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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
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Youth Justice Administration Bill

Second Reading

The Hon. G.E. GAGO (Minister for Employment, Higher Education and Skills, Minister for Science and Information Economy, Minister for the Status of Women, Minister for Business Services and Consumers) (13:00): I move:

That this bill be now read a second time.

I seek leave to have the second reading speech and explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Young people who become involved in the criminal justice system present a complex task for Government. When dealing with young people, the justice system requires a balance between a justice and rehabilitative response, delivered within a family and community context. The Youth Justice Administration Bill 2015 will form part of the Government's legislative policy response to criminal behaviour in South Australia which seeks to deliver both community safety and positive, non-offending outcomes for young people.

The Bill is necessary for various reasons.

In October 2011, machinery of government changes occurred, which resulted in the Minister for Communities and Social Inclusion, the Department for Communities and Social Inclusion (DCSI) Chief Executive, and departmental officers no longer, having the necessary powers to administer youth justice functions.

As a result, the legislative framework for youth justice administration became highly complex and required a significant number of delegation instruments to ensure adequate powers were in place to act lawfully. The critical delegation requirements arise primarily from the Family and Community Services Act 1972 (power to establish youth training centres) and the Young Offenders Act 1993. Powers that are contained in other relevant legislation also require delegation instruments via these Acts.

The provision of youth justice services has undergone significant reform since these functions were provided as a stand-alone Directorate. The development of the Adelaide Youth Training Centre and state-wide community supervision has been core elements in the reform. Youth Justice requires legislation that fully reflects the powers and functions of all youth justice operations. Current legislation fails to do this.

The Bill seeks to consolidate all youth justice administrative functions into one clear, concise legislative framework while at the same time contemporising other relevant legislation to better reflect best practice in this area, particularly in respect to the detainment of children and young people. It achieves this by aligning legislative powers for administrative management, particularly of youth training centres, with the Young Offenders Act 1993, while addressing gaps in existing legislation. It also ensures that legislation reflects a contemporary standard of practice for youth justice functions, given the Family and Community Services Act 1972 is now 43 years old.

The Bill proposes consequential amendments to the Young Offenders Act 1993, as the principle Act in which offences against the criminal law by young people are considered. The Young Offenders Act 1993 was established to place emphasis on holding young people accountable for their behaviour, imposing penalties of sufficient severity to act as a deterrent, increasing victims' access to reparation and to strengthen the powers of the Youth Court in criminal justice matters, whilst maintaining objectives for rehabilitation and community connection.

Therefore, the aim of this legislative reform is to bring the administration of training centres and community-based supervision services in line with contemporary operational requirements and current Government which:

clearly defines the legislative powers and responsibilities of the Minister, Chief Executive and departmental officers;

provides a legislative framework for contemporary and best practice approaches to the management of young people in custodial environments and subject to community-based supervision;

reflects the particular experiences of Aboriginal young people in the justice system;

reflects that assessment, case planning and rehabilitation programs are key to crime reduction objectives;

reflects the important contribution of families and communities in supporting young people;

aligns with the objects and policy principles contained in the Young Offenders Act 1993;

aligns with and reflects the rights of victims and promotes community safety;

aligns with national and international protocols and agreements with respect to administration of youth justice;

aligns with and reflects South Australian Government strategic planning; and

is forward thinking in allowing for growth and continuous improvement in Youth Justice.

Consultation with stakeholders

Given the importance of the provisions contained in the Bill, extensive consultation has taken place with key stakeholders.

There have been multiple opportunities provided for key stakeholders, both Government, non-government and community members to participate in the discussion about how to reflect best practice of youth justice administration in a legislative scheme. Previous consultation has included:

the release of the Youth Justice Discussion Paper inviting submissions

the delivery of numerous information sessions

direct stakeholder meetings with those agencies most directly affected by the Bill

Ministerial Roundtable Forums

Most recently, stakeholders were again invited to make written submissions on an exposure draft of the Bill which was publicly released on 3 August 2015.

Fifteen written submissions were received as well as internal submissions from Youth Justice staff, who were also consulted throughout the development process.

