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Youth Justice and Other Legislation Amendment Bill 2015
Youth Justice and Other Legislation
Amendment Bill 2015
Explanatory Notes
Short title
The short title of the Bill is the Youth Justice and Other Legislation Amendment Bill
2015.
Policy objectives and the reasons for them
The objectives of the Bill are to:
1. Remove boot camp (vehicle offences) orders and boot camp orders from the range
of sentencing options for children;
2. Prohibit the publication of identifying information about a child dealt with under
the Youth Justice Act 1992 (the YJ Act);
3. Remove breach of bail as an offence for children;
4. Make childhood findings of guilt for which no conviction was recorded
inadmissible in court when sentencing a person for an adult offence;
5. Reinstate the principle that a detention order should be imposed only as a last
resort and for the shortest appropriate period when sentencing a child;
6. Reinstate the Childrens Court of Queensland's (the CCQ's) sentence review
jurisdiction and expand the jurisdiction to include Magistrates' decisions in
relation to breaches of community based orders; and
7. Reinstate into the Penalties and Sentences Act 1992 (the PS Act) the principle that
imprisonment is a sentence of last resort and a sentence that allows the offender to
stay in the community is preferable.
Youth Justice Act 1992
During the 2015 general election, the Government committed to repealing reforms
made to the YJ Act in 2014 (the 2014 reforms) as introduced by the former
Government and effected by the Youth Justice and Other Legislation Amendment Act
2014 (the 2014 Amendment Act).
The Government's commitment to repeal the 2014 reforms reflects international
evidence that increasing the severity of punishment is ineffective in reducing
recidivism, particularly by children and young people.
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Youth Justice and Other Legislation Amendment Bill 2015
The 2014 reforms were viewed as unduly punitive and inappropriate by the majority
of stakeholders. The Legal Affairs and Community Safety Committee (LACSC)
consulted widely on the 2014 reforms during its inquiry into the Youth Justice and
Other Legislation Amendment Bill 2014 (the 2014 Bill). The measures implemented
were not supported by any of the submitters to the Parliamentary inquiry, including
the Queensland Law Society (the QLS), Bar Association of Queensland, Anti-
Discrimination Commission Queensland, Queensland Council for Civil Liberties,
leading church and research organisations and Amnesty International. Stakeholders,
instead, urged implementation of measures to divert children and address the causes
of offending. The amendments proposed in the Bill address the concerns of key
stakeholders.
The Bill also gives effect to the Government's election commitment to undertake an
independent evaluation of the former government's trial youth boot camp program.
Findings from this evaluation showed that the trial was ineffective in its goal of
reducing recidivism and consequently that it did not reflect value for money, with a
decision being announced by the Government in August 2015 to cease the trial at its
planned conclusion in October 2015.
Sentence reviews were also removed from the YJ Act by the previous Government in
the course of the 2014 reforms. That removal occurred in the face of criticism and
opposition by the President of the CCQ and other key legal and youth sector
stakeholders. Consistent with the expectations of key stakeholders, the Bill reinstates
sentence reviews and, in the interests of fairness, justice and the prompt resolution of
youth justice matters, expands their former operation to include magistrates' decisions
on breaches of community based orders.
Penalties and Sentences Act 1992
A longstanding sentencing principle at common law is that prison, due to the severity
of the sanction, should only be imposed when there is no other less onerous sanction
appropriate having taken into consideration all of the circumstances of the offending
conduct and the need to protect the public.
Prior to the 2014 reforms, this principle was given statutory recognition in the PS Act
for all offenders aged 17 years and over. This required Queensland courts to have
regard to this sentencing principle for all offenders except when sentencing for an
offence of violence, child sex offences and child exploitation material offences. For
those offenders, the sentencing principle had been displaced in recognition of the
seriousness of such offending and the need to protect the community.
The 2014 reforms inserted what is now subsection 9(12) of the PS Act. That
subsection provides that section 9 overrides any other Act or law to the extent that, in
sentencing an offender for any offence, the court must not have regard to any
principle that a sentence of imprisonment should be imposed only as a last resort.
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Youth Justice and Other Legislation Amendment Bill 2015
Achievement of policy objectives
Youth Justice Act 1992
The Bill achieves the objectives by implementing a series of amendments to the YJ
Act and the PS Act. These amendments will have the effect of substantially restoring
affected provisions of both Acts to their position prior to enactment of the Youth
Justice (Boot Camp Orders) Amendment Act 2013 (which introduced boot camp
orders and the boot camp program) and the 2014 Amendment Act.
