Youth Justice Act 1997
An Act to provide for the treatment and punishment of young persons who have committed offences and for related purposes
[Royal Assent 14 January 1998]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Youth Justice Act 1997 .
This Act commences on the day on which the Children, Young Persons and Their Families Act 1997 commences.
In this Act, unless the contrary intention appears –Aboriginal youth means a youth who is an Aboriginal person within the meaning of the Aboriginal and Torres Strait Islander Commission Act 1989 of the Commonwealth;Administrator means the Administrator appointed under section 16 of the Magistrates Court Act 1987 ;amend means one or more of the following:(a) omitting all or any matter;(b) inserting matter;(c) substituting matter;authorised police officer means a police officer who has been authorised by the Commissioner of Police to administer formal cautions against further offending;Chief Magistrate means the Chief Magistrate appointed under section 5 of the Magistrates Court Act 1987 ;community conference means a community conference convened, or to be convened, under Division 3 of Part 2 or on the order of the Court;community service order means an order made under section 47(1)(g) or 62(4)(b) requiring a youth to perform community service;compensation order means an order made under section 47(2)(c) requiring a youth to make compensation;complaint has the same meaning as in the Justices Act 1959 ;contravene includes fail to comply with;Court means the Magistrates Court (Youth Justice Division) established by section 159 ;detainee means a person who is being lawfully detained in a detention centre;detention, in the case of a sentence of detention, means detention in a detention centre;detention centre means a detention centre established under section 123 ;detention centre manager means the person in charge of a detention centre;detention offence means an offence –(a) specified in section 139 ; and(b) specified in section 143 where the offender or alleged offender is a detainee;detention order means an order made under section 47(1)(h) requiring a youth to be detained in a detention centre;detention period means the period of detention specified in a detention order;district registrar means a district registrar appointed under section 16A of the Magistrates Court Act 1987 ;drug means –within the meaning of the Poisons Act 1971 ;(a) a scheduled substance; and(b) a raw narcotic; and(c) a narcotic substance; and(d) a prohibited plant; and(e) a prohibited substance –earliest release date means the day immediately following the completion of 50% of the period of detention during which a youth is liable to be detained (excluding any period of detention during which the youth is released under a supervised release order) or 3 months, whichever is the longer;facilitator means a person holding an appointment as a facilitator under section 167 ;fine means a fine imposed under section 47(1)(e) ;formal caution means a caution administered under section 10 ;goods includes a motor vehicle;guardian means –(a) a parent of a child; and(b) a person who is the legal guardian of a child; and(c) a person who has the legal custody of a child; and(d) any other person who generally acts in the place of a parent of a child and has done so for a significant length of time;indictable offence means an offence that may be prosecuted upon indictment even though it may, in some circumstances, be dealt with summarily;informal caution means an informal caution given under section 8 ;legal representative means a legal practitioner who represents a youth or another person;offence means any offence other than a prescribed offence;offence-affected property includes –(a) property in respect of which an offence was committed; or(b) property affected in the course of, or in connection with, the commission of an offence;police officer has the same meaning as in the Police Regulation Act 1898 ;prescribed offence means –(a) in respect of a youth who is less than 14 years old –(i) an offence under section 158 of the Criminal Code (murder); and(ii) an offence under section 159 of the Criminal Code (manslaughter); and(iii) an offence under section 299 of the Criminal Code in relation to an offence referred to in section 158 of the Criminal Code (attempted murder); and(iv) an offence which is prescribed by the regulations to be a prescribed offence for the purposes of this subparagraph; and(b) in respect of a youth who is 14, 15 or 16 years old –(i) an offence referred to in paragraph (a) ; and(ii) an offence under section 127A of the Criminal Code (aggravated sexual assault); and(iii) an offence under section 185 of the Criminal Code (rape); and(iv) an offence under section 240(3) of the Criminal Code (armed robbery); and(v) an offence under section 240(4) of the Criminal Code (aggravated armed robbery); and(vi) an offence under section 248(a) of the Criminal Code (being found prepared for the commission of a crime under Chapter XXVII of the Criminal Code armed with a dangerous or offensive weapon or instrument); and(vii) an offence which is prescribed by the regulations to be a prescribed offence for the purposes of this subparagraph; and(c) in respect of a youth who is 17 years old –(i) an offence referred to in paragraph (b) ; and(ii) an offence under the Traffic Act 1925 or the Road Safety (Alcohol and Drugs) Act 1970 except where proceedings for that offence are, or are to be, heard and determined in conjunction with proceedings for an offence that is not a prescribed offence; and(iii) an offence which is prescribed by the regulations to be a prescribed offence for the purposes of this subparagraph;prescription medicine means a medicine the issue of which is prohibited except in accordance with the prescription of a medical practitioner;previous offending history includes –(a) any offence in respect of which a youth has received a formal caution; and(b) any offence in respect of which a youth has attended a community conference; and(c) any offence, and any prescribed offence, in respect of which a youth has been found guilty, whether or not the charge for the offence or prescribed offence has been dismissed or a conviction recorded;prison means a prison within the meaning of the Prison Act 1977 ;probation order means an order made under section 47(1)(f) placing a youth on probation;provide includes cause to be provided;receiving State means the State to which a youth is transferred;recognised Aboriginal organisation has the same meaning as in the Children, Young Persons and Their Families Act 1997 ;regulations means the regulations made and in force under this Act;release and adjournment order means an order made under section 47(1)(d) ;responsible adult means an adult who –(a) has had a close association with the youth or has been counselling, advising or aiding the youth; and(b) has not been charged with the offence in respect of which the youth has been taken into custody or is not suspected, by a police officer on reasonable grounds, of being directly or indirectly involved in the commission of that offence; and(c) has been nominated by the youth;restitution order means an order under section 47(2)(b) requiring a person to perform one or more of the actions specified in section 95(1) ;Secretary means the Secretary of the Department;sending State means the State from which a youth is transferred;serve includes cause to be served;State includes a Territory;statutory authority means an incorporated or unincorporated body which is established, constituted or continued by or under an Act or under the royal prerogative, being a body which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister of the Crown or another statutory authority;summons has the same meaning as in the Justices Act 1959 ;supervised release order means an order made by the Secretary under section 110 ;transfer agreement means an agreement between the Minister and a Minister of another State under section 148 ;transfer arrangement means an arrangement made under section 149 for the transfer of a youth from Tasmania to another State or to Tasmania from another State;transfer order means an order made under section 153 ;undertaking to be of good behaviour means an undertaking entered into, or to be entered into, by a youth under section 47(1)(c) ;victim, in the case of a victim that is a corporation, Government department, statutory authority or other organisation, includes a representative of that corporation, Government department, statutory authority or other organisation;watch-house has the same meaning as in Part XIV of the Police Regulations 1974 ;working day means a Monday, Tuesday, Wednesday, Thursday or Friday except where that day is a bank holiday within the meaning of the Bank Holidays Act 1919 ;youth means a person who is 10 or more years old but less than 18 years old at the time when the offence the person has committed, or is suspected of having committed, occurred;youth justice worker means a person employed under the Tasmanian State Service Act 1984 in the Department as a youth justice worker.
The main objectives of this Act are –(a) to provide for the administration of youth justice; and(b) to provide how a youth who has committed, or is alleged to have committed, an offence is to be dealt with; and(c) to specify the general principles of youth justice; and(d) to ensure that a youth who has committed an offence is made aware of his or her rights and obligations under the law and of the consequences of contravening the law; and(e) to ensure that a youth who has committed an offence is given appropriate treatment, punishment and rehabilitation; and(f) to enhance and reinforce the roles of guardians, families and communities in –(i) minimising the incidence of youth crime; and(ii) punishing and managing youths who have committed offences; and(iii) rehabilitating youths who have committed offences and directing them towards the goal of becoming responsible citizens; and(g) to ensure that, whenever practicable, a youth who has committed, or is alleged to have committed, an offence is dealt with in a manner that is culturally appropriate and recognises and enhances his or her cultural identity; and(h) to ensure that, whenever practicable, a youth who has committed, or is alleged to have committed, an offence is dealt with in a manner that takes into account the youth's social and family background and that enhances the youth's capacity to accept personal responsibility for his or her behaviour.
5. General principles of youth justice
(1) The powers conferred by this Act are to be directed towards the objectives mentioned in section 4 with proper regard to the following principles:(a) that the youth is to be dealt with, either formally or informally, in a way that encourages the youth to accept responsibility for his or her behaviour;(b) that the youth is not to be treated more severely than an adult would be;(c) that the community is to be protected from illegal behaviour;(d) that the victim of the offence is to be given the opportunity to participate in the process of dealing with the youth as allowed by this Act;(e) guardians are to be encouraged to fulfil their responsibility for the care and supervision of the youth and should be supported in their efforts to fulfil this responsibility;(f) guardians should be involved in determining the appropriate sanction as allowed by this Act;(g) detaining a youth in custody should only be used as a last resort and should only be for as short a time as is necessary;(h) punishment of a youth is to be designed so as to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;(i) punishment of a youth is to be appropriate to the age, maturity and cultural identity of the youth;(j) punishment of a youth is to be appropriate to the previous offending history of the youth.(2) Effect is to be given to the following principles so far as the circumstances of the individual case allow:(a) compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;(b) family relationships between a youth, the youth's parents and other members of the youth's family should be preserved and strengthened;(c) a youth should not be withdrawn unnecessarily from his or her family environment;(d) there should be no unnecessary interruption of a youth's education or employment;(e) a youth's sense of racial, ethnic or cultural identity should not be impaired.
(1) In determining the age of a person, a court or police officer –(a) must act on the best evidence or information that is reasonably available; but(b) in the absence of any such evidence or information, may estimate the age of the person and act on that estimate.(2) For the purposes of subsection (1) , a statement in a complaint that a person is of a particular age is evidence that the person is that age.(3) If, in any proceedings before a court, it becomes apparent to that court that the person who is the subject of those proceedings should, by reason of age, be dealt with in some other court, the court may remand that person to appear in the appropriate court.
PART 2 - Diverting youths from court system
Division 1 - Preliminary
The purpose of this Part is to divert, in an appropriate case, a youth who admits committing an offence from the courts' criminal justice system.
Division 2 - Diversionary procedure by police
(1) If a youth admits the commission of an offence and a police officer is of the opinion that the matter does not warrant any formal action under this Act, the officer may informally caution the youth against further offending and proceed no further against the youth.(2) If a youth is informally cautioned under this section, no further proceedings may be taken against the youth for the offence in relation to which the youth was cautioned.
(1) If a youth admits the commission of an offence and a police officer is of the opinion that the matter warrants a more formal action under this Act than an informal caution, the officer may deal with the matter as follows:(a) the officer may require that the youth be formally cautioned against further offending;(b) the officer may require the Secretary to convene a community conference to deal with the matter;(c) the officer may file a complaint for the offence before the Court.(2) Before a police officer requires that a youth be formally cautioned against further offending or requires the Secretary to convene a community conference –(a) the officer must explain to the youth –(i) the nature of the offence and of the circumstances out of which it is alleged to arise; and(ii) that the youth is entitled to obtain legal advice; and(iii) that the youth is entitled (whether or not he or she exercises the right to obtain legal advice) to require that the matter be dealt with by the Court; and(b) if the youth does not require the matter to be dealt with by the Court, the officer must record the admission of the commission of the offence in written form and request the youth to sign the admission; and(c) the youth must agree to being formally cautioned or to the convening of a community conference.(3) Before a police officer requires that a youth be formally cautioned against further offending, if the police officer considers it appropriate in all the circumstances, the police officer must –(a) ask the victim of the offence whether he or she wishes to be present at the administration of the formal caution; and(b) where the victim wishes to be present, allow the victim the opportunity to attend the administration of the formal caution; and(c) where the victim does not wish to be present, ask the victim whether he or she wishes to be informed of the identity of the offender and how the offence has been dealt with.(4) Before a police officer can require the Secretary to convene a community conference, the youth must sign an undertaking to attend the conference.(5) The following proceedings are to take place, if practicable, in the presence of a guardian or, if a guardian is not available, a responsible adult:(a) the explanation given to the youth under subsection (2) ;(b) the signing of an admission by the youth under subsection (2) ;(c) the agreement of the youth under subsection (2) to being formally cautioned or to the convening of a community conference;(d) the signing of an undertaking by the youth under subsection (4) .(6) A complaint may only be filed under subsection (1)(c) –(a) if the youth requires that the matter be dealt with by the Court; or(b) if the police officer is of the opinion that a formal caution should be administered to the youth but the youth does not –(i) agree to being formally cautioned; or(ii) sign the formal caution; or(iii) enter into an undertaking if required to do so under section 10(2) ; or(c) if the police officer is of the opinion that a community conference should be convened to deal with the youth but the youth does not –(i) agree to the convening of a community conference; or(ii) enter into an undertaking to attend the community conference; or(d) if, in the opinion of the police officer, the matter cannot be adequately dealt with by the administration of a formal caution or by a community conference in view of the seriousness or the nature of the offence.
(1) A formal caution against further offending is to be administered to the youth by an authorised police officer.(2) If an authorised police officer administers a formal caution against further offending, the officer may also require the youth to enter into one or more of the following undertakings:(a) an undertaking to pay compensation, in the manner specified in the undertaking, for –(i) loss of or damage to offence-affected property; and(ii) injury suffered, expenses incurred or other loss suffered by the victim of the offence; and(iii) injury suffered, expenses incurred or other loss suffered by any other person by reason of the offence;(b) an undertaking to make restitution of offence-affected property;(c) an undertaking to perform a specified period (not exceeding 35 hours) of community service which is for the benefit of the victim of the offence;(d) an undertaking to apologise to the victim of the offence;(e) an undertaking to do anything else that may be appropriate in the circumstances of the case.(3) If a formal caution is to be administered in respect of an offence, the authorised police officer must explain to the youth –(a) the nature of the caution; and(b) that the administering of the caution may be treated as evidence of commission of the offence by a police officer, community conference or court if the youth has to be dealt with for a subsequent offence.(4) A formal caution must –(a) if practicable, be administered in the presence of –(i) a guardian; or(ii) if a guardian is not available, a responsible adult; and(b) be put in writing; and(c) contain –(i) details of the offence; and(ii) the youth's name; and(iii) the authorised police officer's name and rank; and(iv) the name of the place where, and the time when, the caution was administered; and(v) the names of all other persons present when the caution was administered; and(vi) details of the nature and effect of the caution; and(vii) details of all undertakings entered into by the youth under this section; and(d) be signed by the youth, the authorised police officer and, if reasonably practicable, by the guardian or responsible adult.(5) Before requiring a youth to enter an undertaking under this section, the authorised police officer must give the youth, and any guardian or responsible adult present, an opportunity to make representations with respect to the matter.(6) If a youth enters into an undertaking under this section to apologise to the victim of the offence, the apology must be made in the presence of an adult approved by an authorised police officer.(7) An undertaking will have a maximum duration of 3 months.(8) A youth who signs a formal caution is not liable to be prosecuted for an offence if the youth enters into all undertakings the authorised police officer requires under this section.(9) After administering a formal caution, the authorised police officer must –(a) ask the victim of the offence whether he or she wishes to be informed of the identity of the offender and how the offence has been dealt with if the victim was not present and has not been asked those questions previously by a police officer; and(b) give the victim that information if the victim has indicated to the authorised police officer or previously to another police officer that he or she does wish to have that information.(10) A record is to be kept of a formal caution.(11) In a proceeding under this Act, a document purporting to be a formal caution or a copy of a formal caution is evidence of the matters contained in the document.
