2008

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Children and Young People)

Part 1.1 Corrections Management Act 2007 656

Part 1.2 Court Procedures Act 2004 661

Part 1.3 Crimes Act 1900 674

Part 1.4 Crimes (Sentence Administration) Act 2005 686

Part 1.5 Crimes (Sentencing) Act 2005 696

Part 1.6 Criminal Code 2002 719

Part 1.7 Evidence (Miscellaneous Provisions) Act 1991 722

Part 1.8 Magistrates Court Act 1930 723

2008

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Children and Young People)

An Act about the welfare of children and young people, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Children and Young People Act 2008.

(1) This Act commences on a day fixed by the Minister.

Note 1 The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Note 2 A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

(2) The Legislation Act, section 79 (Automatic commencement of postponed law) does not apply in relation to this Act.

(3) However, if any provision of this Act has not commenced within 12 months beginning on its notification day, it automatically commences on the first day after that period.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘mental health order—see the Mental Health (Treatment and Care) Act 1994, dictionary.’ means that the term ‘mental health order’ is defined in the dictionary to that Act and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

The functions under this Act may be exercised for a child or young person, or a young offender or young detainee—

(a) who ordinarily lives in the ACT; or

(b) who does not ordinarily live in the ACT, but who is in the ACT; or

(c) about whom a report is made under—

(i) section 353 (Voluntary reporting of abuse and neglect) arising from something happening in the ACT; or

(ii) section 355 (Offence—mandatory reporting of abuse) arising from something happening in the ACT; or

(iii) section 361 (Prenatal reporting—anticipated abuse and neglect) if the pregnant woman ordinarily lives in the ACT or is in the ACT.

The objects of this Act include—

(a) providing for, and promoting, the wellbeing, care and protection of children and young people in a way that—

(i) recognises their right to grow in a safe and stable environment; and

(ii) takes into account the responsibilities of parents, families, the community and the whole of government for them; and

(b) ensuring that children and young people are provided with a safe and nurturing environment by organisations and people who, directly or indirectly, provide for their wellbeing, care and protection; and

(c) preventing abuse and neglect of children and young people by providing whole of government assistance to children and young people, their parents and families, the community, and others who have responsibility for them; and

(d) ensuring that Aboriginal and Torres Strait Islander people are included and participate in—

(i) providing for, and promoting, the wellbeing, care and protection of Aboriginal and Torres Strait Islander children and young people; and

(ii) preventing the abuse and neglect of Aboriginal and Torres Strait Islander children and young people; and

(iii) rehabilitating and reintegrating Aboriginal and Torres Strait Islander young offenders; and

(e) ensuring that services provided by, or for, government for the wellbeing, care and protection of children and young people—

(i) are centred on the needs of children and young people; and

(ii) take into account the views and wishes of children and young people; and

(iii) foster and promote the health, education, developmental needs, spirituality, self-respect, self-reliance and dignity of children and young people; and

(iv) respect the individual race, ethnicity, religion, disability, sexuality and culture of children and young people; and

(f) ensuring that young offenders—

(i) receive positive support and opportunities to become rehabilitated and reintegrated community members; and

(ii) share responsibility for rehabilitation and reintegration with their parents and families, the community and the government in partnership; and

(g) imposing standards that must be complied with for the delivery of services to children and young people; and

(h) ensuring the protection of children and young people in employment.

(1) In making a decision under this Act in relation to a particular child or young person, the decision-maker must regard the best interests of the child or young person as the paramount consideration.

(2) In making a decision under this Act otherwise than in relation to a particular child or young person, the decision-maker must consider the best interests of children and young people.

Note 1 For the criminal matters chapters (see s 91), there are further provisions about how a decision-maker decides what is in the best interests of a child or young person, see s 94 (Youth justice principles).

Note 2 For the care and protection chapters (see s 335), there are further provisions about how a decision-maker decides what is in the best interests of a child or young person (see s 348).

(1) In making a decision under this Act in relation to a child or young person, a decision-maker must have regard to the following principles where relevant, except when it is, or would be, contrary to the best interests of a child or young person:

(a) the child’s or young person’s sense of racial, ethnic, religious, individual or cultural identity should be preserved and enhanced;

(b) the child’s or young person’s education, training or lawful employment should be encouraged and continued without unnecessary interruption;

(c) the child’s or young person’s age, maturity, developmental capacity, sex, background and other relevant characteristics should be considered;

(d) delay in decision-making processes under the Act should be avoided because delay is likely to prejudice the child’s or young person’s wellbeing.

Note In addition to these general principles, the following principles also apply:

(a) for the care and protection chapters—care and protection principles (see s  349);

(b) for ch 20—childcare services principles (see s 729).

(2) A decision-maker exercising a function under this Act must, where practicable and appropriate, have qualifications, experience or skills suitable to apply the principles in subsection (1) in making decisions under the Act in relation to children and young people.

In making a decision under this Act in relation to an Aboriginal or Torres Strait Islander child or young person, in addition to the matters in section 8 and section 9, the decision-maker must take into account the following:

(a) the need for the child or young person to maintain a connection with the lifestyle, culture and traditions of the child’s or young person’s Aboriginal or Torres Strait Islander community;

(b) submissions about the child or young person made by or on behalf of any Aboriginal or Torres Strait Islander people or organisations identified by the chief executive as providing ongoing support services to the child or young person or the child’s or young person’s family;

(c) Aboriginal and Torres Strait Islander traditions and cultural values (including kinship rules) as identified by reference to the child’s or young person’s family and kinship relationships and the community with which the child or young person has the strongest affiliation.

Note For decisions about placement of an Aboriginal or Torres Strait Islander child or young person with an out-of-home carer, see s 512 (Priorities for placement with out-of-home carer—Aboriginal or Torres Strait Islander child or young person).

In this Act:

child means a person who is under 12 years old.

In this Act:

young person means a person who is 12 years old or older, but not yet an adult.

Note Adult is defined in the Legislation Act, dict, pt 1.

In this Act:

family member, of a child or young person—

(a) means the child’s or young person’s—

(i) parent, grandparent or step-parent; or

(ii) son, daughter, stepson or stepdaughter; or

(iii) sibling; or

(iv) uncle or aunt; or

(v) nephew, niece or cousin; and

(b) for an Aboriginal or Torres Strait Islander child or young person—includes a person who has responsibility for the child or young person in accordance with the traditions and customs of the child’s or young person’s Aboriginal or Torres Strait Islander community.

In this Act:

significant person, for a child or young person, means a person, (other than a family member) who the child or young person, a family member of the child or young person or the chief executive considers is significant in the child’s or young person’s life.

1 a father-in-law, mother-in-law, brother-in-law or sister-in-law of a young person

2 a long-term friend of a child or young person

3 a person who normally lives with the child or young person

4 a domestic partner of a young person

5 a domestic partner of a parent of a child or young person

6 a boyfriend or girlfriend of a young person

7 a person who has responsibility for the child or young person in accordance with the cultural traditions and customs of the child’s or young person’s community

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

In this Act:

parental responsibility, for a child or young person, means all the duties, powers, responsibilities and authority parents have by law in relation to their children, including the following aspects of parental responsibility:

(a) daily care responsibility for the child or young person;

(b) long-term care responsibility for the child or young person.

Note Daily care responsibility is dealt with in s 19.

Long-term care responsibility is dealt with in s 20.

(1) Each parent of a child or young person has parental responsibility for the child or young person.

(2) To remove any doubt, parent includes a parent who is not an adult.

(3) This section is subject to the following sections:

(a) section 17 (Aspects of parental responsibility may be transferred);

(b) section 18 (Aspects of parental responsibility may be shared).

(1) Parental responsibility may be transferred from a person to someone else under—

(a) a family group conference agreement; or

(b) an appraisal order including a temporary parental responsibility provision; or

(c) emergency action; or

(d) a care and protection order including a parental responsibility provision; or

(e) a safe custody warrant; or

(f) a court order (under this Act or another law in force in the Territory); or

a parenting order under the Family Law Act 1975 (Cwlth)

(g) a provision of another law in force in the Territory.

(2) If parental responsibility is transferred from a person to someone else—

(a) only the aspect of parental responsibility expressly stated to be transferred is transferred; and

(b) no-one else’s parental responsibility, or aspect of parental responsibility, for the child or young person is diminished except to the extent expressly stated or necessary to give effect to the transfer.

(1) Parental responsibility may be shared between 2 or more people under—

(a) a family group conference agreement; or

(b) a voluntary care agreement; or

(c) a care and protection order including a parental responsibility provision; or

(d) a court order (under this Act or another law in force in the Territory).

(2) If parental responsibility is shared between 2 or more people, either of them may discharge the responsibility.

(3) This section is subject to the following sections:

(a) section 474 (Chief executive sharing daily care responsibility);

(b) section 503 (Chief executive sharing long-term care responsibility);

(1) A person who has daily care responsibility for a child or young person has responsibility for, and may make decisions about, the child’s or young person’s daily care.

1 where and with whom the child or young person lives

2 people with whom the child or young person may have contact

3 arrangements for temporary care of the child or young person by someone else

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) A person who has daily care responsibility for a child or young person may do any of the following:

(a) consent to a health care assessment of the child or young person’s physical or mental wellbeing and have access to the assessment report;

(b) on the advice of a health professional—consent to health care treatment, not including surgery (other than surgery mentioned in paragraph (c)), for the child or young person;

(c) on the advice of a dentist—consent to dental treatment, including minor dental surgery, for the child or young person.

(3) If the person makes a decision about the people with whom the child or young person may have contact, the person is also responsible for arrangements to give effect to the decision.

(4) This section does not limit the matters for which the person has responsibility to make decisions for the child or young person, but is subject to—

(a) a court order (under this Act or another law); and

1 A decision by a person who has daily care responsibility for a child about people with whom the child may or may not have contact is subject to a care and protection order that includes a contact provision about who may, or must not, have contact with the child.

2 A decision by a person who has daily care responsibility for a child or young person about where and with whom the chid or young person lives is subject to a care and protection order that includes a residence provision.

3 The Childrens Court makes a care and protection order for a young person that includes a parental responsibility provision that a stated person who has daily care responsibility for the young person must exercise it in a stated way. The person’s exercise of daily care responsibility for the young person is subject to the order.

(b) if there is a care plan in force for the child or young person—the care plan.

(5) To remove any doubt, this section does not affect any right of a child or young person to consent to their own health care treatment.

(1) A person who has long-term care responsibility for a child or young person has—

(a) responsibility for the long-term care, protection and development of the child or young person; and

(b) all the powers, responsibilities and authority a guardian of a child or young person has by law in relation to the child or young person.

1 administration, management and control of the child’s or young person’s property

2 religion and observance of racial, ethnic, religious or cultural traditions

3 obtaining or opposing the issuing of a passport for the child or young person

4 long-term decisions about education

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) A person who has long-term care responsibility for a child or young person may, on the advice of a health professional, consent to health care treatment that involves surgery for the child or young person.

Note Consent to minor dental surgery may be given by a person who has daily care responsibility for the child or young person (see s 19 (2) (c)).

(3) This section does not limit the matters for which the person has responsibility in relation to the child or young person, but is subject to—

(a) a court order (under this Act or another law); and

(b) if there is a care plan in force for the child or young person—the care plan.

(4) To remove any doubt, this section does not affect any right of a child or young person to consent to their own health care treatment.

(1) This section applies if a provision of this Act requires a person to act in relation to a parent of, or a person with parental responsibility for, a child or young person.

(2) The person is not required to act in relation to the parent or other person if the person cannot after reasonable inquiry find the parent or other person.

In making a decision under this chapter for a child or young person, the decision-maker must regard the best interests of the child or young person as the paramount consideration (see s 8 (1)).

In making a decision under this chapter otherwise than in relation to a particular child or young person, the decision-maker must consider the best interests of children and young people (see s 8 (2)).

For provisions applying when the chief executive has parental responsibility for a child or young person, see ch 15.

(1) The chief executive has the following functions:

(a) providing, or assisting in providing, services directed to strengthening and supporting families in relation to the wellbeing, care and protection of their children and young people;

(b) supporting the community in preventing, or reducing, abuse and neglect of children and young people;

(c) providing, or assisting in providing, information to parents, kinship carers and foster carers, prospective kinship carers and foster carers, government agencies, non-government agencies and members of the community about the operation of this Act;

(d) providing, or assisting in providing, information to people who are required to report suspected abuse of children and young people to help them perform their legal obligation;

(e) providing, or assisting in providing, information to people who report suspected abuse or neglect of children and young people and encouraging those people to continue their involvement in matters arising from their report;

(f) exercising aspects of parental responsibility for children and young people;

(g) providing, or assisting in providing, information, services or assistance to children and young people who have left the chief executive’s care;

(h) providing, or assisting in providing, services for young offenders, including by ensuring the provision of the care, support, rehabilitation and guidance necessary for them to become rehabilitated and reintegrated community members;

(i) working with other government agencies and community organisations, to coordinate and promote the care and protection of children and young people, including young offenders.

(2) The chief executive has all the functions of an authorised person.

Note A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

(1) The chief executive may make instructions, consistent with this Act, for the management or operation of any administrative function under this Act.

(2) A person exercising an administrative function under this Act must comply with the instructions.

(1) The Minister may give written directions to the chief executive about the exercise of functions under this Act.

a direction to make policies or operating procedures to ensure that functions are exercised in accordance with a particular decision of the Supreme Court or a particular finding of a board of inquiry or royal commission

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) The chief executive must comply with a direction under this section.

(3) A direction is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(1) The chief executive may ask a territory entity or an ACT education provider to provide assistance, facilities or services relevant to the physical or emotional wellbeing of a child or young person.

(2) A territory entity or a government school or school-related institution that receives a request under subsection (1) must comply with the request promptly.

(3) In this section:

ACT education provider means any of the following:

(a) a government or non-government school under the Education Act 2004;

(b) a school-related institution under the Education Act 2004;

(c) a registered training organisation under the Training and Tertiary Education Act 2003;

(d) a higher education provider under the Training and Tertiary Education Act 2003;

(e) an ACT university declared to be established or recognised as a university under the Training and Tertiary Education Act 2003, section 88 (Declaration of ACT university).

territory entity means any of the following:

(a) an administrative unit;

(b) a territory authority (other than the legal aid commission or the human rights commission);

(c) a territory instrumentality;

(d) a public employee (other than a judge or magistrate);

(e) a police officer.

(1) This section applies if the chief executive delegates a power under this Act or another territory law to someone else (an authorised person).

Note The chief executive may delegate a power under the Public Sector Management Act 1994, s 36.

(2) The chief executive must give an authorised person an identity card stating the person’s name and that the person is an authorised person.

(3) The identity card must show—

(a) a recent photograph of the person; and

(b) the card’s date of issue and expiry; and

(c) anything else prescribed by regulation.

(4) A person commits an offence if the person—

(a) stops being an authorised person; and

(b) does not return the person’s identity card to the chief executive as soon as practicable, but not later than 7 days after the day the person stops being an authorised person.

Maximum penalty: 1 penalty unit.

(5) An offence against this section is a strict liability offence.

(6) Subsection (3) applies only in relation to a card given by the chief executive after the commencement of this section.

(7) Subsection (6) is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(8) Subsections (6) and (7) and this subsection expire on the day they commence.

The Children and Youth Services Council is established.

The Children and Youth Services Council has the following functions:

(a) to report to the Minister, at the Minister’s request, on anything relating to the operation or administration of this Act;

(b) to make recommendations to the Minister about services for children and young people in the ACT.

The Children and Youth Services Council has at least 5, but not more than 10, members.

(1) The Minister may appoint the members of the Children and Youth Services Council.

Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

Note 2 In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

Note 3 Certain Ministerial appointments require consultation with an Assembly committee and are disallowable (see Legislation Act, div 19.3.3).