This is a reasonable and proportionate approach, as it reverses a set of legislative
amendments which, as discussed above, are neither evidence based nor effective and
do not enjoy wide stakeholder support.
Penalties and Sentences Act 1992
The Bill also gives effect to the Government's election commitment to give statutory
recognition in the PS Act to the common law sentencing principle that imprisonment
is a sentence of last resort for all offenders except those convicted of certain offences
in recognition of the serious nature of the offending and need for community
protection.
Alternative ways of achieving policy objectives
There are no alternative ways of achieving the policy objectives.
Estimated cost for government implementation
Any costs in relation to the amendments will be met from existing agency resources.
The future allocation of any necessary resources will be determined through the
normal budgetary processes.
Consistency with fundamental legislative principles
Youth Justice Act 1992
The removal of the court's power to make boot camp (vehicle offences) orders and
boot camp orders will have some limited retrospective operation. While such
retrospectivity is ordinarily a breach of fundamental legislative principles,1 this is
justified in both cases as the omissions do not adversely affect rights and liberties nor
impose obligations.
In the case of the omission of the boot camp (vehicle offences) order, this absence of
any adverse effect arises from the fact the omission operates to the benefit of young
people who are defendants.2 It does this by removing a mandatory sentence which
must be imposed regardless of the tariff which would otherwise be applicable. This
1
Legislative Standards Act 1992 s 4(3)(g).
2
See the Legal Affairs and Community Safety Committee Report No. 14 (2012) pp 25-26.
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Youth Justice and Other Legislation Amendment Bill 2015
has in a number of instances resulted in young people receiving a boot camp (vehicle
offences) order in circumstances in which a lower tariff would otherwise have been
appropriate.
The omission of the boot camp order, meanwhile, removes a discretionary option for
a court which has made a detention order to suspend that order and divert the young
person into a boot camp program. As the YJ Act does not create any entitlement to be
diverted in this way, the retrospective omission of the boot camp order does not
diminish any rights and liberties which have already accrued to a person.
The following amendments to the 2014 reforms will also have limited retrospective
application. While such retrospectivity is ordinarily a breach of fundamental
legislative principles, this approach is justified in the case of these amendments as
they operate to the benefit of defendants3 and therefore appropriate to implement
retrospectively. In particular:
• Under the Bill's transitional provisions, the proposed prohibition on publication
of identifying information about repeat offenders will have limited retrospective
application.4 New section 384 provides that, regardless of whether a court has
previously made a publication prohibition order pursuant to section 299A of the
YJ Act, the question of whether to allow publication of the identifying
information of a child is to be resolved with reference to the amended sections
234 and 301 of the YJ Act. This will ensure that all children engaged with the
justice system receive the benefit of the amended publication provisions,
regardless of any orders made by courts under the previous regime. This is
consistent with leading evidence and opinion.
• The omission from the YJ Act of the offence of breaching bail by offending also
has a limited retrospective effect by virtue of the transitional provisions. The
effect of new section 380 is that any child involved in a proceeding in which it is
alleged that they have committed the offence of breaching bail by offending and
which is not finalised by the court at the time of the Act's commencement cannot
result in the child's continued prosecution, conviction or punishment for that
offence. The retrospective removal of the offence is warranted given that it was
widely criticised by the judiciary and relevant stakeholders as unnecessarily
punitive and contrary to existing sentencing principles.
Penalties and Sentences Act 1992
Clause 65 of the Bill provides for the transitional arrangements for amendments to the
PS Act. New section 240 clarifies that amendments to section 9 apply to the
sentencing of an offender after commencement, irrespective of whether the offence or
conviction happened before or after the commencement.
The amendment means that the amendments may have limited retrospective
application. For example, an offender may enter a plea of guilty prior to
commencement but the sentencing hearing may be adjourned pending preparation of a
medical report. Upon commencement of the amendments the offender will be
3
Ibid.
4
See clause 55.
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Youth Justice and Other Legislation Amendment Bill 2015
sentenced in accordance with the sentencing practice and procedure applying at the
time of sentence.
While retrospectivity is ordinarily a breach of fundamental legislative principles, this
approach is justified on the basis that it is consistent with the common law, it is
limited in application and operates to the benefit of offender.
Consultation
The Bill is reflective of both community and stakeholder feedback received in
response to the former government's Safer Streets Crime Action Plan--Youth Justice
publically released survey and the LACSC inquiry into the 2014 Bill. This
consultation showed a lack of support for the 2014 reforms with diversionary
measures and addressing the causes of offending instead seen as being more effective
in reducing youth offending.
