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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
Youth Justice (Boot Camp Orders) and
Other Legislation Amendment Bill 2012
Explanatory Notes
Objectives of the Bill
The primary objectives of the Youth Justice (Boot Camp Orders) and Other
Legislation Amendment Bill 2012 (the Bill) are to amend the:
1. Youth Justice Act 1992 to:
ˇ introduce a Boot Camp Order as an option instead of detention
for young offenders; and
ˇ remove the option of court referred youth justice conferencing.
2. Anti-Discrimination Act 1991 to introduce new exemptions in
relation to:
ˇ accommodation used in connection with work as a sex worker;
and
ˇ the imposition of eligibility requirements based on citizenship or
visa status in government policies for the provision of assistance,
services or support; and
3. Fiscal Repair Amendment Act 2012 to bring forward the
commencement date (from 1 July 2013 to 1 January 2013) of sections
that transfer the powers of the Queensland Liquor and Gaming
Commission and chief executive under the Gaming Machine Act 1991
and Liquor Act 1992 to a Queensland Liquor and Gaming
Commissioner.
Reasons for the Bill
Youth Justice Act 1992
The Bill implements the 2012 election commitment of the Liberal National
Party to introduce a two year trial of a youth boot camp diversion program.
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
Community concern regarding youth offending has been escalating and
there is an expectation that young people are held accountable for their
crimes. Detention is not effective in reducing future offending or changing
offending behaviour of the small number of young people who are
responsible for the majority of the offences.
The Bill will amend the Youth Justice Act 1992 (the Act) to introduce a
boot camp order which will provide an option before detention for the
courts. The order will be significantly more onerous than a conditional
release order which is the current option available to courts when releasing
a child upon the making of a detention order. The boot camp program will
entail a period of one month in a residential boot camp centre followed by
at least two months and not more than five months of intensive supervision
in the community. The program, which is approved by the Chief Executive,
is a requirement of the boot camp order and will be tailored to meet the
specific needs of each child with a view to preventing young people
entering the `revolving door' of custodial placements.
For a young offender to be eligible they must be at least 13 years old at the
time of sentence, usually reside in an area prescribed by regulation and
have provided consent to participate in the boot camp program. The areas
will be prescribed by the amendment to the regulation which shall
commence at the same time as the relevant clauses of the Bill. A young
offender is not eligible to participate if the offence for which they are being
sentenced is a disqualifying offence, they have at any time had a finding of
guilt for a disqualifying offence or have a pending charge for a
disqualifying offence. The disqualifying offences are contained in a
Schedule to the Bill and contain a number of serious violent and sexual
offences. In addition to the Schedule of disqualifying offences, the court,
in considering eligibility, must have regard to whether the child poses an
unacceptable risk of harm to the boot camp centre employees and other
children participating in the boot camp program.
Under the Act, the court must order a pre-sentence report if the court is
satisfied that a detention order is the only option. Given that a child must be
ordered to a period of detention and released on to a boot camp order, the
court must order a pre-sentence report. The Bill provides that where the
court is considering a boot camp order the court must request that the
report contain an assessment of the young offender's physical and mental
health, advice on the availability of a boot camp centre, suitability of the
child for release from detention on to a boot camp order, a statement about
whether the parent of the child has consented to participate in the boot
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
camp program and a statement that the details of the boot camp order have
been explained to the young offender in a way and to an extent that is
reasonable and the consent of the young offender.
The boot camp order must be for a period of at least three months but not
more than six months. The order will also contain the name and location of
the boot camp centre and the details of the boot camp program (as
approved by the chief executive). There is also an obligation on the child to
report to the chief executive on the day that the court makes the boot camp
order. The boot camp program must comprise a period of one month in a
boot camp centre (residential phase) followed by a maximum period of five
months of intensive community supervision.
This is provided through an individualised and intensive program which
includes strenuous physical activities during the residential phase and
offence focussed programs, counselling, substance abuse programs,
community reparation, family support and support to re-engage with
learning or employment in both the residential and community supervision
phases of the boot camp program. While mentoring programs will be
offered to the child from the commencement of the program, the mentoring
phase which is provided upon completion of the order is entirely voluntary.
As such it is not a mandatory component of the boot camp program for the
purposes of the boot camp order. Given that the program is tailored to meet
the individual needs of a child, the program is outlined in the Bill in general
terms only.
If a young offender breaches the order, a number of options will be
available to the court. The court may revoke the boot camp order and
require the young offender to serve the period of detention for which the
boot camp order was made, make a new boot camp order or make a
conditional release order. The court may also permit the young offender the
opportunity to complete the order. In so doing, the court may vary the
requirements of the order. The court cannot, however, vary the details of
the boot camp program. This will prevent the court ordering a child to
participate again in the residential phase of the program if this has already
been completed (unless a new boot camp order is made). This is to protect
the therapeutic integrity of the boot camp program which requires that for
the one month spent in the residential phase a minimum of two months is
required to be spent under strict community supervision.