(2) The criteria for deciding whether to appoint a person as a member are that the person—

(a) has expertise in relation to services for children or young people; or

(b) represents the interests of children and young people; or

(c) represents the interests of kinship carers and foster carers; or

(d) represents the interests of Aboriginal and Torres Strait Islander people.

(3) The Minister must ensure that there is always at least—

(a) 1 member who represents the interests of kinship carers and foster carers; and

(b) 1 member who is an Aboriginal or Torres Strait Islander and who represents the interests of Aboriginal and Torres Strait Islander people; and

(c) 1 member who represents the interests of young people; and

(d) 1 member who represents the interests of children.

(4) The appointment of a member is for the term stated in the appointment.

(5) The conditions of appointment of a member are the conditions stated in the appointment.

(1) The Minister must appoint a chair and deputy chair for the Children and Youth Services Council.

(2) The conditions of appointment of the chair are the conditions agreed between the Minister and the chair, subject to any determination under the Remuneration Tribunal Act 1995.

The Minister may end the appointment of a member of the Children and Youth Services Council—

(a) for misbehaviour; or

(b) if the member is convicted, or found guilty, in Australia of an indictable offence; or

(c) if the member is convicted, or found guilty, outside Australia of an offence that, if it had been committed in the ACT, would be an indictable offence; or

(d) if the member is absent from 3 consecutive meetings of the council, otherwise than on approved leave; or

(e) for physical or mental incapacity, if the incapacity substantially affects the exercise of the member’s functions.

Note A person’s appointment also ends if the person resigns (see Legislation Act, s 210).

(1) The chair presides at all meetings at which the chair is present.

(2) If the chair is absent, the deputy chair presides.

Business may be carried on at a meeting of the Children and Youth Services Council only if at least ¹/2 the number of members appointed are present.

(1) At a meeting of the Children and Youth Services Council, each member has a vote on each question to be decided.

(2) A question is decided by a majority of the votes of the members present and voting but, if the votes are equal, the member presiding has a deciding vote.

The chief executive and the public advocate must give the Children and Youth Services Council the advice and assistance that the council reasonably asks for.

In this part:

entitled child or young person—

(a) means a child or young person who is—

(i) detained in a detention place; or

(ii) confined at a therapeutic protection place; or

(iii) accommodated in a place of care; and

(b) includes a young detainee who is 18 years old or older.

Note Investigative entity—see the dictionary.

(1) The Minister must appoint at least 1 official visitor.

(2) The Minister may appoint a person as an official visitor only if satisfied that the person has suitable qualifications or experience to exercise the functions of an official visitor.

(3) However, the Minister must not appoint a person as an official visitor unless the person—

(a) is not a public employee; and

(b) is a suitable entity.

(4) An appointment as an official visitor must not be for longer than 3 years.

(5) The conditions of appointment of an official visitor are the conditions agreed between the Minister and the person, subject to any determination under the Remuneration Tribunal Act 1995.

Note 1 For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

Note 2 Certain Ministerial appointments require consultation with an Assembly committee and are disallowable (see Legislation Act, div 19.3.3).

Note 3 A person may be reappointed to a position if the person is eligible to be appointed to the position (see Legislation Act, s 208 and dict, pt 1, def appoint).

(1) An official visitor’s functions are—

(a) to inspect—

(i) detention places (and places outside detention places where detainees are, or have been, directed to work or participate in an activity); and

(ii) therapeutic protection places; and

(iii) places of care; and

(b) to report to—

(i) the Minister under section 40; and

(ii) the chief executive under section 41 (2); and

(c) to receive and consider complaints from entitled children and young people, and others on their behalf; and

(d) to be available to talk with entitled children and young people; and

(e) to exercise any other function given to an official visitor under this Act or another territory law.

(2) For subsection (1), an official visitor—

(a) must, if practicable, visit each detention place at least once each fortnight; and

(b) must, if practicable, visit a therapeutic protection place at least once each week if a child or young person is confined at the therapeutic protection place; and

(c) must, if practicable, visit a place of care at least once each month if a child or young person is being cared for at the place of care; and

(d) may, at any reasonable time, enter a detention place (or any place outside a detention place where detainees are, or have been, directed to work or participate in an activity), therapeutic protection place or place of care.

a time that would hinder a search, or coincide with an escape attempt, at a detention place

(3) An operating entity for a detention place, therapeutic protection place or place of care must give an official visitor any reasonable assistance the official visitor asks for to exercise the official visitor’s functions at the place.

1 giving access to documents and records relating to a complaint

2 answering reasonable questions about the facts of a complaint

3 giving reasonable access to facilities

Note 1 The Legislation Act, s 170 deals with the application of the privilege against selfincrimination.

Note 2 Operating entity—see the dictionary.

Note 3 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(4) Before asking the operating entity for a detention place, therapeutic protection place or place of care for assistance that involves the giving of sensitive information, the official visitor must consider whether the complaint would be better dealt with by, and should be referred to, an investigative entity under section 49 (Complaints may be closed—referral to other entity).

(1) If an official visitor believes on reasonable grounds that either of the following is not in accordance with this Act:

(a) the care provided to entitled children or young people at a detention place or therapeutic protection place;

(b) the living conditions, education or activities of entitled children or young people at a detention place or therapeutic protection place;

the official visitor must report the belief to the Minister in writing.

(2) If an official visitor believes on reasonable grounds that the detention of a child or young person at a detention place (including any aspect of the treatment, living conditions, work or activities of the detainee) is not in accordance with this Act, the official visitor must report the belief to the Minister in writing.

(1) This section applies if an official visitor believes on reasonable grounds that either of the following is not in accordance with this Act or the out-of-home care standards:

(a) the care provided to entitled children or young people at a place of care;

(b) the living conditions, education or activities of entitled children or young people at a place of care.

Note The Minister may make out-of-home care standards under s 886.

(2) The official visitor must report the belief to the chief executive in writing.

(1) The Minister may end a person’s appointment as an official visitor—

(a) for misbehaviour; or

(b) if the person—

(i) does not inspect a detention place, therapeutic protection place or place of care as required under the complaints guidelines made under section 43; and

(ii) continues to fail to inspect the place as required for 4 consecutive weeks; or

(c) if the person is not a suitable entity.

(2) The Minister must end the person’s appointment as official visitor—

(a) for physical or mental incapacity, if the incapacity substantially affects the exercise of the person’s functions; or

(b) if the person fails to take all reasonable steps to avoid being placed in a position where a conflict of interest arises during the exercise of the person’s functions.

(3) A person’s appointment as official visitor ends, by force of this section, if the person becomes a public employee.

Note A person’s appointment also ends if the person resigns (see Legislation Act, s 210).

(1) The Minister may make guidelines, consistent with this part, about the handling of complaints by official visitors.

(2) The guidelines must include a schedule that sets out—

(a) each detention place, therapeutic protection place and place of care that an official visitor must inspect; and

(b) how often the official visitor must inspect each place.

(3) A guideline is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(1) An entitled child or young person, or anyone else, may complain to an official visitor about any aspect of the child’s or young person’s detention, confinement or accommodation including—

(a) the conditions of detention, confinement or accommodation of an entitled child or young person; or

(b) the care provided to an entitled child or young person at a detention place, therapeutic protection place or place of care; or

(c) how a detention place, therapeutic protection place or place of care is conducted.

(2) The entitled child or young person may make the complaint to the official visitor personally or through someone else.

(3) The entitled child or young person may ask the official visitor to hear the complaint with no-one else present and, if so—

(a) the official visitor must comply; and

(b) the operating entity must provide reasonably private facilities for the official visitor to hear the complaint.

(1) This section applies if an entitled child or young person has told the operating entity that the child or young person wants to see an official visitor.

(2) The operating entity must ensure that an official visitor is told of the request as soon as practicable, but not later than 12 hours after the request is made.

(3) An entitled child or young person need not explain to the operating entity why the child or young person wants to see an official visitor.

(1) This section applies if an official visitor receives a complaint about a detention place, therapeutic protection place or place of care under section 44.

(2) The official visitor must tell the chief executive, in writing, that a complaint has been made and the name of the place to which it relates.

(1) After receiving a complaint under section 44, an official visitor must take all reasonable steps to promptly and efficiently resolve the complaint with the operating entity for the detention place, therapeutic protection place or place of care.

(2) To resolve a complaint, the official visitor may—

(a) make inquiries about any matter raised in the complaint; and

(b) exercise any other function given to an official visitor under this Act.

(3) The official visitor may also—

(a) make a recommendation about the complaint to the operating entity for the detention place, therapeutic protection place or place of care; or

(b) give the chief executive or the Minister a report about the complaint or any inquiries made about a matter raised in the complaint.

(4) This section is subject to the following sections:

(a) section 48 (Withdrawal of complaints);

(b) section 49 (Complaints may be closed—referral to other entity);

(c) section 50 (Complaints may be closed—other entity investigating);

(d) section 51 (Complaints closed—frivolous, etc);

(e) section 52 (Complaints closed—resolved);

(f) section 53 (Complaints closed—complainant left detention etc).

(1) At any time, a complainant may, by written notice given to an official visitor, withdraw a complaint.

(2) If a complaint is withdrawn, the official visitor to whom the complaint was made must close the complaint if satisfied that the complaint—

(a) is about a minor issue; or

(b) has been resolved appropriately; or

(c) has lapsed.

the entitled child or young person is no longer detained in a detention place or confined at a therapeutic protection place

(3) If the official visitor suspects on reasonable grounds that it is in the public interest that a withdrawn complaint be considered, the official visitor must—

(a) refer the complaint to the human rights commission for consideration under the Human Rights Commission Act 2005, section 48 (3) (Consideration without complaint or appropriate complainant); and

(b) close the complaint; and

(c) tell the complainant about the referral and closing of the complaint.

(4) If the official visitor refers the complaint to the human rights commission, the official visitor must give the human rights commission any information that the official visitor has in relation to the complaint.

(1) This section applies if an official visitor—

(a) receives a complaint; and

(b) after considering the complaint, is satisfied that the complaint would be better dealt with by an investigative entity with power to investigate the complaint.

(2) The official visitor may refer the complaint to the investigative entity.

(3) If the official visitor refers the complaint to an investigative entity, the official visitor—

(a) must give the entity any information that the official visitor has in relation to the complaint; and

(b) must tell the complainant about the referral; and

(c) may close the complaint.

(1) This section applies if the official visitor—

(a) receives a complaint; and

(b) after considering the complaint, is satisfied that the substance of the complaint has been, is being or will be investigated by an appropriate investigative entity.

(2) The official visitor may—

(a) give the investigative entity any information that the official visitor has in relation to the complaint; and

(b) close the complaint.

(1) This section applies if the official visitor —

(a) receives a complaint about a detention place, therapeutic protection place or place of care; and

(b) after considering the complaint, is satisfied that the complaint is frivolous, vexatious or not made honestly.

(2) The official visitor must close the complaint.

(1) This section applies if the official visitor—

(a) receives a complaint about a detention place, therapeutic protection place or place of care; and

(b) is satisfied that the complaint is resolved—

(i) with the operating entity for the place; and

(ii) to the satisfaction of the complainant.

(2) The official visitor must close the complaint.

(1) This section applies if the official visitor —

(a) receives a complaint about a detention place, therapeutic protection place or place of care; and

(b) is satisfied that the complainant—

(i) has left the detention place, therapeutic protection place or place of care; and

(ii) cannot be found after reasonable enquiry.

(2) The official visitor must close the complaint.

(1) This section applies if an official visitor closes a complaint, other than under section 48 (Withdrawal of complaints) or section 53 (Complaints closed—complainant left detention etc).

(2) The official visitor must tell the complainant—

(a) that the official visitor has closed the complaint; and

(b) the reasons why the official visitor has closed the complaint.

the complaint has been referred to the human rights commission

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) This section applies if an official visitor has—

(a) referred a complaint under section 48 (3) (a) or section 49 (2); or

(b) given an investigative entity information under section 50 in relation to a complaint.

(2) The official visitor may ask the entity investigating the complaint about the investigation of the complaint.

(3) The entity must tell the official visitor about the investigation of the complaint.

(4) The official visitor may tell the complainant about progress of the investigation of the complaint.

(1) This section applies if—

(a) a complaint about a detention place, therapeutic protection place or place of care is resolved with the operating entity for the place; and

(b) as part of resolving the complaint, the operating entity agrees to do, or not do, something; and

(c) an official visitor is satisfied that the operating entity has not done what was agreed.

(2) The official visitor may reopen the complaint.

(3) If the official visitor reopens a complaint, the official visitor must try to resolve the complaint under section 47.

(1) This section applies if—

(a) an official visitor becomes aware of a matter that may be the subject of a complaint to an official visitor under section 44; and

(b) no complaint is made under section 44 about the matter; and

(c) the official visitor is satisfied that the matter should be dealt with by an investigative entity with power to investigate the matter.

(2) The official visitor may do either or both of the following:

(a) tell the chief executive about the matter;

(b) refer the matter to the investigative entity.

(3) If the official visitor refers the matter to an investigative entity, the official visitor must give the entity or the chief executive any information that the official visitor has in relation to the matter.

(1) As soon as practicable after the end of each month, an official visitor must give the Minister and the chief executive a written report for the month summarising—

(a) the number and kinds of complaints received by the official visitor; and

(b) the action taken on the complaints received; and

(c) the number and kinds of matters referred by the official visitor to an investigative entity under section 57.

(2) The monthly report may include comments by the official visitor about anything in relation to a complaint to which the report applies.

(3) However, an official visitor may only include in a monthly report material that may be adverse to, or critical of, a person if the official visitor has given the person an opportunity to be heard.

(4) This section applies whether or not the adverse or critical material is—

(a) express or implicit; or

(b) by way of opinion or otherwise.

(1) This section applies if a person’s appointment as official visitor ends.

(2) The person must, not later than 7 days after the day the appointment ends, give any official visitor record held by the person to the public advocate or another official visitor.

(3) To remove any doubt, an official visitor record received by the public advocate or an official visitor under this section is a record of the activities of the administrative unit responsible for the administration of this section for the Territory Records Act 2002.

(4) In this section:

official visitor record held by a person, means—

(a) a record made or received by the person because of the person’s functions as official visitor; or

(b) information held by the person because of the person’s functions as official visitor.

(1) In this Act:

suitability information—see section 65.

suitable entity—see section 61.

(2) In this part:

requirement notice—see section 68 (2).

suitability information notice—see section 66 (2).

suitable entities register—see section 72.

In this Act:

suitable entity, for a stated purpose, means an entity approved by the chief executive under section 63 as a suitable entity for the purpose.

1 family group conference facilitators—someone appointed under s 78 by the chief executive

2 kinship carers—a family member or significant person authorised under s 515 by the chief executive

3 foster care service—an entity authorised under s 516 by the chief executive

4 foster carers for a stated child or young person—someone specifically authorised under s 517 by the chief executive

5 foster carers for any child or young person—someone generally authorised under s 518 by the chief executive

6 residential care services for any child or young person—an entity authorised under s 519 by the chief executive

7 childcare service licences—the proposed proprietor and each proposed controlling person for the childcare service (see s 745)

8 research projects—the researcher and any other person who is to have contact with children or young people for the project (see s 808)

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

An entity may apply, in writing, to the chief executive for approval as a suitable entity for a stated purpose.

Note If a form is approved under s 885 for this provision, the form must be used.

(1) The chief executive may, in writing, approve an entity as a suitable entity for a stated purpose if satisfied that the entity is suitable for the purpose.

Note 1 Power given by a law to make a decision includes power to reverse or change the decision. The power to reverse or change the decision is exercisable in the same way, and subject to the same conditions, as the power to make the decision (see Legislation Act, s 180).