As a result of feedback received a number of consistent themes were raised for consideration and have been included in the Bill. These themes include:

that the provisions provide a balance between community safety and rehabilitative aims

the inclusion of an Youth Justice Aboriginal and Torres Strait Islander Principle

the inclusion of a Training Centre Visitor of the Adelaide Youth Training Centre

the inclusion of provisions which provide greater flexibility in managing older residents accommodated at the Adelaide Youth Training Centre to support the safe and secure functioning of the facility

the inclusion of provisions clearly outlining the administration of the Adelaide Youth Training Centre to ensure that children and young people's rights are properly protected whilst detained.

Objectives and guiding principles

The objects and guiding principles of the Bill reflect best practice for achieving a balance between recognition of the vulnerability of children and young people, responding to their rehabilitation needs in the youth justice system and the importance of community safety.

The Bill has been developed with consideration of national and international standards and State Government policy frameworks. Age, gender, gender identity, disability, culture, race and other particular needs must be considered in the design of service delivery.

The particular regard to young people under the Guardianship of the Minister (Child Protection orders) has also been specifically included to recognise a whole-of-government approach for these young people.

In South Australia, a long-held policy position has been that a young person's family, both immediate and extended, forms a key role in supporting a young person to lead a non-offending lifestyle. However, there has been a significant increase in the body of evidence on the positive impact that family-based interventions can have when working with young people in contact with the justice system. To ensure this policy position is supported in legislation, the Bill includes a principle and objective that family inclusive practice should be applied wherever practicable.

Youth Justice Aboriginal and Torres Strait Islander Principle

While the need to recognise different cultural backgrounds is included in the overarching objects and guiding principles of the Bill, it was also important to include Aboriginal children and young people more specifically, given the over-representation of this group in the justice system. It is also important to recognise that this is a result of the effects of colonisation, inter-generational trauma and compounded grief and loss experiences.

Included in the Bill, in relation to Aboriginal and Torres Strait Islander young people, is a requirement that the Youth Justice Aboriginal and Torres Strait Islander Principle be observed. The Minister has worked closely with Aboriginal stakeholders in developing the Principle, which is intended to clearly outline what is expected for culturally appropriate practice, and it is intended for inclusion in Regulations.

The Principle will support a policy position of self-determination for Aboriginal children and young people as active participants in decisions that affect them where it is possible to do so. The Principle will necessitate culturally appropriate assessment and case planning which is inclusive of family, kinship, and community in decision-making. It will require that services are culturally relevant to the needs of the child or young person and reflect the cultural diversity among Aboriginal communities.

Culturally diverse and linguistically diverse populations

It is unfortunately the case that young people from minority communities are often over-represented in the youth justice system. They present with very unique needs which require particular consideration.

For example, more recent experiences of newly arrived immigrants have been a focus of youth justice policy and practice development. It is, therefore, necessary for the Bill to reflect the particular needs of this group of young people, reflected in a specific clause in the guiding principle.

Training Centre Visitor

It is a standard requirement in international and national protocols and agreements for youth justice administration that there must be an independent monitoring mechanism in places of detention. Any legislative basis for depriving a person of their liberty requires transparency and accountability measures. Nowhere is this arguably more important than in the case of young people. The Bill provides for this requirement.

The Guardian for Children and Young People currently acts in this capacity via delegation instruments and administrative agreement. The new provisions relating to the Training Centre Visitor will provide stronger legislative power for this important function.

Adelaide Youth Training Centre

The provisions contained in the Bill relating to Training Centres ensure that each phase of a resident's custodial period is considered. Responsibilities in respect to admission, assessment, case planning and targeted programs is required.

The Bill includes various provisions which are required for safety and security reasons. Some of these provisions were formerly contained in Regulations because of their importance, such as the use of safe rooms and use of force. While staff are trained to support young people in the facility to behave safely, there are times when a young person requires increased security responses. It is necessary that the Bill clearly identifies the perimeters of permitted actions and ensures the appropriate checks and balances are in place.