The key objective of the boot camp program is to instil discipline, respect
and values into young people entrenched in the youth justice system to
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
divert them from further offending and support them to make constructive
life choices.
The Bill will also enact the decision made in the context of the 2012-13
Budget handed down on 11 September 2012 to remove the option for
courts to refer a child to participate in a youth justice conference.
Currently, the court can refer a matter to conference as the sentence
outcome (indefinite referral) or refer to a conference prior to sentence. The
Bill will remove both of these options.
The Bill also removes references to the redundant role of youth justice
conferencing `coordinator' and replaces responsibilities for these functions
with those of the chief executive.
Anti-Discrimination Act 1991
Accommodation used in connection with lawful sexual activity
Recently, the Queensland Civil and Administrative Tribunal (QCAT)
Internal Appeal Body, in GK v Dovedeen Pty Ltd and Anor held that a
motel that refused accommodation to a sex worker who had used the
accommodation to provide prostitution services had contravened the
Anti-Discrimination Act 1991 (ADA). QCAT found that the conduct
constituted direct discrimination on the basis of "lawful sexual activity".
Under the ADA, "lawful sexual activity" is defined to mean " a person's
status as a lawfully employed sex worker, whether or not self-employed".
The decision has been appealed to the Court of Appeal.
Government Eligibility Policies
Recent litigation has highlighted the potential for certain government
policies where eligibility for government assistance, services or support is
based on citizenship or visa status, to be subject to complaints of racial
discrimination under the ADA.
Fiscal Repair Amendment Act 2012
Currently, the Queensland Liquor and Gaming Commission (commission)
and the chief executive make decisions under the Gaming Machine Act
1991 (Gaming Machine Act) and the Liquor Act 1992 (Liquor Act).
However, amendments in the Fiscal Repair Amendment Act 2012, assented
to on 21 September 2012, combined the roles and decision making of the
commission and the chief executive under the Gaming Machine Act and
Liquor Act and transferred them to a new Liquor and Gaming
Commissioner (commissioner).
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
The amendments do not remove the long established licensing processes
under the Gaming Machine Act and Liquor Act; but rather streamline the
decision making process by removing unnecessary delays created by
applications passing through the chief executive and then to the
commission and the waiting times associated with commission meetings.
The creation of the commissioner will simplify the legislation and clarify
who is the decision maker.
The amendments were to commence on 1 July 2013. However, given the
benefits to industry and government in streamlining the decision making
process, it would be preferable for the amendments to commence on 1
January 2013, to maximise their effect.
Achievement of the Objectives
Youth Justice Act 1992
To achieve its objectives, the Bill will establish the boot camp order as an
option before detention. The Bill will also achieve the objective for the
removal of court referred youth justice conferencing by removal of the
relevant section.
Anti-Discrimination Act 1991 (ADA)
Accommodation used in connection with work as a sex worker.
The Bill amends the ADA to give accommodation providers certainty and
control in the use that is made of their premises by inserting an exemption
in the ADA which allows a person to discriminate against another person in
relation to accommodation if the accommodation provider reasonably
believes that the other person is using or intends to use the accommodation
in connection with that person's or another person's work as a sex worker.
Government Eligibility Policies
The Bill amends the ADA to provide an exemption in relation to
government eligibility policies based on citizenship or visa status, and
actions taken under these policies. The exemption applies in relation to a
"prescribed eligibility provision" in a "relevant policy" or the performance
of functions in connection with a "prescribed eligibility provision". A
"relevant policy" is a policy of a government entity under which people are
provided with financial or other assistance, services or support. The effect
of the amendment will be that the ADA will not apply to a provision
requiring a person to have a particular citizenship or visa status to be
eligible for assistance, services or support, or a provision under which
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
people who have a particular citizenship or visa status are treated more
favourably in relation to eligibility for assistance, services or support.
Fiscal Repair Amendment Act 2012
To achieve the objective of bringing forward the commencement date of
sections that transfer the powers of the Queensland Liquor and Gaming
Commission and chief executive under the Gaming Machine Act 1991 and
Liquor Act 1992 to a Queensland Liquor and Gaming Commissioner,
amendment is made to the Fiscal Repair Amendment Act 2012.
Alternative ways of achieving policy objectives
There are no alternative ways of achieving the policy objectives.
Estimated Cost for Government Implementation
Youth Justice Act 1992
The Government has committed $2M for the two year boot camp trial. Any
additional costs in relation to the amendments will be met from existing
agency resources.
Anti-Discrimination Act 1991, Fiscal Repair Amendment Act 2012
The amendments will not have any significant cost implications for
government.
Consistency with Fundamental Legislative Principles
Youth Justice Act 1992, Fiscal Repair Amendment Act 2012
There is consistency with Fundamental Legislative Principles.
Anti-Discrimination Act 1991
The amendments to the ADA inserting two new exemptions
(accommodation used in connection with work as a sex worker and
government eligibility policies) raise an issue regarding the fundamental
legislative principle that legislation should not adversely impact rights
retrospectively.