Note 2 The chief executive must establish a suitable entities register (see s 72).

(2) However, if the chief executive orally authorises a person or entity under section 515 (Authorisation of kinship carer—specific parental authority), section 517 (Authorisation of foster carer—specific parental authority) or section 518 (Authorisation of foster carer—general parental authority) in relation to a child or young person, the chief executive—

(a) may, at the same time, orally approve the person or entity as a suitable entity in relation to the child or young person; and

(b) if the chief executive approves the person or entity under paragraph (a)—must, as soon as practicable, approve the person or entity in writing.

(1) In deciding whether an entity is a suitable entity for a stated purpose, the chief executive—

(a) must consider each of the following:

(i) suitability information under section 65 (1), definition of suitability information, paragraphs (a), (b) and (c) about the entity;

(ii) if the chief executive requires the entity to provide a reference or report under section 68 (2) (a)—the reference or report;

(iii) if the chief executive requires the entity to undergo a test or medical examination under section 68 (2) (b)—the result of the test or medical examination; and

(b) may consider suitability information under section 65 (1), definition of suitability information, paragraphs (d), (e), (f), (g) and (h) about the entity.

(2) If the chief executive is considering suitability information under section 65 (1), definition of suitability information, paragraph (d) or (e), the chief executive must give the entity written notice of that fact.

Note See also s 70 (Offence—ongoing duty to update suitability information).

(1) In this Act:

suitability information, about an entity, means information about the following:

(a) any conviction of, or finding of guilt against, the entity for—

(i) an offence relating to the provision of services for children or young people; or

(ii) an offence against a child or young person; or

(iii) an offence involving a child or young person; or

(iv) an offence involving violence; or

(v) a sex offence; or

(vi) an offence involving dishonesty or fraud; or

(vii) an offence involving possession of, or trafficking in, a drug of dependence or controlled drug; or

(viii) an offence against an animal;

(b) any proven noncompliance by the entity with a legal obligation in relation to providing services for children or young people;

the entity is a licensed proprietor of a childcare service and the licence is suspended for safety reasons under s 762 or under a law of another jurisdiction that substantially corresponds to s 762

(c) any refusal of an application for a licence or other authority (however described) in relation to providing services for children or young people;

(d) the soundness of the entity’s financial reputation and the stability of the entity’s financial background;

(e) the entity’s reputation for honesty and integrity;

(f) whether the entity has proven experience or demonstrated capacity in providing services for children and young people;

(g) whether a child concern report about the entity has been received by the chief executive and any action that has been taken in response to the report by the chief executive or a court or tribunal;

(h) for an entity in relation to suitability for the purpose of foster care—information in paragraphs (a) to (g) for each other adult member of the entity’s household;

(i) any other consideration relevant to the entity’s ability to provide high quality services for children or young people.

(2) To remove any doubt, the information may be about any circumstance or thing mentioned in subsection (1) whether inside or outside the ACT.

refusal in Queensland of an application for a licence in relation to providing services for children or young people

(1) This section applies if the chief executive is making a decision about whether an entity is a suitable entity for a stated purpose.

(2) The chief executive may, by written notice given to the entity (a suitability information notice), require the entity to give the chief executive stated suitability information about the entity not later than a stated reasonable time.

(3) A suitability information notice must also tell the entity that giving false or misleading information is an offence against the Criminal Code, section 338 (Giving false or misleading information).

(1) This section applies if—

(a) the chief executive has given an entity a suitability information notice; and

(b) the entity does not give the chief executive the suitability information in accordance with the notice.

(2) The chief executive need not decide whether the entity is a suitable entity for a stated purpose.

(1) This section applies if the chief executive is making a decision about whether an entity is a suitable entity for a stated purpose.

(2) The chief executive may, by written notice given to the entity (a requirement notice), require the entity to do any or all of the following not later than a stated reasonable time:

(a) provide a stated reference or report;

(b) undergo a stated test or medical examination.

a psychiatric examination

(1) This section applies if—

(a) the chief executive has given the entity a requirement notice; and

(b) the entity does not do the thing required in accordance with the requirement notice.

(2) The chief executive need not decide whether the entity is a suitable entity for a stated purpose.

(1) This section applies to an entity if—

(a) either—

(i) the chief executive is deciding whether the entity is a suitable entity for a stated purpose; or

(ii) the chief executive has decided that the entity is a suitable entity for a stated purpose and the entity is exercising functions for the purpose; and

(b) the entity has given the chief executive suitability information about the entity.

(2) The entity commits an offence if—

(a) the entity’s suitability information under section 65 (1), definition of suitability information, paragraph (a), (b) or (c) changes; and

(b) the entity does not tell the chief executive about the change as soon as practicable, but not later than 7 days after the change happens.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(3) The entity commits an offence if—

(a) the chief executive gave the entity written notice that the suitability information under section 65 (1), definition of suitability information, paragraph (d) was being considered in deciding whether the entity was a suitable entity; and

(b) the entity becomes bankrupt or executes a personal insolvency agreement; and

(c) the entity does not tell the chief executive about the bankruptcy or agreement as soon as practicable, but not later than 7 days after the bankruptcy happens or agreement is executed.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

(4) The entity commits an offence if—

(a) the chief executive gave the entity written notice that the suitability information under section 65 (1), definition of suitability information, paragraph (e) was being considered in deciding whether the entity was a suitable entity; and

(b) any of the following makes an adverse finding against the entity:

(i) a court or tribunal;

(ii) an authority or person with power to require the production of documents or the answering of questions; and

1 commissioner for fair trading

2 human rights commission

3 discrimination commissioner

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(c) the entity does not tell the chief executive about the finding as soon as practicable, but not later than 7 days after the finding is made.

Maximum penalty: 50 penalty units, imprisonment for 6 months or both.

Note Power given by a law to make a decision includes power to reverse or change the decision. The power to reverse or change the decision is exercisable in the same way, and subject to the same conditions, as the power to make the decision (see Legislation Act, s 180).

The chief executive may appoint, engage, employ or authorise a suitable entity for a stated purpose (whether for payment or as a volunteer) for children and young people under this Act.

(1) The chief executive must establish a register of suitable entities (a suitable entities register) for this Act.

(2) A suitable entities register must include the following details for each suitable entity:

(a) the entity’s name;

(b) the purpose for which the entity is approved;

(c) any other detail the chief executive considers appropriate.

Note Power to make a statutory instrument includes power to make different provision for different categories (see Legislation Act, s 48).

In this Act:

family group conference—see section 75.

family group conference agreement—see section 76.

family group conference facilitator means a family group conference facilitator appointed under section 78.

participant, for a family group conference, means a person who attends the conference at the invitation of the family group conference facilitator.

parties, for a family group conference agreement, means the participants who enter (or propose to enter) a family group conference agreement under section 85.

relevant conference participant, for a family group conference about a child or young person, means a participant who has parental responsibility for the child or young person.

Note Parental responsibility, for a child or young person, is dealt with in div 1.3.2.

The objects of a family group conference about a child or young person are to—

(a) encourage the child or young person and his or her family members, to take part in decisions affecting the child or young person; and

(b) increase the support for the child or young person by his or her family members and significant people; and

(c) make arrangements for the care of the child or young person to reduce the likelihood of the child or young person being in need of care and protection in the future.

In this Act:

family group conference means a conference about a child or young person to give the participants an opportunity to—

(a) reach an agreement about a matter relating to the wellbeing of the child or young person; and

(b) enter into a family group conference agreement detailing the agreed arrangements for the wellbeing of the child or young person; and

(c) if a family group conference agreement is already in force for the child or young person—review the agreement.

(1) In this Act:

family group conference agreement means an agreement that—

(a) arises from a family group conference about a child or young person; and

(b) is between—

(i) the chief executive; and

(ii) a relevant conference participant; and

(iii) for an agreement about a young person who is school-leaving age or older—the young person; and

(c) details the arrangements agreed to by the parties for the wellbeing of the child or young person; and

(d) is in writing and signed by—

(i) the chief executive; and

(ii) the relevant conference participant; and

(iii) any other conference participant who agrees with the arrangements; and

(e) may, but need not, include a requirement for the chief executive to arrange for a family group conference to review the family group conference agreement not later than a stated day.

(2) However, a family group conference agreement must not—

(a) transfer parental responsibility for the child or young person from a person to the chief executive; or

(b) share parental responsibility for the child or young person with the chief executive.

(1) A person commits an offence if the person publishes all or part of—

(a) a family group conference agreement; or

(b) a family group conference outcome report; or

(c) a record or report prepared for and presented to a family group conference.

Maximum penalty: 50 penalty units.

(2) A person commits an offence if the person publishes anything said or done at a family group conference.

Maximum penalty: 50 penalty units.

(3) This section does not apply if the publication is made under this Act or another territory law.

Note Chapter 25 contains further provisions about information secrecy and sharing.

(1) The chief executive may appoint a person as a facilitator (a family group conference facilitator) for this chapter.

Note For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

(2) However, the chief executive may appoint a person to be a family group conference facilitator only if satisfied—

(a) that the person has suitable qualifications and experience to exercise the functions of a family group conference facilitator; and

(b) if the person is not a public employee—that the person is a suitable entity to be a family group conference facilitator.

Note Suitable entities to provide services are dealt with in pt 2.4.

(3) An appointment is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

A family group conference facilitator has the function of facilitating each family group conference to which the facilitator is assigned by the chief executive under section 82.

1 preparing for a family group conference by—

(a) meeting with proposed participants; and

(b) providing mediation between proposed participants; and

(c) resolving conflict between proposed participants

2 consulting someone with knowledge of a particular culture

3 asking someone to give information or a report to the conference without inviting the person to be a participant

4 inviting someone to attend the conference as a participant, at any time

5 allowing someone to take part in the conference by telephone, video-conference or in another way

6 deciding when and where the family group conference will take place

Note 1 A family group conference facilitator may give the chief executive protected information (including sensitive information) about a child or young person if the family group conference facilitator considers that giving the information is in the best interests of the child or young person (see s 850).

Note 2 A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

Note 3 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) The chief executive may arrange for a family group conference about a child or young person if satisfied that the family group conference may help to promote the wellbeing and best interests of the child or young person.

1 if a family group conference agreement is already in force for the child or young person and the chief executive considers that the agreement should be reviewed

2 if the child or young person is in out-of-home care and the chief executive considers that a family group conference may promote the child’s or young person’s contact with his or her family members or significant people

3 if the child or young person is about to be released from a detention place and the chief executive considers that a family group conference may help the child’s or young person’s transition back into the community

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) The chief executive may also arrange for a family group conference about a child or young person if the chief executive believes on reasonable grounds that—

(a) the child or young person is in need of care and protection; and

(b) arrangements should be made to secure the child’s or young person’s care and protection.

1 The chief executive has appraised 3 child protection reports in relation to neglect of 2 year old Billy. Billy’s parents have longstanding drug and alcohol use issues. The chief executive believes that Billy is in need of care and protection and arranges a family group conference involving Billy’s family members to formulate a plan for Billy’s care and protection.

2 Jane is 14 years old and frequently absconds from her parent’s home for extended periods because of conflict with her parents. The chief executive believes Jane is in need of care and protection and arranges a family group conference to ensure Jane’s care and protection.

3 The chief executive appraises a child protection report of sexual abuse in relation to 8 year old Sally. The chief executive substantiates the abuse by Sally’s stepfather and decides that Sally is in need of care and protection. The chief executive decides to arrange a family group conference for Sally’s care and protection as an alternative to seeking a care and protection order for Sally.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) This section applies if a family group conference agreement is in force for a child or young person.

(2) The chief executive must arrange for a family group conference to review the family group conference agreement if the chief executive is—

(a) required to do so in the agreement; or

(b) asked to do so by—

(i) the child or young person; or

(ii) a participant in the family group conference at which the family group conference agreement was reached.

(3) However, the chief executive is not required to arrange a family group conference under subsection (2) (b) if the chief executive—

(a) has already arranged a conference to review the agreement because of a request under subsection (2) (b); or

(b) considers it is not in the best interests of the child or young person to do so.

(1) If the chief executive arranges a family group conference about a child or young person, the chief executive must assign a family group conference facilitator to the conference.

(2) The family group conference facilitator must, as soon as practicable after being assigned to the family group conference—

(a) decide, under section 83 (1) (b) to (e), who should be invited to the conference; and

(b) take reasonable steps to tell each person to be invited to the conference when and where the conference will take place; and

(c) conduct the conference.

(1) A family group conference facilitator for a family group conference must take all reasonable steps to invite the following people to the conference:

(a) the chief executive;

(b) if the family group conference facilitator is satisfied that the child or young person can understand and take part in the conference—the child or young person;

(c) each parent of the child or young person, unless the family group conference facilitator considers that it would not be in the best interests of the child or young person for the parent to attend;

(d) each other person (if any) who has parental responsibility for the child or young person, unless the family group conference facilitator considers that it would not be in the best interests of the child or young person for the person to attend;

(e) any person with an interest in, or knowledge of, the care, wellbeing or development of the child or young person who the family group conference facilitator considers should attend the conference.

(2) If a child or young person invited to a family group conference does not take part in the conference, the family group conference facilitator must take all reasonable steps—

(a) to find out the views and wishes of the child or young person; and

(b) to make the views and wishes of the child or young person known to each other person taking part in the conference; and

(c) to ensure that the views and wishes of the child or young person are considered in reaching any agreement at the conference.

(3) Subsection (2) does not create any requirement for a child or young person to express a view or wish about any matter.

(4) A participant may not be represented at a family group conference by a lawyer.

(5) However, for a participant mentioned in subsection (1) (b), (c), (d) or (e), a support person chosen by the participant may attend the family group conference to assist the participant if the family group conference facilitator considers the support person appropriate and capable of giving the participant assistance.

assisting the participant to express his or her views

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

A family group conference facilitator must conduct a family group conference in a way that complies with the family group conference standards (if any).

Note The Minister may make family group conference standards under s 886.

(1) This section applies if the family group conference facilitator for a family group conference about a child or young person is satisfied that the chief executive and all relevant conference participants (the parties) have reached agreement about an issue relating to the wellbeing of the child or young person.

Note Relevant conference participant means a participant who has parental responsibility for the child or young person (see s 73).

(2) The facilitator may propose that the parties enter into a family group conference agreement detailing the agreed arrangements for the wellbeing of the child or young person.

(3) Before the parties enter into a family group conference agreement—

(a) the facilitator must—

(i) give the relevant conference participants an opportunity to get legal advice about the meaning and effect of the proposed family group conference agreement; and

(ii) if the facilitator is satisfied that the child or young person has sufficient maturity and developmental capacity to understand the proposed family group conference agreement—

(A) find out and consider the child’s or young person’s views and wishes about the proposed family group conference agreement; and

(B) if the proposed family group conference agreement is about a young person who is school-leaving age or older—give the young person an opportunity to get legal advice about the meaning and effect of the proposed family group conference agreement; and

(b) for a family group conference agreement reached at a family group conference arranged under section 80 (2) (Family group conferences—criteria)—the chief executive must be satisfied that the proposed family group conference agreement is in the best interests of the child or young person.

(1) This section applies if a family group conference agreement proposed under section 85 (2) is about a young person who is school-leaving age or older.

Note School-leaving age is 15 years old (see dict).

(2) The parties may enter the proposed family group conference agreement only if the facilitator for the family group conference is satisfied that the young person either—

(a) agrees to the proposed family group conference agreement; or

(b) does not have sufficient maturity or developmental capacity to understand and agree to the proposed family group conference agreement.