Community and legal sector representatives, including the QLS and Youth Advocacy
Centre, have continued to make submissions to the Government reiterating their
concerns and advocating for the removal of the 2014 amendments.
Consistency with legislation of other jurisdictions
Youth Justice Act 1992
The Bill is specific to the State of Queensland, and is not uniform with or
complementary to legislation of the Commonwealth or another state. The repeal of
the boot camp (vehicle offences) order and boot camp order as sentencing options,
and reversal/repeal of the 2014 reforms will bring Queensland back into alignment
with the majority of other jurisdictions.
Penalties and Sentences Act 1992
As a result of the 2014 reforms, Queensland is currently the only Australian
jurisdiction not to give any recognition at all (under statute or common law) to this
sentencing principle for 'adult' offenders. The amendments to the PS Act contained
within the Bill will ensure that Queensland is once again aligned with all other
jurisdictions in Australia applying the common law.
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Youth Justice and Other Legislation Amendment Bill 2015
Notes on provisions
Part 1 - Preliminary
Clause 1 states that, when enacted, the Bill may be cited as the Youth Justice and
Other Legislation Amendment Act 2015.
Clause 2 provides that the Act, other than parts 3 and 5 and schedule 1 to the extent it
amends the Victims of Crime Assistance Act 2009, commences on a day to be fixed by
proclamation.
Part 2 - Amendment of Youth Justice Act 1992
Clause 3 provides that the Act amends the YJ Act.
Clause 4 amends subsection 13(1)(a) of the YJ Act (Police officer's power of arrest
preserved in particular general circumstances) by inserting a note indicating that in
addition to the matters detailed in subsections 13(a)(i)-(iv), a Police officer's power
to arrest a child without warrant pursuant to section 365(3) of the Police Powers and
Responsibilities Act 2000, must also be exercised consistently with principle 17 of the
Charter of Youth Justice Principles as detailed in Schedule 1of the YJ Act. Principle
17 requires that a child should be detained in custody for an offence, whether on arrest
or sentence, only as a last resort and for the least time that is justified in the
circumstances.
Clause 5 amends section 42 of the YJ Act (Preferred way of starting proceedings) by
omitting the phrase 'or an offence under section 59A'. The omission is a
consequential amendment related to the omission of part 5, division 2 (Offence
committed while on bail) of the YJ Act effected by clause 8 of the Bill.
Clause 6 omits part 5, division 1, heading (Bail generally) resulting in the removal of
the heading 'Division 1--Bail generally' from Part 5 from the YJ Act. This
amendment is a consequence of the omission of part 5, division 2 (Offence committed
while on bail) effected by clause 8 of the Bill.
Clause 7 amends section 47 of the YJ Act by inserting subsection (2) which deems a
review of a sentence order pursuant to part 6, division 9 of the YJ Act an appeal for
the purposes of the Bail Act 1980 (the Bail Act). The effect of this amendment is that
a child may be granted bail or have bail enlarged, varied or revoked by a court while a
sentence review is being determined.
Clause 8 omits Part 5, Division 2 (Offence committed while on bail) of the YJ Act,
with the effect that a finding of guilt for a further offence committed while on bail is
no longer itself an offence for a child.
Clause 9 inserts new subsection 62(e), which invests a Childrens Court Judge with
jurisdiction to review a sentence order of a Childrens Court Magistrate pursuant to
section 118 of the YJ Act.
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Youth Justice and Other Legislation Amendment Bill 2015
Clause 10 omits subsection 67(2)(b) of the YJ Act consequentially by removing boot
camp orders from the list of orders a Childrens Court constituted by two justices are
prohibited from making.
Clause 11 omits subsection 74(3)(d) of the YJ Act, removing the chief executive's
right of audience before a Court in relation to orders made pursuant to subsection
299A(2) of the YJ Act, that is orders prohibiting the publication of identifying
information about a child who is not a first-time offender. This is consistent and
consequential with the omission of section 299A by clause 51 of the Bill.
Clause 12 amends the heading to part 6, division 9 (Appeal) by inserting the phrase
'and review'. This reflects the reintroduction of the sentence review jurisdiction into
the YJ Act by clause 14.
Clause 13 amends subsection 117(1) and (2) of the YJ Act by removing decisions of
Magistrates in proceedings for breaches of community based orders from the actions
to which Part 9, Division 1 of the Justices Act 1886 applies. This reflects that these
decisions are to be reviewable by a Childrens Court Judge under the sentence review
jurisdiction as reintroduced by clause 14.