11. Caution administered by Aboriginal Elder or representative
(1) If a formal caution is to be administered to an Aboriginal youth, the caution may be administered by an Elder of an Aboriginal community or a representative of a recognised Aboriginal organisation despite section 10 .(2) A formal caution may only be administered by an Elder of an Aboriginal community or a representative of a recognised Aboriginal organisation at the request, and in the presence, of an authorised police officer.(3) If an Elder of an Aboriginal community or a representative of a recognised Aboriginal organisation administers a formal caution –(a) section 10 applies as if the Elder or representative were an authorised police officer; and(b) the caution must contain, in addition to the information specified in section 10(4)(c) , the name of the Elder or representative, the name of the Aboriginal community or recognised Aboriginal organisation and the name and rank of the authorised police officer in whose presence the caution was administered.
12. Caution administered by community representative
(1) If a formal caution is to be administered to a youth who is or considers himself or herself to be a member of a religious, ethnic or other community group and the authorised police officer who would, but for this section, administer the formal caution considers it appropriate, the caution may be administered by a representative of that group approved by that authorised police officer despite section 10 .(2) A formal caution may only be administered by a representative of a religious, ethnic or other community group at the request, and in the presence, of an authorised police officer.(3) If a representative of a religious, ethnic or other community group administers a formal caution –(a) section 10 applies as if the representative were an authorised police officer; and(b) the caution must contain, in addition to the information specified in section 10(4)(c) , the name of the representative, the name or other identification of the community group and the name and rank of the authorised police officer in whose presence the caution was administered.
Division 3 - Community conferences
13. Notifying Secretary that community conference required
(1) If a youth enters into an undertaking to attend a community conference, the police officer must notify the Secretary that he or she requires a community conference to be convened and provide the Secretary, whenever possible, with the names and addresses of –(a) the youth; and(b) the guardians of the youth; and(c) any relative of the youth who may, in the opinion of the officer, be able to participate usefully in the community conference; and(d) any other person who –(i) has had a close association with the youth or has been counselling, advising or aiding the youth; and(ii) in the opinion of the officer, may be able to participate usefully in the community conference; and(e) any victim of the offence.(2) The notice requiring the convening of a community conference must specify the details of the offence committed by the youth.
14. Convening of community conference
(1) On receipt of a notice from a police officer that the convening of a community conference is required, the Secretary must assign a facilitator to convene and facilitate the community conference.(2) The facilitator –(a) must fix a time and place for the community conference; and(b) must issue a notice specifying the time and place at which the community conference is to be held; and(c) must invite the following persons to attend the community conference:(i) the persons whose names and addresses are provided to the Secretary under section 13(1) ;(ii) if the youth is a member of an Aboriginal community, an Elder or other representative of that community;(iii) any other person the facilitator, after consulting with the youth and the youth's guardians and family (if available), considers appropriate to attend the community conference; and(d) must inquire of the victim of the offence whether he or she wishes to be informed of the outcome of the community conference.(3) The facilitator must provide the police officer who required the community conference or the Commissioner of Police with a copy of the notice specifying the time and place at which the community conference is to be held.(4) If reasonably practicable, the time fixed for a community conference must be within 3 weeks after the Secretary receives the notice from the police officer requiring the convening of a community conference.
15. Constitution of and attendance at community conference
(1) A community conference consists of –(a) the facilitator; and(b) the youth; and(c) those persons who attend the conference in response to the invitation of the facilitator; and(d) the police officer who required the community conference or a representative of the Commissioner of Police.(2) The victim of an offence who attends a community conference is entitled to be accompanied by one or more persons of the victim's choice to provide support and assistance to the victim.(3) The youth who attends a community conference is entitled to be accompanied by one person of his or her choice to provide support and assistance to the youth.(4) A person may, with the permission of the facilitator, attend a community conference for the purpose of providing expert advice or information on matters relevant to the conference.(5) Despite this section, if the facilitator considers that a person attending the community conference is deliberately attempting to disrupt the conference, the facilitator may –(a) require that person to leave the conference; and(b) if the person refuses to leave, take such steps as are necessary to remove the person from the conference.
16. Powers of community conference
(1) A community conference may impose one or more of the following sanctions:(a) administer a caution against further offending;(b) require the youth to enter into an undertaking to pay compensation for injury suffered by the victim or any other person by reason of the commission of the offence;(c) require the youth to enter into an undertaking to pay compensation for loss or destruction of, or damage to, offence-affected property;(d) require the youth to enter into an undertaking to make restitution of offence-affected property;(e) require the youth to enter into an undertaking to perform a specified period, not exceeding 70 hours, of community service;(f) with the agreement of the victim of the offence, require the youth to enter into an undertaking to apologise to the victim;(g) require the youth to enter into an undertaking to do anything else that may be appropriate in the circumstances of the case.(2) An undertaking may have a duration not exceeding 12 months.(3) A community conference may not, under subsection (1)(e) , require a youth to enter into an undertaking to perform community service unless the Crown provides, or participates in, a scheme providing for the performance of community service by youths and –(a) the scheme is suitable for the performance of community service by the youth; and(b) a place is available in the scheme for the youth.
17. Procedure at community conference
(1) The facilitator must ensure that all persons attending a community conference understand its nature, purpose and consequences.(2) In deciding an appropriate sanction, a community conference is to consider –(a) the objectives specified in section 4 and the principles specified in section 5 ; and(b) the sanctions imposed by courts, community conferences and police officers on youths in respect of similar offences if that information is readily available to the community conference.(3) If practicable, a community conference should reach a decision on the sanctions to be imposed on a youth by consensus.(4) A community conference fails to reach a decision unless all the following persons agree to the imposition of a sanction:(a) the youth;(b) the police officer or representative of the Commissioner of Police;(c) if the victim is present at the conference, the victim.(5) If the facilitator considers it appropriate, the facilitator may adjourn a community conference from time to time and from place to place.
18. Concluding community conference
(1) Before a community conference ends –(a) a decision of the community conference must be recorded in writing and signed by each of the following persons:(i) the youth;(ii) the police officer or representative of the Commissioner of Police;(iii) if the victim is present at the conference, the victim; and(b) if a caution is administered to the youth, the caution must be –(i) administered to the youth by the person the community conference has determined is to do so; and(ii) recorded in writing and signed by the youth; and(c) if the youth is required to enter into an undertaking, the undertaking must be recorded in writing and signed by the youth; and(d) if the youth enters into an undertaking to apologise to the victim of the offence, the police officer or representative of the Commissioner of Police must approve an adult in whose presence the apology is to be made.(2) The decision must include –(a) the names of the persons who attended the conference; and(b) details of the time and place at which the conference was held; and(c) the name of the person determined by the conference to administer the caution; and(d) details of any approval given under subsection (1)(d) .
19. Procedure after community conference
(1) If a community conference reaches a decision, the facilitator must –(a) file with the district registrar a copy of the decision and each undertaking entered into by the youth; and(b) provide the youth and each person who attended the community conference in response to the invitation of the facilitator with a copy of the decision and each undertaking entered into by the youth; and(c) provide the victim of the offence with a copy of the decision and each undertaking entered into by the youth if the victim was not present at the community conference but has indicated that he or she wishes to be informed of the outcome of the community conference.(2) If a youth enters into an undertaking at a community conference to pay compensation or make restitution, payments of compensation or restitution must be made to the district registrar who will disburse the compensation or restitution to the victims named in the undertaking.(3) The district registrar must notify the Secretary if the youth does not complete the payment of compensation or the making of restitution as required by an undertaking entered into at a community conference.(4) If a youth enters into an undertaking at a community conference to apologise to the victim of the offence, the apology must be made in the presence of an adult approved under section 18(1)(d) .(5) If a youth apologises to the victim of the offence in accordance with an undertaking entered into at a community conference, the adult in whose presence the apology is made must notify the Secretary that the apology has been made.(6) When the youth has fulfilled all undertakings entered into at a community conference, the Secretary must file with the district registrar a certificate stating that fact.(7) The Secretary must notify the Commissioner of Police if the youth does not fulfil all undertakings entered into at the community conference.
20. Liability of youth to be prosecuted
(1) A youth is not liable to be prosecuted for an offence in respect of which a community conference was convened if –(a) the community conference administers a caution against further offending but does not require the youth to enter into an undertaking; or(b) the youth enters into the undertakings required by the community conference and performs the obligations arising from those undertakings.(2) A police officer may file a complaint before the Court for an offence in respect of which a community conference is convened if –(a) the youth fails to attend the community conference; or(b) the community conference fails to reach a decision; or(c) the youth fails to enter into an undertaking as required by the community conference; or(d) the youth fails to perform the obligations arising from undertakings entered into as required by the community conference.(3) A complaint may be filed under subsection (2) even though a period of limitation relating to the commencement of proceedings for the relevant offence has expired, but the complaint must be filed –(a) if the youth fails to attend the community conference, not more than 2 months after that failure to attend; or(b) if the community conference fails to reach a decision, not more than 2 months after the community conference ends; or(c) if the youth fails to enter into an undertaking as required by the community conference, not more than 2 months after that failure to enter into the undertaking; or(d) if the youth fails to perform an obligation arising from an undertaking, not more than 6 months after the end of the period of the undertaking.
Division 4 - Instructions by Commissioner of Police
21. Instructions by Commissioner of Police
In the exercise of their powers under this Part, authorised police officers must comply with any instructions issued by the Commissioner of Police.
Division 5 - Confidentiality
(1) A person must not publish any information in respect of any action or proceedings that are to be, are being or have been taken by a police officer, an Elder of an Aboriginal community, a representative of a recognised Aboriginal organisation or a religious, ethnic or other community group or a community conference under this Part against a youth if the information identifies, or may lead to the identification of –(a) the youth; or(b) the victim; or(c) any other person involved in the action or proceedings (otherwise than in a professional capacity as a police officer or a person employed or engaged in the administration of this Act) who has not consented to the publication of the information.Penalty: Fine not exceeding 100 penalty units.(2) Subsection (1) does not apply to the provision of information to –(a) the youth or a legal practitioner acting for the youth; and(b) a guardian of the youth; and(c) a person who is present at the administration of an informal caution, a formal caution or at a community conference; and(d) a victim of the offence; and(e) a police officer in the course of his or her official functions; and(f) a person employed or engaged in the administration of this Act in the course of his or her official functions; and(g) a person undertaking research that does not involve the identification of the youth, the victim or any person referred to in subsection (1)(c) if the research has been approved, in writing, by the Commissioner of Police; and(h) a person undertaking research that involves the identification of the youth, the victim or any person referred to in subsection (1)(c) if –(i) all persons to be identified have consented, in writing, to their identity being provided to the researcher; and(ii) the research has been approved, in writing, by the Commissioner of Police.(3) Subsection (1) does not apply to the provision of information relating to the administration of a formal caution to –(a) a court, or a party or legal practitioner acting for a party, in proceedings in which the administration of the formal caution is relevant to a matter in issue; and(b) persons attending a community conference when determining an appropriate sanction in respect of an offence committed by the youth after the administration of that formal caution.(4) Subsection (1) does not apply to the provision of information to a court, or a party or legal practitioner acting for a party, in proceedings in which that information is relevant to a matter in issue if the information relates to –(a) the decision of a community conference; and(b) the undertakings entered into by a youth as a result of a community conference; and(c) the performance or non-performance by the youth of obligations arising from those undertakings; and(d) the compliance or non-compliance by the youth with a requirement to enter into an undertaking imposed by a community conference.(5) Subsection (1) does not apply in relation to the provision of information as required or allowed under any other provision of this Act.
PART 3 - Arrest and custody of suspected offenders
23. Application of general law
Subject to this Act, the law of the State relating to investigation, interrogation, arrest, bail, remand and custody applies to youths, with necessary adaptations and any further adaptations that are set out in this Act or the regulations.
A police officer may only arrest a youth in relation to an offence if the arresting officer believes the offence is serious enough to warrant an arrest and also believes, on reasonable grounds, that –(a) the arrest is necessary to prevent a continuation or repetition of the offence; or(b) the arrest is necessary to facilitate the making of an application for a restraint order under Part XA of the Justices Act 1959 ; or(c) the arrest is necessary to prevent concealment, loss or destruction of evidence relating to the offence; or(d) the youth is unlikely to appear before the Court in response to a complaint and summons.
25. How youth is to be dealt with if not granted bail
(1) If a youth is not admitted to bail under section 34 of the Justices Act 1959 or under section 4 of the Criminal Law (Detention and Interrogation) Act 1995 , the youth must be detained in a watch-house while waiting to be brought before a justice under section 34A of the Justices Act 1959 .(2) If a youth who is less than 19 years old is refused bail by a justice under section 35 of the Justices Act 1959 , the youth must be detained –(a) in a detention centre if it is at all practicable to do so; or(b) in a prison if it is not practicable to detain the youth in a detention centre.(3) If a youth who is less than 19 years old is detained in a prison or watch-house, the person for the time being in charge of the prison or watch-house must take such steps as are reasonably practicable to keep the youth from coming into contact with any adult detained in that place.(4) If a youth who is 19 or more years old is refused bail by a justice under section 35 of the Justices Act 1959 , the youth is to be remanded to a prison as if he or she were an adult.