There are new provisions in the Bill in relation to drug testing for example, which provides the powers to ensure that residents and staff are kept safe from the harm that illicit drug use can create in a custodial environment.

Consequential amendments to the Young Offenders Act 1993

During the development period of the Bill, the Government launched the Transforming Criminal Justice initiative. This provided the opportunity to review the Young Offenders Act 1993 in light of the aims of the Transforming Criminal Justice initiative.

The Bill proposes the expanded use of home detention as a sentencing and early release option. The Home Detention Program has been operating for young people in South Australia since 1995. Home detention diverts young people from incarceration in youth detention facilities by providing the Youth Court with this option for sentencing, as well as a condition of bail. In addition, home detention is an option in considering the early release of a young person from detention.

The Young Offenders Act 1993 anticipates a role for youth justice administration with respect to youth over 18 years of age, in both the community and custodial settings. This reflects the legal principle that offences committed as a youth should be managed within the youth jurisdiction wherever possible. However, the Young Offenders Act 1993 requires strengthening to ensure the safe and secure administration of the youth training centre and to ensure that older youth have access to programs that can meet their developmental needs. As such, the Bill proposes amendments to the Young Offenders Act 1993 to establish a framework for the management of custodial and supervision orders for youth over 18 years of age, either by youth justice or correctional services, where appropriate. Proposed amendments include:

a ceiling age of 21, with discretionary provision, for custodial placement in a youth training centre and for community supervision by DCSI;

transfers to prison through increased reviews of custodial placement; and

limits on custodial placement in a youth training centre after a period in adult custody.

Regulations

It is common, that for legislation, which is largely administrative in nature, there will be a requirement for numerous administrative processes to be captured in the Regulations. While the development of such Regulation cannot begin until the Bill has passed, it is necessary to provide assurances to stakeholders and the Parliament that all necessary administrative responsibilities will be addressed. Therefore an overview of what is intended for Regulation is required.

Adelaide Youth Training Centre

There is a range of provisions contained in the Bill which require greater detail in Regulation. Areas of administration which will be considered include:

documentation upon admission;

rules of the facility;

behaviour management and incentive schemes;

segregation and bedrooms;

searching of visitors;

use of force and restraints;

leave of absence from the facility;

health and education needs;

security provisions, such as telephone communications, internet, CCTV, and biotechnology;

handling of mail; and

complaints processes.

Community Supervision

With regard to community supervision:

community service, such as ensuring child safe environments; and

reporting and compliance processes will be considered for regulation.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Objects and guiding principles

This clause sets out the objects of the measure and the guiding principles to be followed by the Minister, the Chief Executive, the Department and other persons and bodies involved in the administration of this measure in the performance of their functions.

4—Interpretation

This clause sets out the definitions of words and phrases to be used in interpreting the measure.

5—Interaction with companion legislation

This clause provides that this measure and the Young Offenders Act 1993 (the YOA) are to be read together and construed as if the 2 pieces of legislation constituted a single Act.

Part 2—Administration of youth justice

6—Power of Minister and Chief Executive to delegate

This clause provides the Minister and the Chief Executive with power to delegate powers, duties, responsibilities or functions under this measure in the usual terms.

7—Functions of Chief Executive

The functions of the Chief Executive include—

responsibility for ensuring that proper standards of administration are observed in the management of a training centre established under this measure; and

establishing community youth justice programs for the purposes of the supervision of youths who are required to carry out community service; and

any other function conferred on the Chief Executive under this measure or any other Act.

8—Use of volunteers in administration of Act

The Minister must promote the use of volunteers in the administration of this measure to such extent as the Minister thinks appropriate.

9—Chief Executive's annual report

The Chief Executive is required to make an annual report in relation to the administration and work of the Department in relation to this measure.

Part 3—Official visitors

10—Official visitors

The following persons are entitled to visit a training centre:

Members of Parliament;

judges;

the Guardian for Children and Young Persons;

the Training Centre Visitor;

and any other person authorised in writing by the Minister.

11—Training Centre Visitor

This clause establishes the office of the Training Centre Visitor and provides for the terms and conditions of, and suspension and vacancy in, the office.

