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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Children (Detention Centres)
Amendment Bill 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Children (Detention Centres) Act 1987
No 57 2
4 Amendment of other Acts 2
5 Repeal of Act 2
Schedule 1 Amendment of Children (Detention Centres) Act 1987 3
Schedule 2 Amendment of other Acts 16
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Children (Detention Centres)
Amendment Bill 2006
Act No , 2006
An Act to amend the Children (Detention Centres) Act 1987 in relation to the
administration of detention centres and the management of detainees; and for other
purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Children (Detention Centres) Amendment Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Children (Detention Centres) Amendment Act 2006.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Children (Detention Centres) Act 1987 No 57
The Children (Detention Centres) Act 1987 is amended as set out in
Schedule 1.
4 Amendment of other Acts
Each Act specified in Schedule 2 is amended as set out in that Schedule.
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
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Children (Detention Centres) Amendment Bill 2006
Amendment of Children (Detention Centres) Act 1987 Schedule 1
Schedule 1 Amendment of Children (Detention
Centres) Act 1987
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
Chief Executive Officer, Justice Health means the person for the
time being holding office or acting as the chief executive officer
of Justice Health under the Health Services Act 1997.
correctional officer has the same meaning as it has in the Crimes
(Administration of Sentences) Act 1999.
Justice Health means the statutory health corporation of that
name specified in Schedule 2 to the Health Services Act 1997.
juvenile justice officer means a member of staff of the
Department, and includes a correctional officer exercising
functions pursuant to section 26 (1).
medical officer, in relation to a detention centre, means a medical
officer appointed for the detention centre as referred to in section
37G.
[2] Section 3 (1), definition of "officer"
Omit the definition.
[3] Section 6 Director-General to have control and management of detention
centres
Insert ", subject to section 26" after "detention centres".
[4] Sections 7 (1), 8A (2), 19 (1) (e), 21 (2) (c), 23A (2), 25 (4), 38 (3), 40 (2) and
42 (3)
Omit "an officer" wherever occurring.
Insert instead "a juvenile justice officer".
[5] Section 7 Inspection of detention centres by officer appointed by
Director-General
Omit "the officer" wherever occurring in section 7 (2) and (3).
Insert instead "the juvenile justice officer".
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Children (Detention Centres) Amendment Bill 2006
Schedule 1 Amendment of Children (Detention Centres) Act 1987
[6] Section 14 Functions of the Director-General
Insert at the end of the section:
(2) In exercising any function under this section in relation to a
detainee who is a forensic patient within the meaning of the
Mental Health Act 1990, the Director-General must consult with,
and have regard to the recommendations of, the Director-General
of the Department of Health.
[7] Section 19 Segregation of detainees for protection
Omit section 19 (1) (b). Insert instead:
(b) the duration of the segregation is to be as short as
practicable and, in any case, must not exceed 3 hours
except with the approval of the Director-General,
[8] Section 21 Punishments for misbehaviour
Omit "3 hours" and "12 hours" from section 21 (1) (d).
Insert instead "12 hours" and "24 hours", respectively.
[9] Section 25 Removal to hospital of detainees
Omit "any officer" from section 25 (3).
Insert instead "a juvenile justice officer".
[10] Section 26
Insert after section 25:
26 Use of Corrective Services staff in dealing with riots and
disturbances
(1) The Director-General may enter into a memorandum of
understanding with the Commissioner of Corrective Services
with respect to the handling of riots and disturbances at detention
centres.
(2) In accordance with any such memorandum of understanding, the
Director-General may request the Commissioner of Corrective
Services for assistance in dealing with a riot or disturbance that
has arisen, or that appears to be imminent, at a detention centre.