PART 4 - Court proceedings against a youth
Division 1 - Commencing proceedings
(1) If a youth is to be charged with an offence, proceedings are to be commenced by complaint in accordance with section 27 of the Justices Act 1959 .(2) If a complaint and summons is served on a youth in respect of an offence, a copy of the complaint and summons is to be served by the complainant on the guardian, unless one cannot be found after reasonable inquiry, and on the Secretary.
27. Limitation on joint charge
A youth who is under 15 years of age may not be jointly charged with an adult.
28. Limitation on power of Court to hear joint charge
(1) The Court is not entitled to hear and determine a charge against a youth if –(a) the youth is 15 or more years old; and(b) the youth is charged jointly with an adult; and(c) the youth and the adult both plead not guilty to the charge.(2) If a youth is jointly charged with an adult and the adult or the youth, or both, plead guilty to the charge, the Court must hear and determine the charge against the youth unless the prosecutor objects.(3) If the prosecutor makes an objection under subsection (2) , the Court may hear and determine the charge against the youth or determine that the charge is to be transferred to the Supreme Court under Part VII of the Justices Act 1959 .
(1) The Court has a duty, as far as practicable –(a) to ensure that the youth before the Court and the guardian, if present, understand –(i) the nature and purpose of the proceedings; and(ii) the right of the youth to have legal representation; and(iii) the rights of the youth in relation to entering a plea and the consequences of entering a plea; and(iv) the rights of the youth to have a copy of any report, or record of previous offending history, relating to the youth and to comment on any such report or record; and(v) the right to make, and the importance of making, a plea in mitigation if the youth is guilty of the offence; and(b) to respect the cultural identity of the youth before the Court.(2) In any proceedings under this Act, the Court has a duty to take into account the objectives specified in section 4 and the principles specified in section 5 .
Division 2 - Confidentiality of proceedings
30. Persons who may be present in Court
(1) Only the following persons may be present at a sitting of the Court:(a) the youth to whom the proceeding relates;(b) the legal representative of the youth;(c) the parents, other members of the youth's family and guardians of the youth;(d) a responsible adult;(e) the prosecutor;(f) a person approved under section 122E or 122I(2)(b)(i) of the Evidence Act 1910 while the youth or special witness who is being supported by the person remains in the Court;(g) a witness while giving evidence or permitted by the Court to remain in the Court;(h) employees of the Department;(i) if the youth is an Aboriginal person and consents to the presence of a representative of an organisation whose principal purpose is the provision of welfare services to Aboriginal persons, that representative;(j) the victim;(k) officers of the Court;(l) a person engaged in professional study relevant to the operation of the Court or research if the Court permits the person to be present;(m) a person who, in the Court's opinion, will assist the Court;(n) any other person if the Court considers that the interests of justice require that person's presence;(o) an infant or young child who is in the care of an adult present at the sitting.(2) Subject to sections 122E and 122I of the Evidence Act 1910 , the Court may exclude a person referred to in subsection (1) from the Court if it considers it necessary to do so in the interests of justice.
31. Restrictions on reporting proceedings
(1) A person must not publish in any way a report of the proceedings of the Court if the report identifies, or contains any information, picture or film that may lead to the identification of, a youth who is the subject of or a witness in the proceedings except where –(a) permission to publish the identity, information, picture or film has been granted under subsection (2) ; and(b) the identity, information, picture or film is published in accordance with any conditions specified in respect of the permission.Penalty: Fine not exceeding 100 penalty units or a term of imprisonment not exceeding 2 years, or both.(2) The Court may grant a person permission to publish an identity, information, picture or film subject to any conditions specified by the Court.(3) A person must not publish in any way a report of the proceedings of the Court if the Court prohibits publication of any report of the proceedings.Penalty: Fine not exceeding 100 penalty units or a term of imprisonment not exceeding 2 years, or both.
Division 3 - Proceedings after guilt is established
This Division applies after a youth is found guilty of an offence.
(1) In any proceedings under this Part, the Court may order the Secretary to provide to it a presentence report concerning the youth.(2) The Court may request that the report contain specified information, assessments and reports relating to the youth or the youth's family or other matters.(3) The Secretary must cause the presentence report to be prepared and provided to the Court expeditiously and, in any case, within 20 working days.(4) The limit of 20 days may be extended by the Court.
34. Disclosure of presentence report
The Secretary must provide a copy of the presentence report as soon as practicable to –(a) the prosecutor; and(b) the youth; and(c) the legal representative of the youth; and(d) the guardian, unless one cannot be found after reasonable inquiry.
35. Presentence report evidence
(1) The Court may, or at the request of the youth, his or her legal representative or the prosecutor must, require the author of a presentence report, or a person who gave a statement included in the report, to attend before the Court in the manner indicated by the Court for the purpose of giving more information.(2) The Court may ask, and allow the youth, his or her legal representative or the prosecutor to ask, questions of a person attending the Court under subsection (1) .
36. Disputed presentence report
(1) The youth, his or her legal representative or the prosecutor may dispute the whole or any part of a presentence report.(2) If the whole or any part of a presentence report is disputed before sentencing is to take place, the Court must not take the report or part in dispute into consideration when determining sentence unless the person who raised the dispute has been given the opportunity –(a) to lead evidence on the disputed matters; and(b) to cross-examine the author of the report on its contents.
Division 4 - Court-ordered community conferences
37. Court may order community conference
(1) Instead of proceeding to sentence a youth under section 47 , the Court may –(a) order the Secretary to convene a community conference; and(b) order the youth to attend a community conference.(2) An order under subsection (1)(a) may specify persons who are to be invited to attend the community conference.(3) The district registrar is to provide the Secretary with a copy of an order made under subsection (1)(a) .
38. Convening of community conference
(1) Except to the extent that the Court orders otherwise, section 14 , other than subsection (2)(c) , applies in relation to a community conference to be convened on the order of the Court –(a) as if the references in that section to the notice from a police officer were references to the order of the Court; and(b) with necessary modifications.(2) The facilitator must invite the following persons to a community conference to be convened on the order of the Court:(a) the guardians of the youth;(b) the persons specified in the order;(c) any relatives of the youth or other persons who the facilitator, after consulting with the youth and the youth's guardians and family (if available), considers appropriate to attend the community conference;(d) any other person who –(i) has had a close association with the youth or has been counselling, advising or aiding the youth; and(ii) in the opinion of the facilitator, may be able to participate usefully in the community conference;(e) if the youth is a member of an Aboriginal community, an Elder or other representative of that community;(f) any victim of the offence.
39. Constitution of, attendance and procedure at, powers of and finalising of community conference
Sections 15 , 16 , 17 and 18 apply, with any necessary modifications, in relation to a community conference convened on the order of the Court.
40. Procedure after successful community conference
Section 19 applies, with any necessary modifications, in relation to the procedure after a successful community conference convened on the order of the Court.
(1) The charge against a youth in respect of which a community conference was convened on the order of the Court is dismissed –(a) on the filing with the Court under section 19(1)(a) of a copy of the decision of the community conference, if the decision did not require the youth to enter into an undertaking; or(b) on the filing with the Court under section 19(6) of a certificate stating that the youth has fulfilled all undertakings entered into; or(c) at the end of the prescribed period, if a report has not been filed with the Court under section 43 in respect of a contravention of an undertaking before the end of that period.(2) If a charge is dismissed under this section, the district registrar must amend the records of the Court accordingly.(3) In this section,prescribed period means the period of 60 days commencing on the day by which all undertakings entered into by the youth at the community conference are to be fulfilled.
42. Procedure after unsuccessful community conference
(1) If the youth fails to attend a community conference convened on the order of the Court or that community conference fails to reach a decision, the facilitator must –(a) file with the Court a report –(i) stating that fact; and(ii) in the case of a failure to reach a decision, stating the reasons, in the facilitator's opinion, for that failure; and(b) provide a copy of the report to –(i) the youth; and(ii) the prosecutor of the charge in respect of which the community conference was convened; and(iii) each person who attended the community conference in response to the invitation of the facilitator; and(iv) the victim of the offence.(2) On receipt of a report under subsection (1) , the Court must proceed to make an order under section 47 .
43. Failure to fulfil undertaking
(1) If a youth fails to fulfil an undertaking entered into at a community conference convened on the order of the Court, the Secretary must –(a) file with the Court a report –(i) stating that fact and specifying whether the youth has taken any action towards fulfilling that undertaking and the circumstances of the contravention; and(ii) specifying whether the youth has fulfilled any other undertaking entered into at the community conference; and(iii) specifying any action the youth has taken towards fulfilling any other undertaking entered into at the community conference; and(b) provide a copy of the report to –(i) the youth; and(ii) the prosecutor of the charge in respect of which the community conference was convened; and(iii) each person who attended the community conference in response to the invitation of the facilitator; and(iv) the victim of the offence.(2) On receipt of a report under subsection (1) , the Court must proceed to make an order under section 47 .
44. Requiring community conference facilitator to attend Court
(1) The Court may require the facilitator to attend before the Court in the manner indicated by the Court for the purpose of giving more information.(2) The Court may ask, and allow the youth, the complainant or a legal representative to ask, questions of a facilitator.
45. Confidentiality of community conference
(1) A person must not publish any information in respect of any action or proceedings that are to be, are being or have been taken against a youth by a community conference convened on the order of the Court if the information identifies, or may lead to the identification of –(a) the youth; or(b) the victim; or(c) any other person involved in the action or proceedings (otherwise than in a professional capacity or as a person employed or engaged in the administration of this Act) who has not consented to the publication of the information.Penalty: Fine not exceeding 100 penalty units.(2) Subsection (1) does not apply to the provision of information to –(a) a guardian of the youth; and(b) a person who is present at the community conference; and(c) a police officer in the course of his or her official functions; and(d) a person employed or engaged in the administration of this Act in the course of his or her official functions; and(e) a person undertaking research that does not involve the identification of the youth, the victim or any person referred to in subsection (1)(c) if the research has been approved by the Commissioner of Police or the Secretary; and(f) a person undertaking research that involves the identification of the youth, the victim or any person referred to in subsection (1)(c) if –(i) all persons to be identified have consented to their identity being provided to the researcher; and(ii) the research has been approved by the Commissioner of Police or the Secretary; and(g) a legal practitioner acting for the youth.(3) Subsection (1) does not apply to the provision of information to a court, or a party or legal practitioner acting for a party, in proceedings in which that information is relevant to a matter in issue if the information relates to –(a) the decision of a community conference; and(b) the undertakings entered into by a youth as a result of a community conference; and(c) the performance or non-performance by the youth of obligations arising from those undertakings; and(d) the compliance or non-compliance by the youth with a requirement to enter into an undertaking imposed by a community conference.(4) Subsection (1) does not apply in relation to the provision of information as required or allowed under any other provision of this Act.
Division 5 - Sentences
46. Application and interpretation of certain sentence provisions
(1) If, in this or any other Act, a penalty including imprisonment is specified in respect of an offence against this or any other Act and a youth is found guilty of the offence, that reference to imprisonment is taken to be a reference to detention.(2) When determining a sentence, the Court –(a) must disregard a requirement under any other Act that an amount of money or term of imprisonment must be the minimum penalty for the offence; and(b) must regard a requirement under any other Act that an amount of money or term of imprisonment, or both, must be the only penalty for the offence as providing instead that the amount or term, or both, are the maximum penalties for the offence; and(c) must comply with a requirement under any other Act that a loss of a licence or other penalty, other than an amount of money or term of imprisonment, must be imposed as a penalty for the offence.(3) A requirement under this or any other Act that an amount of money or term of imprisonment, or both, are the only penalties for an offence does not prevent the Court from making any order it considers appropriate under section 47(1) or (2) instead of, or in addition to, those penalties.
47. Sentences and other orders that may be imposed
(1) If a youth is found guilty of an offence, the Court may do one or more of the following:(a) dismiss the charge and impose no further sentence;(b) dismiss the charge and reprimand the youth;(c) dismiss the charge and require the youth to enter into an undertaking to be of good behaviour;(d) release the youth and adjourn the proceedings on conditions;(e) impose a fine;(f) make a probation order;(g) order that the youth perform community service;(h) make a detention order.(2) In addition to imposing a sentence under subsection (1) , the Court may make one or more of the following orders:(a) a suspended detention order;(b) a restitution order;(c) a compensation order;(d) subject to this Act, any other order a court may make under another Act in respect of the offence of which the youth is found guilty.(3) If the Court considers it appropriate that the youth pay an amount by way of compensation and an amount by way of fine but the youth has insufficient resources to pay both amounts, the Court must give preference to ordering the youth to pay the compensation amount.(4) In determining what orders to make under subsections (1) and (2) , the Court must have regard to all the circumstances of the case, including –(a) the nature of the offence; and(b) the youth's age and any sentences or sanctions previously imposed on the youth by any court or a community conference; and(c) the impact the sentence will have on the youth's chances of rehabilitation generally or finding or retaining employment.
48. Limitations on imposing sentences
(1) The Court must not impose a sentence that is more severe than would be imposed on an adult who committed the same offence.(2) The Court must not impose a sentence referred to in section 47(1)(f) , (g) or (h) unless it has first obtained a presentence report.
(1) If the Court imposes a sentence under subsection (1) of section 47 that does not include a sentence under paragraph (e) , (f) , (g) or (h) of that subsection, a conviction is not to be recorded.(2) If the Court imposes a sentence under section 47(1)(e) , (f) or (g) , the Court may order that a conviction is or is not to be recorded.(3) If the Court imposes a sentence consisting of or including a period of detention and does not make a suspended detention order suspending the whole of the period of detention, a conviction must be recorded.(4) In determining whether or not to record a conviction, the Court must have regard to all the circumstances of the case, including –(a) the nature of the offence; and(b) the youth's age; and(c) any sentences or sanctions previously imposed on the youth by any court or community conference and any formal cautions previously administered to the youth; and(d) the impact the recording of a conviction will have on the youth's chances of rehabilitation generally or finding or retaining employment.(5) Except as otherwise provided by this or any other Act, a finding of guilty without the recording of a conviction is not taken to be a conviction for any purpose.(6) A finding of guilty without the recording of a conviction bars a subsequent proceeding against the youth for the same offence as if a conviction had been recorded.
50. Youth entitled to explanation of Court order
(1) On imposing a sentence under section 47 , the Court must take steps to ensure that the youth and the guardian, if present, understand –(a) the purpose and effect of the order; and(b) the consequences (if any) that may follow if the youth fails to comply with the requirements of the order.(2) The steps the Court may take under subsection (1) may include –(a) directly explaining the matters in the Court; or(b) having some appropriate person give the explanation; or(c) having an interpreter, or other person able to communicate effectively with the youth and the guardian, give the explanation; or(d) causing an explanatory note in English or another language to be supplied to the youth and the guardian.