The Bill provides that complaints made on or after the day of introduction of
the Bill will be determined in accordance with the ADA as amended by the
Bill (ie the new exemptions in Chapter 2 Part 5 will apply to these
complaints). This will mean that the new exemptions will apply to these
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complaints even if the conduct complained of occurred before the day of
introduction of the Bill. This raises an issue about a potential adverse impact
on the rights of potential complainants in relation to conduct which may
have occurred before the commencement of the new laws.
The Bill will, however, preserve the rights of complainants who have made
complaints before the day of introduction of the Bill to be dealt with as if
the amendments to the ADA had not commenced.
These transitional arrangements can be justified on the basis that the
amendments to the ADA clarify areas of uncertainty in the law and address
potential unintended consequences.
The new exemption in the accommodation area will provide certainty to
accommodation providers in the management of their premises and clarity
to enable them to meet their obligations under the ADA. Providing that
complaints made on or after the introduction of the Bill are subject to the
new exemption (regardless of when the conduct complained of occurred)
will ensure that accommodation providers have certainty in making
decisions about the use that can be made of their premises as soon as
possible and protect accommodation providers from further complaints.
The new exemption for certain government eligibility polices will ensure
that the allocation of limited public resources can be effectively managed.
Providing that complaints made on or after the introduction of the Bill are
subject to the new exemption (regardless of when the conduct complained
of occurred) will ensure the objectives of the exemption are not
undermined by complainants seeking to exploit the grey "window" period
before the Bill receives assent and involving the government in litigation
which may dilute the government resources available for the provision of
services.
Consultation
Youth Justice Act 1992
Consultation with the following government departments and agencies
occurred: the Department of the Premier and Cabinet, Queensland Treasury,
Queensland Police Service, Department of Communities, Child Safety and
Disability Services, Queensland Health, Department of Education,
Training and Employment, Department of Aboriginal and Torres Strait
Islander and Multicultural Affairs and the Commission for Children and
Young People and Child Guardian. The Chief Magistrate, Magistrates of
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
the Cairns area and the President of the Childrens Court were also provided
a copy of the draft Bill for comment.
Anti-Discrimination Act 1991
The Anti-Discrimination Commission Queensland was consulted.
The Prostitution Licensing Authority was consulted on the exemption
relating to accommodation used in connection with work as a sex worker.
Notes on Provisions
Part 1 - Preliminary
Clause 1 establishes the short title to the Act as the Youth Justice (Boot
Camp Orders) and Other Legislation Amendment Act 2012.
Clause 2 provides that the clauses relating to the removal of court referred
conferencing and the replacement of the term `coordinator' are to
commence on 1 January 2013. The provisions which provide for the
introduction of a boot camp order commence on 31 January 2013.
Part 2 - Amendment of Youth Justice Act 1992
Clause 3 provides that the Act amends the Youth Justice Act 1992.
Clause 4 amends the heading of Part 2, division 3 by removing the term
`coordinator' as the role of the coordinator is redundant.
Clause 5 amends section 22 (When a police officer may refer and offence
for conference), subsections (1), (2) and (6) by replacing the reference to
the `coordinator' with the `chief executive' as the role of the coordinator is
redundant.
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
Clause 6 amends section 24 (Powers of police officer if referral is
unsuccessful or if child contravenes conference agreement) (1) and (3) by
replacing `coordinator' with the `chief executive' as the role of the
coordinator is redundant.
Clause 7 omits section 27(5) as it relates to the referral of an offence to
conference by a court which are provisions which are removed by this Bill.
Clause 8 amends section 30 (Object of part and explanation) to reflect that
the Bill removes the option for courts to refer conferencing.
Clause 9 removes section 31 (Appointment of coordinator and approval of
convenor) and replaces it with a section that refers only to the approval of
youth justice conference convenors. The provisions relating to the
appointment of a coordinator are removed as this role no longer exists.
Clause 10 replaces section 32 (Protection against liability for convenor or
coordinator) by removing any reference to the `coordinator' as this role is
redundant and replacing it with the `chief executive.'
Clause 11 replaces section 33 (Who may refer an offence to a coordinator)
by removing the references to the `coordinator' as this role no longer exists
and replacing it with `chief executive'. It also omits the reference to the
referral to conference by a court as this is no longer an option available to
the court.
Clause 12 amends section 34 (Who may participate in a conference) by
removing subsection (1)(g)(ii) as the option for the court to refer an offence
to conference. Subclause 2 also removes subsection (2)(b)for the same
reason.
Clause 13 replaces section 35 (Convening of a conference) to clarify that a
conference ends where a conference agreement is made, the convenor ends
the conference because the child fails to attend, the child denies
committing the offence, where the convenor considers that the offence is
unsuitable for conference or an agreement is unlikely to be made within a
time the convenor considers appropriate. Where the conference ends, a
notice must be provided to the referring police officer under subsection (6)
within 14 days from the end of the conference. The clause inserts a new
subsection (8) which clarifies that where the chief executive considers that
it is worthwhile persisting with efforts, despite the convenor's decision to
end the conference a notice under subsection (6) does not need to be
provided to the referring police officer and the chief executive must arrange
for a convenor to convene another conference. The clause also removes the
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
requirement for a notice to be provided to the referring court as the court is
no longer able to refer matters to conference.