(3) For the purpose of dealing with a riot or disturbance at a detention
centre pursuant to such a request:
(a) the Commissioner of Corrective Services:
(i) has the control and management of the detention
centre, and
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Children (Detention Centres) Amendment Bill 2006
Amendment of Children (Detention Centres) Act 1987 Schedule 1
(ii) has and may exercise the functions of the
Director-General in relation to the detention centre,
and
(iii) has the same functions and immunities in relation to
the control of detainees at the detention centre as he
or she has in relation to the control of inmates in a
correctional centre, and
(b) any correctional officer authorised by the Commissioner
of Corrective Services for the purposes of this section:
(i) has and may exercise the functions of a juvenile
justice officer in relation to the detention centre, and
(ii) has the same functions and immunities in relation to
the control of detainees at the detention centre as he
or she has in relation to the control of inmates in a
correctional centre.
(4) In particular, dogs may be used to assist in the maintenance of
good order and security in a detention centre in the same way as
dogs may be used to assist in the maintenance of good order and
security in a correctional centre.
(5) As soon as practicable after good order and security have been
restored at the detention centre, the Commissioner of Corrective
Services must return control and management of the detention
centre to the Director-General.
(6) While the Commissioner of Corrective Services has the control
and management of a detention centre, the Director-General may
not exercise any function in relation to the detention centre
except to the extent to which the function is delegated to the
Director-General by the Commissioner.
(7) A request under subsection (2) may relate to part only of a
detention centre, in which case any reference in this section to a
detention centre extends only to that part of the detention centre.
(8) The regulations may establish transitional arrangements with
respect to any transfer under this section, from the
Director-General to the Commissioner of Corrective Services or
from the Commissioner of Corrective Services to the
Director-General, of the control and management of a detention
centre.
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Children (Detention Centres) Amendment Bill 2006
Schedule 1 Amendment of Children (Detention Centres) Act 1987
[11] Section 27
Insert before section 28:
27 Medical attention
(1) A detainee must be supplied with such medical attendance,
treatment and medicine as in the opinion of a medical officer is
necessary for the preservation of the health of the detainee, of
other detainees and of any other person.
(2) A medical practitioner (whether a medical officer or not) may
carry out medical treatment on a detainee without the detainee's
consent if the Chief Executive Officer, Justice Health is of the
opinion, having taken into account the cultural background and
religious views of the detainee, that it is necessary to do so in
order to save the detainee's life or to prevent serious damage to
the detainee's health.
(3) Medical treatment carried out on a detainee under this section is,
for all purposes, taken to have been carried out with the
detainee's consent.
(4) Nothing in this section relieves a medical practitioner from
liability in respect of the carrying out of medical treatment on a
detainee, being a liability to which the medical practitioner would
have been subject had the treatment been carried out with the
detainee's consent.
(5) If the Chief Executive Officer, Justice Health is not a medical
practitioner, the reference to the Chief Executive Officer, Justice
Health in subsection (2) is taken to be a reference to a person,
designated by the Chief Executive Officer for the purposes of that
subsection, who is a medical practitioner.
[12] Section 28 Transfer of older detainees from detention centres to
correctional centres
Omit "juvenile" wherever occurring in section 28 (1) and (3).
[13] Section 28 (1A)
Insert after section 28 (1):
(1A) An order may be made under subsection (1) not only in relation
to a detainee who is currently detained in a detention centre but
also in relation to:
(a) a detainee who is absent from a detention centre, whether
pursuant to leave of absence or otherwise, or
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Children (Detention Centres) Amendment Bill 2006
Amendment of Children (Detention Centres) Act 1987 Schedule 1
(b) a detainee who is being returned to a detention centre
following revocation of his or her parole under Part 7 of
the Crimes (Administration of Sentences) Act 1999 (as
applied by section 29 of this Act), whether pursuant to a
warrant in force under section 181 of that Act or otherwise.
[14] Section 28 (2)
Omit "An order may not be made under subsection (1) in respect of a detainee
unless".
Insert instead "In the case of a detainee who is under the age of 18 years, an
order may not be made under subsection (1) unless".
