court to adjourn proceedings, grant bail in relation to a period of
adjournment or defer sentencing a youth
This clause also emphasises rehabilitation in sentencing, by inserting subsection
(3A). This subsection requires the Court to ensure that the matter of rehabilitation
of the youth is given more weight than any other individual matter.
In addition, subsection (4) (c) of section 47 is substituted so that "sentence" is
replaced with "order". This will mean that the Court must, in determining the
orders to make under the section, have regard to the effect the order (not just the
sentence) will have on a youth's chances of finding and retaining employment.
Clause 28 Section 49 amended (Recording conviction)
Clause 28 amends section 49(1) and (2) of the Principal Act by including references
to the new section 47(1)(ha) inserted by clause 27.
Clause 28 also inserts new section 49(4A), which provides that in determining
whether to record a conviction, the Court must ensure that the matter of
rehabilitation is given more weight than any other individual matter.
Clause 29 Section 54A inserted
After section 54 of the Principal Act, the following section is inserted in Division 7:
54A. Discharge of release and adjournment order
Clause 29 inserts section 54A into the Principal Act. The section provides that a
youth is discharged from a release and adjournment order when the period of the
order expires, unless
the Court revokes the order; or
after the youth is released, the Court makes another order under section 47
of the Principal Act in relation to the offence.
Clause 30 Section 56 amended (Contravention of release and adjournment order)
Clause 30 amends section 56 of the Principal Act by inserting subsections (2A) and
(2B). Subsection (2) of that section requires a copy of the application and notice of
the time and place of the hearing to be given to a youth.
Proposed subsection (2A) states that if the Court is satisfied that a youth is unlikely
Page 11 of 20
to appear at the hearing of the application, subsection (2) does not apply, and that
the Court may issue a warrant to arrest the youth.
Subsection (2B) states that if the youth is before the Court the application can be
made orally under subsection (1) and, that, in this case, subsection (2) will also not
apply.
This clause also inserts subsection (6A) to ensure that in the event that an
application made under subsection (1) is not heard or determined before the order
expires, the Court may:
hear and determine the application; and
if satisfied the youth has contravened the order or a special condition to
which the order was subject make an order under subsection (4), as if the
release and adjournment order was in force.
Clause 31 Part 4, Division 7A inserted
Clause 31 inserts a new Division 7A Deferral of Sentencing in Part 4 comprising
new sections 56A, 56B, 56C and 56D. The new Division provides for the
adjournment of proceedings in order to defer sentencing a youth.
56A. When a sentence may be deferred under section 47(1)(j))
New section 56A provides the circumstances in which the Court can adjourn
proceedings under s 47 and defer sentence under this Division. Subsection (2)
provides the Court may defer sentencing a youth for the following purposes:
to assess the youth's capacity, and prospects for rehabilitation; or
allowing the youth to demonstrate that rehabilitation has taken place; or
assessing the youth's capacity, and prospects, for participating in an
intervention plan; or
allowing the youth to participate in an intervention plan; or
any other purpose that the Court thinks is appropriate in the circumstances.
Subsection (3) provides for the circumstances when sentences may be deferred.
Subsection (4) defines an intervention plan.
Subsection (5) provides a sentence may be deferred whether or not the Court
considers the seriousness of the offence justifies a sentence of detention or
imprisonment.
56B. Grant of bail and review
New section 56B provides that the bail granted to a youth as part of the deferring
of the sentencing of the youth will be for the same period as the period for which
the sentencing of the youth is deferred.
This section also explains what conditions may be imposed on the youth, including
those imposed under section 7 of the Bail Act 1994 and includes a statement as to
when additional conditions can be added or current conditions varied or
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substituted. The section provides for bail to be amended, following consideration
of any report on the youth prepared by the Secretary and the extent of the youth's
compliance with bail.