Clause 14 inserts a new part 6, division 9, subdivision 4 into the YJ Act to give effect
to the reintroduction of the sentence review jurisdiction. The new subdivision inserts
sections 118 to 126 into the YJ Act.
Section 118 states that a Childrens Court Judge on application may review a sentence
order made by a Childrens Court Magistrate.
Section 119 establishes the criteria in relation to an application for review.
Subsection 119(1) establishes that a child against whom a sentence order was made,
the chief executive acting in the child's interests or the complainant or arresting
officer for the charge for which the sentence order was made may make an application
for a review of a sentence order.
Subsection 119(2) requires that an application for review of a sentence order must be
made within 28 days after the sentence order is made.
Subsection 119(3) defines the term complainant for the purposes of the section as the
person who makes a complaint under the Justices Act.
Section 120 establishes the preliminary procedure for dealing with an application
seeking the review of a sentence order made by a Childrens Court Magistrate.
Subsection 120(1) requires that the Childrens Court at the place where the Childrens
Court Judge is sitting must notify the applicant and all other parties of the place and
time of the hearing of the application to review a sentence order.
Subsection 120(2) requires that if the application for review of a sentence order is not
made by the Chief Executive the Childrens Court must notify the Chief Executive of
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Youth Justice and Other Legislation Amendment Bill 2015
the of the making of the application and the place and time of the hearing of the
application.
Section 121 provides for circumstances in which a sentence order subject to an
application for review will be stayed or suspended.
Subsection 121(1) provides that, without affecting another power to stay the effect of
an order of a court or the operation of a law that has that effect, a Childrens Court
Judge may order a stay of all or any proceedings under a sentence order that is subject
to a review application.
Subsection 121(2) provides that a Childrens Court Judge may impose any conditions
the Judge considers appropriate on the stay.
Subsection 121(3) provides that, without limiting subsections 121(1) and 121(2), the
effect of a community based order subject to review under the division is stayed until
the end of the review.
Subsection 121(4) provides that, if the period for which a community based order
operates is relevant to the effect of the order or a program or anything else under the
order, the period between the start and the end of the review is not counted for the
purpose of the effect of the order, program or other thing.
Subsection 121(5) requires that if a Children's Court Judge orders a stay of a
proceeding under a sentence order, the Childrens Court at the place where the
Chldrens Court Judge is sitting must notify the chief executive of the making of the
order.
Section 122 establishes how a sentence order review is to be conducted.
Subsection 122(1) requires that a review of sentence must be by way of rehearing on
the merits.
Subsection 122(2) provides that a Children's Court Judge hearing a review may have
regard to the record of proceeding before the Childrens Court Magistrate and any
further submissions and evidence by way of affidavit or otherwise.
Subsection 122(3) requires that a review of sentence order must be conducted
expeditiously and with as little formality as possible.
Section 123 provides for the nature of the decision which a Childens Court Judge may
make when determining a review of a sentence order.
Subsection 123(1) provides that, on reviewing a sentence order, a Childrens Court
Judge may confirm the order, vary the order or discharge the order and substitute
another order which was within the jurisdiction of the Childrens Court Magistrate to
make.
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Youth Justice and Other Legislation Amendment Bill 2015
Subsection 123(2) provides that the Childrens Court Judge may also make any other
order a Childrens Court Magistrate could have made in connection with the sentence
as confirmed, varied or substituted under subsection (1).
Section 124 establishes how a review of a sentence order interrelates with other types
of appeal.
Subsection 124(1) provides that, if a child starts a proceeding for an ordinary appeal
against a sentence order, an application by the child for a review of the sentence order
cannot be started and that any application by the child for a review of the sentence
order pending at the start of the proceeding for an ordinary appeal lapses.
Subsection 124(2) provides that if a child starts a proceeding for an ordinary appeal
against a finding of guilt against the child in relation to which a sentence order was
made or a person other than a child against which a sentence order has been made
starts a proceeding for an ordinary appeal against the sentence order a Childrens Court
Judge cannot proceed to hear and decide any pending application by the child for a
sentence review against the sentence order until the ordinary appeal is finished.
Subsection 124(3) provides that if a complainant or arresting officer applies for a
sentence review of a sentence order made against a child and the child starts a
proceeding for an ordinary appeal against the sentence order or the finding of guilt for
which it was made a Childrens Court Judge cannot proceed to hear and decide the
application for the sentence review until the ordinary appeal is finished.