[15] Section 28 (2A) and (2B)
Insert after section 28 (2):
(2A) In the case of a detainee who is of or above the age of 18 years,
but under the age of 21 years, an order may not be made under
subsection (1) unless:
(a) the Children's Court makes an order authorising the
making of such an order, or
(b) the detainee applies to the Director-General in writing for
the detainee's transfer to a correctional centre, or
(c) one or more of the circumstances referred to in subsection
(2) applies in relation to the detainee.
(2B) An order under subsection (1) with respect to a detainee who is
under the age of 18 years may only be made for the purpose of
transferring the detainee to a juvenile correctional centre.
[16] Section 32A
Insert after section 32:
32A Regulations
The regulations may make provision for or with respect to the
following matters:
(a) the management, control, administration, supervision and
inspection of detention centres,
(b) the procedure to be followed when admitting a detainee
into a detention centre, including the procedure for
accepting or refusing custody of property in a detainee's
possession when the detainee is admitted,
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Children (Detention Centres) Amendment Bill 2006
Schedule 1 Amendment of Children (Detention Centres) Act 1987
(c) the classification of detainees into different categories and
the separation of detainees by reference to the categories
into which they have been classified,
(d) the procedure to be followed when releasing a detainee
from a detention centre, including the procedure for
returning property accepted from a detainee when the
detainee was admitted into the detention centre,
(e) the physical, psychological and spiritual welfare of
detainees while in custody and following their release,
(f) the expenditure of money (or money's worth) by
detainees,
(g) the circumstances in which a detainee may lawfully
acquire or retain possession of property within a detention
centre,
(h) the forfeiture and disposal of a detainee's abandoned or
unclaimed property (including money), or of unhygienic
or otherwise dangerous property (including money)
received from, or sent to, a detainee,
(i) the seizure, forfeiture and disposal of property brought into
a detention centre in contravention of this Act, the
regulations or any other law,
(j) visits to detainees, including:
(i) the days and times that visits may be allowed, and
(ii) the maximum number of persons who may visit a
detainee at the same time, and
(iii) the classes of persons who may be prohibited from
visiting detainees, and
(iv) the conditions that must be observed by persons
intending to visit a detainee before such a visit will
be allowed, and
(v) the procedures to be observed by visitors and
detainees during visits,
(k) the making and receiving of telephone calls by detainees,
(l) the sending and receiving of letters and parcels by
detainees, including the circumstances in which letters and
parcels may be opened for inspection or confiscated,
(m) the procedures to be followed by a detainee when applying
for leave of absence, and the circumstances under which
such leave may be granted,
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Children (Detention Centres) Amendment Bill 2006
Amendment of Children (Detention Centres) Act 1987 Schedule 1
(n) the procedures to be followed by a detainee, and the
facilities to be provided to a detainee, for the purpose of
enabling the detainee to make a complaint to the centre
manager of the detention centre or to any other person or
body,
(o) the observance by detainees of religious rites and
obligations,
(p) the acquisition by detainees of education and vocational
training,
(q) the provision to detainees of medical, surgical and dental
treatment,
(r) the circumstances in which a body search may be
conducted on a detainee, the procedures to be followed in
conducting a body search and the persons by whom, or in
whose presence, a body search is to be conducted,
(s) the circumstances in which a juvenile justice officer may
use force against a detainee, and the keeping of records of
the occasions on which force is so used,
(t) the equipment that may be used to restrain a detainee, and
the circumstances in which, and the maximum periods for
which, a detainee may be restrained by means of such
equipment,
(u) the circumstances in which a detainee may be tested for
drugs or alcohol, the use of a non-invasive sample
provided by, or taken from, a detainee for the purposes of
a test for drugs or alcohol and the nature of the tests to be
used,
(v) analyses in connection with any such tests and the
admission of certificates relating to the results of any such
analyses as prima facie evidence in any proceedings for
misbehaviour being dealt with under this Act,
(w) the appointment of ministers of religion and other spiritual
advisors for detention centres,
(x) the functions of juvenile justice officers and other staff
employed within a detention centre.