56C. Amendment of date of order deferring sentencing of a youth
New section 56C provides for when the Court can amend to an earlier or later
date the date to which the sentencing of a youth is deferred under an order made
under this Division. An order deferring sentencing may not continue for more than
12 months. In deciding whether to amend the date of an order in relation to a
youth, the Court must consider any report prepared in relation to the youth by
the Secretary and the degree of compliance by the youth with the conditions of the
bail of the youth in relation to the offence. The Court must not amend an order in
relation to a youth unless the youth is before the Court.
56D. When order deferring sentence may be revoked
New section 56D provides for when the Court can revoke an order deferring
sentence made under this Division. The order can be revoked at the request of the
youth or if the Court is of the opinion that the purposes for which the sentencing
of the youth has been deferred are unlikely to be fulfilled. The Court must not
revoke an order in relation to a youth unless the youth is before the Court.
Clause 32 Section 65 amended (Probation order)
Clause 32 amends section 65 (4) of the Principal Act by substituting the reference
to `illegal drugs' with `controlled substances' which is defined under the
amendments to section 3 of the Act inserted by clause 5.
Clause 32 also inserts new section 65(4)(ea), so that a special condition on a
probation order may require a youth to submit to alcohol or controlled substances
testing at the direction of the Secretary.
Clause 33 Section 68 amended (Contravention of probation order)
Clause 33 amends section 68 of the Principal Act by inserting subsections (2A) and
(2B). Subsection (2) of that section requires a copy of the application and notice of
the time and place of the hearing to be given to a youth. Proposed subsection (2A)
states that if the Court is satisfied that a youth is unlikely to appear at the hearing
of the application, subsection (2) does not apply, and that the Court may issue a
warrant to arrest the youth.
Subsection (2B) states that if the youth is before the Court the application can be
made orally under subsection (1) and, that, in this case, subsection (2) will also not
apply.
This clause also inserts subsection (5A) to ensure that in the event that an
application made under subsection (1) is not heard or determined before the order
expires, the Court may:
hear and determine the application; and
if satisfied the youth has contravened the order or a special condition to
which the order was subject make an order under subsection (4), as if the
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release and adjournment order was in force.
Clause 34 Section 69 amended (Community service order)
Clause 34 amends section 69 of the Principal Act to replace references to
`community service' with `community service activity', consistent with the new
section 6A inserted by clause 8. Given the expanded provisions for community
service activities, a reference to educational, health, personal and other programs is
substituted with community service activities.
This clause also amends section 69 to ensure that a community service order may
be made subject to reasonable specialconditions that are specified in the order, and
may be applied during the whole or any part of the order that is in force.
The proposed new section 69(4) lists the following as the types of condition that
may be imposed, but does not limit the conditions to those included in the list:
the youth must attend school;
the youth must attend educational, personal and other programs as specified;
the youth abstain from drinking alcohol and taking controlled substances;
the youth must reside at a specified address;
the youth may be subject to curfews;
the youth must undergo medical, psychiatric, psychological and drug
counselling as specified;
the youth undergo medical, psychiatric, psychological and drug counselling as
directed by the youth justice worker.
Clause 35 Section 70 amended (Preconditions for making community service
order)
Clause 35 amends section 70 (c) of the Principal Act to ensure that the Court may
only make a community service order if a presentence report states that there are
appropriate community service activities available in which the youth could
participate. This clause also omits paragraph (d) of section 70 which limited the
provision of community service to schemes provided or participated in by the
Crown.
Clause 36 Section 74 repealed
Clause 36 repeals section 74 of the Principal Act, as the matters to which it relates
are dealt with more broadly in new section 6A instead, including references to
community service activities which help youths reintegrate into the community.
Clause 37 Section 76 amended (Review of community service order, & c)
Clause 37 amends section 76 of the Principal Act by inserting (da) in subsection (4).
This paragraph has been inserted to allow for the Court, at the hearing of the
application, to amend the special conditions to which the community service order
is subject.
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Clause 38 Section 77 amended (Contravention of community service order)
Clause 38 amends section 77 of the Principal Act by inserting subsections (3A) and
(3B). Subsection (3) of that section requires a copy of the application and notice of
the time and place of the hearing to be given to a youth. Proposed subsection (3A)
states that if the Court is satisfied that a youth is unlikely to appear at the hearing
of the application, subsection (3) does not apply, and that the Court may issue a
warrant to arrest the youth.