Subsection 124(4) provides the following definitions for the purposes of s112:
• "Application" by a child for a sentence review includes an application by the
chief executive acting in the child's interests.
• "Ordinary appeal" means -
(a) an appeal or application for leave to appeal under the Criminal Code,
Chapter 67; or
(b) an appeal under Justices Act 1886, part 9.
• "Sentence review" means a review under section 118 of a sentence order.
Section 125 provides for the incidents of review.
Subsection 125(1) provides that no costs may be ordered against a party on a sentence
review.
Subsection 125(2) provides that the decision of a Childrens Court Judge on a sentence
review takes effect as the decision of the Childrens Court Magistrate who made the
sentence order reviewed and subject to subsection 125(3) may be enforced or
appealed against in the same way as the decision of the Childrens Court Magistrate.
Subsection 125(3) provides that subsection 125(2) does not authorise a further review
by a Childrens Court Judge of the sentence already reviewed or an appeal to the
Childrens Court Judge under the Justices Act 1886, section 222.
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Youth Justice and Other Legislation Amendment Bill 2015
Subsection 126(1) provides that, subject to section 311, if a child is required to serve a
period of detention or the unserved part of a period of detention as a result of a
decision of a Childrens Court Judge on a sentence review, the judge, as part of the
order, must direct that a warrant be issued to arrest the child and commit the child to a
detention centre.
Subsection 126(2) provides that any justice may issue the warrant.
Clause 15 amends section 148 of the YJ Act to again provide that a court sentencing a
person for an offence committed as an adult cannot have regard to a finding of guilt
for an offence committed by that person as a child where no conviction was recorded.
Subclause 15(1) amends subsection 148 (1) of the YJ Act by omitting the phrase
'Subject to subsection (3)' and inserting in its place 'In'. This establishes that, in a
proceeding against an adult for an offence, there must not be admitted against the
adult evidence that the adult was found guilty as a child of an offence if a conviction
was not recorded.
Subclause 15(2) omits and inserts new subsection 148(3) of the YJ Act providing that
'this section does not prevent a court that is sentencing an adult from receiving
information about any other sentence to which the adult is subject if that is necessary
to mitigate the effect of the court's sentence'.
Clause 16 reinstates the longstanding sentencing principle that detention is an option
of last resort for a child sentenced under the YJ Act.
Subclause 16(1) amends subsection 150(2) of the YJ Act by inserting subsection (e),
which establishes that a detention order should be imposed only as a last resort and
for the shortest appropriate period. Subclause 16 (2) also omits subsection 150 (5) YJ
Act.
Clause 17 consequentially omits references to boot camp (vehicle offences) orders
and boot camp orders contained in subsections 151(3A) and (3B).
Clause 18 consequentially amends subsection 175(3) by omitting the subsection and
inserting in its place 'a court may make an order for a child's detention under
subsection (1)(g) with or without a conditional release order under section 220'.
Clause 19 consequentially amends subsection 176(4) by omitting the subsection and
inserting in its place 'A court may make an order for a child's detention under
subsection (2) or (3) with or without a conditional release order under section 220'.
Clause 20 omits section 176B 'Sentence orders--recidivist vehicle offences'. This is
required to give effect to the removal of the boot camp (vehicle offences) order from
the sentencing code under the YJ Act.
Clause 21 consequentially amends subsection 177 by omitting the reference to '180B'
and inserting '180A' in its place.
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Youth Justice and Other Legislation Amendment Bill 2015
Clause 22 omits section 178B (Combination of boot camp (vehicle offences) order
and other community based order), consequent to the removal of the boot camp
(vehicle offences) order from the sentencing code.
Clause 23 consequentially amends subsection 180(2) by omitting the subsection and
inserting in its place 'A court may make the detention order only for a maximum
period of 6 months and may not make a conditional release order'.
Clause 24 omits section 180B (Combination of detention order and boot camp
(vehicle offences) order) consequentially to the omission of the boot camp (vehicle
offences) order.
Clause 25 omits part 7, division 9A (Boot camp (vehicle offences) order). Together
with the omission of section 176B by clause 20, this omission is the key amendment
required to remove boot camp (vehicle offences) orders from the sentencing code
under the YJ Act.
Clause 26 inserts new section 208, which provides that a court may make a detention
order against a child only if the court is satisfied that no other sentence is appropriate
in the circumstances of the case, after considering all other available sentences and
taking into account the desirability of not holding a child in detention. This reflects
the reinstatement of the principle that detention is a sentence of last resort for a child.