(1) This section applies if the family group conference facilitator for a family group conference about a child or young person—

(a) has, under section 85—

(i) proposed that the parties enter into a family group conference agreement; and

(ii) given the relevant conference participants an opportunity to get legal advice; and

(iii) if required, found out and considered the child’s or young person’s views and wishes; and

(b) for a young person who is school-leaving age or older—is satisfied under section 86 that the young person either—

(i) agrees to the proposed family group conference agreement; or

(ii) does not have sufficient maturity or developmental capacity to understand and agree to the proposed family group conference agreement.

(2) The facilitator must encourage the parties to enter into the proposed family group conference agreement by putting the agreement in writing and seeking—

(a) the signatures of the parties; and

(b) the signature of any other participant who agrees with the arrangements in the agreement.

(3) If the child or young person (not being a young person mentioned in subsection (1) (b)) agrees to the proposed family group conference agreement, the child or young person may also sign the agreement.

(1) Within 28 days after a family group conference ends, the family group conference facilitator must give a written report about the outcome of the conference (the family group conference outcome report) to—

(a) the chief executive; and

(b) the child or young person; and

(c) each person invited to attend the conference.

(2) A family group conference outcome report must include the following:

(a) details of when and where the conference took place;

(b) the name of—

(i) the family group conference facilitator; and

(ii) each person invited to the conference and whether they attended; and

(iii) the name of anyone else who was not a participant but who provided information or a report to the conference.

(3) If the conference resulted in a family group conference agreement, the family group conference outcome report must include a copy of the agreement.

(4) Despite anything else in this section, the family group conference facilitator must not give a copy of the family group conference outcome report, or a copy of the family group conference agreement, to the child or young person if the facilitator believes on reasonable grounds—

(a) that it would not be in the child’s or young person’s best interests to be given information contained in the report or agreement; or

(b) that the child or young person is not able to understand the report or agreement.

A family group conference agreement takes effect—

(a) when it has been signed by all parties to the agreement; or

(b) if the parties agree to a later time of effect—at that time.

After receiving a family group conference agreement, the chief executive must implement the arrangements in the agreement in a way that complies with the family group conference standards (if any).

Note 1 The Minister may make family group conference standards under s 886.

Note 2 The parties to a family group conference agreement may agree that parental responsibility for a child or young person be transferred to, or shared with, someone else (other than the chief executive (see s 76)). If the family group conference was arranged because the chief executive believed the child or young person to be in need of care and protection, the Childrens Court may be able to register the family group conference agreement. A registered family group conference agreement has effect as if it were a care and protection order and may be enforced accordingly. Registration of family group conference agreements is dealt with in pt 12.2.

In this Act:

criminal matters chapter—each of the following is a criminal matters chapter:

(a) this chapter;

(b) chapter 5 (Criminal matters—transfers);

(c) chapter 6 (Criminal matters—detention places);

(d) chapter 7 (Criminal matters—search and seizure at detention places);

(e) chapter 8 (Criminal matters—discipline at detention places);

(f) chapter 9 (Criminal matters—conduct of disciplinary reviews).

(1) This chapter sets out the principles (the youth justice principles) that apply in the criminal matters chapters, sets out general rules about keeping young detainees separate from adult detainees and defines some important concepts.

(2) Chapter 5 deals with transfers of young detainees and young offenders.

(3) Chapter 6 deals with detention places generally.

(4) Chapter 7 deals with search and seizure at detention places.

(5) Chapter 8 deals with the discipline of young detainees at detention places.

(6) Chapter 9 deals with the conduct of disciplinary reviews.

Note Other laws relevant to children and young people and criminal matters include the following:

• the Crimes Act 1900, pt 10 (Criminal investigation) and the Crimes Act 1914 (Cwlth), pt 1C (which applies in relation to the investigation of certain ACT offences)

• the Bail Act 1992

• the Magistrates Court Act 1930 (in particular ch 4A (The Childrens Court))

• the Supreme Court Act 1933

• the Court Procedures Act 2004 (in particular pt 7A (Procedural provisions—proceedings involving children or young people))

• the Crimes (Sentencing) Act 2005 (in particular ch 8A (Sentencing young offenders))

• the Crimes (Sentence Administration) Act 2005 (in particular ch 14A (Sentence administration—young offenders))

• the Crimes (Restorative Justice) Act 2004

(1) The criminal matters chapters apply to young offenders and young detainees who are adults in the same way as they apply to young offenders and young detainees who are under 18 years old.

(2) However, the following provisions apply only to young detainees who are under 18 years old:

(a) section 184 (2) (m) (Register of young detainees);

(b) section 254 (Strip searches of young detainees under 18 years old—no-one with parental responsibility available);

(c) section 266 (Body searches of young detainees under 18 years old—no-one with parental responsibility available).

(3) Also, certain requirements of the following provisions are different for young detainees who are under 18 years old and young detainees who are adults:

(a) section 112 (Transfer—notifying people responsible for or nominated by young detainees);

(b) section 156 (Detention—notifying people responsible for or nominated by young detainees);

(c) section 181 (Injury etc—notifying people responsible for or nominated by young detainees);

(d) section 206 (Notice of segregation directions—safe room and other);

(e) section 220 (Notice of decision about segregation direction);

(f) section 236 (Alcohol and drug testing of young detainees);

(g) section 250 (Notice of strip and body searches—person responsible for or nominated by young detainee);

(h) section 253 (Strip searches on admission to detention place);

(i) section 265 (People present at body searches).

(1) For the criminal matters chapters, in deciding what is in the best interests of a child or young person, a decision-maker must consider each of the following matters that is relevant (the youth justice principles):

(a) if a child or young person does something that is contrary to law, he or she should be encouraged to accept responsibility for the behaviour and be held accountable;

(b) a child or young person should be dealt with in a way that acknowledges his or her needs and that will provide the opportunity to develop in socially responsible ways;

(c) a child or young person should be consulted about, and be given the opportunity to take part in making, decisions that affect the child or young person, to the maximum extent possible taking into consideration their age, maturity and developmental capacity;

(d) if practicable and appropriate, decisions about an Aboriginal and Torres Strait Islander child or young person should be made in a way that involves their community;

(e) if a child or young person is charged with an offence, he or she should have prompt access to legal assistance, and any legal proceeding relating to the offence should begin as soon as possible;

(f) a child or young person may only be detained in custody for an offence (whether on arrest, on remand or under sentence) as a last resort and for the minimum time necessary;

(g) children, young people and other young offenders should be dealt with in the criminal law system in a way consistent with their age, maturity and developmental capacity and have at least the same rights and protection before the law as would adults in similar circumstances;

(h) on and after conviction, it is a high priority to give a young offender the opportunity to re-enter the community;

(i) it is a high priority that intervention with young offenders must promote their rehabilitation, and must be balanced with the rights of any victim of the young offender’s offence and the interests of the community.

(2) The decision-maker may also consider any other relevant matter.

(3) The youth justice principles are intended to be interpreted consistently with relevant human rights instruments and jurisprudence.

Convention on the Rights of the Child

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(4) A reference in subsection (1) to a child or young person includes a reference to a person who is at least 18 years old but is being dealt with in relation to an offence committed, or alleged to have been committed, when her or she was under 18 years old.

(1) A child or young person is a young detainee if—

(a) the child or young person is—

(i) in custody following arrest; or

(ii) remanded in custody under the Crimes (Sentence Administration) Act 2005; or

(iii) in detention under the Crimes (Sentencing) Act 2005; or

(iv) otherwise in custody or detention under this Act or another territory law or a law of the Commonwealth or a State; and

(b) the child or young person is required to be held in the chief executive’s custody.

(2) A person who is at least 18 years old but under 21 years old is a young detainee if any of the following apply to the person and the person is required to be held in the chief executive’s custody:

(a) the person is—

(i) in custody following arrest; or

(ii) remanded in custody under the Crimes (Sentence Administration) Act 2005; or

(iii) in detention under the Crimes (Sentencing) Act 2005;

for an offence committed, or allegedly committed, when the person was under 18 years old;

(b) the person is—

(i) in custody following arrest; or

(ii) remanded in custody under the Crimes (Sentence Administration) Act 2005;

for a breach, or alleged breach, of a sentencing order that is supervised by the chief executive;

(c) the person is otherwise in custody or detention under this Act or another territory law or a law of the Commonwealth or a State.

Note State includes the Northern Territory (see Legislation Act, dict, pt 1).

In the criminal matters chapters:

youth detention officer means an authorised person to whom the chief executive has delegated functions of a youth detention officer under the criminal matters chapters.

Note A person is an authorised person for this Act if the chief executive delegates a power under the Act to the person.

(1) The chief executive responsible for the administration of the Health Act 1993 must appoint a doctor (a treating doctor) for each detention place.

(2) The treating doctor’s functions are—

(a) to provide health services to young detainees; and

(b) to protect the health of young detainees (including preventing the spread of disease at detention places).

(3) A treating doctor appointed for a detention place must be available to provide health services at the detention place at least once each week.

(4) The treating doctor may give written directions to the chief executive for subsection (2) (b).

(5) The chief executive must ensure that each direction under subsection (4) is complied with unless the chief executive believes on reasonable grounds that compliance would undermine security or good order at the detention place.

(1) The chief executive may, orally or in writing, authorise a health professional (a non-treating health professional) to exercise non-treating functions under the criminal matters chapters.

Note Health professional includes a doctor and nurse registered under the Health Professionals Act 2004 (see dict).

(2) In this section:

non-treating function does not include a health service or other function mentioned in section 97.

(1) This section applies if it is necessary to transport a young detainee who is under 18 years old—

(a) from a detention place to a court; or

(b) from a court to a detention place.

(2) The young detainee must not be transported with an adult who is under detention.

(3) The young detainee must not be placed in a room with an adult who is under detention.

(1) This section applies if a young detainee who is under 18 years old has been transported—

(a) from a detention place to a court; or

(b) from a court to a detention place.

(2) The young detainee may be detained at the court—

(a) before a hearing relating to the young detainee; or

(b) after a hearing relating to the young detainee but before the young detainee is transported to the detention place.

(3) However, the young detainee must not be placed in a room with an adult who is under detention.

Note The Corrections Management Act 2007, s 33 (Detention in court cells) and s 33A (Detention in court cells—additional provisions for young detainees) also apply to young detainees.

(1) For the criminal matters chapters, the chief executive may give directions to an escort officer in relation to a young detainee, including directions to take the young detainee into custody or to a place stated in the direction.

(2) Without limiting the authority that may be given by a direction under subsection (1), the direction authorises the escort officer to have custody of, and deal with, the young detainee in accordance with the direction.

(1) This part is additional to, and does not limit, any other power of a court or other entity to require a young detainee or other child or young person to be brought before the court or entity.

(2) Without limiting subsection (1), the chief executive must arrange for a young detainee or child or young person in the chief executive’s custody to be brought before a court or other entity in accordance with any order or direction (however described) of the court or entity.

(1) This section applies if, under a law in force in the Territory (other than part 5.2 (Interstate transfers)), a young detainee required to be held in the chief executive’s custody is to be escorted anywhere by an escort officer.

(2) To remove any doubt—

(a) the escort officer is authorised to have custody of the young detainee for the purpose of escorting the young detainee; and

(b) the young detainee is also taken to be in the chief executive’s custody; and

(c) an escort officer may, for the purpose of escorting the young detainee, exercise any function under this Act that the officer may exercise in relation to a young detainee admitted at a detention place.

1 functions delegated to the officer by the chief executive (for example, giving directions to young detainees)

2 youth detention officer’s functions under ch 7 (Criminal matters—search and seizure at detention places), including any use of force in accordance with div 6.6.4

(1) This section applies if an arrested person—

(a) has not been released on bail; and

(b) is in police custody; and

(c) is required by law to be brought before a court or tribunal.

(2) A police officer may require an escort officer to bring the arrested person before the court or tribunal.

(3) The escort officer must bring the arrested person before the court or tribunal and, for that purpose, may—

(a) take the arrested person into custody; and

(b) arrange for the arrested person to be detained under this Act until the arrested person is brought before the court or tribunal.

(4) In this section:

arrested person means—

(a) a child or young person who is arrested; or

(b) someone else who is under 21 years old and is arrested in relation to an offence he or she is alleged to have committed when under 18 years old.

Subject to any order or direction of a court, an escort officer who is required to bring a young detainee to a court must, as far as practicable, ensure—

(a) the safe custody of the young detainee for the purposes of the proceeding; and

(b) that the young detainee does not obstruct or hinder the proceeding.

(1) The chief executive may make escort officers available to attend at a court or tribunal—

(a) to take a young detainee into custody; or

(b) to arrange for a young detainee be kept in custody; or

(c) to transfer or otherwise deal with a young detainee.

(2) An order or direction of the court or tribunal addressed to all escorts—

(a) is taken to be addressed to each escort; and

(b) may be executed by any escort.

To remove any doubt, this division is additional to, and does not limit, any other provision relating to the escorting of young detainees under a territory law or a law of the Commonwealth or a State.

1 the Crimes (Sentence Administration) Act 2005, pt 3.3 (Committal—miscellaneous)—

• s 20 (Directions to escort officers)

• s 21 (Orders to bring offender or remandee before court etc)

2 a law of a State relating to the escort of prisoners through the ACT

Note 1 State includes the Northern Territory (see Legislation Act, dict, pt 1).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) The chief executive may direct that a young detainee be transferred to a health facility at a detention place, or outside a detention place, if the chief executive believes on reasonable grounds that it is necessary or prudent for the young detainee to receive health services at the facility.

Note Health facility—see the dictionary.

(2) The chief executive must have regard to the advice of a treating doctor when considering whether to make a direction under subsection (1).

(3) The chief executive may direct an escort officer to escort the young detainee to or from the health facility, or while at the facility.

(4) The young detainee may be discharged from the health facility only if—

(a) the health professional in charge of the young detainee’s care approves the discharge; or

(b) the chief executive directs that the young detainee be removed from the facility.

where the young detainee is a danger to the safety of people at the facility

(5) The chief executive must have regard to the health of the young detainee when considering whether to make a direction under subsection (4).

(6) The chief executive may give a direction for ensuring that a young detainee discharged from a health facility under subsection (4) is returned to a detention place stated in the direction.

(7) A young detainee discharged from a health facility under subsection (4) may be discharged into the custody of the chief executive.

(8) For chapter 8 (Criminal matters—discipline at detention places), this section is taken to provide an entitlement for each young detainee in relation to health care.

This division applies to a young detainee serving a sentence of imprisonment or otherwise in custody at a detention place who is an adult.

(1) The chief executive may, on the chief executive’s own initiative or on application, direct that a young detainee to whom this division applies be transferred to a correctional centre.

(2) However, the chief executive must not give a direction under subsection (1) unless satisfied that the transfer is in the best interests of the young detainee or other young detainees.

(3) In deciding whether the transfer is in the best interests of the young detainee or other young detainees, the chief executive must consider the following:

(a) the young detainee’s views and wishes;

(b) the young detainee’s maturity and any known history;

(c) the young detainee’s developmental capacity;

(d) if the young detainee is serving a sentence—the time remaining to be served by the young detainee;

(e) the behaviour of the young detainee, particularly if it presents a risk to the safety of other young detainees or staff at the detention place;

(f) whether the young detainee is likely to be vulnerable in a correctional centre;

(g) the availability of services or programs appropriate for the young detainee at the correctional centre;

(h) whether the young detainee is more likely to be rehabilitated in the detention place or correctional centre.

(4) The chief executive may also consider any other relevant matter.

(5) If the chief executive gives a direction under this section for a young detainee, the chief executive may direct an escort officer to escort the young detainee from the detention place to the correctional centre.

(6) The young detainee must be dealt with as a detainee under the Corrections Management Act 2007 once the young detainee is taken to the correctional centre.

(1) A young detainee who is 21 years old or older cannot be detained at a detention place, but must be detained at a correctional centre.