Subsection (3B) states that if the youth is before the Court the application can be
made orally under subsection (1) and, that, in this case, subsection (3) will also not
apply.
Paragraph (ca) is also inserted under subsection (5) to ensure that the Court can
amend the special conditions to which the community service order is subject, if
the Court is satisfied that the youth has contravened the order.
Clause 39 Section 90 amended (Suspended detention order)
Clause 39 substitutes section 90 (3) of the Principal Act with a new section 90 (3)
so that a suspended detention order is automatically subject to various conditions,
some of which were previously, under section 90(6), optional conditions that
could, but were not automatically, imposed on such an order. Consequential
amendments are made to section 90(6) to omit conditions that will now be
automatic. The conditions specified as being automatically imposed include a
condition that:
during the period specified in the order, the youth must not commit another
offence which if committed by an adult could be punishable by
imprisonment;
during the period of suspension the youth must report to the assigned youth
justice worker as required by the youth justice worker;
during the period of suspension the youth must receive visits from the
assigned youth justice worker as required by the youth justice worker;
the youth must notify the assigned youth justice worker of any change during
the period of suspension of residence, employment or school, or other
educational or training establishment, before, or within 2 working days after,
the change;
during the period of suspension the youth must obey the reasonable and
lawful instructions of the assigned youth justice worker;
the youth must attend educational, personal, health and other programs as
directed by the assigned youth justice worker;
the youth must, as directed by the Secretary, submit to testing for controlled
substances or alcohol; or
the youth must undergo medical, psychiatric, psychological and drug
counselling and treatment as directed by the assigned youth justice worker.
The clause also changes references to "illegal drugs" to "controlled substances" to
align the provision with the new definition of "controlled substances".
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Clause 40 Section 93 amended (Review of suspended detention order)
Clause 40 amends section 93 of the Principal Act by inserting subsection (5A), to
ensure that in the event that an application made under subsection (1) is not heard
or determined before the order expires, the Court may:
hear and determine the application; and
if satisfied the youth has contravened the order or a special condition to
which the order was subject, make an order under subsection 4, as if the
suspended detention order were in force.
Clause 41 Section 94 amended (Contravention of suspended detention order)
Clause 41 amends section 94 of the Principal Act by inserting subsections (2A) and
(2B). Subsection (2) of that section requires a copy of the application and notice of
the time and place of the hearing to be given to a youth. Proposed subsection (2A)
states that if the Court is satisfied that a youth is unlikely to appear at the hearing
of the application, subsection (2) does not apply, and that the Court may issue a
warrant to arrest the youth.
Subsection (2B) states that if the youth is before the Court the application can be
made orally under subsection (1) and, that, in this case, subsection (2) will also not
apply.
Clause 42 Section 99A amended (Contravention of rehabilitation program order)
Clause 42 amends section 99A of the Principal Act by inserting subsections (2A)
and (2B). Subsection (2) of that section requires a copy of the application and
notice of the time and place of the hearing to be given to a youth. Proposed
subsection (2A) states that if the Court is satisfied that a youth is unlikely to appear
at the hearing of the application, subsection (2) does not apply, and that the Court
may issue a warrant to arrest the youth.
Subsection (2B) states that if the youth is before the Court the application can be
made orally under subsection (1) and, that, in this case, subsection (2) will also not
apply.
Clause 43 Section 101A inserted
After section 101 of the Principal Act, the following section is inserted in Division
15:
101A. Workers rehabilitation provisions apply to youth performing
community service
Clause 43 inserts section 101A into the Principal Act. This section provides that a
youth performing community service is to be taken to be a worker under the
Workers Rehabilitation and Compensation Act 1988 who is employed by the Crown
and who is being paid at the greater of the following rates:
a rate equal to the basic salary within the meaning of that Act;
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the rate of the youth's normal weekly earnings, if any, within the meaning of
section 69 of that Act.