Division 6 - Undertakings to be of good behaviour
51. Undertaking to be of good behaviour
(1) An undertaking to be of good behaviour is an undertaking by the youth to do or to refrain from doing the acts specified in the order that requires the youth to enter into the undertaking.(2) An undertaking to be of good behaviour has the duration, not exceeding 6 months, specified in the order that requires the youth to enter into the undertaking.
52. Limitation on requiring undertaking to be of good behaviour
The Court must not require a youth to enter into an undertaking to be of good behaviour unless the youth agrees to enter into the undertaking.
53. Contravention of undertaking to be of good behaviour
The Court must not take any action if a youth contravenes an undertaking to be of good behaviour.
Division 7 - Release and adjournment orders
54. Release and adjournment order
If the Court decides to make a release and adjournment order, the Court may –(a) adjourn the proceedings by that order for a period not exceeding 12 months; and(b) make the order subject to conditions specified in the order which are reasonable in the circumstances.
55. Review of release and adjournment order
(1) A youth who is released under a release and adjournment order or a prescribed person may apply to the Court for an order under subsection (4) if –(a) the circumstances of the youth have changed since the release and adjournment order was made; or(b) the youth is unable to comply with a condition to which the release and adjournment order is subject.(2) A copy of the application and notice of the time and place of the hearing of the application must be served by the applicant not less than 7 days before the hearing on –(a) the Commissioner of Police, if the application is made by or on behalf of the youth; or(b) the youth, and a guardian unless one cannot be found after reasonable inquiry, if the application is made by or on behalf of the prescribed person.(3) The Court may issue a warrant to arrest the youth if –(a) the youth fails to appear at the hearing of the application of a prescribed person; or(b) reasonable efforts have been made to serve the application on the youth but have been unsuccessful.(4) At the hearing of an application, the Court may do one or more of the following:(a) continue the release and adjournment order as it is;(b) extend the period of the adjournment under the release and adjournment order;(c) remove or amend the conditions to which the release and adjournment order is subject;(d) revoke the release and adjournment order and, where appropriate, any other order made under section 47 and make another order under that section in respect of the offence.(5) If the period of an adjournment under a release and adjournment order is extended under subsection (4) , the Court must not extend that period so that the adjournment continues for more than 12 months in total.(6) The Court must not make an order under subsection (4) unless the youth is present before the Court.
56. Contravention of release and adjournment order
(1) A prescribed person may apply to the Court for an order under subsection (4) if it appears to the prescribed person that a youth has contravened a condition to which a release and adjournment order is subject.(2) A copy of the application and notice of the time and place of the hearing of the application must be served by the applicant not less than 7 days before the hearing on –(a) the youth; and(b) a guardian unless one cannot be found after reasonable inquiry.(3) The Court may issue a warrant to arrest the youth if –(a) the youth fails to appear at the hearing of the application; or(b) reasonable efforts have been made to serve the application on the youth but have been unsuccessful.(4) If the Court is satisfied that a youth has contravened a condition to which a release and adjournment order is subject, the Court may do one or more of the following:(a) continue the release and adjournment order as it is;(b) extend the period of the adjournment under the release and adjournment order;(c) remove or amend the conditions to which the release and adjournment order is subject;(d) revoke the release and adjournment order and, where appropriate, any other order made under section 47 and make another order under that section in respect of the offence.(5) If the period of an adjournment under a release and adjournment order is extended under subsection (4) , the Court must not extend that period so that the adjournment continues for more than 12 months in total.(6) If an application under subsection (1) is made but not determined before the period of the adjournment under a release and adjournment order has ended, the adjournment continues until the application is determined.(7) The Court must not make an order under subsection (4) unless the youth is present before the Court.
Division 8 - Fines
(1) In this section,maximum fine means the maximum fine which may be imposed on an adult for the same offence.(2) The Court must not impose a fine in respect of a single offence that exceeds –(a) if the youth is less than 15 years old, 2 penalty units or the maximum fine, whichever is lower; or(b) if the youth is 15 or 16 years old, 5 penalty units or the maximum fine, whichever is lower; or(c) if the youth is 17 years old or more, the maximum fine.(3) The Court must not impose fines in respect of 2 or more offences the total of which exceeds –(a) if the youth is less than 15 years old, 5 penalty units or the total of the maximum fines for those offences, whichever is lower; or(b) if the youth is 15 or 16 years old, 10 penalty units or the total of the maximum fines for those offences, whichever is lower; or(c) if the youth is 17 years old or more, the total of the maximum fines for those offences.
58. Financial circumstances of youth to be considered
The Court must take into consideration the financial circumstances of the youth when determining the amount of a fine to be imposed on the youth if the youth is present before the Court.
59. Time for payment or payment by instalments
(1) If the Court requires a youth to pay a fine, the Court must also order –(a) that the fine be paid immediately; or(b) that the fine be paid within the period specified in the order; or(c) that the fine be paid by instalments as specified in the order.(2) If the Court fails to make an order under subsection (1) , the Court is taken to have made an order requiring payment of the fine within 28 days after the youth is ordered to pay the fine.
60. Alteration of time for, or method of, paying fine
(1) A youth who is required to pay a fine may apply to the Court before the end of the period within which the fine is to be paid for –(a) further time in which to pay the fine; or(b) an amendment of the order which required the payment of the fine to allow the fine to be paid by instalments; or(c) an amendment of the order which required payment of the fine by instalments; or(d) an order that the youth perform community service instead of paying the outstanding amount of the fine.(2) On the hearing of the application, the Court may make such orders as it considers appropriate.
61. Failure to pay fine or instalment
(1) If a youth fails to pay an instalment of a fine by the day on which it is due, on that day the amount of the fine outstanding becomes due and payable.(2) If a youth fails to pay a fine or an instalment of a fine by the day on which it is due, the district registrar may –(a) require the youth to attend before the Court; or(b) take proceedings for the recovery of the outstanding amount of the fine under the Magistrates Court (Civil Division) Act 1992 .(3) Even though the district registrar has, under subsection (2)(b) , commenced proceedings for the recovery of a fine under the Magistrates Court (Civil Division) Act 1992 , the district registrar may also under subsection (2)(a) require the youth to attend before the Court in respect of the failure of the youth to pay that fine or an instalment of that fine if the district registrar considers it appropriate to do so.
62. Court proceeding for failure to pay fine
(1) If the district registrar decides to take action under section 61(2)(a) , he or she must –(a) serve a notice on the youth requiring the youth to attend before the Court at the time and place specified in the notice; and(b) serve a copy of that notice on a guardian unless one cannot be found after reasonable inquiry.(2) A notice or a copy of a notice served under subsection (1) is to be served not less than 7 days before the hearing.(3) The Court may issue a warrant to arrest the youth if –(a) the youth fails to appear before the Court as required by a notice served under subsection (1) ; or(b) reasonable efforts have been made to serve a notice on the youth under subsection (1) but have been unsuccessful.(4) If the Court is satisfied that a youth has failed to pay a fine or an instalment of a fine by the day on which it is due, the Court may do one or more of the following:(a) amend the order that was made under section 59 as the Court considers appropriate;(b) order the youth to perform community service instead of paying the outstanding amount of the fine;(c) order the district registrar to take proceedings for the recovery of the outstanding amount of the fine under the Magistrates Court (Civil Division) Act 1992 ;(d) revoke the order made under section 47 requiring the youth to pay the fine and, where appropriate, any other order made under that section and make another order under that section in respect of the offence.(5) The Court must not make an order under subsection (4) unless the youth is present before the Court.(6) If the district registrar issues a notice for the purposes of requiring a youth to attend before the Court in respect of a failure to pay a fine or an instalment of a fine –(a) the district registrar may not under section 61(2)(b) commence proceedings to recover the outstanding amount of the fine under the Magistrates Court (Civil Division) Act 1992 ; and(b) any such proceedings already commenced may not be continued unless the Court makes an order under subsection (4)(c) requiring the district registrar to take proceedings for the recovery of the outstanding amount of the fine under that Act.
63. Community service instead of fine
(1) If the Court makes an order under section 60(1)(d) or section 62(4)(b) requiring a youth to perform community service instead of paying the outstanding amount of a fine, the order must require the performance of community service for the longer of the following periods:(a) one hour for each $20 or part of $20 of the fine outstanding but not exceeding the maximum hours specified in section 72 ;(b) 3 hours.(2) Division 10 of this Part applies, with necessary adaptations, to an order under section 60(1)(d) or section 62(4)(b) requiring the performance of community service instead of paying the outstanding amount of a fine as if the order were a community service order.(3) If an order is made under section 60(1)(d) or section 62(4)(b) , the youth may pay the whole or part of the outstanding amount of the fine in respect of which the order was made and the number of hours of community service the youth is required to perform is reduced by the proportion that the amount paid bears to that outstanding amount (ignoring any fraction or part of an hour).
64. Proceedings under Magistrates Court (Civil Division) Act 1992 to recover fine
A fine imposed under this Act is taken to be a judgment of the Magistrates Court (Civil Division) that is enforceable under the Magistrates Court (Civil Division) Act 1992 if –(a) the Court makes an order under section 62(4)(c) requiring the district registrar to take proceedings for the recovery of the outstanding amount of the fine under that Act; or(b) the district registrar under section 61(2)(b) determines to take proceedings for the recovery of the fine under that Act.
Division 9 - Probation
(1) A probation order is an order that –(a) the youth must report to a youth justice worker at the place specified in the order within 2 working days after the order is made; and(b) during the period of probation the youth must report to the assigned youth justice worker as required by the youth justice worker; and(c) during the period of probation the youth must receive visits from the assigned youth justice worker as required by the youth justice worker; and(d) during the period of probation the youth must not commit another offence, including a prescribed offence, which if committed by an adult could be punishable by imprisonment; and(e) during the period of probation the youth must not leave the State without the written permission of the Secretary; and(f) the youth must notify the assigned youth justice worker of any change during the period of probation of residence, school or employment before, or within a reasonable period after, the change; and(g) during the period of probation the youth must obey the reasonable and lawful instructions of the assigned youth justice worker.(2) A probation order is subject to special conditions which are specified in the order and reasonable in the circumstances.(3) A special condition may apply during the whole or any part of the period of probation as specified in the probation order.(4) Without limiting the special conditions that may be imposed, special conditions may include one or more of the following conditions:(a) the youth must attend school;(b) the youth must attend educational, personal, health and other programs specified in the order;(c) the youth must attend educational, personal, health and other programs as directed by the assigned youth justice worker;(d) the youth must abstain from drinking alcohol;(e) the youth must abstain from using illegal drugs;(f) the youth must reside at a specified address;(g) the youth must not leave his or her place of residence between specified hours on specified days;(h) the youth must undergo medical, psychiatric, psychological and drug counselling and treatment as specified in the order;(i) the youth must undergo medical, psychiatric, psychological and drug counselling and treatment as directed by the assigned youth justice worker.
Probation is to be for the period specified in the order not exceeding –(a) 2 years, if the offence giving rise to the probation may be punishable by imprisonment for a term of 2 or more years when committed by an adult; or(b) 12 months in any other case.
(1) A youth or the Secretary may apply to the Court for an order under subsection (4) if –(a) the circumstances of the youth have changed since the making of the probation order; or(b) the youth is being detained in a detention centre or is otherwise unable to comply with the probation order; or(c) the youth is no longer willing to comply with the probation order.(2) A copy of the application and notice of the time and place of the hearing of the application must be served by the applicant not less than 7 days before the hearing on –(a) the Secretary, if the application is made by or on behalf of the youth; or(b) the youth, and the guardian unless one cannot be found after reasonable inquiry, if the application is made by the Secretary.(3) The Court may issue a warrant to arrest a youth if –(a) the youth fails to appear at the hearing of the application of the Secretary; or(b) reasonable efforts have been made to serve the application on the youth but have been unsuccessful.(4) At the hearing of an application, the Court may do one or more of the following:(a) discharge the probation order;(b) continue the probation order as it is;(c) amend the period during which the probation order has effect;(d) amend the special conditions to which the probation order is subject;(e) revoke the probation order and, where appropriate, any other order made under section 47 and make another order under that section in respect of the offence.(5) If the period during which a probation order has effect is extended under subsection (4)(c) , the Court must not extend that period so that it continues for more than the relevant period specified in section 66 .(6) In determining what order to make under subsection (4) , the Court must consider –(a) any report on the youth prepared by the Secretary; and(b) the extent to which, and the manner in which, the youth has complied with the conditions and special conditions to which the probation order is subject.(7) The Court must not make an order under subsection (4) unless the youth is present before the Court.
68. Contravention of probation order
(1) A prescribed person may apply to the Court for an order under subsection (4) if it appears to the prescribed person that a youth has contravened a probation order or a special condition to which a probation order is subject.(2) A copy of the application and notice of the time and place of the hearing of the application is to be served by the applicant not less than 7 days before the hearing on –(a) the youth; and(b) a guardian unless one cannot be found after reasonable inquiry.(3) The Court may issue a warrant to arrest the youth if –(a) the youth fails to appear at the hearing of the application; or(b) reasonable efforts have been made to serve the application on the youth but have been unsuccessful.(4) If the Court is satisfied that a youth has contravened the probation order or a special condition to which the probation order is subject, the Court may do one or more of the following:(a) continue the probation order as it is;(b) amend the period during which the probation order has effect;(c) amend the special conditions to which the probation order is subject;(d) revoke the probation order and, where appropriate, any other order made under section 47 and make another order under that section in respect of the offence.(5) If the period during which a probation order has effect is extended under subsection (4)(b) , the Court must not extend that period so that it continues for more than the relevant period specified in section 66 .(6) In determining what order to make under subsection (4) , the Court must consider –(a) any report on the youth prepared by the Secretary; and(b) the extent to which, and the manner in which, the youth has complied with the probation order and the special conditions to which the probation order is subject.(7) The Court must not make an order under subsection (4) unless the youth is present before the Court.
Division 10 - Community service orders
(1) A community service order is an order that –(a) the youth must report to the person and place specified in the order within the period specified in the order; and(b) the youth must perform, in a satisfactory way for the number of hours specified in the order, the community service that the assigned youth justice worker directs the youth to perform; and(c) while performing community service the youth must comply with reasonable directions given by the assigned youth justice worker; and(d) the youth must notify the assigned youth justice worker of any change of residence before, or within 2 working days after, the change; and(e) the youth must comply with reasonable directions given by the assigned youth justice worker directing the youth to attend educational, health, personal and other programs.(2) Attendance at a program in accordance with a direction given under subsection (1)(e) is taken to be performance of community service for the purposes of the community service order.