[17] Section 36 Permitting escapes
Omit "An officer". Insert instead "A juvenile justice officer".
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Children (Detention Centres) Amendment Bill 2006
Schedule 1 Amendment of Children (Detention Centres) Act 1987
[18] Part 4A
Insert after Part 4:
Part 4A Administration
Division 1 Health
37E Functions of Justice Health
Justice Health, in addition to any other functions conferred on it
by or under this or any other Act or law, has the following
functions:
(a) to provide health services to detainees,
(b) to prevent the spread of infectious diseases in, or in
relation to, detention centres,
(c) to keep medical records of detainees,
(d) to provide advice to the Director-General on the diet,
exercise, clothing, capacity to work and general hygiene of
detainees.
37F CEO, Justice Health, to have access to detention centres,
detainees and medical records
For the purpose of ensuring that the provisions of this Act and the
regulations (in so far as they relate to the functions of Justice
Health) are being complied with at a detention centre, the Chief
Executive Officer, Justice Health, is to have free and unfettered
access at all times to all parts of the detention centre, to all
medical records held at the detention centre and to all detainees
held in custody in the detention centre.
37G Appointment of medical officers
(1) The Chief Executive Officer, Justice Health, may appoint one or
more registered medical practitioners as medical officers for a
detention centre.
(2) A registered medical practitioner may be appointed as a medical
officer for one or more detention centres.
(3) A medical officer is subject to the direction and control of the
Chief Executive Officer, Justice Health.
(4) A medical officer for a detention centre is to attend the detention
centre as regularly and frequently as is necessary to comply with
the medical officer's statutory obligations.
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Children (Detention Centres) Amendment Bill 2006
Amendment of Children (Detention Centres) Act 1987 Schedule 1
(5) The Chief Executive Officer, Justice Health is to keep such
statistical records, and furnish to the Director-General such
returns, as the Director-General may direct in relation to health
services provided to detainees.
(6) A person who held office as a medical officer for a detention
centre immediately before the commencement of this section is
taken to hold office pursuant to an appointment under this
section, and the appointment may be suspended or revoked
accordingly.
37H Delegation of functions of CEO, Justice Health
(1) The Chief Executive Officer, Justice Health, may delegate to any
person any of the Chief Executive Officer's functions under this
Act, other than this power of delegation.
(2) Subsection (1) does not enable the Chief Executive Officer,
Justice Health to delegate the right of free and unfettered access
conferred on the Chief Executive Officer by section 37F.
Division 2 Testing of juvenile justice officers for alcohol
and prohibited drugs
37I Definitions
In this Division:
authorised person means a person appointed in accordance with
the regulations to be an authorised person for the purposes of this
Division.
breath analysing instrument means any instrument approved by
the Governor by order under the Road Transport (Safety and
Traffic Management) Act 1999 as such an instrument, that is, an
instrument designed to ascertain, by analysis of a person's breath,
the concentration of alcohol present in the person's blood.
breath analysis means a test carried out by a breath analysing
instrument for the purpose of ascertaining, by analysis of a
person's breath, the concentration of alcohol present in that
person's blood.
breath test means a test:
(a) that is designed to indicate the concentration of alcohol in
a person's blood, or whether a particular concentration of
alcohol is or may be present in a person's blood, and
(b) that is carried out on the person's breath by means of a
device (not being a breath analysing instrument) of a type
approved by the Governor for the conduct of breath tests
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Children (Detention Centres) Amendment Bill 2006
Schedule 1 Amendment of Children (Detention Centres) Act 1987
under the Road Transport (Safety and Traffic
Management) Act 1999.
hospital means a public or private hospital, and includes any
premises, institution or establishment prescribed by the
regulations as a hospital for the purposes of this Division.
prohibited drug has the same meaning as in the Drug Misuse and
Trafficking Act 1985.