Clause 27 consequentially amends subsection 209(3) by inserting the words 'or
review' after 'appeal'.
Clause 28 consequentially amends subsection 210(3) by omitting the subsection and
inserting in its place 'Subsection (2) does not apply if the court makes a conditional
release order under section 220'.
Clause 29 amends subsection 211(3) to provide that that subsection operates in the
same way in relation to sentence reviews as in relation to appeals.
Clause 30 expands the operation of section 215, which currently operates in relation
to appeals, to also operate in the same way in relation to sentence reviews.
Subclause 30(1) amends section 215(a) after the word 'appeal' by inserting 'or a
review of'.
Subclause 30(2) amends section 215(b) by inserting 'or review' after the words 'the
appeal'.
Clause 31 omits part 7, division 10, subdivision 2A (Boot camp orders), which
provides for the making and effect of a boot camp order, and subdivision 2B (Boot
camp programs), which prescribes the program in which a child must participate
under either a boot camp (vehicle offences) order or boot camp order. Due to the
discontinuation of the boot camp program and the removal of both relevant sentence
orders from the sentencing code, these provisions are no longer required.
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Youth Justice and Other Legislation Amendment Bill 2015
Clause 32 amends section 234, which provides for the circumstances in which
identifying information about a first-time offender may be published, to again apply
to all offenders.
Subclause 32(1) amends the heading to section 234 by omitting the phrase 'of first-
time offender' and inserting in its place the phrase 'about a child'.
Subclause 30(2) amends sections 234(1), (2) and (3), omitting the phrase 'first-time
offender' and inserting in its place the word 'child's'.
Subclause 30(3) amends section 234(2)(c) by omitting the phrase 'first-time offender'
and inserting in its place the word 'child'.
Clause 33 consequentially amends section 237(3)(a) of the YJ Act to remove
reference to a boot camp (vehicle offences) order.
Clause 34 consequentially omits section 238(6)(b)(ii)(c) by removing subsections
(b)(ii) and (c) which made reference to a boot camp centre.
Clause 35 amends section 240, which deals with a court's powers generally on breach
of a community based order, to remove all provisions dealing with breach of a boot
camp (vehicle offences) order or boot camp order.
Clause 36 amends section 241, which deals with a superior court's powers on breach
of a community based order, to remove all provisions dealing with breach of a boot
camp (vehicle offences) order or boot camp order.
Clause 37 amends section 242, which deals with the powers of a court which finds a
child guilty of an indictable offence committed while subject to a community based
order, to remove all provisions which operate where the breached order is a boot
camp (vehicle offences) order or boot camp order.
Clause 38 amends section 243, which provides for a higher court to take action in
relation to breach by a child of a community based order made by a lower court, to
remove all provisions which operate where the breached order is a boot camp (vehicle
offences) order or boot camp order.
Clause 39 amends section 244, which deals with the powers of a court before which a
child is ordered to appear for resentencing in relation to breach of a community based
order, to remove provisions which operate where the order breached is a boot camp
(vehicle offences) order or boot camp order.
Clause 40 amends section 245, which deals with a court's powers on breach of a
community based order other than a boot camp (vehicle offences) order, conditional
release order or boot camp order, to remove all references to either a boot camp
(vehicle offences) order or boot camp order.
Subclause 40(5) inserts a new subsection 245(6) which provides that an order or
decision made by a Magistrate under section 245 is a sentence order for the purposes
of part 6, division 9, subdivision 4, with the effect that the order or decision is
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Youth Justice and Other Legislation Amendment Bill 2015
therefore reviewable by a Childrens Court Judge under the reinstated sentence review
jurisdiction.
Clause 41 amends section 246, which deals with a court's powers on breach of a
conditional release order, to remove the option for a court which revokes a conditional
release order to instead make a boot camp order.
Subclause 41(3) inserts a new subsection 246(6) which provides that an order made
by a Magistrate under section 246 is a sentence order for the purposes of part 6,
division 9, subdivision 4, with the effect that the order is therefore reviewable by a
Childrens Court Judge under the reinstated sentence review jurisdiction.
Clause 42 omits sections 246AA and 246A which provide for the court's power on
breach of a boot camp (vehicle offences) order and boot camp order, respectively.
Clause 43 amends sections 247(1) (b) & 247(1) (c) and (d) by removing references to
the chief executive being able to make application for a boot camp order to be varied,
discharged or resentenced in the interests of justice.