70. Preconditions for making community service order
The Court may make a community service order only if –(a) the youth is 13 years old or more; and(b) the youth indicates a willingness to comply with the order; and(c) the presentence report states that the youth is a suitable person to perform community service; and(d) the Crown provides or participates in a scheme providing for the performance of community service by youths and –(i) the scheme is suitable for the performance of community service by the youth; and(ii) a place is available in the scheme for the youth.
71. Multiple community service orders
The Court –(a) may make 2 or more community service orders against a youth in respect of 2 or more offences; and(b) may make a community service order against a youth who is already subject to an existing community service order.
72. Limitation on number of hours of community service
(1) The total number of hours of community service to be performed by a youth under one or more community service orders must not, at any time, be more than –(a) 70 hours, if the youth is 13, 14 or 15 years old; or(b) 210 hours, if the youth is 16 years old or more.(2) The total number of hours of community service to be performed is calculated –(a) by adding the hours specified in each of one or more community service orders made by the Court when imposing sentences against the youth; and(b) if the youth is already subject to an existing community service order, by adding the number of hours obtained under paragraph (a) to the number of hours of community service that the youth has still to perform to comply with the existing community service order.(3) To the extent that the total number of hours of community service to be performed exceeds the maximum specified in subsection (1) , the order or orders made by the Court are of no effect.(4) Every community service order made against a youth operates cumulatively to every other community service order made against the youth unless the Court directs otherwise.
73. Community service to be performed within limited period
A youth against whom a community service order is made must perform the number of hours of community service specified in the order –(a) within the period of 12 months after the date of the order; or(b) within any extended period that the Court may order under section 76 or 77 .
74. Community service may only involve certain kinds of work
The work selected for the performance of community service must be for the benefit of –(a) the victim of the offence; or(b) persons who are disadvantaged through age, illness, incapacity or any other adversity; or(c) an organisation that does not seek to secure a pecuniary profit for its members; or(d) a Government department, instrumentality of the Crown or a council within the meaning of the Local Government Act 1993 .
75. Obligations and powers of assigned youth justice worker
In giving directions to a youth in relation to the youth's performance of community service, the assigned youth justice worker must –(a) avoid, if practicable –(i) conflicts with the religious and cultural beliefs and practices of the youth or his or her parent; and(ii) interference with the youth's attendance at a place of employment or a school or other educational or training establishment; and(b) take all steps necessary to ensure that the youth, if practicable, is kept apart from any adult under sentence for an offence while performing the community service.
76. Review of community service order, &c.
(1) A youth or the Secretary may apply to the Court for an order under subsection (4) if –(a) the circumstances of the youth have changed since the making of the community service order; or(b) the youth is being detained in a detention centre or is otherwise unable to comply with the community service order; or(c) the youth is no longer willing to comply with the community service order.(2) A copy of the application and notice of the time and place of the hearing of the application must be served by the applicant not less than 7 days before the hearing on –(a) the Secretary, if the application is made by or on behalf of the youth; or(b) the youth, and the guardian unless one cannot be found after reasonable inquiry, if the application is made by the Secretary.(3) The Court may issue a warrant to arrest a youth if –(a) the youth fails to appear at the hearing of the application of the Secretary; or(b) reasonable efforts have been made to serve the application on the youth but have been unsuccessful.(4) At the hearing of the application, the Court may do one or more of the following:(a) discharge the community service order;(b) continue the community service order as it is;(c) extend the period within which the community service is required to be performed under the community service order;(d) reduce (without restriction) or increase the number of hours of community service which the youth is required to perform under the community service order;(e) revoke the community service order and, where appropriate, any other order made under section 47 and make another order under that section in respect of the offence.(5) The Court may increase the number of hours of community service a youth is required to perform under subsection (4)(d) only if the youth expresses a willingness to comply with the community service order as so amended.(6) If the number of hours of community service that the youth is required to perform is increased under subsection (4)(d) , the Court must not increase the hours so that the youth is required to perform in total more hours of community service than the relevant maximum number of hours specified in section 72 .(7) In determining what order to make under subsection (4) , the Court must consider –(a) any report on the youth prepared by the Secretary; and(b) the extent to which, and the manner in which, the youth has complied with the community service order and the conditions to which that order is subject.(8) The Court must not make an order under subsection (4) unless the youth is present before the Court.
77. Contravention of community service order
(1) The Secretary may apply to the Court for an order under subsection (5) if it appears to the Secretary that a youth has contravened a community service order.(2) An application must be made within 6 months after the youth contravenes the community service order.(3) A copy of the application and notice of the time and place of the hearing of the application is to be served not less than 7 days before the hearing by the applicant on –(a) the youth; and(b) a guardian unless one cannot be found after reasonable inquiry.(4) The Court may issue a warrant to arrest the youth if –(a) the youth fails to appear at the hearing of the application; or(b) reasonable efforts have been made to serve the application on the youth but have been unsuccessful.(5) If the Court is satisfied that a youth has contravened a community service order, the Court may do one or more of the following:(a) on the undertaking of the youth to comply with the order, continue the order as it is;(b) extend the period within which the community service is required to be performed under the order;(c) increase the number of hours of community service that the youth is required to perform under the order;(d) revoke the order and, where appropriate, any other order made under section 47 and make another order under that section in respect of the offence.(6) The Court may increase the number of hours of community service a youth is required to perform under subsection (5)(c) only if the youth expresses a willingness to comply with the community service order as so amended.(7) If the number of hours of community service that the youth is required to perform is increased under subsection (5)(c) , the Court must not increase the number of hours so that the youth is required to perform more hours of community service than the relevant maximum number of hours specified in section 72 .(8) In determining what order to make under subsection (5) , the Court must consider –(a) any report on the youth prepared by the Secretary; and(b) the extent to which, and the manner in which, the youth has complied with the community service order.(9) The Court must not make an order under subsection (5) unless the youth is present before the Court.(10) For the purposes of this section, a community service order continues in force until the application under this section is heard and determined.
78. Ending of community service order
A community service order remains in force until the first of the following occurs:(a) the youth has performed community service in accordance with the order for the number of hours specified in the order;(b) the order is discharged under section 76(4) ;(c) the period within which the community service is required to be performed under section 73 expires;(d) the order is revoked under section 76(4) or 77(5) .
Division 11 - Detention orders
A detention order is an order that a youth serve the period of detention specified in the order in a detention centre.
80. Preconditions for making detention order
The Court may only make a detention order if the Court –(a) has considered all other available sentences; and(b) is satisfied that no other sentence is appropriate in the circumstances of the case.
A period of detention –(a) must not be imposed if an adult who committed the same offence could not be sentenced to imprisonment; and(b) must not exceed 2 years.
(1) On making a detention order against a youth, the Court must issue a warrant –(a) directing the Secretary, a police officer or another person to take the youth into custody; and(b) requiring that the youth be delivered to a detention centre.(2) Subsection (1) does not apply if the Court on making a detention order against a youth also makes a suspended detention order in respect of the whole period of detention.
(1) A period of detention commences on the day the Court makes the detention order except where –(a) the Court makes an order under section 85(1) ; or(b) the youth has been held in custody pending the determination of proceedings for an offence; or(c) the order specifies otherwise.(2) If the Court makes an order under section 85(1) , the period of detention commences on the earliest release date in respect of any other period of detention that is relevant under that section.(3) On and from the commencement of a period of detention served in a detention centre until the youth is released under the supervised release order, the youth is taken to be in the custody of the Secretary.
84. Detention orders ordinarily concurrent
If, at the time the Court makes a detention order against a youth for an offence, the youth is serving or has been sentenced to serve a period of detention for another offence, the period of detention under the detention order must be served concurrently with the other period of detention, unless other provision is made under section 85 or another Act.
85. Court may order detention period to be cumulative
(1) If, at the time the Court makes a detention order against a youth for an offence, the youth is serving or has been sentenced to serve a period of detention for another offence, the Court may order the period of detention under the detention order to take effect on the earliest release date in respect of that other period of detention.(2) Subsection (1) applies even if the other period of detention has to be served concurrently or cumulatively with a period of detention for an offence other than the one for which the Court makes the detention order.
86. Limitation on cumulative orders
(1) If the Court makes an order under section 85(1) , the total time that a youth, at the time of making that order, can be required to be detained in a detention centre must not exceed 2 years.(2) If the Court makes an order under section 85(1) requiring a period of detention to take effect on the earliest release date in respect of another period of detention, any time for which the youth has been detained in respect of that other period of detention before the order under that section is made is not to be counted for the purposes of calculating the total time that a youth can be detained.(3) To the extent that the total time to be spent in detention under 2 or more detention orders by reason of an order under section 85(1) exceeds the maximum allowed, the orders are of no effect.
87. Period of escape or release pending appeal not counted as detention
If a youth who is serving a period of detention under a detention order –the period for which the youth is absent from custody during the release or escape is not to be counted as part of the period of detention.(a) is released from custody pending an appeal against the detention order (including an application for a review of sentence); or(b) escapes from custody –
88. Multiple orders of detention and imprisonment against person as adult and youth
(1) Sections 84 , 85 , 86 and 87 extend to a case where at the time the Court makes a detention order against a youth, the youth is serving or has been sentenced to serve a term of imprisonment in a prison as if a reference in those sections to a period of detention included a reference to the term of imprisonment.(2) If a youth is liable to serve a term of imprisonment in a prison concurrently with a period of detention –(a) the period must be served as a term of imprisonment in a prison; and(b) the period of deprivation of liberty under the term of imprisonment must be counted as part of the period of detention; and(c) any period of deprivation of liberty served in the detention centre –(i) is a period of detention served; and(ii) must be counted as part of the term of imprisonment in the prison.
89. Period of custody on remand to be treated as detention on sentence
(1) If a detention order is made, any period during which the youth was held in custody pending the determination of the proceedings for the offence is counted as service of detention under that order.(2) If a youth is held in custody pending the determination of proceedings for an offence and during that time the youth is also held in custody pending the determination of other proceedings for another offence, the Court may decide that the whole or part of the period of custody for which the youth was held pending the determination of the other proceedings is to be counted for the purposes of subsection (1) .(3) The Court may make a decision for the purpose of subsection (2) at the time of making a detention order or at any later time on the application of the youth.
Division 12 - Suspended detention orders
(1) A suspended detention order is an order suspending the whole or part of a sentence of a period of detention imposed by a detention order.(2) The Court may make a suspended detention order if it is satisfied that it is appropriate to do so.(3) A suspended detention order is subject to the 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.(4) A suspended detention order is also subject to any special conditions specified in the order which are reasonable in the circumstances.(5) A special condition may apply during the whole or any part of the period of suspension as specified in the suspended detention order.(6) Without limiting the special conditions that may be imposed, special conditions may include one or more of the following conditions:(a) the youth must report to the person and place specified in the order within 2 working days after the order is made;(b) during the period of suspension the youth must report to the assigned youth justice worker as required by the youth justice worker;(c) during the period of suspension the youth must receive visits from the assigned youth justice worker as required by the youth justice worker;(d) during the period of suspension the youth must not leave the Crown in right of the State without the written permission of the Secretary;(e) the youth must notify the assigned youth justice worker of any change during the period of suspension of residence, school or employment before, or within 2 working days after, the change;(f) during the period of suspension the youth must obey the reasonable and lawful instructions of the assigned youth justice worker;(g) the youth must not unreasonably miss school;(h) the youth must attend educational, personal, health and other programs specified in the order;(i) the youth must attend educational, personal, health and other programs as directed by the assigned youth justice worker;(j) the youth must abstain from drinking alcohol;(k) the youth must abstain from using illegal drugs;(l) the youth must reside at a specified address;(m) the youth must not leave his or her place of residence between specified hours on specified days;(n) the youth must undergo medical, psychiatric, psychological and drug counselling and treatment as specified in the order;(o) the youth must undergo medical, psychiatric, psychological and drug counselling and treatment as directed by the assigned youth justice worker.
(1) If the Court makes a suspended detention order, the Court must specify in the order the period during which the order has effect.(2) The period specified in a suspended detention order as the period during which the order has effect must not exceed –(a) 12 months, if the youth is less than 16 years old; or(b) 2 years, if the youth is 16 years old or more.
92. Effect of suspended detention order
If the Court makes a suspended detention order, the youth only has to serve the period, or that part of the period, of detention that has been suspended if ordered to do so under section 94 .
93. Review of suspended detention order
(1) A youth or the Secretary may apply to the Court for an order under subsection (4) if –(a) the circumstances of the youth have changed since the making of the suspended detention order; or(b) the youth is being detained in a detention centre or is otherwise unable to comply with a condition or special condition to which the suspended detention order is subject; or(c) the youth is no longer willing to comply with a condition or special condition to which the suspended detention order is subject.(2) A copy of the application and notice of the time and place of the hearing of the application must be served by the applicant not less than 7 days before the hearing on –(a) the Secretary, if the application is made by or on behalf of the youth; or(b) the youth, and the guardian unless one cannot be found after reasonable inquiry, if the application is made by the Secretary.(3) The Court may issue a warrant to arrest a youth if –(a) the youth fails to appear at the hearing of the application of the Secretary; or(b) reasonable efforts have been made to serve the application on the youth but have been unsuccessful.(4) At the hearing of an application, the Court may do one or more of the following:(a) continue the suspended detention order as it is;(b) amend the suspended detention order by amending the period during which that order has effect or in any other manner;(c) amend the special conditions to which the suspended detention order is subject;(d) revoke the suspended detention order;(e) restore the whole or any part of that amount of the sentence that was suspended by the suspended detention order and order the youth to serve the restored sentence;(f) revoke the suspended detention order and the detention order to which it relates and, where appropriate, any other order made under section 47 and make another order under that section in respect of the offence.(5) If a suspended detention order is amended under subsection (4)(b) , the Court must not extend the period of suspension so that the total period of suspension continues for more than the period specified in section 91(2) .(6) In determining what order to make under subsection (4) , the Court must consider –(a) any report on the youth prepared by the Secretary; and(b) the extent to which, and the manner in which, the youth has complied with the suspended detention order and the conditions to which the suspended detention order is subject.(7) The Court must not make an order under subsection (4) unless the youth is present before the Court.