Clause 14 replaces section 36 (Coordinator may persist in efforts to achieve
a conference agreement) to clarify that the convenor is not required to
provide a report to the referring police office upon a conference ending
where the chief executive considers that a conference is worthwhile
pursuing. The chief executive must also, in these circumstance arrange for
a convenor to convene another conference.
Clause 15 replaces section 37 (Form and content of conference agreement)
subsection (2)(c) to ensure that an offence will no longer be referred to
conference by a court.
Clause 16 amends section 40 (Admissibility of a conference agreement and
related evidence) by clarifying subsection (2) so that evidence of anything
said or done in convening a conference is inadmissible in any proceedings.
Sub clause 2 omits section 40(4)(b) as it is a proceedings under Part 7,
Division 2 which has been removed by clause 18 of this Bill. The reference
to `coordinator' in section 40(4)(d) is also replaced under sub clause 3 with
`chief executive' as the role of the coordinator is redundant. Sub clause 6 of
clause 15 removes section 40(5) as a court is no longer able to refer an
offence to conference with the removal of Part 7, Division 2 under clause
18.
Clause 17 amends section 41 (If chief executive signs agreement for
program) subsection (3) to remove the option for the chief executive to
notify a court's proper officer where a child fails to comply with the
requirements of a conference agreement given that the court will no longer
be referring offences for conference.
Clause 18 replaces section 67(2) to provide that where the Childrens Court
is constituted by two justices, in addition to not being able to make a
detention order or conditional release order, the justices will also not be
able to make a boot camp order.
Clause 19 inserts subsection 3A into section 151 (Pre-sentence report)
which provides that where the court is considering a boot camp order, the
court must request that the pre-sentence report contain:
ˇ an assessment of the child's physical and mental health
ˇ advice on whether an appropriate boot camp program is available
ˇ an assessment on the suitability of the child for release from
detention under the order
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
ˇ a statement about whether the chief executive has obtained the
agreement of a parent of the child to participate in the program
ˇ a statement that the details of the boot camp program has been
explained to the child in a way and to an extent that is reasonable,
having regard for the child's age and ability to understand
ˇ a statement that the child consents to participating in the
program.
These requirements have been inserted in recognition of the onerous nature
of the order. Where a court is considering a boot camp order, the court may
have regard to the eligibility criteria contained in the inserted section 226C
which requires that the child has attained the age of 13, usually resides in a
prescribed area (provided for by regulation) and consents to participating in
the program.
Clause 20 amends section 160 (Copy of court order or decision to be given
to child, parent etc) by removing subsection (1)(c) as the option for the
court to refer an offence to conference is removed under clause 18.
Clause 21 removes Part 7, Division 2 to give effect to the decision made in
the context of the 2012 -13 Budget to remove the option for a court to refer
an offence to conference.
Clause 22 replaces section 175 (Sentence orders - general) subsection (3)
with a new section 175(3) which provides that where a court makes an
order for detention under section 175(1)(g), that child may be released with
or without either a conditional release order or a boot camp order.
Clause 23 omits and inserts a new section 176 (Sentence order - serious
offences) subsection (4) which allows a court to make an order for
detention for serious offences under section 176(2) or (3) with or without
either a conditional release order or a boot camp order.
Clause 24 amends section 180 (Combination of detention order and other
orders) subsection (2) so that where a court makes a detention order and a
probation order for a single offence, the court may only make the detention
order for a period of 6 months and may not make either a conditional
release order or a boot camp order.
Clause 25 amends section 210 (Detention to be served in a detention
centre) subsection (3) is amended to make it clear that, like a conditional
release order, the court is not required to issue a warrant where a child is
sentenced to serve a period of detention, directing the commissioner of the
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
police service to take the child into custody and deliver the child to the
detention centre. A child who is released from detention under a boot camp
order is subject to the requirements of the order (outlined in clause 25),
including that the child report to the chief executive on the day of the order.
Clause 26 amends section 219 (Purpose of conditional release order) to
provide that a conditional release order is `an' option before detention
instead of the `final' option, given that the boot camp order will also serve
as an option before detention.
Clause 27 Inserts a new subdivision after Part 7 Sentencing Subdivision 2
(Conditional release order) entitled Part 7 Subdivision 2A (Boot camp
orders). This subdivision incorporates sections 226A to 226G.
Section 226A (Purpose of a boot camp order) is inserted to provide the
option for a child to be released on to a boot camp order instead of
detention.
Section 226B (Boot camp order) provides that where the court makes a
detention order, the court may immediately suspend the order and make a
boot order. The making of a boot camp order means that the child is
immediately released from detention to which the order relates. The child
is also immediately released into a boot camp program. The court may only
make a boot camp order where the chief executive has provided advice in
the pre-sentence report that a boot camp centre provider is immediately
available upon the child's release from detention .