37J Testing of juvenile justice officers for alcohol and prohibited drugs
(1) An authorised person may require any juvenile justice officer
who is on duty, or who is present at the juvenile justice officer's
place of work and about to go on duty:
(a) to undergo a breath test, or submit to a breath analysis, for
the purpose of testing for the presence or concentration of
alcohol, or
(b) to provide, or enable to be taken, a non-invasive sample
from the juvenile justice officer for the purpose of testing
for the presence of prohibited drugs,
in accordance with the directions of the authorised person and the
regulations.
(2) The selection of a juvenile justice officer for testing under
subsection (1) may be conducted on a random or targeted basis.
(3) Without limiting the generality of subsection (1), if an incident
occurs in which a person dies or is injured while in the custody of
a juvenile justice officer, an authorised person may require any
juvenile justice officer involved in the incident:
(a) to undergo a breath test, or submit to a breath analysis, for
the purpose of testing for the presence or concentration of
alcohol, or
(b) to provide, or enable to be taken, a non-invasive sample
from the juvenile justice officer for the purpose of testing
for the presence of prohibited drugs,
in accordance with the directions of the authorised person and the
regulations.
(4) An authorised person may require the juvenile justice officer to
remain on the premises where the test is to be conducted until the
test is completed.
(5) A requirement pursuant to subsection (3) to undergo a test or to
provide a sample is to be made by the authorised person as soon
as practicable after the incident occurs.
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Children (Detention Centres) Amendment Bill 2006
Amendment of Children (Detention Centres) Act 1987 Schedule 1
37K Testing where juvenile justice officer attends hospital
(1) If a juvenile justice officer attends or is admitted to a hospital for
examination or treatment because of an incident referred to in
section 37J (3), an authorised person may require the juvenile
justice officer to provide, or enable to be taken, a sample of blood
or a non-invasive sample from the juvenile justice officer in
accordance with the directions of a medical practitioner who
attends the juvenile justice officer at the hospital.
(2) Any such medical practitioner must take the sample if informed
by an authorised person that the sample is required to be taken by
the practitioner, but not a sample of blood if such a sample is
taken under Division 4 of Part 2 of the Road Transport (Safety
and Traffic Management) Act 1999 instead.
(3) If there is no medical practitioner present to attend the juvenile
justice officer at the hospital, the sample is to be taken by a
registered nurse who is attending the juvenile justice officer and
who is accredited by a hospital to perform the sampling
procedures.
(4) Sections 21 and 22 of the Road Transport (Safety and Traffic
Management) Act 1999 apply to any taking, or provision, of a
sample of blood or a non-invasive sample under subsection (1) as
if the sample were a sample of blood taken under Division 4 of
Part 2 of that Act.
(5) Any sample taken under subsection (1) is to be dealt with, and a
report on the analysis of the sample is to be provided, in
accordance with the regulations.
(6) Nothing in this section or the regulations derogates from the
operation of Division 4 of Part 2 of the Road Transport (Safety
and Traffic Management) Act 1999.
37L Protection from liability
(1) A medical practitioner does not incur any civil or criminal
liability in respect of anything properly and necessarily done by
the practitioner in the course of taking, or being provided with, a
sample of blood or a non-invasive sample from a juvenile justice
officer for the purpose of its being used by an analyst to detect the
presence of alcohol or any prohibited drug if the practitioner:
(a) believed on reasonable grounds that he or she was required
under this Act to take, or be provided with, the sample of
blood or the non-invasive sample from the juvenile justice
officer, or
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Children (Detention Centres) Amendment Bill 2006
Schedule 1 Amendment of Children (Detention Centres) Act 1987
(b) was informed by an authorised person that the juvenile
justice officer was a person from whom the practitioner
was required under this Act to take, or be provided with,
the sample of blood or the non-invasive sample.
(2) Subsection (1) extends to a registered nurse, or any person acting
under the supervision of the medical practitioner, who performs
the functions of a medical practitioner under this Division in
accordance with this Division or the regulations.