Clause 44 amends sections 248(1) and (2) by omitting references to a boot camp
order.
Clause 45 omits 'or a boot camp order' from section 249(1), which applies to a court
which discharges a community based order and resentences the child to whom the
order applies.
Clause 46 omits references to a boot camp order from section 252, which details the
court's power to vary a community based order with the consent of the chief
executive and the child to whom the order applies.
Clause 47 inserts a reference to a review into section 252G, which deals with the
powers of a court in relation to a child who has breached a supervised release order.
Clause 48 consequentially amends section 263(5) to reflect the renumbering of the
charter of youth justice principles by clause 57.
Clause 49 omits part 8A 'Boot camp centre administration'. This part is no longer
required consequent to the discontinuation of the boot camp program.
Clause 50 amends section 285, which provides for when certain persons gain
information through involvement in the administration of the YJ Act for the purposes
of the confidentiality provisions under part 9, to continue to apply to information
gained by a for boot camp centre provider despite the discontinuation of the boot
camp program.
Clause 51 omits section 299A, which provides for a court to make an order
prohibiting publication of information identifying a child who is being dealt with
under the YJ Act and is not a first-time offender. This omission is consequent to the
expansion by clause 52 of the general prohibition in section 301 against the
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Youth Justice and Other Legislation Amendment Bill 2015
publication of information identifying a first-time offender to also apply to children
who are not first-time offenders.
Clause 52 amends section 301 to expand the prohibition in that section against the
publication of information identifying a child who has been dealt with under the YJ
Act from first-time offenders only to all child offenders.
Clause 53 amends section 303(3) by removing reference to the omitted section 299A.
Clause 54 inserts new sections 305A and 305B, which, as detailed below, impose an
ongoing obligation to report harm to children in former boot camp centres and
complaints about boot camp programs.
Section 305A
• Subsection (1) details the obligations of a former boot camp centre employee to
report harm or suspected harm to the chief executive and associated penalties for
not reporting such matters;
• Subsection (2) clarifies it is immaterial how the harm was caused for the purposes
of the obligation to report;
• Subsection (3) and (4) provide a former boot camp centre employee is not
required to report harm if reporting the harm might tend to incriminate the person
or if they know or reasonably believe the chief executive is already aware of the
harm; and
• Subsection (5) provides definitions in support of the new section 305A.
Section 305B
• Subsections (1) provides for a child or a parent of a child who participated in a
boot camp program to make a complaint about a matter that affects the child;
• Subsection (2) requires the chief executive to issue written instructions on how
a complaint may be made and dealt with, which may include requiring that the
complaint be made directly to a child advocacy officer or other appropriate
authority;
• Subsection (3) provides that a child is entitled to complain directly to a child
advocacy officer;
• Subsections (4) to (6) detail how the chief executive is to deal with
complaints; and
• Subsection (7) provides a definition for the purposes of section 305B.
Clause 55 inserts a new part 11, division 13 providing transitional provisions for
amendments to the YJ Act.
Subdivision 1 creates definitions for the purposes of the transitional provisions.
Subdivision 2 provides that, if a child was sentenced to a boot camp (vehicle
offences) order or boot camp order prior to the removal of those orders from the YJ
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Youth Justice and Other Legislation Amendment Bill 2015
Act, the order will continue to have effect as if the Act had not been amended. This
ensures that a child can complete their sentence order.
Subdivision 3 details how a breach of a boot camp (vehicle offences) order or boot
camp order continued under subdivision 2 is to be dealt with and the orders which
may be made. Subdivision 3 applies to all contraventions, including those which
occurred prior to the legislation's commencement.
Subdivision 4 provides that, following commencement of the legislation, a court
cannot make a boot camp (vehicle offences) order or boot camp order. This is
regardless of when the offence was committed or whether there was a pre-sentence
report requested to consider a boot camp order or boot camp (vehicle offences) order.
Subdivision 5 provides that:
• if, before commencement a child was charged with an offence under repealed
section 59A (Breach of bail) but on commencement the charge had not been
finally dealt with, the child cannot be prosecuted for, convicted of or punished
for the offence;
• any childhood findings of guilt for which a conviction was not recorded are
inadmissible in the sentencing of any person for an adult offence after
commencement, regardless of when the offence was committed;
• a Childrens Court Judge may conduct a review under section 118 whether the
sentence order to be reviewed was made before or after commencement;
• a court sentencing a child after commencement must have regard to the
reinsertion into section 150 of the principle of detention as a sentence of last
resort, whether the offence was committed or the finding of guilt made before
or after commencement; and
• sections 234 and 301 as amended by this Bill apply to the publication of
identifying information regardless of whether the information was subject to
an order under repealed section 299A.