(2) The chief executive must give the directions necessary to ensure that a young detainee at a detention place who turns 21 years old is transferred to a correctional centre.

(1) This section applies if a young detainee is transferred under—

(a) division 5.1.3 (Transfers to health facilities); or

(b) division 5.1.4 (Transfers of young detainees who become adults).

(2) If the young detainee is under 18 years old, the chief executive must take reasonable steps to tell someone who has daily care responsibility, or long-term care responsibility, for the young detainee about the transfer.

(3) If the chief executive and someone else share daily care responsibility, or long-term care responsibility, for the young detainee, the chief executive must act under subsection (2) in relation to the other person.

(4) If the young detainee is 18 years old or older, the chief executive must take reasonable steps to tell the young detainee’s nominated person about the transfer.

In this part:

Minister of a State means—

(a) for a State other than the Northern Territory—a Minister of the Crown of the State; or

(b) for the Northern Territory—a person holding ministerial office under the Northern Territory (Self-Government) Act 1978.

person responsible, for a young offender, means—

(a) a parent of the young offender or someone else who has daily care responsibility, or long-term care responsibility, for the young offender; or

(b) a person who has the care of the young offender, whether or not the person has parental responsibility (however described) for the young offender; or

(c) for a young offender who is detained—a person who had the care of the young offender before the young offender was detained, whether or not the person has, or had, parental responsibility (however described) for the young offender.

receiving State means the State to which a young offender is transferred.

sending State means the State from which a young offender is transferred.

transfer agreement—see section 114.

transfer arrangement—see section 115.

transfer escort means a person who is authorised under a transfer agreement, transfer arrangement or transfer order to take and keep custody of a young offender.

transfer order—see section 119.

young offender means a person who—

(a) has been convicted or found guilty of an offence by a court; and

(b) was under 18 years old when the offence was committed; and

(c) has been sentenced for the offence.

(1) The Minister may enter into an agreement (a transfer agreement) with a Minister of a State, or a person authorised to enter into a transfer arrangement for the Minister, providing generally for the transfer of young offenders—

(a) from or to the ACT; or

(b) through the ACT from a State to another State.

(2) A transfer agreement relating to a State must not be entered into unless a declaration under subsection (3) has been notified under the Legislation Act in relation to the State.

(3) The Minister may, in writing, declare that a State has enacted legislation dealing with the interstate transfer of young offenders.

(4) A declaration is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(1) If a transfer agreement with a Minister of a State is in force, the chief executive may make an arrangement (a transfer arrangement) with the Minister, or a person authorised to enter into a transfer arrangement for the Minister, for the transfer of a particular young offender—

(a) from the ACT to the State; or

(b) to the ACT from the State.

(2) The chief executive may also make a transfer arrangement with the Minister, or a person authorised to enter into a transfer arrangement for the Minister, to fix a mistake in a transfer arrangement.

(3) The chief executive may only make a transfer arrangement for a particular young offender from the ACT to a State in the circumstances mentioned in section 116.

(1) The chief executive may make a transfer arrangement for the transfer of a young offender from the ACT to a State—

(a) on application by the young offender or a person responsible for the young offender; or

(b) if the chief executive has daily care responsibility, or long-term care responsibility, for the young offender.

(2) However, the chief executive may only make a transfer arrangement for the transfer of a young offender from the ACT to a State if—

(a) the chief executive believes on reasonable grounds that the transfer is appropriate, having regard to all the circumstances, including—

(i) the place or intended place of residence of the parents of the young offender and other people (if any) who have daily care responsibility, or long-term care responsibility, for the young offender, or the young offender’s family members; and

(ii) the present and future education, training or employment of the young offender; and

(iii) the medical needs of the young offender; and

(iv) the safety, health and wellbeing of the young offender; and

(b) either—

(i) the young offender agrees to the transfer; or

(ii) the chief executive decides that the particular circumstances of the case indicate that the transfer should be arranged without the young offender’s agreement; and

(c) the young offender has been given independent legal advice about the effect of the transfer arrangement; and

(d) the chief executive is satisfied that there is no appeal pending against an order of a Childrens Court to which the young offender is subject.

(3) In deciding whether to arrange for the transfer of a young offender on an application under subsection (1) (a), the chief executive may ask the following people for relevant information:

(a) the young offender;

(b) a person responsible for the young offender.

(4) The chief executive may refuse to make a transfer arrangement if information asked for is not supplied within the time stated by the chief executive.

(5) The chief executive may make a transfer arrangement to transfer a young offender from the ACT to a State other than under subsection (1) if—

(a) the young offender is detained in a detention place; and

(b) the chief executive believes on reasonable grounds that the behaviour of the young offender in the detention place puts at risk the safety, health or wellbeing of other people detained in the detention place or of staff at the detention place; and

(c) the young offender has been given independent legal advice about the effect of the transfer arrangement; and

(d) the chief executive is satisfied that there is no appeal pending against an order of the Childrens Court to which the young offender is subject.

(6) This section does not apply to a transfer arrangement to fix a mistake.

A transfer arrangement for the transfer of a young offender from a State to the ACT may be made only if the chief executive is satisfied that there are adequate facilities in the ACT for the young offender to be accepted and dealt with as provided in the transfer arrangement.

(1) A transfer arrangement for the transfer of a young offender from or to the ACT must—

(a) be in writing; and

(b) provide for the acceptance of, and means of dealing with, the young offender in the receiving State; and

(c) state each order of a court of the sending State to which the young offender is subject (including an order required by a previous transfer arrangement with the Territory or with a State to be treated as having been made by a court of the sending State).

(2) For each order mentioned in subsection (1) (c), the transfer arrangement must state—

(a) the way that the order must operate in the receiving State, which must be as similar as possible to the way that it would operate in the sending State if the transfer arrangement were not made; and

(b) the maximum time for which the order may operate, which must not be longer than the maximum time for which it could operate in the sending State if the transfer arrangement were not made; and

(c) any entitlement of the young offender to a reduction in detention in the sending State and how that entitlement must operate in the receiving State, which must be as similar as possible to the way that it would operate in the sending State if the transfer arrangement were not made; and

(d) that a young offender who is subject to a nonprobation period may be treated as being subject to an equivalent nonparole period, if the laws of the receiving State do not provide for nonprobation periods.

(3) A reference in this section to an order of a court is a reference to a sentence, detention, probation, parole or other order, that could be made or imposed by the court.

(1) If the chief executive makes a transfer arrangement under this Act for the transfer of a young offender from the ACT to a State in the custody of a transfer escort, the chief executive must make a written order (a transfer order) that—

(a) directs the person who has custody of the young offender to deliver the young offender to the custody of the transfer escort; and

(b) authorises the transfer escort to take and keep custody of the young offender for the purpose of transferring the young offender to the place in the receiving State, and to the custody, mentioned in the transfer arrangement.

(2) The authority given to a transfer escort by a transfer order is given only to a transfer escort who is—

(a) a police officer; or

(b) a corrections officer; or

(c) a youth detention officer; or

(d) a person acting as a transfer escort with the approval of the chief executive.

If the chief executive makes a transfer arrangement under this Act for the transfer of a young offender from the ACT to a State in the custody of a transfer escort mentioned in section 119 (2), the young offender may be detained in a detention place until the young offender is delivered to the transfer escort.

(1) This section applies if, under a transfer arrangement for the transfer of a young offender to the ACT, a transfer escort authorised under the arrangement brings the young offender into the ACT.

(2) While in the ACT, the transfer escort is authorised to take and keep custody of the young offender to transfer the young offender to the place in the ACT, and to the custody, stated in the transfer arrangement.

(1) A transfer escort escorting a young offender under a transfer order may, to keep custody of the young offender under the order—

(a) give the young offender any direction that the transfer escort believes on reasonable grounds is necessary and reasonable; and

(b) use force in accordance with division 6.6.4 (Use of force).

(2) A transfer escort escorting a young offender under a transfer order may conduct a scanning search, frisk search or ordinary search of the young offender if the transfer escort suspects on reasonable grounds that the young offender may be carrying a prohibited thing.

(3) The following provisions apply, with any necessary changes and any changes prescribed by regulation, in relation to a search under this section:

(a) part 7.2 (Searches generally);

(b) part 7.3 (Scanning, frisk and ordinary searches);

(c) part 7.9 (Seizing property).

A person commits an offence if—

(a) an order sentencing the person to imprisonment has been made; and

(b) the person is in custody under a transfer arrangement made for the person’s transfer from the ACT to a State; and

(c) the person escapes from that custody while the person is not in the ACT or the receiving State.

Maximum penalty: imprisonment for 6 months.

(1) This section applies if a young offender is transferred from the ACT to a State under a transfer arrangement.

(2) From the time the young offender arrives in the State, a sentence imposed on, or order made in relation to, the young offender in the ACT before that time, ceases to have effect in the ACT except for—

(a) an appeal against or review of a conviction, judgment, sentence or order made, imposed or fixed by a Territory court; and

(b) taking into account a period of detention served before that time by the young offender or a reduction of the period of detention granted before that time; and

(c) taking into account anything done before that time by the young offender in carrying out the order; and

(d) allowing for a remittance of money to the Territory that is or has been paid in discharge or partial discharge of the sentence or order.

(1) This section applies if a young offender is transferred to the ACT from a State under a transfer arrangement.

(2) From the time the young offender arrives in the ACT—

(a) a sentence imposed on, or order made in relation to, the young offender by a court of the sending State and stated in the transfer arrangement must be considered as having been imposed or made by the Territory court stated in the transfer arrangement; and

(b) a sentence or order considered by a previous transfer arrangement with the Territory, or with a State, to have been imposed or made by a court of the sending State, which is a sentence or order stated in the transfer arrangement under which the young offender is transferred to the ACT, must be considered as having been imposed or made by the Territory court stated in the transfer arrangement; and

(c) a direction given or order made by a court of the sending State concerning the time when anything must be done under an order made by a court of that State is, as far as practicable, to be considered as having been given or made by the Territory court stated in the transfer arrangement.

(3) A sentence, order or direction has effect in the ACT as stated in the transfer arrangement and the laws of the Territory apply as if the Territory court stated in the transfer arrangement—

(a) had, at the relevant time, power to impose the sentence and to make or give the order or direction; and

(b) did in fact impose the sentence and make or give the order or direction when it was imposed, made or given.

The chief executive may receive, at a detention place, young offenders being transferred through the ACT from a State to another State under a transfer agreement.

(1) This section applies if a young offender is brought into the ACT by a transfer escort authorised by a transfer agreement to have custody of the young offender.

(2) While in the ACT, the transfer escort is authorised to take and keep custody of the young offender for the transfer.

(3) The chief executive may, at the request of the transfer escort and on receiving from the transfer escort written authority for the transfer of the young offender as provided in the transfer agreement—

(a) receive and detain the young offender at a detention place under the custody and for the time that the transfer escort requests, if reasonably necessary for the transfer; and

(b) at the end of that time, deliver the young offender into the custody of the transfer escort.

A young offender who escapes from the custody of a transfer escort while being transferred through the ACT from a State to another State by a transfer escort under a transfer agreement may be apprehended by a transfer escort or police officer without a warrant.

(1) This section applies if a young offender being transferred through the ACT from a State to another State in the custody of a transfer escort—

(a) escapes and is apprehended; or

(b) attempts to escape.

(2) The young offender may be taken before a magistrate and the magistrate may, by warrant, order the young offender to be detained in custody at a detention place.

(3) The warrant may be executed according to its terms.

(1) A young offender who is apprehended under a warrant under section 129 must, as soon as practicable, be brought before—

(a) if the young offender is 18 years old or older—the Magistrates Court; or

(b) in any other case—the Childrens Court.

(2) The Magistrates Court or Childrens Court may order that the young offender —

(a) be delivered to the custody of a transfer escort; or

(b) be detained for not longer than 7 days until a transfer escort is available from the sending State to carry out the transfer arrangement or an order made by a court of the State.

(3) If a young offender who is the subject of an order made by a magistrate is not, under the order, delivered into the custody of a transfer escort before the end of 7 days after the day the order is made, the order has no further effect.

(4) If an order ceases to have further effect under subsection (3), a further order may be made under subsection (2).

(5) In this section:

transfer escort, for a young offender being transferred through the ACT from a State to another State under a transfer agreement, means—

(a) the transfer escort authorised by the transfer agreement to have custody of the young offender; or

(b) if the young offender has escaped or attempted to escape—1 or more of the following people:

(i) the transfer escort;

(ii) a police officer of the sending State;

(iii) a person appointed in writing by the Minister of the sending State, or a person authorised to enter into a transfer arrangement for that Minister, to be a transfer escort to carry out an order of a court of the sending State.

(1) A transfer escort or police officer may apply to a magistrate for a search warrant if the transfer escort or police officer believes on reasonable grounds that a young offender who has escaped from the custody of a transfer escort while being transferred through the ACT from a State to another State under a transfer agreement is at premises.

(2) The magistrate may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising the person named in the warrant with the assistance, and with the force, that is necessary and reasonable to—

(a) enter stated premises; and

(b) inspect the premises for evidence of the young offender who has escaped from custody; and

(c) observe and converse with a person apparently living there; and

(d) apprehend the young offender at the premises.

(3) A warrant issued under this section must state—

(a) why the warrant is issued, including the name and description of the young offender for whom entry and search are authorised; and

(b) whether entry is authorised to be made at any time of the day or night or during stated hours of the day or night; and

(c) a date, not being later than 14 days after the date of issue of the warrant, on which the warrant ceases to have effect.

(4) A police officer may—

(a) accompany a transfer escort executing a search warrant issued under this section; and

(b) take all reasonable steps to assist in the apprehension of the young offender at the premises.

(5) In this section:

transfer escort means the transfer escort authorised by the transfer agreement to have custody of the young offender.

(1) The Childrens Court may, on application by the chief executive, revoke a transfer order in relation to a young offender if the young offender has, while being transferred, committed—

(a) the offence of escaping or attempting to escape; or

(b) another offence.

(2) This section applies whether or not—

(a) the offence was an offence against a law of—

(i) the Territory; or

(ii) the receiving State; or

(iii) a State through which the young offender was being transferred; or

(b) an information has been laid for the offence; or

(c) a conviction has been recorded for the offence.

(1) The chief executive may revoke a transfer order in relation to a young offender at any time before the young offender is delivered in the receiving State into the custody stated in the transfer arrangement for the young offender.

(2) If the chief executive revokes a transfer order, the chief executive may make a further transfer arrangement with the receiving State for the return of the young offender to the ACT.

(1) In forming an opinion or exercising a discretion under this part, the chief executive may—

(a) be informed as the chief executive considers appropriate; and

(b) consider reports from—

(i) a person responsible for a young offender in the ACT or a State; or

(ii) a person who has had the custody, care or supervision of a young offender in the ACT or a State.

(2) A report that relates to an ACT young offender may be sent to a Minister of a State who has entered into a transfer agreement, or on whose behalf a transfer agreement has been entered into, or to a person authorised under a transfer agreement to make transfer arrangements with the chief executive.

This chapter applies to young detainees.

Note Young detainee—see s 95.