94. Contravention of suspended detention order
(1) The prescribed person may apply to the Court for an order under subsection (4) if it appears to the Secretary that a youth has contravened a condition or special condition to which a suspended detention order is subject.(2) A copy of the application and notice of the time and place of the hearing of the application is to be served by the applicant not less than 7 days before the hearing on –(a) the youth; and(b) a guardian unless one cannot be found after reasonable inquiry.(3) The Court may issue a warrant to arrest the youth if –(a) the youth fails to appear at the hearing of the application; or(b) reasonable efforts have been made to serve the application on the youth but have been unsuccessful.(4) If the Court is satisfied that a youth has contravened a condition or special condition to which a suspended detention order is subject, the Court may do one or more of the following:(a) continue the suspended detention order as it is;(b) amend the suspended detention order by amending the period during which that order has effect or in any other manner;(c) amend the special conditions to which the suspended detention order is subject;(d) revoke the suspended detention order;(e) restore the whole or part of that amount of the sentence of detention that was suspended by the suspended detention order and order the youth to serve the restored sentence.(5) If the Court amends a suspended detention order under subsection (4)(b) by extending the suspension by a further period, section 91(2) does not apply to the further period.(6) The further period is not to exceed –(i) 12 months, if the youth was less than 16 years old at the time when he or she contravened the condition or special condition to which the suspended detention order is subject; or(ii) 2 years, if the youth was 16 years old or more at that time.(7) In determining what order to make under subsection (4) , the Court must consider –(a) any report on the youth prepared by the Secretary; and(b) the extent to which, and the manner in which, the youth has complied with the conditions and special conditions to which the suspended detention order is subject.(8) The Court must not make an order under subsection (4) unless the youth is present before the Court.
Division 13 - Restitution
(1) A restitution order is an order containing one or more of the following requirements:(a) that a person who has possession or control of stolen goods restore them to the person entitled to them;(b) that the youth deliver to another person goods that are the proceeds of any disposal or realisation of the whole or part of –(i) stolen goods; or(ii) goods obtained by the disposal or realisation of the whole or part of the stolen goods;(c) that an amount not exceeding the value of stolen goods be paid to another person out of money taken from the youth's possession on his or her arrest.(2) If –the Court may, on the application of the purchaser or lender, order that an amount not exceeding the purchase price or the amount lent be paid to the purchaser or lender out of money taken from the youth's possession on his or her arrest.(a) the Court makes a restitution order containing a requirement referred to in subsection (1)(a) ; and(b) it appears to the Court that the person against whom the order is made bought the stolen goods in good faith from the youth or lent money in good faith on the security of the stolen goods to the youth –(3) A restitution order containing a requirement referred to in subsection (1)(b) or (c) may be made only in favour of a person who, if the stolen goods were in the youth's possession, would be entitled to recover them from the youth.(4) The Court may make a restitution order containing both of the requirements referred to in subsection (1)(a) and (b) only if the total of the value of the goods delivered to the person in whose favour the order is made and the amount paid to that person under the order is not more than the value of the stolen goods.(5) A restitution order may be made by the Court –(a) on its own motion; or(b) on the application of –(i) the person in whose favour the order is sought; or(ii) the prosecutor on that person's behalf.(6) An application under subsection (5)(b) is to be made as soon as practicable after the youth is found guilty of an offence.
96. Preconditions for restitution order
(1) The Court may make a restitution order only if it is satisfied by evidence presented to the Court that –(a) goods have been stolen; and(b) a youth has been found guilty of an offence connected with the theft of the goods.(2) For the purposes of subsection (1) , evidence presented to the Court includes –(a) evidence given at the hearing of the charge; and(b) written statements or admissions made for use, and admissible, as evidence at the hearing of the charge; and(c) depositions taken at committal proceedings relating to the charge; and(d) written statements or admissions used as evidence in committal proceedings relating to the charge; and(e) admissions made by or on behalf of any person in connection with the proposed making of the restitution order.
97. Enforcement of restitution order
A restitution order is taken to be a judgment of the Magistrates Court (Civil Division) is enforceable under the Magistrates Court (Civil Division) Act 1992 .
Division 14 - Compensation
(1) A compensation order is an order requiring the youth to pay compensation to another person in respect of one or more of the following matters:(a) injury suffered, expenses incurred or loss suffered by the other person;(b) loss or destruction of, or damage to, offence-affected property.(2) Division 8, other than section 57 , applies in respect of a compensation order, with necessary adaptations, as if the compensation order were an order under section 47(1)(e) requiring the youth to pay a fine.(3) A compensation order may be made by the Court –(a) on its own motion; or(b) on the application of –(i) the person in whose favour the order is sought; or(ii) the prosecutor on that person's behalf.(4) An application under subsection (3)(b) is to be made as soon as practicable after the youth is found guilty of an offence.(5) Rules of evidence do not apply to an application for a compensation order in respect of loss or damage to property.
99. Preconditions for compensation order
(1) The Court may only make a compensation order if it is satisfied by evidence presented to the Court that –(a) a youth has been found guilty of an offence; and(b) a person has suffered injury or loss or destruction of, or damage to, offence-affected property as a result of the offence.(2) For the purposes of subsection (1) , evidence presented to the Court includes –(a) evidence given at the hearing of the charge; and(b) written statements or admissions made for use, and admissible, as evidence on the hearing of the charge; and(c) depositions taken at committal proceedings relating to the charge; and(d) written statements or admissions used as evidence in committal proceedings relating to the charge; and(e) admissions made by or on behalf of any person in connection with the proposed making of the compensation order.
Division 15 - Miscellaneous
100. Sentence order to be written
The Court must cause the order imposing a sentence to be reduced promptly to writing.
101. Copy of certain Court orders to be provided to youth, guardian and Secretary
(1) The district registrar must provide a copy of any order made under section 47 to –(a) the youth as soon as practicable; and(b) a guardian unless one cannot be found after reasonable inquiry; and(c) the Secretary.(2) Failure to comply with subsection (1) does not affect the validity of the order.
102. Court may order attendance of guardian
(1) If in any proceedings under this Part a guardian is not present at the Court and the Court considers it appropriate to do so, the Court may issue a summons requiring the guardian to appear at the proceedings at the time and place specified in the summons.(2) If a guardian fails to comply with a summons, the Court may issue a warrant for his or her arrest.(3) Subsection (2) does not apply if the guardian has provided the Court with a reasonable excuse for failing to comply with the summons.
103. Effect of youth attaining 18 or more years, &c.
(1) If an offence is committed, or suspected to have been committed, by a person who was under 18 years of age at the time of the commission of the offence but is 18 years of age when proceedings are commenced against the person for the offence –(a) those proceedings must be commenced under this Act; and(b) if found guilty, the person must be sentenced under this Act as a youth.(2) If an offence is committed, or suspected to have been committed, by a person who was under 18 years of age at the time of the commission of the offence but who is 19 years of age or more when proceedings are commenced against the person for the offence –(a) the proceedings must be commenced and determined in the Court; and(b) if the person is found guilty of the offence, the Court must proceed to sentence the person under this Act as a youth; and(c) a sentence of detention is taken to be a sentence to serve a term of imprisonment in a prison.(3) Proceedings arising out of an order made under this Act, a contravention of such an order or a contravention of conditions to which such an order is subject must be commenced and determined under this Act.
104. Adjournment to determine youth protection matters
(1) In this section, "abused or neglected" and "at risk" have the same meanings as in the Children, Young Persons and Their Families Act 1997 .(2) If at any time during proceedings under this Part it appears to the Court that –(a) a youth is at risk or abused or neglected; or(b) it would be in the best interests of the youth for an investigation or proceedings to be taken under the Children, Young Persons and Their Families Act 1997 –the Court may adjourn the proceedings and make one or more of the following orders:(c) an order referring the matter to the Secretary;(d) an order remanding the youth to be placed in some suitable place for the period or until the time specified in the order.(3) The Court may consider the inability of a person to serve an application under this Part on a guardian as sufficient to support the making of an order under subsection (2) .(4) If an investigation or proceedings are being taken under the Children, Young Persons and Their Families Act 1997 in respect of a youth, the Court must not impose a sanction or make another order under this Part in respect of that youth until –(a) all matters under that Act have been determined; and(b) the Court has received a report on the determination of those matters.
105. Adjournment to determine mental or nervous health of youth
(1) If at any time during proceedings under this Part it appears to the Court that the youth may be suffering from any mental or nervous disorder or handicap, the Court may adjourn the proceedings and make an order remanding the youth to be placed in some suitable place, for a period not exceeding 21 days, for observation, assessment and the making of a report on the youth's condition and a recommendation as to the youth's future treatment.(2) The Court must give any guardian of the youth present the opportunity to be heard before making an order under subsection (1) .
106. Copy of complaint, summons and application to be served on person having legal custody of youth
(1) If a complaint and summons or an application under this Part is to be served on a youth who is in the legal custody of the Secretary or another person, a copy of the complaint and summons, or of the application and notice of the hearing of the application, is to be served on the Secretary or other person.(2) If a youth who is in the legal custody of the Secretary or another person makes an application under this Part, the youth must serve a copy of the application and notice of the hearing of the application on the Secretary or other person.(3) If the Secretary or another person receives a copy of a complaint and summons, or of an application under this Part and notice of the hearing of the application, concerning a youth in his or her legal custody, the Secretary or other person must deliver the youth to the Court for the hearing of the charge or application.
107. Sanctions, &c., available to other courts
The Supreme Court, or a court of summary jurisdiction other than the Magistrates Court (Youth Justice Division), may exercise all the powers of the Magistrates Court (Youth Justice Division) under this Part in addition to, or instead of, any other power it may exercise when sentencing for an offence, including a prescribed offence, a person who was 10 years old or more but less than 18 years old at the time when he or she committed the offence.
108. Restrictions on reporting proceedings of other courts
Section 31 applies, with necessary adaptations, to proceedings against a youth in respect of an offence, including a prescribed offence, in the Supreme Court or a court of summary jurisdiction other than the Magistrates Court (Youth Justice Division).
PART 5 - Supervised release orders
(1) A youth serving a period of detention under a detention order must be released from detention under a supervised release order on the earliest release date.(2) If a youth is serving more than one period of detention under one or more detention orders, the youth must be released from detention under a supervised release order on the last occurring of the relevant earliest release dates.
(1) The Secretary must make a supervised release order in respect of the release of a youth from detention at the time of, or before, the release of the youth.(2) A supervised release order may relate to more than one period of detention.(3) A supervised release order has effect until the end of the detention period in respect of which it is made.
111. Supervised release order subject to conditions
(1) A supervised release order is subject to the condition that the youth must not commit another offence, including a prescribed offence, which if committed by an adult could be punishable by imprisonment.(2) A supervised release order is also subject to the special conditions specified in the order which are reasonable in the circumstances.(3) Without limiting the special conditions which may be specified in a supervised release order, the order may contain one or more of the following special conditions:(a) the youth must be under the supervision of an assigned youth justice worker;(b) the youth must be of good behaviour;(c) the youth must comply with –(i) any regulations that regulate the conduct of persons released under supervised release orders; and(ii) any reasonable direction given by the assigned youth justice worker;(d) the youth must not move to a different residential address without the approval of the assigned youth justice worker.(4) When a supervised release order ceases to have effect, the condition and special conditions to which it is subject also cease to have effect.(5) The Secretary may at any time amend the special conditions to which a supervised release order is subject by notice in writing provided to the youth.
112. Effect of proposed supervised release order to be explained
(1) Before making a supervised release order in respect of a youth, the Secretary must explain, or cause to be explained, to the youth and, if the youth is less than 15 years old, the guardian, in language likely to be understood by the youth and the guardian –(a) the purpose and effect of the order; and(b) the consequences that may follow a contravention of the condition and any special conditions to which the order is subject; and(c) the right of the youth to seek the reconsideration of the special conditions to which the order is subject.(2) If requested to do so, the youth and any guardian who is present when the supervised release order is made are required to sign on a copy of the order a written acknowledgment to the effect that the purpose and effect of the order are understood.(3) The failure of the youth or guardian, or both, to sign an acknowledgment under subsection (2) does not postpone or otherwise alter the effect of a supervised release order.
113. Supervised release order, &c., to be provided in writing
(1) As soon as practicable after a supervised release order is made, or the special conditions to which a supervised release order is subject are amended, the Secretary must provide a written copy of the order or amended special conditions to –(a) the youth; and(b) the guardian unless one cannot be found after reasonable inquiry.(2) Subsection (1) extends, with necessary adaptations, to any order amending or revoking a supervised release order.
114. Temporary suspension of obligations under supervised release order
(1) If the Secretary is satisfied that a youth in respect of whom a supervised release order is in force would be, or is, unable to comply with a special condition to which the order is subject for a limited time by reason of circumstances beyond the youth's control, the Secretary, by written notice provided to the youth, may suspend the special condition for a time specified in the notice.(2) The Secretary must provide a copy of a notice under subsection (1) to the guardian unless one cannot be found after reasonable inquiry.
115. Cancellation of obligations after 6 months' release
(1) If a youth has been the subject of a supervised release order for 6 months or longer and the Secretary is satisfied that it would be appropriate to do so, the Secretary may amend the order by cancelling all or any of the special conditions to which the supervised release order is subject.(2) The cancellation under subsection (1) of all or any conditions does not prevent the Secretary from acting under section 120 and inserting those or other conditions in the supervised release order.
116. Courts to notify Secretary if further offence committed
If a person in respect of whom a supervised release order is in force is found guilty of an offence, including a prescribed offence, by a court, that court must notify the Secretary of the commission of the offence and of the way in which the matter is disposed of by that court.
117. Contravention of supervised release order other than by further offence punishable by detention or imprisonment
(1) This section applies to a contravention of a supervised release order by the youth contravening –(a) a special condition to which a supervised release order is subject; or(b) the condition to which a supervised release order is subject by committing an offence, including a prescribed offence, in respect of which a court has imposed a sentence that does not include a detention order or a term of imprisonment.(2) In the case of a contravention to which this section applies, the assigned youth justice worker must provide to the Secretary a written report on the contravention.(3) On receiving the report, the Secretary must –(a) notify the youth and his or her guardian, unless one cannot be found after reasonable inquiry, that the Secretary is considering taking action in respect of the contravention of the supervised release order relating to the youth; and(b) allow the youth and his or her guardian an opportunity to make submissions to the Secretary in respect of the matter at the time and place specified in the notice.(4) After complying with subsection (3) , the Secretary may do one or more of the following:(a) postpone the decision as to what action, if any, is to be taken by reason of the contravention of the supervised release order;(b) order that no further action be taken in respect of the contravention of the supervised released order;(c) amend the special conditions to which the supervised release order is subject;(d) suspend the supervised release order;(e) if the youth, or his or her guardian on behalf of the youth, has made submissions to the Secretary in respect of the matter or is 19 years of age or more, cancel the supervised release order.(5) As soon as practicable after making a decision under subsection (4) , the Secretary must provide a written copy of it to –(a) the youth; and(b) the guardian, unless one cannot be found after reasonable inquiry.