Section 226C (Boot camp order - eligibility) is inserted to outline the
eligibility requirements for a child participating in a boot camp order.
Subsection (1) provides that a court may only make a boot camp order
where the child is eligible. A child is eligible under subsection 2, where:
ˇ the child usually resides in a prescribed area; and
ˇ the child has attained the age of 13 years at the time of sentence;
and
ˇ the pre-sentence report state that the child consents to
participating in the boot camp program.
Subsection 2 is subject to subsection 3 of the new section 226C which
provides that a child is not eligible where:
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
ˇ the child is being sentenced, has a previous finding of guilt or has
a pending charge for a disqualifying offence (as outlined in the
new schedule 5) before the court; or
ˇ the child is serving a period of detention in a detention centre for
another offence; or
ˇ the court forms the view that the child poses an unacceptable risk
of physical harm to other children on the boot camp program or
employees of the boot camp centre after having taken into
consideration the pre-sentence report, the nature or extent of any
violent or sexual act committed or threatened in the commission
of the offence that the child is being sentenced for or any other
pending charges before the court, the past record of the child
including any attempted rehabilitation and the number and
circumstances of any previous offences of any type committed by
the child as well as any medical, psychiatric or other relevant
report.
Section 226D (Boot camp order - duration and requirements) is inserted to
outline the particulars of the boot camp order. The boot camp order is for
duration of between three and six months. The boot camp order must also
state the following (which are considered the requirements of the order):
ˇ the name and location of the boot camp centre
ˇ details of the boot camp program
ˇ that the child must report to the chief executive on the day of the
order
ˇ that the child must comply with the reasonable and lawful
direction of the chief executive to facilitate any phase of the boot
camp program
ˇ that the child attend and participate in the boot camp program;
and
ˇ the child must not leave the boot camp centre during the
residential phase of the program unless the chief executive
authorises otherwise.
The order must also state that during the program period:
ˇ the child must abstain from violation of the law
ˇ the child must report and receive visits from the chief executive
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ˇ the child or the parent of the child advise the chief executive of
any change of address, employment or school
ˇ the child not leave or stay out of Queensland without the
approval of the Chief Executive; and
ˇ that the child comply with conditions that the court considers
necessary to reduce the risk of the child reoffending. These
conditions must relate to the offence for which the detention
order was made and must be supported in writing.
The new subsection (3) also provides that the boot camp order may contain
a requirement that the child must comply with that is outside Queensland,
such as attending a school which is in New South Wales.
Subdivision 2B (Boot camp programs) has been inserted to outline the boot
camp program in which a child shall be participating upon the making of a
boot camp order by the court.
Section 226E (Boot camp program) has been inserted to outline the details
of the boot camp program in which the child shall be participating upon the
making of a boot camp order. The boot camp program must be approved by
the Chief Executive and is a requirement of the order. The program will
provide intensive support for the child by giving the child training,
instruction and supervision and access to developmental and mentoring
programs. In approving the program, the chief executive must have regard
to the factors outlined in subsection (2) which include the child's cultural,
developmental, educational, emotional, health, intellectual, physical and
social needs as well as a program which considers reducing the risk of the
child reoffending and community reparation. In accordance with
subsection (3) the boot camp program must comprise a one month
residential phase at a boot camp centre followed by a maximum of five
months of community supervision. Where a child is subject to more than
one boot camp order simultaneously, the cumulative total of the period in
the residential phase at a boot camp centre must not exceed one month.
Where a court revokes and resentences a child to a boot camp order under
the new section 246A and this is the only existing boot camp program to
which the child is subject, the chief executive may approve a program
which does require the child to again participate in the residential phase of
the program in a boot camp centre. This will ensure that the integrity of a
therapeutic program commencing with one month in the residential phase
followed by a minimum of two months in a community supervision phase
is not disrupted. Subsection (5) of the new section 226E provides that
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
information relating to the boot camp program is available at
www.justice.qld.gov.au/youth-justice.
Section 226F (Effect of program period ending) is inserted to provide that
the child is not liable to serve a period of detention under the detention
order at the end of the program period.
Section 226G (Program period) provides that the program period of the
boot camp program starts when the boot camp order is made and ends on
either the last day of the period of the boot camp order or if the boot camp
program was suspended for any period of time during the order, the end of
the day that is the last day of the order plus those days for which the
program was suspended. Where a court makes a boot camp order and a
boot camp order has already been made against the child, the program
period counted as concurrent.
Section 226H (Suspension of program) is inserted to allow the chief
executive to suspend the program where the child, for good reason, is
unable to participate. The suspended period of time is not included in the
program period.
Clause 28 amends section 240 (General options available on breach of
order) subsection (2)(a) to allow a magistrate, where any order was made
by a Childrens Court magistrate other than a conditional release order or a
boot camp order to take any action under section 245(Court's power on
breach of order other than conditional release order). Subsection 2(c) is
inserted to allow a magistrate, where a boot camp order was made by a
Childrens Court magistrate, to take any action under section 246A. Section
240(3)(b)(i) is amended to include that where an order was made by a
higher court the magistrate may for an order other than a conditional
release order or boot camp order, take any action under section 245 other
than section 245(1)(d)(ii). Where the order made by the higher court was a
boot camp order, the magistrate may under the inserted subsection
(3)(b)(iii) deal with the child under section 246A(2).