Subsection (2) provides that for the circumstances in which a youth is performing a
community service, including making a `required journey'.
Subsection (3) stipulates when a youth is taken to be performing a required activity
and subsections (4) and (5) stipulate how a required journey is defined.
Clause 44 Section 105 amended (Adjournment to determine mental health or
disability of youth)
Clause 44 amends section 105 subsection (8) to insert a cross-reference to clarify
that the report referred to in that subsection is the report required under
subsection (6).
Subsections (10) (11) (12) and (13) have been amended so that references to
reports provided by the Chief Forensic Psychiatrist will be replaced with
references to reports provided by persons under subsection (3). The change has
been made to clarify the intended operation of the section, which is intended to
refer principally to the report provided under subsection (3).
Clause 45 Section 111 amended (Supervised release order subject to conditions)
Clause 45 amends section 111 of the Principal Act so that a supervised release
order is automatically subject to various conditions, some of which were
previously, under section 111(3), optional conditions that could, but were not
automatically, imposed on such an order. The conditions specified as being
automatically imposed include a condition that the youth:
must report to the assigned youth justice worker as required by the youth
justice worker;
must comply with any reasonable direction given by the youth justice worker;
and
must not move to a different residential address without the approval of the
youth justice worker.
Subsection (3) is amended to remove optional conditions that will be automatically
applied, and substitutes paragraph (c) consequent to those changes.
Clause 46 Section 129 amended (Rights of detainee)
Clause 46 amends section 129 (1)(b) of the Principal Act to clarify that a person
acting on behalf of the Aboriginal Legal Service, is included in the list of persons
from whom an Aboriginal detainee is entitled to receive visits.
Clause 47 Section 161A inserted
After section 161 of the Principal Act, the following section is inserted in Part 8:
161A. Court may impose certain sentences under Sentencing Act 1997
Clause 47 inserts section 161A into the Principal Act. The intention of this section
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is to provide increased flexibility when sentencing an offender who is 18 years old
or more. This provides the Court with the ability to exercise the powers of a
court of petty sessions under the Sentencing Act 1997 in addition to or instead of
any powers under this Act.
Subsection (2) requires the court exercising those powers to take into
consideration the age of the youth when the youth committed the offence.
Subsection (3) requires the Court to specify in an order made in accordance with
this section that the order is made in accordance with this section. However
subsection (4) states that a failure to do this will not impact on the validity of the
order under this section that the order is made
Subsection (5) specifies that if an order is made in accordance with relevant
sections, the responsible department in relation to the Sentencing Act 1997 is
responsible for all matters relating to the administration of the order;
Subsection (6) specifies that if a youth contravenes any contraventions of an order
in accordance with this clause or conditions to which an order is subject the youth
must be brought before the Court (that is, rather than the court of petty sessions)
Subsection (7) specifies that if a contravention in subsection (6) is brought before
the Court, the Court may:
exercise the powers of a court of petty sessions under the Sentencing
Act 1997 in relation to the contravention of an order or the conditions
of an order; or
revoke the contravened order and impose any sentence under this Act
that it could have made if it had not made the contravened order.
Subsection (8) specifies that this section applies despite section103 of the Principal
Act. Section 103 provides that proceedings against youths who commit offences
under 18 which are heard after they are 18 or older are still commenced in the
Court and sentenced under this Act.
This clause provides for more flexible sentencing of youths who are 18 years old
or more, in respect of offences they committed as youths, and clarifies that a
sentence made using the powers of the Sentencing Act 1997 are administered by the
Department responsible for that Act. This ensures adults that have committed
crimes when they were juveniles, are supervised by the appropriate correctional
staff, not Youth Justice staff.
Clause 48 Section 165 amended (Delegation)
Clause 48 amends section 165 of the Principal Act to provide the Commissioner of
Police with the power to delegate his or her powers under section 6A(2) of the
Principal Act, which is the power to approve the types of activities that may be
undertaken in the performance of community service.
