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New South Wales
Children (Criminal Proceedings)
Amendment Bill 2008
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Children (Criminal Proceedings) Act 1987
No 55 2
4 Amendment of other Acts 2
5 Consequential amendments to other legislation 2
6 Repeal of Crimes Amendment (Detention after Arrest) Act
1997 No 48 2
7 Repeal of Act 2
Schedule 1 Amendment of Children (Criminal Proceedings) Act 1987 3
Schedule 2 Amendment of other Acts 13
Schedule 3 Consequential amendments to other legislation 15
b2008-025-40.d16
New South Wales
Children (Criminal Proceedings)
Amendment Bill 2008
No , 2008
A Bill for
An Act to amend the Children (Criminal Proceedings) Act 1987 and certain other
legislation to make further provision with respect to the conduct of criminal
proceedings against children and other young persons.
Clause 1 Children (Criminal Proceedings) Amendment Bill 2008
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Children (Criminal Proceedings) Amendment Act 2008. 3
2 Commencement 4
(1) This Act commences on a day or days to be appointed by proclamation, 5
except as provided by subsection (2). 6
(2) Section 6 commences on the date of assent to this Act. 7
3 Amendment of Children (Criminal Proceedings) Act 1987 No 55 8
The Children (Criminal Proceedings) Act 1987 is amended as set out in 9
Schedule 1. 10
4 Amendment of other Acts 11
The Acts specified in Schedule 2 are amended as set out in that 12
Schedule. 13
5 Consequential amendments to other legislation 14
The Acts and Regulation specified in Schedule 3 are amended as set out 15
in that Schedule. 16
6 Repeal of Crimes Amendment (Detention after Arrest) Act 1997 No 48 17
The Crimes Amendment (Detention after Arrest) Act 1997 is repealed. 18
7 Repeal of Act 19
(1) This Act is repealed on the day following the day on which all of the 20
provisions of this Act have commenced. 21
(2) The repeal of this Act does not, because of the operation of section 30 22
of the Interpretation Act 1987, affect any amendment made by this Act. 23
Page 2
Children (Criminal Proceedings) Amendment Bill 2008
Amendment of Children (Criminal Proceedings) Act 1987 Schedule 1
Schedule 1 Amendment of Children (Criminal 1
Proceedings) Act 1987 2
(Section 3) 3
[1] Section 2 Commencement 4
Insert after section 2 (1): 5
(1A) Section 9 commences on the date that section 9 (2) is repealed by 6
the Children (Criminal Proceedings) Amendment Act 2008. 7
[2] Section 3 Definitions 8
Omit the definition of parent from section 3 (1). Insert instead: 9
parental responsibility, in relation to a child, means all the duties, 10
powers, responsibilities and authority which, by law, parents 11
have in relation to their children. 12
[3] Section 3 (1), definition of "person responsible" 13
Omit the definition. Insert instead. 14
person responsible, in relation to a child, means: 15
(a) a person having parental responsibility for the child, or 16
(b) a person who has the care of the child (whether or not the 17
person has parental responsibility for the child). 18
[4] Section 3 (1) 19
Insert in alphabetical order: 20
road transport legislation has the same meaning as it has in the 21
Road Transport (General) Act 2005. 22
[5] Section 3 (1), definition of "traffic offence" 23
Omit "within the meaning of the Road Transport (General) Act 2005" from 24
paragraph (a). 25
[6] Section 3 (1), definition of "traffic offence" 26
Omit paragraph (c). Insert instead: 27
(c) the Motor Accidents Compensation Act 1999, or 28
Page 3
Children (Criminal Proceedings) Amendment Bill 2008
Schedule 1 Amendment of Children (Criminal Proceedings) Act 1987
[7] Section 6 Principles relating to exercise of functions under Act 1
Omit "A court, in exercising criminal jurisdiction with respect to children, 2
shall have regard to the following principles". 3
Insert instead "A person or body that has functions under this Act is to exercise 4
those functions having regard to the following principles". 5
[8] Section 6 (f)(h) 6
Insert after section 6 (e): 7
(f) that it is desirable that children who commit offences be 8
assisted with their reintegration into the community so as 9
to sustain family and community ties, 10
(g) that it is desirable that children who commit offences 11
accept responsibility for their actions and, wherever 12
possible, make reparation for their actions, 13
(h) that, subject to the other principles described above, 14
consideration should be given to the effect of any crime on 15
the victim. 16
[9] Section 9 Expedition where child in custody 17
Omit section 9 (2). 18
[10] Section 10 Exclusion of general public from criminal proceedings 19
Omit paragraphs (c) and (d) of the definition of member of the immediate 20
family in section 10 (4). 21
Insert instead: 22
(c) a parent or step-parent of the victim, or person having 23
parental responsibility for the victim, or 24
(d) a child or step-child of the victim, or some other child for 25