Clause 29 amends section 241 (General options available to superior court
to which child committed for breach) to allow a higher court to which a
child is committed for a breach of an order to take any action under section
245 where the order was not a conditional release order or boot camp order.
Subsection (2)(c) is inserted to allow a higher to take action under section
246A where the order was a boot camp order.
Clause 30 amends section 242 (General options available to court before
which child found guilty of an indictable offence) so that the court before
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
which a child is found guilty of an indictable offence while that child is
subject to a community based order made by the court, may take action
under section 245 where that order was not a conditional release order or
boot camp order or under section 246A where that order was a boot camp
order. When the order was not made by the court and was not a conditional
release order or boot camp order, the court may take any action under
section 245 other than section 245(1)(d)(ii). Where the order was not made
by the court and was a boot camp order, the court may take any action
under section 246A(2).
Clause 31 amends section 243 (Court may resentence child originally
sentenced by lower court) so that where this section excludes a conditional
release order, it also excludes the boot camp order and where the original
sentence was a boot camp order, the court may take any action under
section 246A (1)(a).
Clause 32 amends section 244 (General options available to court to which
child committed for breach by indictable offence) so that the other court
can take any action under section 245 for any order other than a conditional
release order or boot camp order. Subsection 245 (2)(c) is inserted to allow
the other court, where a boot camp order was made, to take any action
under section 246A.
Clause 33 amends section 245 (Court's power on breach of order other than
conditional release order) so that the heading also indicates exclusion of a
boot camp order. Subsection 1(d) is also amended to clarify that the
reference to a community based order excludes a boot camp order and a
conditional release order.
Clause 34 replaces subsection 1 of section 246 (Court's power on breach of
a conditional release order) so that a court may order the child to serve
either the sentence of detention for which the conditional release order was
made or a boot camp order. Subsection 4A is inserted to allow a court,
when making a boot camp order under subsection 1, to take into account
the time for which the child complied with the conditional release order.
This is in recognition that both the boot camp order and the conditional
release orders are options before detention.
Clause 35 inserts section 246A (Court's power on breach of a boot camp
order) to allow a court, upon a breach of a boot camp order, to revoke the
boot camp order and order the child to serve the sentence of detention for
the which the boot camp order was made, make a new boot camp order or
make a conditional release order. Where the court forms the view that the
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
child would benefit from participating again in the boot camp program in
its entirety, including the residential phase (even where this may have been
completed under the boot camp order the breach of which is currently
before the court), the court may revoke and resentence the child to a new
boot camp order. A court is able to make a conditional release order, even
though this would appear to be contrary to the policy of creating a
hierarchy of orders which a court may make upon release from detention,
given that the child may have demonstrated significant compliance with the
boot camp order at the time of breach and the court takes the view that this
is a more appropriate order upon breach of the boot camp order. Subsection
2 allows the court to provide the child with a further opportunity to satisfy
the requirements of the boot camp order and in so doing may vary the
requirements. The requirements of the order are provided for in the new
section 226D(2) and (3) (Boot camp order - duration and requirements).
Upon varying the requirements however, the court is not able to vary the
details of the boot camp program (subsection 3). The meaning of the boot
camp program may be derived by reference to the new section 226E(1). In
effect, where the court provides the child with the further opportunity to
satisfy the requirements of the boot camp order, the court is prevented from
ordering a child to participate again in the residential phase of the program
when it has already been successfully completed. This approach upholds
the therapeutic integrity of the boot camp program. Subsection 4 provides
that the onus is on the child to satisfy the court that they should have this
further opportunity to complete the boot camp order. Where the court
varies the boot camp order by extending the period of the order under
subsection 2 or makes a conditional release order under subsection 1(c),
subsections (5) and (6) provide that the court must consider the time for
which the child has already complied with the boot camp order.
Subsections (7) and (8) allow the court to make an order under this section
even where the original period of the boot camp order has expired at the
time of the decision, thereby replicating the process applied for a breach of
a conditional release order.
Clause 36 amends section 247 (Variation, discharge and resentence in the
interests of justice) to provide that a boot camp order will be treated in the
same way as a conditional release order and as a further option before
detention. Sub clause 2 inserts a new section 247(1)(c) so that upon
application of the chief executive or the child to the court to which made a
conditional release order for the child, the court may revoke the order and
order the child to serve the sentence of detention for which the conditional
release order was made or make a boot camp order. Where a boot camp
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
order was made, the court may revoke the order and order the child to serve
the sentence of detention for which the boot camp order was made or make
a conditional release order.
Clause 37 amends section 248 (Detention reduced to the extent just) so that
a where a conditional release order or a boot camp order is revoked and a
child ordered under this division to serve the period of detention for which
the conditional release order or boot camp order was made, that the court
must reduce the period of the detention by the period the court considers
just after taking into account the child's compliance with the respective
orders.