In this chapter:

accredited person, in relation to a young detainee, means each of the following:

(a) the chief executive if the chief executive is a person who has daily care responsibility, or long-term care responsibility, for the young detainee;

(b) a representative, approved by the chief executive, of an entity providing a service or program to the young detainee at a detention place;

(c) a lawyer representing the young detainee;

(d) an official visitor;

(e) a commissioner exercising functions under the Human Rights Commission Act 2005;

(f) the public advocate;

(g) the ombudsman;

(h) a person prescribed by regulation.

case management plan, for a young detainee, means the young detainee’s case management plan maintained under section 187.

non-treating doctor means a doctor authorised under section 98 (Health professionals—non-treating functions).

prohibited thing means a thing declared to be a prohibited thing under section 147.

register of young detainees means the register kept under section 184.

security classification, for a young detainee, means the young detainee’s security classification under section 189.

visiting conditions, at a detention place, means conditions declared under section 227 in relation to the place.

visitor, in relation to a detention place, includes a person wishing to enter the place as a visitor.

young remandee means—

(a) a child or young person remanded in custody under the Crimes (Sentence Administration) Act 2005; or

(b) a person who is at least 18 years old but under 21 years old and is remanded in custody under the Crimes (Sentence Administration) Act 2005.

youth detention policy means a youth detention policy made by the chief executive under section 142.

Functions under the criminal matters chapters in relation to a young detainee must be exercised as follows:

(a) to respect and protect the young detainee’s human rights;

(b) to ensure the young detainee’s decent, humane and just treatment;

(c) to preclude torture or cruel, inhuman or degrading treatment;

(d) to ensure the young detainee is not subject to further punishment (in addition to deprivation of liberty) only because of the conditions of detention;

(e) to ensure the young detainee’s conditions in detention comply with section 140 (Detention places—minimum living conditions);

(f) to promote, as far as practicable, the young detainee’s reintegration into society;

(g) for a young detainee who is a young offender—to promote, as far as practicable, the young detainee’s rehabilitation.

(1) Functions under the criminal matters chapters in relation to a young remandee must also be exercised to recognise and respect that—

(a) the young remandee must be presumed innocent of any offence for which the young remandee is remanded in custody; and

(b) the detention is not imposed as punishment of the young remandee.

(2) Subsection (1) does not apply if the young remandee—

(a) has been convicted or found guilty of the offence for which the young remandee is detained; or

(b) is under a sentence of imprisonment in relation to another offence.

a convicted young person remanded in custody for sentencing

(1) This section applies to a young detainee (other than a sentenced young offender or young remandee) while the young detainee is required to be held in custody or detention under a territory law or a law of the Commonwealth, a State or another Territory.

(2) Functions under the criminal matters chapters in relation to the young detainee must be exercised to recognise and respect the purpose for which the young detainee is held in custody or detention.

(3) The criminal matters chapters apply in relation to the young detainee, with any changes prescribed by regulation.

(1) To protect the human rights of young detainees in detention at detention places, the chief executive must ensure, as far as practicable (including during any emergency declared under section 148), that conditions at detention places meet at least the following minimum standards:

(a) young detainees must have access to sufficient nutritional food and drink to avoid hunger and poor nourishment;

(b) young detainees must have access to sufficient suitable clothing that does not degrade or humiliate young detainees;

(c) young detainees must have access to suitable facilities for personal hygiene;

(d) young detainees must have suitable accommodation and bedding for sleeping in reasonable privacy and comfort;

(e) young detainees must have reasonable access to the open air and exercise;

(f) young detainees must have reasonable access to telephone, mail and other facilities for communicating with people in the community;

(g) young detainees must have reasonable opportunities to receive visits from family members, significant people and accredited people;

(h) young detainees must have reasonable opportunities to communicate with their lawyers;

(i) young detainees must have reasonable access to news and education services and facilities to maintain contact with society;

(j) young detainees must have access to suitable health services and health facilities;

(k) young detainees must have reasonable opportunities for religious, spiritual and cultural observances.

observances and practices relating to religious or spiritual beliefs, including Aboriginal and Torres Strait Islander spiritual beliefs

(2) Part 6.5 applies to living conditions at detention places.

(1) The Minister may declare a place to be a detention place.

(2) A declaration is a notifiable instrument.

the declaration of a place, including a buffer zone surrounding a secure perimeter, to be a detention place

Note 1 A notifiable instrument must be notified under the Legislation Act.

Note 2 The power to make an instrument includes power to make different provisions in relation to different matters or different classes of matters, and provisions that apply differently by reference to stated exceptions or factors (see Legislation Act, s 48.)

Note 3 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(3) For the Smoking (Prohibition in Enclosed Public Places) Act 2003, a detention place is a public place.

(1) The chief executive may make youth detention policies and operating procedures, consistent with this Act, to facilitate the effective and efficient management of detention services for young detainees.

(2) Each youth detention policy or operating procedure is a notifiable instrument.

Note 1 A notifiable instrument must be notified under the Legislation Act.

Note 2 The amendment or repeal of a youth detention policy or operating procedure is also a notifiable instrument. See the Legislation Act, s 46 (Power to make instrument includes power to amend or repeal).

(3) Each youth detention policy and operating procedure—

(a) must be available for inspection by anyone at each detention place; and

(b) may be made available for inspection at any other place decided by the chief executive.

(1) The chief executive may exclude from a youth detention policy or operating procedure notified or available for inspection in accordance with section 142 any matter that the chief executive believes on reasonable grounds would be likely to disclose—

(a) information that may endanger public safety or security or good order at a detention place; or

(b) anything prescribed by regulation.

(2) If subsection (1) applies to a youth detention policy or operating procedure—

(a) the policy or procedure must contain a statement about the effect of this section; and

(b) the excluded matter must be available for inspection, on request, by any of the following:

(i) a judge;

(ii) a magistrate;

(iii) a member of the Legislative Assembly;

(iv) a commissioner exercising functions under the Human Rights Commission Act 2005;

(v) the public advocate;

(vi) the ombudsman;

(vii) an official visitor;

(viii) anyone to whom this section applies because of a declaration under subsection (3).

(3) The Minister may declare that this section applies to a stated person.

(4) A declaration is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

The chief executive must ensure copies of the following are available for inspection by young detainees at each detention place:

(a) this Act;

(b) youth detention policies and operating procedures available under section 142.

(1) The chief executive may give reasonable directions in relation to a young detainee about anything related to the criminal matters chapters.

(2) Without limiting subsection (1), the chief executive may give a direction that the chief executive considers necessary and reasonable in relation to any of the following:

(a) the wellbeing or safety of the young detainee or anyone else;

(b) security or good order at a detention place;

(c) ensuring compliance with any requirement under this Act or another territory law.

(3) A direction may be given orally or in writing, and may apply to a particular young detainee or 2 or more young detainees.

(4) A direction by the chief executive under this Act, or anything done under the direction, is not invalid because of a defect or irregularity in or in relation to the direction.

(1) The chief executive may, in writing, declare an area of a detention place to be a prohibited area if the chief executive believes on reasonable grounds that the declaration is necessary or prudent to ensure 1 or more of the following:

(a) the safety of anyone at the detention place;

(b) security or good order at a detention place;

(c) that the best interests of detainees are protected.

Note The power to make an instrument includes power to make different provisions in relation to different matters or different classes of matters, and provisions that apply differently by reference to stated exceptions or factors (see Legislation Act, s 48.)

(2) As soon as practicable after the chief executive declares an area of a detention place to be a prohibited area, the chief executive must ensure that each detainee to whom the prohibition applies is told about the prohibited area.

(1) The chief executive may declare a thing to be a prohibited thing if the chief executive believes on reasonable grounds that the declaration is necessary or prudent to ensure security or good order at a detention place.

1 a weapon or something crafted as a weapon

2 alcohol

3 a controlled drug under the Criminal Code

4 a mobile phone

Note 1 The power to make an instrument includes power to make different provisions in relation to different matters or different classes of matters, and provisions that apply differently by reference to stated exceptions or factors (see Legislation Act, s 48.)

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) A declaration is a notifiable instrument.

Note A notifiable instrument must be notified under the Legislation Act.

(1) This section applies if the chief executive believes on reasonable grounds that an emergency (including an imminent emergency) exists in relation to a detention place that threatens or is likely to threaten—

(a) good order or security at the place; or

(b) the safety of anyone at the place or elsewhere.

(2) The chief executive may declare that an emergency exists in relation to the detention place for a stated period of not more than—

(a) 3 days; or

(b) if another period is prescribed by regulation—the period prescribed.

(3) To remove any doubt, the chief executive may make declarations for 2 or more consecutive periods under this section in relation to the same emergency.

(4) A declaration commences—

(a) when it is made; or

(b) if it provides for a later commencement—on that later commencement.

(5) The first declaration in relation to an emergency is a notifiable instrument.

(6) A declaration for a second or subsequent consecutive period in relation to the same emergency is a disallowable instrument.

(7) An instrument under subsection (5) or (6) must be notified under the Legislation Act not later than the day after the day it is made.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

(1) While an emergency is declared under section 148 in relation to a detention place, the chief executive may do 1 or more of the following:

(a) restrict any activity at the place;

(b) restrict access in, or to or from, the place or any part of the place;

(c) restrict communications between a young detainee and anyone else;

(d) authorise a police officer or public servant to exercise any function exercisable by a youth detention officer under the criminal matters chapters in accordance with any direction by the chief executive.

(2) The chief executive must ensure that action taken under this section is necessary and reasonable in the circumstances.

Note Section 140 (Detention places—minimum living conditions) continues to apply during an emergency (see s 140 (1)).

(1) The chief executive may make arrangements with the chief police officer for police assistance in relation to the administration of the criminal matters chapters.

(2) Subject to any arrangement under this section, the chief police officer must comply, as far as practicable, with any request by the chief executive for police assistance mentioned in subsection (1).

(3) A police officer providing assistance under this section may exercise any function exercisable by a youth detention officer under the criminal matters chapters in accordance with any direction by the chief executive.

(1) The chief executive may ask another chief executive for assistance in relation to the exercise of functions under the criminal matters chapters.

1 development of a case management plan for a young detainee under s 187

2 provision of an assessment or advice in relation to a health, education or other matter

3 arrangements for search dogs

4 escorting a young detainee to and from court or leave

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) The chief executive must comply with the request as far as practicable.

(1) This section applies to each of the following:

(a) a judge;

(b) a magistrate;

(c) a member of the Legislative Assembly;

(d) a commissioner exercising functions under the Human Rights Commission Act 2005;

(e) the public advocate;

(f) the ombudsman.

Note Official visitors must inspect detention places (see s 39).

(2) A person mentioned in subsection (1) may, at any reasonable time, enter and inspect—

(a) a detention place; or

(b) a place outside a detention place where a detainee is, or has been, directed to work or participate in an activity.

a time when an emergency declaration is in force

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) The criminal matters chapters must be construed and administered in a way that is consistent with an inspection law unless the contrary intention appears from this Act or that law.

(2) The criminal matters chapters are taken to be consistent with an inspection law to the extent that they are capable of operating concurrently with that law.

(3) The chief executive may make arrangements with a person responsible for the exercise of functions under an inspection law to ensure, as far as practicable, the safety of an inspector (however described) or anyone else affected by the exercise of the function in relation to a young detainee or detention place.

(4) A person exercising a function under an inspection law in relation to a young detainee or detention place must exercise the function in accordance with any reasonable direction by the chief executive in relation to—

(a) the safety of anyone at the detention place; or

(b) security or good order at the detention place.

(5) In this section:

inspection law means an Act that provides for the entry and inspection of premises, or the search of people or premises.

• Crimes Act 1900

• Emergencies Act 2004

• Food Act 2001

• Public Health Act 1997

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

In this part:

admission, of a young detainee to a detention place, means admission of the young detainee to the place for detention.

(1) A young detainee must not be admitted to, or detained at, a detention place unless the detention is authorised by a warrant or other authority (however described), under a territory law or a law of the Commonwealth or a State.

1 a young detainee refused bail by an authorised person under the Bail Act 1992

2 a young detainee in immigration detention under the Migration Act 1958 (Cwlth)

3 an interstate young detainee on leave in the ACT held in custody overnight

Note 1 State includes the Northern Territory (see Legislation Act, dict, pt 1).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) Before a young detainee is admitted to a detention place, the chief executive must be given the warrant or other authority for the detention.

(3) The validity of a young detainee’s detention at a detention place is not affected by a defect or irregularity in or in relation to the warrant or the evidence of other authority for the detention.

(1) If a young detainee who is under 18 years old is detained at a detention place, the chief executive must take reasonable steps to tell someone who has daily care responsibility, or long-term care responsibility, for the young detainee about—

(a) the young detainee’s admission to a detention place; and

(b) if the young detainee is required to appear before a court or tribunal—the time and place of each appearance.

(2) If the chief executive and someone else share daily care responsibility, or long-term care responsibility, for the young detainee, the chief executive must act under subsection (1) in relation to the other person.

(3) If a young detainee who is 18 years old or older is detained at a detention place, the chief executive must take reasonable steps to tell the young detainee’s nominated person about the matters mentioned in subsection (1) (a) and (b).

(1) For the identification of a young detainee admitted to a detention place, the chief executive may direct that all or any of the following be taken of or from the young detainee:

(a) prints of the young detainee’s hands or fingers;

(b) a photograph or video recording;

(c) a buccal swab or saliva sample;

(d) anything else prescribed by regulation.

(2) Anything taken from a young detainee under subsection (1) must be destroyed if—

(a) the young detainee is found not guilty of any offence to which the detention relates, other than on the ground of unsoundness of mind; or

(b) a proceeding for any offence to which the detention relates is discontinued or dismissed.

(3) However, subsection (2) does not apply if, for any part of the period of detention for an offence, the young detainee was also being detained for another offence—

(a) of which the young detainee has been convicted; or

(b) for which a proceeding (including any appeal proceeding) is still pending.

Note The Crimes (Forensic Procedures) Act 2000 includes provision for carrying out forensic procedures on people in custody. See particularly pt 2.7 (Carrying out of certain forensic procedures after conviction of serious offenders).

(1) As soon as practicable after a young detainee is admitted to a detention place, the chief executive must take reasonable steps to explain the following to the young detainee:

(a) the young detainee’s entitlements and obligations under this Act;

(b) the case management plan arrangements;

(c) the role of official visitors;

(d) the procedures for seeking information and making complaints to official visitors;

(e) which areas of the detention place are prohibited areas;

(f) if the young detainee is a national of a foreign country—that the young detainee may ask the chief executive to tell a diplomatic or consular representative of the country about the detention;

(g) anything else the chief executive considers necessary or desirable.

1 youth detention policies and operating procedures relevant to the young detainee

2 the scope and effect of the chief executive’s directions

(2) The explanation under subsection (1)—

(a) may be in general terms; and

(b) as far as practicable, must be in language the young detainee can readily understand.

(3) The chief executive must arrange for the assistance of an interpreter in complying with subsection (1) or (2) if the chief executive believes on reasonable grounds that the young detainee is unable, because of inadequate knowledge of the English language or a disability, to communicate with reasonable fluency in English.

(4) Without limiting subsection (3), the assistance of the interpreter may be provided by telephone.

(5) The chief executive must tell a diplomatic or consular representative of a foreign country about the detention of a national of that country, if asked by the young detainee or if the chief executive, after making reasonable inquiries, considers it in the best interests of the young detainee to do so.

(1) The chief executive must ensure that—

(a) each young detainee admitted to a detention place is assessed as soon as practicable, and in any event within 24 hours after admission, to identify any immediate—

(i) physical or mental health needs or risks (including any risk of self-harm); and

(ii) safety or security needs or risks; and

(b) any needs and risks identified by the assessment are addressed.

Note For an initial assessment, the chief executive may direct a youth detention officer to strip search a young detainee (see s 253).

(2) In particular, the chief executive must ensure that any ongoing needs and risks are addressed in the young detainee’s case management plan (if any).

(1) The assessment under section 159 of a young detainee’s physical health needs and risks must be made by a treating doctor or a nurse.

(2) The assessment under section 159 of a young detainee’s mental health needs and risks may be made by a treating doctor, a nurse or another suitable health professional.

Note The Mental Health (Treatment and Care) Act 1994 also includes provision for assessment orders, and emergency detention and care, under that Act.