12—Independence

In performing and exercising his or her functions and powers under this measure, the Training Centre Visitor must act independently, impartially and in the public interest.

13—Staff and resources

This clause provides that the Minister must provide the Training Centre Visitor with the staff and other resources that the Visitor reasonably needs for carrying out his or her functions.

14—Training Centre Visitor's functions

This clause sets out the functions of the Training Centre Visitor, as follows:

to conduct visits to training centres as required or authorised;

to conduct inspections of training centres as required or authorised;

to promote the best interests of the residents of a training centre;

to act as an advocate for the residents of a training centre to promote the proper resolution of issues relating to the care, treatment or control of the residents, including issues raised by a guardian, relative or carer of a resident or any person who is providing support to a resident of a training centre under the measure;

to inquire into, and provide advice to the Minister, in relation to any systemic reform necessary to improve—

the quality of care, treatment or control of residents of a training centre; or

the management of a training centre;

to inquire into and investigate any matter referred to the Visitor by the Minister;

any other functions assigned to the Visitor under the Act or any other Act.

15—Use and obtaining of information

This clause requires government and non-government organisations involved in the provision of services to children to provide the Visitor, at his or her request, with information relevant to the performance of the Visitor's functions

16—Visits to and inspection of training centres

The Training Centre Visitor may, on a visit to a training centre—

so far as practicable, inspect all parts of the centre used for or relevant to the custody of youths; and

so far as practicable, make any necessary inquiries about the care, treatment and control of each resident of the centre; and

take any other action required for the performance of the Visitor's functions.

A visit to a training centre by the Visitor may be made on the Visitor's own initiative or at the request of a resident of the centre. Although a visit may take place at any reasonable time of the day and be of such length as the Visitor thinks appropriate, there is a requirement for the manager of the centre to give reasonable directions in relation to security of the centre.

17—Requests to see Training Centre Visitor

A request may be made to see the Training Centre Visitor by a resident of a training centre, or a guardian, relative, carer or support person of a resident.

18—Reporting obligations of Training Centre Visitor

The Training Centre Visitor is required to present an annual report to the Minister in connection with the Visitor's functions and may prepare special reports from time to time as the Visitor considers necessary.

19—Other reports

The Training Centre Visitor may, at any time, prepare a report to the Minister on any matter arising out of the exercise of the Visitor's functions under this Act.

20—Confidentiality of information

Information about individual cases disclosed to the Training Centre Visitor or a member of the Visitor's staff is to be kept confidential and is not liable to disclosure under the Freedom of Information Act 1991.

Part 4—Training centres

Division 1—Establishment of training centres, facilities and programs

21—Training centres, facilities and programs

The Minister may establish such training centres and other facilities and programs as the Minister thinks necessary or desirable for the care, rehabilitation, detention, training or treatment of youths and any such centre will be under the control of the Minister. The Chief Executive is required to ensure that adequate arrangements are in place in training centres to ensure the welfare of the residents, as set out.

Division 2—Charter of Rights for Youths Detained in Training Centres

22—Charter of Rights for Youths Detained in Training Centres

This clause provides that there will be a Charter of Rights for Youths Detained in Training Centres. The Charter has effect if approved by the Minister. A copy of the Charter is to be made available on a website maintained by the Department.

Division 3—Procedures on admission

23—Initial assessment on admission

The Chief Executive is required under this clause to ensure that a youth newly admitted to a training centre is given a copy of the rules of the centre and a copy of the Charter. There is also a requirement for the youth to be given a written and verbal explanation of the rules in a language that he or she is able to understand. The youth is to be made aware of the consequences of non-compliance with the rules. A guardian, relative or carer of a newly admitted youth is to be notified that the youth has been admitted to the centre. This clause also includes requirements for periodic assessment of youths in detention.

Division 4—Custody of residents of training centres

24—Minister has custody of youths in detention

The Minister has the custody of a resident of a training centre. This is the case whether the resident is within, or outside, the precincts of a training centre in which he or she is being detained, or is to be detained.