Clause 49 Section 167A inserted
After section 167 of the Principal Act, the following section is inserted in Part 9:
167A. Protection against prosecution in relation to certain disclosures of
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information
Clause 49 inserts section 167A into the Principal Ac. The section provides
increased protection for people including relevant staff making authorised
disclosures of information relating to the rehabilitation of a youth or for a related
purpose, by ensuring that such persons:
will not incur any criminal, civil or administrative liability for disclosure; and
are not, by reason of that disclosure
taken to have breached any rule of law or practice that would have
otherwise prohibited the person from disclosing the information; or
taken to have broken any professional or other oath, or breached any
professional or other code, standard or guideline of ethics or etiquette
that might other wise bar the person or condemn the person for,
disclosing the information; or
liable to condemnation or disciplinary action by any professional body
of person.
Proposed subsection (2) states that this section has effect despite the Personal
Information Protection Act 2004 or any other law relating to the confidentiality or
privacy of information.
Part 3 Part 3 amends the Monetary Penalties Enforcement Act 2005.
Clause 50 Principal Act
Clause 50 provides that, in Part 3 of the Bill, the Monetary Penalties Enforcement Act
2005 is referred to as the Principal Act.
Clause 51 Section 4 amended (Application of Act)
Clause 51 amends section 4 (1) of the Principal Act by inserting `or payment in
accordance with an undertaking to pay compensation under section 16(1)(b) or (c)
of the Youth Justice Act 1997', after `penalty'.
New section 4(3) provides that despite section 4(1) nothing derogates from the
obligations imposed on the Director under section 19 of the Youth Justice Act 1997
in relation to payments of compensation.
These amendments are required due to the amendments to section 19 of the Youth
Justice Act 1997 in clause 14, which provide for transferring of responsibility from
the Court's District Registrar to the Director of the Monetary Penalties
Enforcement Service for collection of payments made under community
conference undertakings, and notifications to the Secretary. As is currently the
case for court ordered penalties, the Director can accept payments, but can only
enforce payments which are both court-ordered and remain outstanding when a
youth turns 18.
Part 4 Part 4 amends the Police Offences Act 1953.
Clause 52 Principal Act
Clause 52 provides that, in Part 4 of the Bill, the Police Offences Act 1953 is referred
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to as the Principal Act.
Clause 53 Section 37 Amended (Disqualification from driving)
Clause 53 amends section 37F of the Principal Act, by omitting from subsection (3)
`expires not earlier than 12 months' and substitutes with `begins'.
The clause also inserts subsections (6), (7) and (8) after subsection (5) of the
Principal Act. These subsections provide that a Court can revoke the
disqualification under section 37F(2) if the youth makes an application to the
Court, and there is sufficient evidence of rehabilitation of the applicant.
The Court may consider that sufficient evidence of rehabilitation may consist of a
youth not committing an offence during the period of disqualification.
The effect of this clause is that a youth convicted of relevant charges is disqualified
from driving for a period determined by the Court rather than the current
minimum period, and a youth disqualified before the youth has actually obtained a
driver's licence may apply for the disqualification to be revoked, and the Court may
grant this application in the specified circumstances. This strengthens restorative
justice principles.
Clause 54 Section 55 amended (Arrest)
Clause 54 amends section 55 (3A) of the Principal Act to include section 24A of
the Youth Justice Act 1997, as the new section 24A inserted by the Bill provides for
duties of the arresting police officer.
Part 5 Part 5 amends the Victims of Crime Compensation Act 1994.
Clause 55 Principal Act
Clause 55 provides that, in Part 5 of the Bill, the Victims of Crime Compensation Act
1994 is referred to as the Principal Act.
Clause 56 Section 5 amended (Liability of convicted persons to pay compensation
levy)
Clause 56 amends section 5(2) of the Principal Act. This section addresses an
anomalous situation where people convicted of serious offences in the Magistrates
Court (Youth Justice Division) are not required to pay a compensation levy, but
people convicted by the Supreme Court for offences committed when they were
youths are required to do so.
Clause 57 Repeal of Act
This clause repeals the Act on the three hundred and sixty fifth day from the day
on which all of the provisions commence.
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