Clause 38 amends section 249 (Matters relevant to making further order)
so that a boot camp order as well as a conditional release order is excluded
from application of the operation of this section.
Clause 39 amends section 252 (Variations by consent) to exclude the
application of the section to boot camp orders in the same way that it
excludes conditional release orders.
Clause 40 inserts a new Part 8A (Boot camp centre administration). This
Part provides the obligations and responsibilities of the boot camp centre
provider, the chief executive and the child during the residential phase of
the program.
The new section 282A (Boot camp centre provider) provides that a boot
camp centre provider, who has appropriate experience and expertise, may
be approved by the chief executive and will assist the chief executive in
implementing the residential phase of the boot camp program.
The new section 282B (Management of boot camp centres) is inserted to
make clear the way in which it is expected that the boot camp service
provider will assist the chief executive in delivering the residential phase of
the boot camp program. A boot camp centre must provide for the health
and wellbeing of the children at the centre as well as the cultural,
educational, emotional, intellectual, physical and social development of the
children at the centre. The boot camp centre provider must also ensure
security and management of the centre, safe custody of the children and
maintain order and discipline. In achieving these requirements, the new
subsection (2) permits a boot camp service provider to use any form of
direction which including rules, codes, standards and guidelines in
achieving these outcomes. These directions may relate to the organisation
of the boot camp centre, functions, conduct and responsibilities of boot
camp centre employees, the types of programs for children participating in
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
the residential phase of the boot camp program, contact between children
and members of the public and arrangements for educational, recreational
and social activities of children. The new subsection (3) requires
compliance with the youth justice principles so far as it would not limit
another provision in the Act. In order to ensure compliance with the new
Part 8A, there is an obligation placed upon the chief executive to monitor
the operation of the boot camp centres under the new subsection (5).
The new section 282C (Where children participate in boot camp program)
clarifies that the chief executive must decide the boot camp centre where a
child must participate during the residential phase of the program, upon a
boot camp order. This facilitates the making of a boot camp order by the
court under the new section 226D which requires the name and location of
a boot camp centre.
The new section 282D (Authority for admission to boot camp centre) is
inserted to make clear that the chief executive must not direct a child to a
boot camp centre without first been given a copy of the boot camp order.
Section 282E (Child must be given information on entry to boot camp
centre) places an obligation on the boot camp centre provider to ensure that
the child is given a document upon entry into the boot camp centre
outlining the rules of the centre, the child's rights and responsibilities under
the youth justice principles, complaint procedures, access to legal services,
the processes for reporting harm and any other appropriate information. In
order to ensure that the child understands this information, the boot camp
centre provider must explain the document orally and in a way and extent
that is reasonable, having regard to the child's age and ability to
understand.
Section 282F (Obligation to report harm to children in boot camp centres)
is inserted to place an obligation upon a boot camp centre employee to
immediately report harm or suspected harm (regardless of how that harm
was caused) to the chief executive while the child is participating in the
residential phase of the boot camp program. A maximum penalty is
imposed of 20 penalty units for failure to comply. The new section also
provides that it is a reasonable excuse for an employee not to report a
matter if it might tend to incriminate the employee.
The new section 282G (Chief executive may authorise treatment) is
inserted to enable the chief executive to authorise medical treatment where
that treatment requires consent of a parent of the child and the chief
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
executive is unable, despite reasonable inquiries, to locate the parent. It
must also be considered detrimental to the child's health to delay treatment.
Section 282H (Helping child gain access to lawyer) is inserted to place an
obligation upon the boot camp centre provider to ensure a child, who
requests access to a lawyer is provided with reasonable assistance.
The new section 282I (Protection of lawyer representing child) ensures that
where a lawyer representing a child is entitled to access the child at the
boot camp centre, that the boot camp centre employee allows the lawyer to
conduct an interview in privacy. In addition, any correspondence from the
lawyer to the child is managed in a confidential manner.
Section 282J (Complaints generally) is inserted to so that a child or a
parent of child who is participating in the boot camp program is able to
make a complaint about a matter which affects the child. The section
provides that the chief executive must issue written instructions on the way
in which a complaint will be dealt. The child is able to complain to a
community visitor, which will be arranged under administrative
arrangements with the Commission for Children, Young People and Child
Guardian. The chief executive is not obliged, however, to deal with a
complaint if it is considered that that complaint is trivial or made only to
cause annoyance.
Clause 41 amends section 284 (Definitions for pt 9) to include a definition
of a `coordinator'.
Clause 42 inserts paragraph (h) and (i) into section 285 (When does
someone gain information through involvement in the administration of
this Act) to ensure that the provisions of Part 9 apply to a boot camp
provider.
Clause 43 omits section 295 (Disclosure by police of information about
cautions and youth justice conferences and agreements) subsection (g) as
the role of the coordinator no longer exists under the Bill.