25—Chief Executive responsible under Minister for management of training centres

This clause sets out the Minister's discretion in relation to placing youths in training centres and establishing regimes for various aspects of a youth's day-to-day life in a training centre.

Division 5—Management of residents of training centres

26—Chief Executive may make rules relating to management of training centre

This clause provides for the making of rules by the Chief Executive relating to the management of training centres and regulating the conduct of residents of training centres.

27—Education

The Chief Executive is required under this clause to arrange courses of instruction and training to be made available to residents of training centres.

28—Safe rooms

This clause limits the circumstances in which a resident of a training centre may be detained in a safe room. A resident under the age of 12 years must not be detained in a safe room.

29—Prohibited treatment of residents

This clause sets out the kinds of treatment to which a resident of a training centre may not be subjected:

corporal punishment of any form (that is, any action that inflicts or is intended to inflict physical pain or discomfort);

isolation or segregation (other than in a safe room or in prescribed circumstances) from other residents;

psychological pressure or emotional abuse of any form intended to intimidate or humiliate;

deprivation of medical attention, basic food or drink, clothing or any other essential item;

deprivation of sleep;

restriction of free movement by means of mechanical restraints (other than in prescribed circumstances);

unjustified deprivation of contact with persons outside the centre;

any other treatment that is cruel, inhuman or degrading.

30—Power to search residents

A resident's belongings may be searched in the situations set out in this clause, namely:

when the resident is received into the centre or returns after an absence from the centre;

if the resident has had a full contact visit with a visitor to the centre;

if the manager of the centre has reasonable cause to suspect that the resident has in his or her possession in the centre any substance or item that is prohibited in, or may jeopardise the security of, the centre.

This clause also prescribes limitations in relation to searching a resident of a training centre:

the resident may not be required to be completely naked at any time during the search;

those present at any time during the search when the resident is semi-naked (except a medical practitioner) must be of the same sex as the resident;

at least two persons (apart from the resident) must be present at all times during the search when the resident is semi-naked (with one of them conducting the search while the other observes);

if a medical practitioner is required for the purposes of the search—the medical practitioner must be in addition to the two persons required above;

for the purposes of the search—the resident may be required—

to open his or her mouth; and

to remove the clothing from his or her upper body or lower body (but not both at the same time); and

to adopt particular postures; and

to do anything else reasonably necessary for the purposes of the search,

and if the resident does not comply with such a requirement, reasonable force may be applied to secure compliance;

force must not be applied to open the resident's mouth except by or under the supervision of a medical practitioner;

nothing may be introduced into an orifice of the resident's body for the purposes of the search except by a medical practitioner;

the search must be carried out expeditiously and undue humiliation of the resident must be avoided.

31—Drug testing of residents

The Chief Executive may, under this clause, require a resident of a training centre to undergo a drug test in certain specified circumstances.

32—Use of sniffer dogs

This clause authorises the use of sniffer dogs for certain specified purposes, such as carrying out a search at a training centre, tracking an escaped youth or patrolling a training centre. A sniffer dog is—

a drug detection dog within the meaning of the Controlled Substances Act 1984; or

a dog that is trained and handled by South Australia Police; or

a correctional services dog (within the meaning of the Correctional Services Act 1982).

33—Use of force against residents

The circumstances in which an employee in a training centre may use force against a resident of the centre are limited by this clause. An employee may use force against a resident as is reasonably necessary in a particular case—

to prevent the resident from harming himself or herself or another person; or

to prevent the resident from causing significant damage to property; or

to maintain order in the centre; or

to preserve the security of the centre.

An employee who uses force against a resident is required to prepare a written report on the use of force for the manager of the training centre.

Division 6—Leave of absence under authority of Chief Executive

34—Leave of absence under authority of Chief Executive

This clause authorises the Chief Executive to grant a youth detained in a training centre leave of absence from the centre in certain circumstances.

Division 7—Transfer of youths under detention from 1 jurisdiction to another

35—Interpretation

This clause sets out definitions required for the purposes of the Division.

36—Transfer of young offenders to other States

Under this clause, the Minister may enter into arrangements with the appropriate authority of another State for the transfer of a young offender to the other State.