118. Appeal against suspension or cancellation of supervised release order
(1) Within 14 days after receiving a copy of the decision of the Secretary under section 117(4)(d) or (e) , the youth may appeal to the Court against that decision.(2) An appeal is to be instituted, heard and determined in accordance with the regulations.(3) On the hearing of an appeal, the Court may –(a) confirm the decision of the Secretary; or(b) revoke the decision of the Secretary and take any action specified in section 117(4)(b) , (c) or (d) .(4) The decision of the Secretary under section 117(4)(d) or (e) has effect until it is revoked by the Court under this section.
119. Contravention of supervised release order by further offence punished by detention or imprisonment
If a court makes a detention order or otherwise imposes a term of imprisonment for an offence, including a prescribed offence, committed by a person in respect of whom a supervised release order is in force, the supervised release order is cancelled.
120. Effect of suspension or cancellation of supervised release order
(1) If a supervised release order is suspended or cancelled, the Secretary must issue a warrant to arrest the youth who is or was subject to the order and return the youth –(a) if the youth is less than 19 years of age when the order is suspended or cancelled, to the custody of the Secretary at the detention centre from which he or she was released under the order; or(b) if the youth is 19 years of age or more when the order is suspended or cancelled, to the custody of the Director of Corrective Services at the prison specified in the warrant.(2) A supervised release order has no effect while it is suspended or after it is cancelled.(3) Subject to subsection (4) , the period commencing when a youth was released under a supervised release order and ending when the youth is returned to custody under a warrant issued under subsection (1) is counted as time that the youth served in custody under any detention order.(4) If a supervised release order is cancelled because the youth commits another offence, including a prescribed offence, the time between the commission of that other offence and the return of the youth to custody under a warrant issued under subsection (1) is not counted as time that the youth served in custody under a detention order.(5) If the Secretary removes the suspension of a supervised release order, the person is again to be released from custody and the conditions to which the order is subject apply again.(6) Cancellation of a supervised release order does not prevent another supervised release order from being made subsequently.
121. Effect of suspension or cancellation of supervised release order after youth reaches 19 years
If a supervised release order is suspended or cancelled after the youth in respect of whom it was made has attained the age of 19 years –(a) the youth is to be placed into the custody of the Director of Corrective Services at a prison, within the meaning of the Prison Act 1977 ; and(b) the relevant detention order is to be taken for all purposes to be a sentence of imprisonment for the period of detention; and(c) the period served in a detention centre under the detention order is counted as time served in a prison under that sentence of imprisonment; and(d) any period following the release of the youth under the supervised release order that would, under this Act, be counted as time that the youth served in custody under the detention order if the youth had been less than 19 years of age when the supervised release order was cancelled is counted as time served in a prison under that sentence of imprisonment; and(e) the supervised release order is taken to be a parole order made under the Prison Act 1977 ; and(f) the contravention of the supervised release order is taken to be a contravention of a parole order made under the Prison Act 1977 .
122. Effect of satisfying supervised release order
If the supervised release order runs its term without being cancelled, the youth concerned is taken to have served the period of detention to which the order relates.
PART 6 - Detention centres
Division 1 - Establishment and management of detention centres
123. Establishment or abolition of detention centre
By notice published in the Gazette, the Minister may establish or abolish detention centres, or declare premises to be or not be detention centres, for the detention of –(a) youths sentenced to a period of detention; and(b) youths remanded in custody while awaiting the determination of proceedings for an offence; and(c) persons in the process of being transferred to another State under this Act.
124. Management of detention centre
(1) The Secretary is responsible for the security and management of detention centres and the safe custody and wellbeing of detainees.(2) The Secretary may issue instructions with respect to –(a) the management, control, organisation and security of detention centres; and(b) the management, control, health, treatment and security of detainees; and(c) programs for detainees; and(d) contact between detainees and members of the public; and(e) educational, recreational and social activities of detainees; and(f) any other matter connected with the management of detention centres and the management and wellbeing of detainees.(3) Instructions may –(a) apply to detention centres generally or to a particular detention centre; and(b) confer a discretionary authority on a person or class of persons.(4) If instructions issued under this section are inconsistent with this Act, this Act prevails and the instructions are of no effect to the extent of the inconsistency.
Division 2 - Admission to detention centres
125. Where youth is to be detained
(1) The Secretary must determine the detention centre at which –is to be detained.(a) a youth sentenced to a period of detention; or(b) a youth remanded in custody while awaiting the determination of proceedings in relation to an offence; or(c) a person in the process of being transferred to another State –(2) The Secretary may cause a detainee to be transferred from a detention centre to another detention centre.
126. Authority for admission to detention centre
A detention centre manager must not admit a person to, or detain a person in, a detention centre unless the manager has in respect of that person –(a) a warrant requiring that the person be delivered to a detention centre; or(b) if the person is a youth who has been refused bail by a police officer, a copy of the relevant entry in the charge book for the offence; or(c) if the person is an offender to whom Part 7 applies, a copy of the transfer arrangement in respect of that person.
127. Explanation of rights and responsibilities on admission to detention centre
On the admission of a youth to a detention centre, the youth must be given an explanation of his or her rights and responsibilities as a resident of the detention centre in a language that he or she understands.
128. Provision of instructions on admission to detention centre
On the admission of a youth to a detention centre, the detention centre manager must provide a copy of any instructions issued under section 124 that may affect the youth and a copy of this Part to –(a) the youth; and(b) the guardian, unless one cannot be found after reasonable inquiry.
Division 3 - Treatment of detainees, &c.
(1) A detainee is entitled –(a) to have his or her developmental needs catered for; and(b) subject to section 135 , to receive visits from guardians, relatives, legal practitioners and other persons; and(c) to have reasonable efforts made to meet his or her medical, religious and cultural needs including, in the case of a detainee who is an Aboriginal person, his or her needs as a member of the Aboriginal community; and(d) to complain to the Secretary or the Ombudsman about the standard of care, accommodation or treatment he or she is receiving in the detention centre.(2) The Secretary must ensure that the rights of a detainee under sections 127 and 128 and this section are not infringed.
130. Leave from detention centre
(1) By written notice provided to a detainee, the Secretary may allow the detainee to take a temporary leave of absence from the detention centre for one or more of the following purposes:(a) to seek or engage in paid or unpaid employment;(b) to attend any place for educational or training purposes;(c) to visit the detainee's family, relatives or friends;(d) to take part in any sport, recreation, cultural event or entertainment in the community;(e) to attend any place for medical examination or treatment;(f) to attend a funeral;(g) any other purpose that the Secretary considers appropriate.(2) A leave of absence is to be –(a) for the period specified in the notice allowing the leave; and(b) only for the purpose specified in that notice; and(c) subject to any conditions specified in that notice.(3) If a detainee contravenes a condition to which a leave of absence is subject, other than a condition with respect to returning to a detention centre, the Secretary may, by written notice provided to the detainee –(a) vary the conditions to which the leave of absence is subject; or(b) cancel the leave of absence.(4) If a detainee is granted leave of absence –(a) the detainee remains in the legal custody of the Secretary during the period of leave; and(b) the period of leave counts as part of the detainee's period of detention.(5) A police officer may arrest a detainee who has been granted leave of absence if the police officer has reasonable grounds for believing that the detainee has failed to return, without reasonable excuse, to the detention centre by the end of the period of that leave of absence.(6) A police officer may return a detainee arrested under subsection (5) to the detention centre from which the detainee was granted leave of absence.
131. Search of detainee and possessions
(1) In this section,thing includes a letter.(2) The detention centre manager may –(a) cause a detainee to submit to a search for the presence of weapons, metal articles, alcohol, articles capable of being used as weapons, drugs or any other things which the regulations prohibit from being taken into a detention centre –(i) as soon as possible after the detainee is admitted to the centre or returns after temporary leave of absence; and(ii) at any time when the manager believes on reasonable grounds that the detainee may have in his or her possession any weapon, metal article, alcohol, article capable of being used as a weapon, drug or other thing which the regulations prohibit from being taken into a detention centre; and(b) if in the manager's opinion it is necessary to do so in the interests of the security or good order of the detention centre, cause a detainee to submit to a search and the examination of the detainee and of any thing in his or her possession or control; and(c) cause any part of the detention centre to be searched and any thing found in it to be examined if there are reasonable grounds for believing that the thing –(i) is of a kind referred to in paragraph (a)(ii) ; or(ii) jeopardises or is likely to jeopardise the security or good order of the centre or the safety of persons in it.(3) The person carrying out a search under subsection (2) may seize any thing found in the detention centre, whether in a detainee's possession or not, if that person believes on reasonable grounds that the thing is of a kind referred to in subsection (2)(a)(ii) or is likely to jeopardise the security or good order of the centre or the safety of persons in it.(4) Any thing seized under subsection (3) must be dealt with in accordance with the regulations or instructions issued under section 124 .(5) If necessary, reasonable force may be used to carry out a search under subsection (2) .
The following actions are prohibited in relation to a detainee while in a detention centre:(a) the use of isolation, within the meaning of section 133 , as a punishment except as provided in that section or as required by the Secretary under section 140 or an order made under section 141 ;(b) the use of physical force unless it is reasonable and –(i) is necessary to prevent the detainee from harming himself or herself or anyone else; or(ii) is necessary to prevent the detainee from damaging property; or(iii) is necessary for the security of the centre; or(iv) is otherwise authorised by or under this or any other Act or at common law;(c) the administering of corporal punishment, that is, any action which inflicts, or is intended to inflict, physical pain or discomfort on the detainee as a punishment;(d) the use of any form of psychological pressure intended to intimidate or humiliate the detainee;(e) the use of any form of physical or emotional abuse;(f) the adoption of any kind of discriminatory treatment.
(1) In this section,isolation means locking a detainee in a room separate from others and from the normal routine of the detention centre.(2) A detention centre manager may authorise the isolation of a detainee only –(a) if –(i) the detainee's behaviour presents an immediate threat to his or her safety or the safety of any other person or to property; and(ii) all other reasonable steps have been taken to prevent the detainee from harming himself or herself or any other person or from damaging property but have been unsuccessful; or(b) in the interests of the security of the centre.(3) The period of isolation must not contravene any instructions issued under section 124(2) .(4) If necessary, reasonable force may be used to place a detainee in isolation.(5) A detainee placed in isolation must be closely supervised and observed at intervals of not longer than 15 minutes.(6) The detention centre manager must ensure that the particulars of every use of isolation are recorded in a register established for the purpose.
134. Secretary may authorise medical treatment, &c.
Despite any other Act or law, the Secretary is authorised to give consent to any medical, dental, psychiatric, psychological or drug counselling or treatment of a detainee if –(a) the counselling or treatment requires the consent of a guardian of the detainee; and(b) the Secretary is unable after reasonable inquiry to ascertain the whereabouts of a guardian of the detainee; and(c) it would be detrimental to the detainee's health to delay the counselling or treatment until the guardian's consent can be obtained.
135. Refusal of ordinary visitor, &c.
(1) A detention centre manager may refuse to allow a person to enter a detention centre if –(a) in the manager's opinion, the person's presence in the detention centre would prejudice the security or good order of the detention centre; or(b) the person does not, on request, give his or her name, address or proof of identity; or(c) the person refuses to comply with a request made under subsection (3) .(2) A detention centre manager may require a visit to a detention centre to take place in the presence, or under the supervision, of a member of the staff of the detention centre unless the visitor is a legal practitioner representing the detainee.(3) A detention centre manager may, on reasonable grounds, ask a visitor in or seeking entry to a detention centre to submit anything in the person's possession to a search by the manager or a member of the staff of the detention centre.(4) If a visitor who has entered a detention centre prejudices the security or order of the centre or refuses to submit to the search mentioned in subsection (3) , the detention centre manager may direct the visitor to immediately leave the centre.(5) If the detention centre manager, or a member of the staff of the detention centre authorised by the manager, considers it necessary for the security or order of the detention centre, he or she may give directions to a visitor to the centre.(6) A visitor to a detention centre must comply with a direction given under subsection (4) or (5) .(7) A police officer, the detention centre manager or a member of the staff of a detention centre may, using force that is reasonable and necessary, remove from the detention centre a visitor who refuses to leave the centre immediately when directed to leave.
136. Protection of legal practitioner representing detainee
(1) A legal practitioner representing a detainee is entitled to access to the detainee at all reasonable times.(2) The detention centre manager and each member of the staff at a detention centre –(a) must allow the legal practitioner to conduct an interview with the detainee out of the hearing of any other person; and(b) must not without the approval of the detainee open, copy, remove or read any correspondence –(i) from the detainee to the legal practitioner; or(ii) from the legal practitioner to the detainee.
Division 4 - Complaints
A detainee, a member of a detainee's family or a guardian may complain to the Secretary about a matter that affects or is connected with a detainee.
(1) On receipt of a complaint made under section 137 , the Secretary must provide written notice to the complainant and the detainee containing details of the complaint and how the complaint will be dealt with.(2) The Secretary need not deal with a complaint made under section 137 that the Secretary reasonably believes is trivial or made only to cause annoyance.(3) A complaint is to be dealt with in accordance with instructions issued under section 124(2) .
Division 5 - Offences relating to detention
A detainee must not –(a) be absent from a detention centre without lawful authority; or(b) assault another person; or(c) have possession of a weapon or a facsimile of a weapon; or(d) wilfully damage or destroy property; or(e) use threatening language or a threatening manner; or(f) behave in a disorderly or riotous manner; or(g) do any act or omission of insubordination or misconduct subversive of the order and good management of the detention centre; or(h) have possession of, or be under the influence of, a drug or a prescription medicine that was not issued for use by the detainee; or(i) be under the influence of a medicine that was not taken as prescribed or in accordance with the recommended dosage and use; or(j) without the permission of the Secretary, be in the possession of glue containing toluene or another intoxicant; or(k) have possession of, or be under the influence of, an alcoholic beverage; or(l) have possession of any thing prescribed by the regulations for the purposes of this paragraph; or(m) contravene a condition to which a leave of absence from the detention centre is subject; or(n) disobey a rule of the detention centre or a direction given by a person having authority to give the direction.Penalty: Fine not exceeding 5 penalty units or imprisonment for a term not exceeding 6 months, or both.