37M Regulations
The regulations may make provision for or with respect to the
following:
(a) the appointment of authorised persons for the purposes of
this Division,
(b) the conduct of testing,
(c) the taking of samples of blood or non-invasive samples,
(d) the taking of a sample of blood at the choice of a juvenile
justice officer for the juvenile justice officer to retain or
arrange to be analysed (or both),
(e) the provision of a non-invasive sample from the juvenile
justice officer for the purpose of testing for the presence of
prohibited drugs,
(f) the devices used in carrying out the breath tests, breath
analyses and other tests, including the calibration,
inspection and testing of those devices,
(g) the accreditation of persons conducting analyses for the
presence of prohibited drugs,
(h) the procedure for the handling and analysis of samples of
blood or non-invasive samples,
(i) offences relating to interference with test results or the
testing procedure,
(j) the consequences of refusing to comply with a requirement
of or under this Division,
(k) the consequences for juvenile justice officers of testing
positive for alcohol or prohibited drugs,
(l) the evidentiary value and use of certificates relating to the
analysis of a sample or the authorisation of persons,
(m) the confidentiality of test results.
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Children (Detention Centres) Amendment Bill 2006
Amendment of Children (Detention Centres) Act 1987 Schedule 1
[19] Section 38 Arrest of escapees etc
Omit "An officer" wherever occurring in section 38 (1) and (4).
Insert instead "A juvenile justice officer".
[20] Section 40 Evidentiary matters
Omit "or officer" from section 40 (2).
Insert instead "or juvenile justice officer".
[21] Section 42 Attendance of persons subject to control before courts and
court officers
Omit "officer or" from section 42 (4).
Insert instead "juvenile justice officer or".
[22] Schedule 1 Savings and transitional provisions
Insert at the end of clause 1A (1):
Children (Detention Centres) Amendment Act 2006
[23] Schedule 1, Part 4
Insert after Part 3:
Part 4 Provisions consequent on enactment of
Children (Detention Centres) Amendment
Act 2006
7 Definition
In this Part, the 2006 amending Act means the Children
(Detention Centres) Amendment Act 2006.
8 Punishments for misbehaviour: section 21
Section 21, as in force immediately before the commencement of
the amendments made to that section by the 2006 amending Act,
continues to apply to misbehaviour that occurred before that
commencement as if that Act had not been enacted.
9 Transfer of older detainees to juvenile correctional centres
Section 28, as amended by the 2006 amending Act, extends to
persons who were detainees before that section was so amended.
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Children (Detention Centres) Amendment Bill 2006
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts
(Section 4)
2.1 Children (Criminal Proceedings) Act 1987 No 55
[1] Section 19 Court may direct imprisonment to be served as a juvenile
offender
Omit "juvenile" from the note to section 19 (1).
[2] Section 19 (7)
Insert after section 19 (6):
(7) Nothing in this section, or in any order under this section, limits
the operation of section 28 of the Children (Detention Centres)
Act 1987.
2.2 Crimes (Administration of Sentences) Act 1999 No 93
[1] Section 41A Definitions
Insert "under the age of 18 years" after "a juvenile inmate" in the definition of
section 28 juvenile inmate.
[2] Section 253 Part subject to Children (Detention Centres) Act 1987
Insert at the end of the section:
(2) Despite subsection (1), nothing in the Children (Detention
Centres) Act 1987 limits the operation of this Part in relation to a
person who is of or above the age of 21 years.
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Children (Detention Centres) Amendment Bill 2006
Amendment of other Acts Schedule 2
2.3 Freedom of Information Act 1989 No 5
Schedule 1 Exempt documents
Insert after clause 4 (3B):
(3C) A document is an exempt document if it is a document that has
been created by the Drug Intelligence Unit of the Department of
Juvenile Justice in the exercise of its functions concerning the
collection, analysis or dissemination of intelligence.
Page 17
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