37—Transfer of young offenders to this State

Arrangements may be made by the Minister under this clause with the appropriate authority of another State for the transfer of a young offender from that State to this State.

38—Adaptation of correctional orders to different correctional systems

An arrangement made for the transfer of a young offender may provide that the relevant correctional order is to operate with necessary modifications to ensure its effective operation in the correctional system of the State to which the young offender is to be transferred.

39—Custody during escort

This clause provides that an escort in whose custody a young offender is placed for the purpose of bringing the him or her into, or taking the him or her out of, South Australia has, while in this State, lawful custody of the young offender.

Division 8—Release from detention

40—Release of youth from detention

This clause provides that a youth will be released from the training centre in which he or she is being detained on the day on which his or her sentence of detention expires. This applies unless the youth is released earlier under Part 5 of the Young Offenders Act or another Act or law. A youth is to be released from the training centre in which he or she is being detained as near as practicable to 10 am on the day of release.

41—Manner in which former resident's personal property is to be dealt with

This clause sets out procedures for dealing with personal property left at a detention centre by a youth after his or her release.

42—Certain prohibited items not to be returned to former residents

This clause makes it clear that there is no requirement for a prohibited item of property to be returned to a person.

Part 5—Community programs and community service

43—Community programs

The Minister may establish programs for the care, rehabilitation, training or treatment of youths required to be under supervision in the community. The Chief Executive is to ensure that adequate arrangements are in place to ensure that a youth is supervised by a community youth justice officer.

44—Restrictions on performance of community service and other work orders

This clause sets out various restrictions and requirements that apply where a youth is required to perform community service or to carry out work under an order.

45—Insurance cover for youths performing community service or other work orders

There is a requirement under this clause for a youth who is to perform community service or other work pursuant to an order or undertaking to be insured against death or bodily injury arising out of, or occurring in the course of, performance by the youth of that community service or work.

46—Community service or other work orders may only involve certain kinds of work

This clause requires that the work selected for the performance of community service or other work pursuant to an order or undertaking under this Act or the Young Offenders Act be for the benefit of—

the victim of the offence; or

persons who are disadvantaged through age, illness, incapacity or any other adversity; or

an organisation that does not seek to secure a pecuniary profit for its members; or

a Public Service administrative unit, an agency or instrumentality of the Crown or a local government authority.

Part 6—Miscellaneous

47—Hindering a person in execution of duty

It is an offence under this clause for a person to hinder the Chief Executive, a community youth justice officer, a home detention officer or any person in the execution, performance or discharge of a power, function or duty under the Act.

48—Impersonating an employee of Department

Under this clause, it is an offence for a person to falsely represent himself or herself to be an officer or employee of the Department and to be authorised to exercise powers by or pursuant to this or another Act.

49—Confidentiality

This clause prohibits the disclosure of information relating to a youth or resident of a training centre if the information was obtained in the administration or enforcement of the Act. The clause specifies a number of exceptions to this general rule.

50—Disclosure of health information

This clause requires disclosure to the Chief Executive of relevant health information about a youth detained in a training centre or released on home detention as reasonably required for the treatment, care or rehabilitation of the youth, or the safe management of the youth in the centre or in the community.

51—Information about youth may be given in certain circumstances

This clause authorises the Chief Executive to release, on application by an eligible person, information relating to a youth sentenced to detention or imprisonment. A person is an eligible person in relation to a youth sentenced to detention or imprisonment for an offence if he or she is—

a registered victim in relation to the offence; or

a member of the youth's family or a close associate of the youth; or

a legal practitioner who represents the youth; or

any other person who the Chief Executive thinks has a proper interest in the release of such information.

52—Information about youth to be given when youth to be imprisoned

Under this clause, the Chief Executive is required to provide the Department (within the meaning of the Correctional Services Act 1982) with information he or she holds relating to a youth transferred to a prison from a detention centre if the information is required in order to ensure—

the safety and security of the youth while he or she is detained in the prison; and

the safety and security of other persons at the prison; and

that the rehabilitation needs of the youth will be met while he or she is detained in the prison.