(3) An assessment under section 159 made by a health professional other than a treating doctor must be reviewed by a treating doctor.

(4) A treating doctor who makes an assessment or reviews an assessment made under section 159 must give a report of the assessment to the chief executive.

(1) For an assessment under section 159, the chief executive may direct the young detainee, orally or in writing, to provide a test sample.

(2) Division 6.7.2 (Alcohol and drug testing—detainees) applies in relation to the direction and any sample given under the direction.

The chief executive must arrange for a young detainee to be given a security classification under section 189 (Security classification—basis etc) as soon as practicable after the young detainee’s admission to a detention place.

(1) The chief executive must arrange for a case management plan to be prepared for a young detainee (other than a young remandee) as soon as practicable after the young detainee’s admission to a detention place.

(2) The chief executive may prepare a case management plan for a young detainee at a detention place who is a young remandee.

Note The scope of case management plans, and the criteria for deciding whether to maintain one for a young remandee, are set out in s 187.

The chief executive must ensure that details of each young detainee admitted to a detention place are entered in the register of young detainees on the young detainee’s admission to the detention place.

Note The chief executive must keep a register of young detainees at a detention place (see s 184).

(1) A youth detention policy or operating procedure may make provision, consistent with this section, in relation to the placement and separation of young detainees, including separation for—

(a) use of facilities; and

(b) participation in education or other activities.

(2) In placing a young detainee, the chief executive must ensure that—

(a) young remandees are segregated from other young detainees; and

(b) male young detainees are segregated from female young detainees; and

(c) a young detainee who is under 18 years old is not placed with an adult.

(3) Subsection (2) does not apply if the chief executive believes on reasonable grounds that another placement will be in the best interests of all affected detainees.

(4) When deciding where to place a young detainee, the chief executive must consider the following:

(a) the needs and special requirements of the young detainee because of the young detainee’s age, sex, emotional or psychological state, physical health, cultural background, vulnerability or any other relevant matter;

(b) if it is proposed that a young detainee be isolated in detention, whether the isolation is in the best interests of the young detainee;

(c) the desirability of the care provided to a young detainee being suited to the particular needs of the young detainee in order to protect the young detainee’s physical and emotional wellbeing;

(d) that it is in the best interests of young detainees to be separated from co-offenders.

(5) When deciding where to place a young detainee, the chief executive may also consider any security classification given to the young detainee under section 162.

Anything expressed in this part to be an entitlement for ch 8 (Criminal matters—discipline at detention places) is not affected by anything that happens under that chapter.

(1) The chief executive must ensure that—

(a) sufficient nutritional food and drink are provided for young detainees to avoid hunger and poor nourishment; and

(b) meals are provided for young detainees at times consistent with the cultural norms of Australia; and

(c) clean drinking water is provided to meet the needs of young detainees.

(2) The chief executive must also ensure, as far as practicable, that allowance is made for the religious, spiritual and cultural needs of young detainees in relation to the provision of food and drink.

(3) If a doctor (other than a non-treating doctor) prescribes a particular diet for a young detainee, the chief executive must ensure that reasonable steps are taken to provide the young detainee with that diet.

(4) A youth detention policy or operating procedure may include provision for any of the following:

(a) the nutritional standards to be met by food and drink for young detainees;

(b) the provision of nutritional advice about food and drink provided to young detainees;

(c) the appointment of a nutritionist.

(5) For chapter 8, a young detainee’s entitlement in relation to food and drink includes anything expressed to be an entitlement in a youth detention policy or operating procedure made for subsection (4).

(1) The chief executive must ensure that—

(a) sufficient suitable clothing is provided for young detainees; and

(b) any particular clothing, including a uniform, issued to young detainees is not likely to degrade or humiliate young detainees.

(2) The chief executive must also ensure, as far as practicable, that clothing provided for young detainees is clean and hygienic.

(3) For chapter 8, this section is taken to provide an entitlement for each young detainee in relation to clothing.

(1) The chief executive must ensure that—

(a) toilet facilities and washing or showering facilities are available to young detainees; and

(b) the facilities are clean, hygienic and private enough to ensure the dignity and self-respect of young detainees.

(2) For chapter 8, this section is taken to provide an entitlement for each young detainee in relation to personal hygiene.

(1) The chief executive must ensure that—

(a) young detainees have sleeping places, with beds and bedding, suitable to provide reasonable privacy and comfort; and

(b) sleeping places, including beds and bedding, are clean and hygienic.

(2) For chapter 8, this section is taken to provide an entitlement for each young detainee in relation to sleeping areas.

(1) Without limiting section 142 (Youth detention policies and operating procedures), the chief executive must make a youth detention policy or operating procedure providing for different treatment of convicted young detainees and non-convicted young detainees.

a youth detention policy or operating procedure, in accordance with the United Nations Rules for the Protection of Juveniles Deprived of Liberty, for non-convicted young detainees to:

• be provided, if possible, with opportunities to pursue work with remuneration and to continue education and training (r 18)

• receive and retain materials for their leisure and recreation that are compatible with the interests of the administration of justice (r 18)

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) For chapter 8, a young detainee’s entitlement in relation to treatment in detention includes anything expressed to be an entitlement in a youth detention policy or operating procedure made for subsection (1).

(3) In this section:

convicted young detainee means a young detainee whose detention is because of the young detainee’s conviction for an offence.

(1) The chief executive must ensure, as far as practicable, that young detainees—

(a) have access to the open air for at least 2 hours each day; and

(b) can exercise for at least 2 hours each day.

(2) The standards under subsection (1) may both be satisfied during the same 2 hours on any day.

(3) For chapter 8, this section is taken to provide an entitlement for each young detainee in relation to access to the open air and exercise.

(1) The chief executive must ensure, as far as practicable, that adequate opportunities are provided for young detainees to be able to remain in contact with family members, friends, associates and others by telephone calls, mail and visits.

(2) For subsection (1), the chief executive must have regard, in addition to any other relevant matter, to whether the young detainee’s detention is for a reason other than conviction for an offence.

(3) The chief executive must also ensure that the overall treatment of a young detainee, including any segregation or disciplinary action, does not unreasonably deprive the young detainee generally of all communication with other people.

(4) In particular, the chief executive must ensure that the overall treatment of a young detainee does not deprive the young detainee generally of all communication with any of the following:

(a) the courts;

(b) accredited people;

(c) a doctor of the young detainee’s choice for health services;

(d) family members;

(e) other people with whom the young detainee may communicate under the criminal matters chapters.

(5) For chapter 8, subsections (1) to (4) are taken to provide an entitlement for each young detainee in relation to communication generally with other people.

(6) However, this section is subject to the following:

(a) section 173 (Telephone calls);

(b) section 174 (Mail);

(c) section 176 (Visits by family members etc);

(d) section 177 (Contact with accredited people).

(1) The chief executive must ensure that each detention place has telephone facilities for young detainees to make and receive telephone calls.

(2) A young detainee may make—

(a) 1 telephone call on admission to a detention place; and

(b) 2 telephone calls each week to a family member or a significant person.

(3) A young detainee may also make and receive further telephone calls for necessary contact with a family member, significant person, friend or associate.

(4) The chief executive must pay for telephone calls made by a young detainee unless the chief executive believes on reasonable grounds that it is appropriate for the young detainee to pay for the calls.

(5) For chapter 8, subsections (2) and (3) are taken to provide entitlements for each young detainee in relation to telephone calls.

(6) However, the chief executive may give directions denying or limiting the use of a telephone by a young detainee for a call mentioned in subsection (2) or (3) if the chief executive suspects on reasonable grounds that—

(a) the call may—

(i) undermine security or good order at a detention place; or

(ii) revictimise a victim; or

(iii) circumvent any process for investigating complaints or reviewing decisions under this Act; or

(iv) have the purpose of causing community distress; or

(v) cause harm to the young detainee; or

(b) the direction is necessary and reasonable to safeguard the best interests of the young detainee.

(7) Also, subsections (2) and (3) are subject to—

(a) section 199 (Monitoring telephone calls etc); and

(b) any operating procedure mentioned in subsection (8).

(8) An operating procedure may include provision regulating the following in relation to young detainees’ telephone calls:

(a) the times for making or receiving calls;

(b) the frequency and length of calls;

(c) payment for the cost of calls made.

(1) The chief executive must ensure, as far as practicable, that young detainees can send and receive as much mail as they wish.

(2) A young detainee may send mail to, and receive mail from any family member, significant person or other person nominated by the young detainee by written notice given to the chief executive.

(3) For chapter 8, subsection (2) is taken to provide entitlements for each young detainee in relation to mail.

(4) However, the chief executive may give directions denying or limiting the sending or receiving of mail by a young detainee if the chief executive suspects on reasonable grounds that—

(a) the mail may—

(i) undermine security or good order at a detention place; or

(ii) revictimise a victim; or

(iii) circumvent any process for investigating complaints or reviewing decisions under this Act; or

(iv) have the purpose of causing community distress; or

(v) cause harm to the young detainee; or

(b) the direction is necessary and reasonable to safeguard the best interests of the young detainee.

(5) Also, subsections (1) and (2) are subject to—

(a) section 200 (Monitoring ordinary mail); and

(b) section 201 (Monitoring protected mail); and

(c) any operating procedure mentioned in subsection (6).

(6) An operating procedure may include provision regulating the following in relation to young detainees’ mail:

(a) the way mail is sent or received;

(b) the provision of writing and other material for sending mail;

(c) the storage, and return to the detainee, of mail for which a direction is given under subsection (4).

(1) The chief executive must ensure, as far as practicable, that young detainees have reasonable access to—

(a) newspapers, radio and television broadcasts and other mass media (including the internet) for news and information; and

(b) a library or library service; and

(c) education or training designed to meet the young detainee’s individual needs.

(2) The chief executive must, as part of a young detainee’s case management plan, approve a young detainee participating in academic, vocational or cultural education or training if satisfied it would benefit the young detainee in any of the following ways:

(a) by providing the young detainee with suitable vocational skills;

(b) by promoting the young detainee’s rehabilitation or reintegration into society;

(c) by contributing satisfactorily to the young detainee’s personal development.

(3) For chapter 8, participation in education or training approved under subsection (2) is taken to be an entitlement for the young detainee in relation to news and education.

(1) The chief executive must ensure that each detention place has suitable facilities for young detainees to receive visits from family members and significant people.

(2) One family member or significant person may visit a young detainee for at least 1 hour each week.

Note A young detainee has a right to reasonable opportunities to receive visits from family members and significant people (see s 140 (1) (g)).

(3) For chapter 8, subsection (2) is taken to provide an entitlement for each young detainee in relation to visits by family members.

(4) However, the chief executive may give directions denying or limiting a visit mentioned in subsection (2) if the chief executive suspects on reasonable grounds that—

(a) the visit may—

(i) undermine security or good order at a detention place; or

(ii) revictimise a victim; or

(iii) circumvent any process for investigating complaints or reviewing decisions under this Act; or

(iv) have the purpose of causing community distress; or

(v) cause harm to the young detainee; or

(b) the direction is necessary and reasonable to safeguard the best interests of the young detainee.

(5) Also, this section is subject to division 6.6.5 (Access to detention places).

(1) The chief executive must ensure that a young detainee has adequate opportunities for contact with an accredited person, whether by telephone or mail or by a visit by an accredited person.

Note Accredited person—see s 136.

(2) For chapter 8, subsection (1) is taken to provide an entitlement for each young detainee in relation to contact with an accredited person.

(3) However, the chief executive may give directions denying or limiting a young detainee’s contact with an accredited person if the chief executive suspects on reasonable grounds that the contact may—

(a) undermine security or good order at a detention place; or

(b) circumvent any process for investigating complaints or reviewing decisions under this Act.

(4) Also, this section is subject to division 6.6.5 (Access to detention places).

The chief executive must not listen to, or record, a communication at a visit between a young detainee and any of the following people:

(a) a lawyer representing the young detainee;

(b) an official visitor;

(c) a commissioner exercising functions under the Human Rights Commission Act 2005;

(d) the public advocate;

(e) the ombudsman;

(f) a person prescribed by regulation.

Note 1 Electronic communications between a young detainee and a person mentioned in this section must not be monitored, see s 199.

Note 2 For restrictions on monitoring mail between a young detainee and a person mentioned in this section, see s 201.

(1) The chief executive must ensure that—

(a) young detainees have a standard of health care equivalent to that available to other people in the ACT; and

(b) arrangements are made to ensure the provision of appropriate health services for young detainees; and

(c) conditions in detention promote the health and wellbeing of young detainees; and

(d) as far as practicable, young detainees are not exposed to risks of infection.

Note The chief executive may direct that a young detainee be transferred to a health facility (see s 108).

(2) In particular, the chief executive must ensure that young detainees have access to—

(a) regular health checks; and

(b) timely treatment where necessary, particularly in urgent circumstances; and

(c) hospital care where necessary; and

(d) as far as practicable—

(i) specialist health services from health professionals; and

(ii) necessary health care programs, including rehabilitation programs.

Note The chief executive may also ask for a health report about a young detainee (see s 185).

(3) For chapter 8, subsections (1) and (2) are taken to provide an entitlement for each young detainee in relation to health care.

(4) A regulation may make provision in relation to health services for young detainees, including provision about the following:

(a) the provision of health service clinics for young detainees;

(b) appointments for young detainees with health professionals;

(c) rehabilitation for young detainees who suffer personal injury arising out of or in the course of their detention;

(d) security arrangements for young detainees visiting health professionals or health facilities, particularly outside detention places.

(5) For chapter 8, a young detainee’s entitlement in relation to health care includes anything expressed to be an entitlement in a regulation made for subsection (4).

(1) This section applies if—

(a) a young detainee is a child or young person; and

(b) the young detainee needs medical treatment that requires the consent of a person who has daily care responsibility for the young detainee; and

(c) the chief executive does not have daily care responsibility for the young detainee; and

(d) despite reasonable inquiries, the chief executive is unable to locate a person who has daily care responsibility for the young detainee.

(2) The chief executive may consent to medical treatment for the young detainee if delaying the treatment until a person who has daily care responsibility for the young detainee can be located would be detrimental to the young detainee’s health.

(3) To remove any doubt, this section does not affect any right of a child or young person to consent to their own health care treatment.

(1) This section applies if a young detainee has a condition that requires—

(a) clinical care for not less than 24 hours; or

(b) the young detainee’s transfer under section 108 (Transfers to health facilities); or

(c) anything else prescribed by regulation.

(2) If the young detainee is under 18 years old, the chief executive must take reasonable steps to tell a person who has daily care responsibility or long-term care responsibility for a young detainee about the condition.

(3) If the chief executive and another person share daily care responsibility or long-term care responsibility for the young detainee, the chief executive must act under subsection (2) in relation to the other person.

(4) If the young detainee is 18 years old or older, the chief executive must take reasonable steps to tell the young detainee’s nominated person about the condition.

(1) The chief executive must ensure, as far as practicable, that provision is made at detention places for the religious, spiritual and cultural needs of young detainees.

1 observances and practices relating to religious or spiritual beliefs, including Aboriginal or Torres Strait Islander spiritual beliefs

2 observances or practices arising because a person belongs to a particular culture

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) In particular, the chief executive must ensure, as far as practicable, that young detainees have reasonable access to—

(a) ministers of religion and other people with standing in a particular culture whom young detainees wish to see for religious, spiritual or cultural purposes; and

(b) religious services at the detention place; and

(c) books and other articles associated with their religious, spiritual or cultural practices.

(3) However, the chief executive may give directions denying or limiting a young detainee’s access under subsection (1) or (2) if the chief executive suspects on reasonable grounds that it may—

(a) undermine security or good order at a detention place; or

(b) revictimise a victim; or

(c) circumvent any process for investigating complaints or reviewing decisions under this Act; or

(d) have the purpose of causing community distress.