Clause 56 inserts a new principle 17--that a child should be detained in custody
whether on arrest or sentence only as a last resort and for the least time that is justified
in the circumstances-- into the Charter of Youth Justice Principles and
consequentially renumbers the principles.
Clause 57 amends the regulation-making head of power in schedule 2 of the YJ Act to
reflect the omission of boot camp (vehicle offences) orders and boot camp orders and
the discontinuation of the boot camp program. This involves omission of items 13 and
14, which provide for areas to be prescribed for the purpose of eligibility for a boot
camp order or for a boot camp (vehicle offences) order, and removal of references to
either order from items 5, 6, 7, 9 and 10.
Clause 58 amends the dictionary to omit a range of references relating to boot camp
(vehicle offences) orders, boot camp orders and the discontinued boot camp program.
Clause 59 omits schedule 5 of the YJ Act, which prescribes those offences which
disqualify a child from participating in a boot camp program.
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Youth Justice and Other Legislation Amendment Bill 2015
Part 3 - Amendment of the Penalties and Sentences
Act 1992
Clause 60 provides that part 3 amends the PS Act.
Clause 61 amends section 9 (Sentencing guidelines).
Subclause (1) makes a consequential amendment due to subclause 2.
Subclause (2) inserts new subsection 9(2)(a), namely, the principles that a sentence of
imprisonment should only be imposed as a last resort and that a sentence that allows
the offender to stay in the community is preferable.
Subclause (3) inserts a new subsection 9(2A) to provide that new subsection 9(2)(a)
does not apply to the sentencing of an offender for offences of violence.
Subclause (4) omits the term "a violent offender" from subsection 9(3) and replaces it
with a reference to new subsection 9(2A).
Subclause (5) replaces existing subsection 9(4) to provide that in sentencing an
offender for any offence of a sexual nature committed in relation to a child under 16
years the principles mentioned in new subsection 9(2)(a) do not apply and the
offender must serve an actual term of imprisonment, unless there are exceptional
circumstances.
Subclause (6) amends subsection 9(5) consequential to the new subsection 9(4).
Subclause (7) inserts a new subsection 9(6A) to provide that new subsection 9(2)(a)
does not apply in sentencing an offender for the specified offences under the Criminal
Code and classifications legislation (child exploitation material offences).
Subclause (8) replaces the reference to "a child-images offender" in subsection 9(7)
with a reference to subsection (6A).
Subclause (9) makes a consequential amendment to subsection 9(8) due to the
renumbering of subsection 9(2).
Subclause (10) omits subsection 9(12) consequential to insertion of new subsection
9(2)(a).
Subclause (11) omits the definitions child-image offender and violent offender from
subsection 9(13), which are no longer required due to insertion of new subsections
9(6A) and 9(2A).
Subclause (12) renumbers subsection 9(13).
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Youth Justice and Other Legislation Amendment Bill 2015
Clause 62 amends section 195B (Access to court files by representative of community
justice group in offender's community) consequential to renumbering of subsection
9(2).
Clause 63 amends section 195C (Confidentiality) consequential to the renumbering of
subsection 9(2).
Clause 64 amends section 195D (Protection from liability) consequential to the
renumbering of subsection 9(2).
Clause 65 inserts a new part 14, division 13, section 240, which provides for the
transitional arrangements for the Youth Justice and Other Legislation Amendment Act
2015.
Part 4 - Amendment of the Public Guardian Act 2014
Clause 66 notes that this part amends the Public Guardian Act 2014.
Clause 67 and 68 omits references to a boot camp centre as a visitable site,
consequent to the discontinuation of the boot camp program and the closure of the
boot camp centre.
Part 5 - Minor and consequential amendments
Clause 69 identifies that schedule 1 makes minor and consequential amendments to
the Acts mentioned therein.
Schedule 1 - Minor and consequential amendments
Schedule 1 inserts a note into the Police Powers and Responsibility Act 2000
identifying that, under the YJ Act, it is a principle that a child should be detained in
custody, either on arrest or sentence, only as a last resort and for the least time
justifiable in the circumstances.
Schedule 1 also renumbers a section in the Victims of Crime Assistance Act 2009
consequential to the renumbering of subsection 9(2) of the PS Act by part 3 of the
Bill.
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