53—Minister may acquire land

The Minister may acquire land in accordance with the Land Acquisition Act 1969 for the purposes of the measure.

54—Evidentiary provision

This clause is an evidentiary provision relating to the use of sniffer dogs under clause 32 of the measure.

55—Regulations

This clause authorises the making of regulations for the purposes of this measure.

Schedule 1—Related amendments and transitional provisions

Part 1—Preliminary

1—Amendment provisions

This clause is formal.

Part 2—Amendment of Children's Protection Act 1993

2—Amendment of section 52C—The Guardian's functions and powers

This clause amends the Children's Protection Act 1993 by making it clear that the Guardian for Children and Young Persons to carry out functions relating to children and the welfare of children assigned to the Guardian under the Youth Justice Administration Act 2015.

Part 3—Amendment of Criminal Law Consolidation Act 1935

3—Amendment of section 269A—Interpretation

This clause amends mental impairment provisions of the Criminal Law Consolidation Act 1935 by providing clarification in relation to the meaning of certain terms as they apply to youths.

Part 4—Amendment of Criminal Law (Sentencing) Act 1988

4—Amendment of section 3—Interpretation

A definition of Minister for Youth Justice (being the Minister responsible for the administration of the Youth Justice Administration Act 2015) is inserted.

5—Amendment of section 3A—Application of Act to youths

6—Amendment of section 23—Offenders incapable of controlling, or unwilling to control, sexual instincts

7—Amendment of section 79A—Rights on arrest

A number of consequential amendments arising from the enactment of the Youth Justice Administration Act 2015 are made by these clauses.

Part 5—Amendment of Family and Community Services Act 1972

8—Repeal of section 7

Section 7 of the Family and Community Services Act 1972, which is redundant, is repealed by this clause.

9—Amendment of section 36—Establishment of facilities and programs for children

This clause amends section 36 to remove a reference to the establishment of training centres by the Minister as training centres are to be established by the Minister under the Youth Justice Administration Act 2015.

10—Amendment of section 77—Unlawful communication with children in certain facilities

The amendments made by this clause remove references to training centres and detention.

11—Amendment of section 236—Limitation on tortious liability for acts of certain children

The amendment made by this clause removes a reference to persons detained in training centres.

12—Amendment of section 251—Regulations

This clause makes further amendments to remove references to training centres and detention.

Part 6—Amendment of Young Offenders Act 1993

13—Amendment of section 4—Interpretation

This clause inserts a number of definitions required because of the proposed enactment of the Youth Justice Administration Act 2015.

14—Amendment of section 15—How youth is to be dealt with if not granted bail

Section 15(1) of the Young Offenders Act 1993 requires that a youth who is not granted bail is to be detained by the Chief Executive with a person or in a place that is not a prison. Under subsection (1a) as substituted by this clause, subsection (1) will not apply in relation to a youth who is already in custody in a prison, a youth who has previously been in custody in a prison or a person who is aged 21 years or more (regardless of his or her alleged age at the time of the relevant alleged offence).

15—Amendment of section 23—Limitation on power to impose custodial sentence

Section 23 currently limits the period for which a youth can be sentenced to six months. This clause amends the section by increasing the maximum period to 12 months.

The section as amended will provide that the Court must, when sentencing a youth to detention, direct that the youth serve the period of detention in a prison if the youth has previously served a sentence of imprisonment or detention in a prison. This does not apply if the court considers that there are exceptional circumstances for not directing that the detention be served in a prison. The section as amended will also provide that where a sentence of detention will extend past a youth's 21st birthday, the Court must, unless satisfied that there are exceptional circumstances for not doing so, direct that any period of the detention that is to be served by the youth after he or she reaches 21 years of age is to be served in a prison rather than in a training centre.

16—Amendment of section 26—Limitation on Court's power to require bond

Section 26 as amended by this clause will provide that, where an order has been made under the section imposing an obligation that a person be supervised for a period that will extend past his or her 21st birthday, the Court may, on application by the person or the Chief Executive, direct that, after the person reaches 21 years of age, the person be supervised by a community corrections officer (under the Correctional Services Act 1982) rather than by a community youth justice officer.