(4) A young detainee must not be required to receive a visit from anyone representing a particular religion, spiritual belief or culture, or attend any related service or practice, if the young detainee does not wish to do so.

(5) For chapter 8, subsections (1) and (2) are taken to provide an entitlement for each young detainee in relation to religious, spiritual and cultural needs.

(6) In this section:

minister of religion means—

(a) a person registered under the Marriage Act 1961 (Cwlth), part 4.1 (Authorised celebrants); or

(b) a person prescribed by regulation.

A young detainee must comply with any direction given under the criminal matters chapters to the young detainee by the chief executive.

(1) The chief executive must keep a register containing details of each young detainee at a detention place.

(2) The register must include the following details in relation to each young detainee:

(a) the young detainee’s full name, including any assumed name;

(b) the young detainee’s age and date of birth;

(c) the young detainee’s sex;

(d) the authority for the detention of the young detainee;

(e) the period of authorised detention;

(f) for a young detainee under a sentence of imprisonment—details of the sentence, including any combination sentence;

(g) the current place of detention;

(h) the security classification for the young detainee;

(i) the case management plan (if any) for the young detainee;

(j) details of any known condition of the young detainee that requires, or is likely to require, a health service;

(k) details of anything taken from the young detainee under section 157 (Identification of young detainees);

(l) details of property the young detainee has at the detention place;

(m) for a young detainee who is under 18 years old—details of people who have daily care responsibility, or long-term care responsibility, for the young detainee and details of notifications under this Act of those people;

(n) for a young detainee who is 18 years old or older—details of a person nominated by the young detainee (the nominated person) to whom the chief executive can give any notifications required under—

(i) section 112 (Transfer—notifying people responsible for or nominated by young detainees); or

(ii) section 156 (Detention—notifying people responsible for or nominated by young detainees); or

(iii) section 181 (Injury etc—notifying people responsible for or nominated by young detainees); or

(iv) section 206 (2) (c) (Notice of segregation directions—safe room and other); or

(v) section 220 (2) (c) (Notice of decision about segregation direction); or

(vi) section 236 (5) (c) (Alcohol and drug testing of young detainees); or

(vii) section 250 (Notice of strip and body searches—person responsible for or nominated by young detainee);

(o) for a young detainee who is 18 years old or older—details of any notifications given to the young detainee’s nominated person;

(p) anything else the chief executive considers necessary or appropriate for the proper management of the young detainee.

1 young detainee’s nutritional or health needs

2 young detainee’s need for spectacles, contact lens, crutches, prosthesis or other artificial aids

3 young detainee’s language or literacy difficulties

4 any cultural background or religious affiliation identified by the young detainee

(1) For the criminal matters chapters, the chief executive may ask a relevant chief executive for a written report about a young detainee’s health.

(2) The relevant chief executive must comply with the request as soon as practicable.

(3) The relevant chief executive’s report must include personal health information about the young detainee that is in a health record—

(a) in the relevant chief executive’s custody; or

(b) to which the relevant chief executive has access through any arrangement with another chief executive.

(4) The chief executive must ensure that a treating doctor assesses the report from a relevant chief executive and includes a statement of the young detainee’s condition (the health schedule) in the young detainee’s case management plan (if any).

(5) The health schedule must include—

(a) a summary of—

(i) the young detainee’s condition and health risks, including any likelihood of the condition resulting in a medical emergency or the onset of significant health problems and any associated symptoms; and

(ii) a treatment regime for the young detainee; and

(b) details of any medicine approved by the chief executive under section 186 for use by the young detainee.

1 Young detainee D has diabetes. The health schedule for D explains the type of diabetes, the treatment required, any likely medical emergency or significant health problem and the associated symptoms, such as hypoglycaemia.

2 Young detainee P has epilepsy. The health schedule for P explains the type of epilepsy, the treatment required, and the symptoms and consequences of any failure to maintain the treatment regime.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(6) A youth detention policy or operating procedure may include provision in relation to the health schedule, including provision in relation to any of the following:

(a) the content of the schedule and, in particular, any statement about the young detainee’s health risks and treatment regime;

(b) the people who may access the health schedule and the circumstances for access.

(7) The chief executive must ensure that the relevant chief executive’s report and the health schedule is available only to people authorised by the chief executive.

(8) In this section:

health record—see the Health Records (Privacy and Access) Act 1997, dictionary.

personal health information—see the Health Records (Privacy and Access) Act 1997, dictionary.

relevant chief executive means a chief executive whose administrative unit is responsible for any provision of the following Acts:

(a) the Corrections Management Act 2007;

(b) the Crimes (Sentence Administration) Act 2005;

(c) the Disability Services Act 1991;

(d) the Health Act 1993;

(e) the Mental Health (Treatment and Care) Act 1994.

Note Compliance with a request under this section does not involve a contravention of a privacy principle under the Health Records (Privacy and Access) Act 1997 (see that Act, s 5).

(1) The chief executive may approve the use of a medicine, other than a prescription only medicine, by a young detainee.

Note The taking of an unauthorised medicine by a young detainee is a behaviour breach (see s 286).

(2) The chief executive may seek the advice of a treating doctor before approving the use of a medicine, other than a prescription only medicine, by a young detainee.

(3) If the chief executive approves the use of a medicine by a young detainee, the chief executive must ensure that the details of the approval, and the reasons for it, are recorded in relation to the young detainee in the register kept under section 184.

(4) In this section:

prescription only medicine—see the Medicines, Poisons and Therapeutic Goods Act 2007, section 11.

(1) The chief executive—

(a) must maintain an individual case management plan for each young detainee other than a young remandee; and

(b) may maintain an individual case management plan for a young detainee who is a young remandee.

(2) In deciding whether to maintain a case management plan for a young remandee, the chief executive—

(a) must consider the following:

(i) the period of remand;

(ii) the young remandee’s age and development;

(iii) the young remandee’s educational needs;

(iv) any special needs of the young remandee; and

(b) may consider any other relevant matter.

(3) A case management plan for a young detainee must—

(a) outline education and training and activities for the young detainee; and

(b) be based on an assessment of the needs, capacities and disposition of the young detainee; and

(c) be consistent with the resources available to the chief executive to manage the young detainee; and

(d) include provision to ensure that adequate plans are made for the young detainee’s return to community life at the end of the detention, taking into account the young detainee’s needs.

(1) This section applies to a transgender or intersex young detainee.

(2) On admission to a detention place—

(a) the young detainee may tell the chief executive the sex the young detainee chooses to be identified with; or

(b) if the young detainee fails to make a choice under paragraph (a)—the chief executive may choose the sex the young detainee is to be identified with having regard to the presentation of the young detainee on admission to the place.

(3) The chief executive may, on application by the young detainee, approve a change in the sex the young detainee chooses to be identified with, having regard to any report obtained under subsection (4) or (5).

(4) Before making a decision under subsection (2) (b) or (3), the chief executive must obtain a report by a non-treating doctor or other non-treating health professional about the young detainee’s sexual identity.

(5) The chief executive may also obtain a report by a non-treating doctor or non-treating health professional about the young detainee’s sexual identity chosen under subsection (2) (a) if the chief executive believes on reasonable grounds that obtaining the report—

(a) is in the best interests of the young detainee; and

(b) is necessary to make a decision in relation to the young detainee’s placement or case management.

(6) The chief executive must—

(a) give the young detainee written notice of a decision by the chief executive under subsection (2) or (3); and

(b) ensure that the young detainee’s sex chosen under this section is entered in the register of young detainees.

(7) For criminal matters chapters, the sex of the young detainee is taken to be the young detainee’s sex entered in the register of young detainees under subsection (6) (b).

The conduct of searches of the young detainee, and the allocation of accommodation and hygiene facilities for the young detainee, would be on the basis that the young detainee was a person of the sex chosen and entered in the register of young detainees.

Note 1 The young detainee may require that either a male or female conduct a search (see s 249 (2) (Searches—transgender and intersex young detainees)).

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) The chief executive—

(a) must give a young detainee a security classification; and

(b) may review the classification at any time.

(2) When deciding a young detainee’s security classification, the chief executive must consider the following:

(a) the reason for the detention, including the nature of any offence for which the young detainee is detained;

(b) the risks posed by the young detainee if the young detainee were to escape;

(c) the risk of the young detainee escaping;

(d) the risks posed by the young detainee while at a detention place;

(e) the risks to the young detainee of being accommodated with particular young detainees or in particular areas at a detention place;

(f) any other matter prescribed by regulation.

(3) The chief executive may also consider anything else the chief executive considers relevant.

(4) The security measures to which a young detainee is subject under a security classification must be the minimum necessary to ensure secure detention of the young detainee.

(1) The chief executive may allow a young detainee’s property to be brought into a detention place.

(2) However, the chief executive may give directions imposing conditions in relation to the property, including conditions in relation to—

(a) the nature, amount and location of property that may be held by a young detainee at the place; and

(b) the use of the property.

(3) The chief executive must ensure that the register of young detainees includes details of the property each young detainee has at a detention place.

(4) A youth detention policy may make provision in relation to a young detainee’s property, including provision in relation to the following:

(a) storage of the property;

(b) access to, and use of, the property;

(c) transfer of the property;

(d) compensation for loss of, or damage to, the property;

(e) return of the property to the young detainee.

(5) In this section:

young detainee’s property does not include a prohibited thing.

Note Part 7.9 (Seizing property) provides generally for the seizure, forfeiture and return of property.

(1) A young detainee commits an offence if the young detainee possesses a prohibited thing.

Maximum penalty: 5 penalty units.

(2) Subsection (1) does not apply if the chief executive approves the young detainee’s possession of the thing.

(1) This section applies if—

(a) an adult who works or provides services at a detention place (whether paid or unpaid) suspects on reasonable grounds that a young detainee or anyone else at the detention place—

(i) poses a significant threat to security or good order at the detention place; or

(ii) has something concealed on him or her that is a prohibited thing or that may be used by the young detainee in a way that may involve a risk to the personal safety of anyone at the detention place; and

(b) the person’s reasons for the suspicion arise from information obtained by the person during the course of, or because of, the person’s work or providing of services at the detention place.

1 a youth detention officer

2 a health professional

3 a community-based youth worker

4 a teacher

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) The person must, as soon as practicable after forming the suspicion, report to the chief executive—

(a) the name or description of the young detainee; and

(b) the reasons for the person’s suspicion.

(1) The chief executive must ensure that money belonging to a young detainee is held for the detainee in a trust account.

(2) The chief executive may deduct amounts from a young detainee’s trust account for payment of any fine or reparation that must be paid as a result of disciplinary action against the young detainee.

(3) A regulation may make provision in relation to the operation or maintenance of trust accounts.

(4) In this section:

disciplinary action—see section 316.

(1) The chief executive must keep a register of—

(a) searches under any of the following:

(i) section 253 (Strip searches on admission to detention place);

(ii) section 257 (Strip searches directed by chief executive);

(iii) section 263 (Body searches directed by chief executive);

(iv) section 274 (Searches—premises and property generally);

(v) section 275 (Searches of young detainee cells—privileged material);

(vi) section 276 (Searches of young detainee cells—suspected privileged material); and

(b) incidents involving the use of force under division 6.6.4.

(2) For subsection (1) (a), the register must contain the following details in relation to each search:

(a) the name of the young detainee searched;

(b) the reason for the search;

(c) when and where the search was conducted;

(d) the name of each person present at any time during the search;

(e) if, under section 259 (4), section 265 (5) or section 269 (4), a requirement for a youth detention officer or assistant to be the same sex as the young detainee was not complied with—the chief executive’s reasons for believing the requirement did not apply;

(f) details of anything seized during the search;

(g) details of any force used for conducting the search, and why force was used;

(h) anything else prescribed by regulation.

(3) For subsection (1) (b), the register must include details of each incident, including the circumstances, the decision to use force and the force used.

(4) The register may contain any other details the chief executive considers relevant.

(5) The register must be available for inspection by any of the following:

(a) a judge;

(b) a magistrate;

(c) an official visitor;

(d) a commissioner exercising functions under the Human Rights Commission Act 2005;

(e) the public advocate;

(f) the ombudsman;

(g) a person prescribed by regulation.

(6) The public advocate must inspect the register at least once every 3 months.

The Listening Devices Act 1992 does not apply in relation to anything done at a detention place.

In exercising a function under this division, the chief executive must ensure, as far as practicable, that the following are balanced appropriately:

(a) the need to protect the safety of young detainees, authorised people, other people who work at or visit detention places, and the community;

(b) the need for security and good order at detention places;

(c) the benefits of young detainees maintaining contact with the community outside detention places;

(d) the need to protect the privacy of young detainees;

(e) the need to detect prohibited things entering, at, or leaving detention places;

(f) the need to prevent intimidation and corruption at detention places, and the commission of offences;

(g) anything else the chief executive believes on reasonable grounds to be relevant.

The chief executive must take reasonable steps to ensure that each person who enters a detention place is aware that the person may be monitored, by people and electronically, and that the person’s actions and voice may be recorded.

The chief executive may arrange for any part of a detention place to be monitored for any activity, including the movement of anyone at the place.

direct viewing, closed-circuit television coverage and the use of other devices for detecting movement

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(1) This section applies in relation to an electronic communication with a young detainee, other than a protected electronic communication.

(2) The chief executive may do either or both of the following in relation to the communication:

(a) monitor the communication;

(b) record the communication.

(3) The chief executive must tell the parties to the communication that the communication might be monitored and recorded.

(4) If the communication reveals information about the commission of an offence, the chief executive must give the information to the chief police officer.

(5) In this section:

electronic communication means communication by—

(a) telephone, email or fax; or

(b) any other electronic means.

protected electronic communication means an electronic communication between a young detainee and any of the following:

(a) a lawyer representing the young detainee;

(b) an official visitor;

(c) a commissioner exercising functions under the Human Rights Commission Act 2005;

(d) the public advocate;

(e) the ombudsman;

(f) a person prescribed by regulation.

(1) The chief executive may open and search a young detainee’s mail, other than protected mail.

(2) The chief executive may read a young detainee’s ordinary mail only if the chief executive suspects on reasonable grounds that the mail—

(a) may undermine security or good order at a detention place; or

(b) may revictimise a victim; or

(c) may circumvent any process for investigating complaints or reviewing decisions under this Act; or

(d) may not be in the best interests of the young detainee.

(3) However, the chief executive may make a youth detention policy or operating procedure in relation to reading a random selection of young detainees’ ordinary mail.

(4) In this section:

ordinary mail means mail other than protected mail.

protected mail means mail between a young detainee and any of the following:

(a) a lawyer representing the young detainee;

(b) an official visitor;

(c) a commissioner exercising functions under the Human Rights Commission Act 2005;

(d) the public advocate;

(e) the ombudsman;

(f) a person prescribed by regulation.

search includes search—

(a) with any device using electronic or other technology; and

(b) by physical means; and

(c) with the assistance of a search dog.

(1) The chief executive may open and search a young detainee’s protected mail in the young detainee’s presence if the chief executive suspects on reasonable grounds that the mail contains—

(a) something that may physically harm the addressee; or

(b) a prohibited thing.

(2) However, the chief executive must not read a young detainee’s protected mail without the young detainee’s written consent.

(3) In this section:

search —see section 200.

(1) Subject to section 279 (Seizing mail etc), a young detainee’s mail, once searched, must be delivered to the addressee as soon as practicable.

(2) If a search of a young detainee’s mail reveals information about, or evidence of the commission of an offence, the chief executive must give the information to the chief police officer.

In this division:

external reviewer means a person appointed as an external reviewer under section 308.

health segregation direction means a segregation direction given under section 213.

safe room segregation direction means a direction under section 208.