140. Dealing with detention offence
(1) In this section,detention offence includes –(a) an offence under section 107 of the Criminal Code in respect of a youth who has been sentenced to serve a period of detention or a detainee –(i) escaping from the custody of the Secretary or a detention centre; and(ii) attempting such an escape; and(b) an offence under section 108(1) of the Criminal Code when committed by a detainee.(2) Before a complaint may be filed in respect of a detention offence which the offender admits committing –(a) the offence is to be brought to the attention of the Secretary; and(b) the Secretary, where practicable, must –(i) confer with the offender, a guardian unless one cannot be found after reasonable inquiry, and any other person whose participation the Secretary considers is likely to be of benefit in determining how to deal with the offence; and(ii) consider how the offence should be dealt with.(3) After considering the nature and circumstances of a detention offence which the offender admits committing and, where practicable, holding a conference under subsection (2)(b) , the Secretary may do one or more of the following:(a) suspend further action with respect to the offence on the undertaking of the offender to be of good behaviour for a period not exceeding 2 months;(b) caution the offender;(c) order that the earliest release date be changed to a date which is not more than 3 days later;(d) cause a complaint to be filed against the offender.
141. Court proceedings for detention offence
(1) A charge for a detention offence and all related proceedings are to be heard and determined as if they were proceedings under Part 4.(2) If a person is found guilty of a detention offence, the court making that finding may instead of, or in addition to, making an order under section 47 order that the earliest release date be changed to a date which is not more than 14 days later.
142. Effect of change of earliest release date
(1) If an order is made under section 140(3)(c) or section 141(2) changing the earliest release date, the earliest release date is, for the purposes of this Act, the day specified in the order.(2) If an order is made under section 140(3)(c) or 141(2) changing the earliest release date, the Secretary may release a detainee from detention under a supervised release order at any time on or after the original release day and before the end of the new earliest release date.
143. Offences in respect of escape of detainee
A person must not directly or indirectly –(a) withdraw a detainee from a detention centre, or the custody of the Secretary without lawful authority to do so; or(b) prevent a detainee from returning to a detention centre after a period of leave from the centre; or(c) counsel or induce a detainee to escape from a detention centre or the custody of the Secretary.
144. Offences in respect of detention centres
(1) A person must not –(a) while in a detention centre introduce, or attempt to introduce, into the detention centre or be in possession of –(i) an alcoholic beverage without the consent of the Secretary; or(ii) a medicine without the consent of the Secretary; or(iii) a drug; or(iv) a weapon without the consent of the Secretary; or(v) a glue containing toluene or another intoxicant; or(vi) any other prescribed item or thing; or(b) enter a detention centre when the detention centre manager has refused to allow the person entry under section 135 ; or(c) refuse to leave a detention centre when directed to do so by a detention centre manager under section 135 ; or(d) while at a detention centre, contravene a direction with respect to the security or good order of the centre given by the detention centre manager or a member of the staff of the centre who is authorised to give the direction; or(e) lurk or loiter about or near a detention centre for a purpose referred to in this section.(2) Subsection (1) does not apply to a person who is a detainee.
Division 6 - Miscellaneous
The Secretary may allow a child of a detainee to be accommodated in the detention centre subject to any conditions the Secretary considers appropriate.
146. Registration of birth of child of detainee
(1) In this section,birth record means a document made or issued under the Registration of Births and Deaths Act 1895 in relation to the birth of a child or an alteration or addition to such a document or the name of a child.(2) If a birth record is made or issued relating to a child whose mother or father is a detainee when the child is born –(a) the birth record is not to state that fact or contain information from which that fact can reasonably be inferred; and(b) an address that cannot be shown in the birth record by reason of paragraph (a) is to be shown instead as the city or town in which or nearest to which that address is situated.
PART 7 - Interstate transfer of certain offenders
This Part applies to an offender who is –(a) a detainee or a youth in respect of whom a supervised release order is in force; or(b) a person in another State who –(i) is less than 19 years old; and(ii) is subject under the law of that State to a punishment for having committed an offence against the law of that State when less than 18 years old; and(iii) is being detained in that State in an establishment similar in nature to a detention centre or has been released from such an establishment before the end of the punishment subject to the condition that he or she not commit a further offence.
148. Minister may enter into transfer agreement
The Minister may enter into a transfer agreement with a Minister of another State for the transfer of an offender to whom this Part applies into or out of Tasmania.
149. Secretary may make transfer arrangement
If the Minister enters into a transfer agreement with a Minister of another State, the Secretary may make a transfer arrangement with the Minister of the other State, or with a person authorised by that Minister as provided in the transfer agreement, for the transfer of a particular offender to whom this Part applies –(a) to that State from Tasmania; or(b) to Tasmania from that State.
150. Transfer arrangement for transfer out of Tasmania
(1) The Secretary must not make a transfer arrangement for the transfer of an offender from Tasmania to another State unless –(a) the offender or a guardian of the 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 guardian; and(ii) the education, training or employment of the offender; and(iii) the medical or other needs of the offender; and(c) the offender has been given independent legal advice as to the effect of the proposed transfer 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 offender is subject.(2) For the purposes of deciding whether to make a transfer arrangement transferring an offender from Tasmania to another State, the Secretary may ask the offender, or the guardian of the offender, for any necessary information.
151. Transfer arrangement for transfer to Tasmania
The Secretary must not make a transfer arrangement for the transfer of an offender from another State to Tasmania unless he or she is satisfied that there are adequate facilities in Tasmania for the offender to be accepted and dealt with as provided in the arrangement.
152. Detail to be included in each transfer arrangement
(1) A transfer arrangement for the transfer of an offender to or from Tasmania must –(a) provide for the acceptance and means of dealing with the offender in the receiving State; and(b) specify each order of a court of the sending State to which the offender is subject (including an order that is taken by a previous transfer arrangement with Tasmania or with another State to have been made by a court of the sending State); and(c) for each order specified under paragraph (b) , specify –(i) 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 transfer arrangement were not made; and(ii) 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 transfer arrangement were not made.(2) A transfer arrangement for the transfer of an offender from Tasmania to another State must provide for the escort under section 153(1)(b) to be authorised in that State to hold, take and keep custody of the offender for the purpose of transferring the youth to the place and the custody specified in the transfer arrangement.(3) For the purposes of subsection (1) ,order of a court includes the release of an offender on parole, a supervised release order or under any law which provides for the early release of a person serving a period of imprisonment or detention.
153. Transfer order made under a transfer arrangement
(1) If the Secretary makes a transfer arrangement for the transfer of an offender from Tasmania to another State, he or she must make a transfer order which –(a) directs any person who has custody or supervision of the offender to deliver the offender to the custody of the escort; and(b) authorises the escort to take and keep custody of the offender for the purpose of transferring the offender to the place in the receiving State, and to the custody of the person, specified in the arrangement.(2) For the purposes of subsection (1) –(a) a person having the custody or control of an offender includes –(i) a person in charge of a detention centre; and(ii) any other person who has custody or supervision of the offender; and(b) an escort means any one or more of the following:(i) a person employed in the Department;(ii) a police officer;(iii) a person appointed by the Secretary by written instrument to be an escort.
154. Transfer to Tasmania in custody of escort
If under a transfer arrangement for the transfer of an offender to Tasmania an escort authorised under the arrangement brings the offender to Tasmania, the escort is authorised to hold, take and keep custody of the offender while in Tasmania for the purpose of transferring the offender to the place in Tasmania, and to the custody of the person, specified in the arrangement.
(1) For the purpose of forming an opinion or exercising a discretion under this Part, 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 an offender in Tasmania or in another State.(2) Reports of any person who has or has had the custody or supervision of an offender may be sent to a Minister of another State who has entered into a transfer agreement or to a person authorised under a transfer agreement to make a transfer arrangement with the Secretary.
156. Transfer of sentence or order in case of offender to whom this Part applies
If under a transfer arrangement an offender is transferred from Tasmania to another State, then from the time the offender arrives in that other State any sentence imposed on, or order made in relation to, the offender in Tasmania before that time ceases to have effect in Tasmania except in respect of –(a) any period of detention served by the offender before that time; or(b) any part of the order carried out in respect of the offender before that time.
157. Sentence, &c., taken to have been imposed in this State
(1) If under a transfer arrangement an offender is transferred to Tasmania from another State, then from the time the offender arrives in Tasmania –(a) any sentence imposed on, or order made in relation to, the offender by a court of the sending State and specified in the arrangement is taken to have been imposed or made by the court in Tasmania specified in the arrangement; and(b) any sentence or order –is taken to have been imposed or made by the court in Tasmania specified in the arrangement; and(i) required, by a previous transfer arrangement with Tasmania or another State, to be taken to have been imposed or made by a court of the sending State; and(ii) specified in the current transfer arrangement under which the offender is transferred to Tasmania –(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, taken to have been given or made by the court in Tasmania specified in the arrangement.(2) Except as otherwise provided in this Part, a sentence or order referred to in subsection (1) has effect in Tasmania as specified in the transfer arrangement and the laws of Tasmania apply with necessary adaptations and as if the court taken to have made the order, imposed the sentence or made the direction had power to do so.
158. Revocation of order of transfer by consent
(1) The Secretary may revoke a transfer order for the transfer of an offender from Tasmania to another State at any time before the offender is delivered in the receiving State into the custody specified in the transfer arrangement if the offender, or his or her guardian, and the Minister or other person in the receiving State with whom the Secretary made the transfer arrangement both consent to the revocation.(2) If the Secretary revokes a transfer order, he or she must make arrangements for the return of the offender to Tasmania.
PART 8 - Magistrates Court (Youth Justice Division)
159. Establishment of Youth Justice Division of Magistrates Court
There is established a division of the Magistrates Court to be known as the Magistrates Court (Youth Justice Division).
The Court is constituted by a magistrate.
(1) The Court –(a) has jurisdiction to hear and determine a charge against a youth for an offence, and to deal with all related matters; and(b) has jurisdiction to hear and determine proceedings under Part VII of the Justices Act 1959 where the defendant is a youth; and(c) has jurisdiction to hear and determine an application for a restraint order, interim restraint order or telephone interim restraint order under Part XA of the Justices Act 1959 if the only respondent to the application is a person who is less than 18 years old at the time the application is first made; and(d) has any other jurisdiction conferred by any Act.(2) If a youth who is 15 years old or more is charged before the Court with an indictable offence that is not a prescribed offence, the Court must ask the youth if he or she wishes the charge to be heard and determined in the Supreme Court.(3) If a youth referred to in subsection (2) elects to have a charge heard and determined in the Supreme Court, the Court must proceed under Part VII of the Justices Act 1959 .(4) If a youth referred to in subsection (2) does not elect to have a charge heard and determined by the Supreme Court, the offence is taken after that time to be an offence that is not an indictable offence and the Court must proceed to hear and determine the charge.
The Court may sit at any time, including a Sunday.
(1) Except where inconsistent with this Act, the Justices Act 1959 applies to the Court and the commencement, hearing and determination of proceedings relating to any matter in respect of which the Court has jurisdiction.(2) The Court has and may exercise in respect of any matter within its jurisdiction all its powers and authority as a court of summary jurisdiction under the Justices Act 1959 .
PART 9 - Miscellaneous
164. Lack of jurisdiction discovered during proceedings
(1) If a court constituted by a magistrate in the course of any proceedings under this Act, the Justices Act 1959 or the Criminal Code finds that it does not have jurisdiction to hear and determine the proceeding by virtue of this Act, the court may –(a) remove the proceeding to a court of competent jurisdiction; or(b) where the court of competent jurisdiction may be constituted by a magistrate, continue to hear and determine the proceeding as the court of competent jurisdiction.(2) In removing a proceeding to a court of competent jurisdiction, the court may –(a) give directions it considers necessary; and(b) take or make any procedural action or order the court of competent jurisdiction could take or make.
(1) The Secretary may delegate any of his or her functions and powers under this Act, other than this power of delegation.(2) The district registrar may delegate to an officer of the Magistrates Court any of his or her functions and powers under this Act, other than this power of delegation.
(1) A certificate signed or purporting to be signed by the Secretary is evidence of the matters specified in it if it relates to –(a) the compliance by a person with –(i) a probation order; or(ii) the conditions and special conditions to which a probation order is subject; or(iii) a community service order; or(iv) the conditions to which a community service order is subject; or(v) a suspended detention order; or(vi) the conditions and special conditions to which a suspended detention order is subject; or(b) the completion by a youth of undertakings entered into at a community conference; or(c) whether at a time specified in the certificate a youth was in the custody of the Secretary or was a detainee.(2) In a proceeding under this Act, it is not necessary to prove –(a) the appointment or employment of the Secretary, the district registrar, a facilitator, a youth justice worker, a police officer or a person employed for the purposes of the Court or the Department; or(b) the authority of a person to take any action under this Act.(3) Subsection (2) does not apply if the youth or his or her legal representative has given written notice, not less than 48 hours before the hearing of a proceeding under this Act, that the appointment, employment or authority of a person is required to be proved to the person referred to in that notice.
167. Appointment of facilitators
(1) The Secretary may appoint as facilitators –(a) employees, within the meaning of the Tasmanian State Service Act 1984 , who are employed for the purposes of the Department; and(b) persons who are not employees, within the meaning of that Act.(2) The appointment of a facilitator under subsection (1)(b) is for the period, and is subject to the terms and conditions, specified in the instrument of appointment.
(1) The Governor may make regulations for the purposes of this Act.(2) Without limiting the generality of subsection (1) , the regulations may provide for fees payable under this Act.(3) Regulations may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations.(4) The regulations may –(a) provide that a contravention of a regulation is an offence; and(b) provide for the imposition in respect of that offence of a fine not exceeding 10 penalty units and, in the case of a continuing offence, a further fine not exceeding one penalty unit for each day during which the offence continues.(5) The regulations may authorise any matter or be from time to time determined, applied or regulated by the Secretary, the Chief Magistrate, the Administrator or the district registrar.
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Community and Health Services; and(b) the Department responsible to that Minister in relation to the administration of this Act is the Department of Community and Health Services.
[Second reading presentation speech made in:
House of Assembly on 2 OCTOBER 1997
Legislative Council on 20 AUGUST 1997]