17—Amendment of section 36—Detention of youth sentenced as adult

If a youth is serving a sentence of imprisonment in a training centre, section 36 requires the sentencing court to review the detention before the youth reaches 18 years of age. Under the section as amended by this clause, the Chief Executive is to provide a report to the sentencing court on the youth's progress in detention.

18—Amendment of section 36A—Transfer following imposition of concurrent prison sentence

Section 36A provides that if a youth who is serving a sentence of detention or imprisonment in a training centre is sentenced to imprisonment for an offence committed after he or she turned18, and the latter sentence is to be served concurrently with the youth sentence, the youth is to be transferred to a prison where he or she is to serve the sentences. The section currently provides that this is to be the case unless the court directs otherwise. Under the section as amended, the court will be required to direct that the youth be transferred to a prison to serve the sentences unless it considers that there are exceptional circumstances as to why the direction should not be given.

19—Amendment of section 39—Reviews etc and proceedings of Training Centre Review Board

Section 39(6) as amended will require consideration to be given as to whether a youth who has turned 18 and is serving a period of detention in a training centre should complete the sentence in a prison. Currently, the section requires this to occur only at the last periodical review before the youth's 18th birthday. Under the provision as amended, the required consideration is to be given at each periodical review that occurs following the youth's 18th  birthday.

20—Amendment of section 40A—Leave may be authorised by Board

Section 40A provides for the Training Centre Review Board to authorise the Chief Executive to grant a youth periods of leave from a training centre during which the youth will not be under the supervision of the Chief Executive. The section as amended will provide that periods of leave granted under the section may be subject to a condition that the youth be monitored by use of an electronic device.

21—Amendment of heading to Part 5 Division 3 Subdivision 3

This amendment is consequential on amendments made to Subdivision 3 of Part 5 Division 3.

22—Amendment of section 41A—Conditional release from detention

Section 41A sets out a number of provisions that apply to the release of a youth from detention. Currently, those provisions apply in relation to the release of a youth on home detention. Under the section as amended, provisions requiring that a youth must have completed at least two thirds of the period of detention in a training centre to which he or she has been sentenced before he or she can be released on detention will not apply in relation to release on home detention.

23—Amendment of section 41B—Release on condition of home detention

Section 41B is amended by this clause so that the Training Centre Review Board may release a youth on home detention on the application of the Chief Executive or on its own initiative.

24—Repeal of Part 5 Division 4

This clause repeals Division 4 of Part 5 because it is proposed that the relevant provisions be moved to the Youth Justice Administration Act 2015.

25—Repeal of sections 49A to 52

This clause provides for the repeal of sections 49A to 51. These sections are to be reproduced in the Youth Justice Administration Act 2015.

26—Substitution of section 63

Section 63, as substituted by this clause, provides for (among other matters) a person of or above the age of 17 years who has been remanded to, or is being detained in, a training centre or another place pursuant to an order of a court, to be transferred to a prison for the remainder of the period of remand or detention. The Youth Court may order this to occur if it is satisfied, on application by the Chief Executive, that—

the person—

cannot be properly controlled in the training centre or other place; or

has, within the period of 14 days preceding the date of the application, been found guilty of assaulting a person employed, or detained, in that training centre or other place; or

has persistently incited others in the training centre or other place to cause a disturbance; or

has escaped or attempted to escape from the training centre; or

the person's needs for rehabilitation, care, correction and guidance cannot be met in that training centre or other place and it is in the best interests of the person for him or her to be transferred to a prison.

27—Amendment of section 63B—Application of Correctional Services Act 1982 to youth with non-parole period

28—Amendment of section 64—Information about youth may be given in certain circumstances

The amendments made by these clauses are consequential.

Part 7—Amendment of Youth Court Act 1993

29—Amendment of section 24—Persons who may be present in Court

This clause adds officers or employees of the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of the Youth Justice Administration Act 2015 to the list of persons entitled to be present in the Youth Court.

Debate adjourned on motion of Hon. T.J. Stephens.

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