Clause 44 Amends section 296 (Disclosure by coordinator or convenor of
information about conference agreements) by removing the reference to
`coordinator' in the heading and in subsection 2. Sub clause 3 removes the
reference to `court' in subsection 2(a) as court referred conferencing has
been removed under the Bill.
Clause 45 inserts Part 11, division 10 (Transitional provisions for Youth
Justice (Boot Camp Orders) Amendment Act 2012) and new sections 354
to 358 inclusive.
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
The new section 354 provides for the definitions of `amending act' and
`commencement'.
The new section 355 (Application of provisions about destruction of
identifying particulars taken under court order) applies to the destruction of
identifying particulars under section 27. Section 27(5) will continue to
apply upon commencement of the amending Act where an offence has
been referred by a court to conference under section 161(3)(a)(i).
The new section 356 (Application of provisions about referral by court for
a conference) makes it clear that where a conference has been referred to a
coordinator by a court for an offence under section 161 before
commencement, Part 7 division 2 as it was in force before commencements
continues to apply as if the amending Act had not commenced. Sub clause
3 provides that where there is a reference to `coordinator' under Part 7
division 2, it is taken to be a reference to the chief executive and that the
chief executive may exercise any of the functions, powers or obligations of
the coordinator.
The new section 357 (Application of provisions about boot camp) provides
that the court will be able to make a boot camp order after commencement.
The option of the boot camp order is available to the court upon
commencement regardless of whether the offence had been committed or
proceedings had commenced prior to this time.
Clause 46 amends Schedule 2 (Regulation making power) to ensure that
the regulation making powers for boot camp service providers is permitted
wherever there is a regulation making power for a detention centre. In
addition, subclause 5 is amended to include that the regulation making
power is extended to provide for the areas to be prescribed for the purposes
of eligibility for a boot camp order.
Clause 47 omits the definitions in Schedule 4 (Dictionary) for `conference
before sentence', `coordinator', `indefinite referral' and `referring court'.
Sub clauses 2, 3, 4 and 5 inserts relevant definitions into Schedule 4
(Dictionary) for the purposes of the operation of the boot camp order.
Clause 48 inserts Schedule 5 (Disqualifying offences) which contains those
offences which will disqualify a child from being eligible for a boot camp
order. These offences are serious violent or sexual offences which carry a
penalty of a maximum term of imprisonment of life.
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
Part 3- Amendment of Anti-Discrimination Act
1991
Clause 49 provides that this Part amends the Anti-Discrimination Act
1991.
Clause 50 inserts new sections 106B and 106C. Section 106B excludes
from the operation of the Act the inclusion of a "prescribed eligibility
provision" (as defined) in a "relevant policy" (as defined) or the
performance of a function in connection with a "prescribed eligibility
provision". A "prescribed eligibility provision" is a provision requiring a
person to have a particular citizenship or visa status to be eligible for
assistance, services or support or a provision which allows for more
favourable treatment of persons who have a particular citizenship or visa
status in relation to eligibility. A "relevant policy" is a government policy
under which people are provided with financial or other assistance, services
or support and can be a policy relating to any area of activity covered by
Part 4 of the Anti-Discrimination Act 1991.
Section 106C provides that it is not unlawful for an accommodation
provider to discriminate against another person in relation to
accommodation if the accommodation provider reasonably believes that
the other person is using or intends to use the accommodation in
connection with that person's, or another person's, work as a sex worker.
The discrimination may involve refusing to supply accommodation,
eviction of the other person or unfavourable treatment of the other person.
Clause 51 inserts new Chapter 11, Part 3 which sets out the transitional
arrangements that will apply to complaints under section 136 about alleged
contraventions of the Act. Complaints made on or after the day of
introduction of the Bill will be determined in accordance with the
Anti-Discrimination Act 1991 as amended by the Bill (ie the new
exemptions in Chapter 2 Part 5 will apply to these complaints). This will
mean that the new exemptions will apply to these complaints even if the
conduct complained of occurred before the day of introduction of the Bill.
The section makes it clear that the exemptions will apply to the hearing of
any such complaint before the tribunal and any appeal against a decision or
order made by the tribunal in relation to the complaint. The provisions in
force before the day of introduction will continue to apply to complaints
made before the day on which the Bill is introduced (whether or not the
complaint has been accepted by the Anti-Discrimination Commissioner).
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Youth Justice (Boot Camp Orders) and Other Legislation Amendment Bill 2012
Part 4 - Amendment of the Fiscal Repair
Amendment Bill 2012
Clause 52 provides that this part amends the Fiscal Repair Amendment Act
2012.
Clause 53 amends section 2 which relates to commencement of sections in
the Amendment Act, changing the commencement date of sections that
transfer the powers of the Queensland Liquor and Gaming Commission
and chief executive under the Gaming Machine Act 1991 and Liquor Act
1992 to a Queensland Liquor and Gaming Commissioner from 1 July 2013
to 1 January 2013.
Clause 54 amends the heading of Part 4, Division 3 to change a reference
from 1 July to 1 January.
Clause 55 amends section 122 to change a reference from 1 July to 1
January.
ŠThe State of Queensland 2012
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