whom the victim has parental responsibility, or 26
[11] Section 12 Proceedings to be explained to children 27
Omit section 12 (1)(2A). Insert instead: 28
(1) If criminal proceedings are brought against a child, the court that 29
hears those proceedings must take such measures as are 30
reasonably practicable to ensure that the child understands the 31
proceedings. 32
[12] Section 13 Admissibility of certain statements etc 33
Omit "16 years" from section 13 (1) (a) (iii). Insert instead "14 years". 34
Page 4
Children (Criminal Proceedings) Amendment Bill 2008
Amendment of Children (Criminal Proceedings) Act 1987 Schedule 1
[13] Section 13 (2) (c) 1
Insert at the end of section 13 (2) (b): 2
, and 3
(c) a reference to a person responsible for a child does not 4
include a member of the police force (unless he or she has 5
parental responsibility for the child). 6
[14] Section 18 Other indictable offences 7
Omit section 18 (3). Insert instead: 8
(3) If a court, in exercising the functions of the Children's Court 9
under subsection (2), makes an order under section 33 that 10
provides for a person to enter into a good behaviour bond or that 11
releases a person on probation, the court may, on referral from the 12
Children's Court under section 40 (1A), deal with the order in the 13
same way as the Children's Court may deal with it under 14
section 40. 15
[15] Section 19 Court may direct imprisonment to be served as a juvenile 16
offender 17
Insert after section 19 (1): 18
(1A) In the case of a person of or above the age of 18 years who is 19
serving, or has previously served, the whole or any part of a term 20
of imprisonment in a correctional centre, such an order may not 21
be made unless the court decides that there are special 22
circumstances justifying detention of the person as a juvenile 23
offender. 24
[16] Section 19 (4)(4B) 25
Omit section 19 (4). Insert instead: 26
(4) A finding of special circumstances for the purposes of subsection 27
(1A) or (3) may be made on one or more of the following 28
grounds, and not otherwise: 29
(a) that the person is vulnerable on account of illness or 30
disability (within the meaning of the Anti-Discrimination 31
Act 1977), 32
(b) that the only available educational, vocational training or 33
therapeutic programs that are suitable to the person's needs 34
are those available in detention centres, 35
(c) that, if the person were committed to a correctional centre, 36
there would be an unacceptable risk of the person suffering 37
physical or psychological harm, whether due to the nature 38
Page 5
Children (Criminal Proceedings) Amendment Bill 2008
Schedule 1 Amendment of Children (Criminal Proceedings) Act 1987
of the person's offence, any assistance given by the person 1
in the prosecution of other persons or otherwise. 2
(4A) In particular, a finding of special circumstances may not be made 3
simply because of the person's youth or simply because the 4
non-parole period of the person's sentence will expire while the 5
person is still eligible to serve the sentence as a juvenile offender. 6
(4B) A court that makes a finding of special circumstances must make 7
a record of its reasons for making that finding in the particular 8
case. 9
[17] Section 31 Hearing of charges in the Children's Court 10
Insert "(including any background report of a kind referred to in section 25)" 11
after "evidence before it" in section 31 (5) (c). 12
[18] Section 33 Penalties 13
Omit section 33 (1) (a). Insert instead: 14
(a) it may make an order: 15
(i) directing that the charge be dismissed (in which case 16
the Court may also, if it thinks fit, administer a 17
caution to the person), or 18
(ii) discharging the person on condition that the person 19
enters into a good behaviour bond for such period of 20
time, not exceeding 2 years, as it thinks fit, 21
[19] Section 33 (1) (b) 22
Omit the paragraph. Insert instead: 23
(b) it may make an order directing the person to enter into a 24
good behaviour bond for a specified period, not exceeding 25
2 years, 26
[20] Section 33 (1) (e1) 27
Insert after section 33 (1) (e): 28
(e1) it may do both the things referred to in paragraphs (c) 29
and (e), 30
[21] Section 33 (1) (f1) 31
Insert after section 33 (1) (f): 32
(f1) it may do both of the things referred to in paragraphs (e) 33
and (f), 34
Page 6
Children (Criminal Proceedings) Amendment Bill 2008
Amendment of Children (Criminal Proceedings) Act 1987 Schedule 1
[22] Section 33 (1) (g) 1
Omit the paragraph. Insert instead: 2
(g) it may, subject to the provisions of the Crimes (Sentencing 3
Procedure) Act 1999, make an order committing the 4
person for such period of time (not exceeding 2 years) as it 5
thinks fit: 6
(i) in the case of a person who is under the age of 7
21 years, to the control of the Minister 8
administering the Children (Detention Centres) Act 9
1987, or 10
(ii) in the case of a person who is of or above the age of 11
21 years, to the control of the Minister administering 12
the Crimes (Administration of Sentences) Act 1999. 13
[23] Section 33 (1A) 14
Omit "referred to in subsection (1) (b)". 15
Insert instead "imposed under this section". 16
[24] Section 33 (1AA) 17
Insert after section 33 (1A): 18
(1AA) Before making an order imposing a fine on a child, the Children's 19
Court is to consider the age of the child and the following matters, 20
where information is available in relation to those matters: 21
(a) the child's ability to pay the fine, 22
(b) the potential impact of the fine on the rehabilitation of the 23
child. 24
[25] Section 33 (1B) 25
Omit "except to the extent to which it deals with setting the non-parole period 26
and the balance of the term of the order". 27
[26] Section 33 (1C) 28
Insert after section 33 (1B): 29
(1C) If the Children's Court makes an order under subsection (1) (g) 30
(ii) committing a person to the control of the Minister 31
administering the Crimes (Administration of Sentences) Act 32
1999, the period for which the person is committed is taken to be 33
a sentence of imprisonment for the purposes of that Act. 34
Page 7
Children (Criminal Proceedings) Amendment Bill 2008
Schedule 1 Amendment of Children (Criminal Proceedings) Act 1987
[27] Section 33 (2) 1
Omit "(f)". Insert instead "(f1)". 2
[28] Section 33 (5) (a) 3
Omit "within the meaning of the Road Transport (General) Act 2005". 4
[29] Section 33 (6) 5
Insert after section 33 (5): 6
(6) For the purposes of any provision of the road transport legislation 7
that confers power on a court with respect to a person who has 8
been convicted of an offence, a finding of guilt by the Children's 9
Court for an offence is taken to be a conviction for the offence. 10
Accordingly, the Children's Court may exercise any such power 11
with respect to any person it finds guilty of an offence. 12
Note. Section 14 limits the circumstances in which a court can proceed 13
to, or record, a conviction following a finding of guilt in relation to a child 14
offender. 15
[30] Section 33A Cumulative or concurrent orders etc 16
Insert "or other control orders" after "another control order" in section 17
33A (3). 18
[31] Section 33A (4) 19
Omit the subsection. Insert instead: 20
(4) The Children's Court must not make a new control order, or give 21
a direction under this section, if the order or direction would have 22
the effect of requiring a person to be detained for a continuous 23
period of more than 3 years (taking into account any other control 24
orders relating to the person). 25
[32] Section 33AA Cumulative or concurrent orders--assault on juvenile 26
justice officers 27
Omit "another control order (the existing control order)" from section 28
33AA (2) (b). 29
Insert instead "one or more other control orders (an existing control order)". 30
[33] Section 33AA (3) 31
Insert "or, if there is more than one, the last of them" after "an existing control 32
order". 33
Page 8
Children (Criminal Proceedings) Amendment Bill 2008
Amendment of Children (Criminal Proceedings) Act 1987 Schedule 1
[34] Section 33AA (5) 1
Omit the subsection. Insert instead: 2
(5) The Children's Court must not make a new control order, or give 3
such a direction, if the order or direction would have the effect of 4
requiring a person to be detained for a continuous period of more 5
than 3 years (taking into account any other control orders relating 6
to the person). 7
[35] Section 33C Application of Crimes (Sentencing Procedure) Act 1999 to 8
children 9
Omit "The provisions". Insert instead "Subject to this Act, the provisions". 10
[36] Section 33C (d) 11
Insert at the end of section 33C (c): 12
, and 13
(d) a reference in those provisions to a good behaviour bond 14
were a reference to a good behaviour bond imposed under 15
section 33. 16
[37] Section 33C (2) 17
Insert at the end of section 33C: 18
(2) To avoid doubt, Division 2 of Part 3 of the Crimes (Sentencing 19
Procedure) Act 1999 (which relates to victim impact statements) 20
applies to any offence dealt with by the Children's Court that is 21
an offence to which that Division would apply if it were being 22
dealt with by a Local Court. 23
[38] Section 33D Non-association and place restriction orders 24
Omit "section 33 (1) (paragraphs (a)," from section 33D (2). 25
Insert instead "section 33 (subsection (1) (a) (i),". 26
[39] Section 33D (5) 27
Omit "referred to in section 33 (1) (b) or (e)". 28
Insert instead "under section 33 providing for a person to enter into a good 29
behaviour bond or releasing a person on probation". 30
[40] Section 34 Restrictions on the imposition of control orders etc 31
Insert ", (f1)" after "(f)" in section 34 (1). 32
Page 9
Children (Criminal Proceedings) Amendment Bill 2008
Schedule 1 Amendment of Children (Criminal Proceedings) Act 1987
[41] Section 35 Reasons for decision to be given 1
Omit "(f)" from section 35 (b). Insert instead "(f1)". 2
[42] Section 36 Compensation 3
Omit section 36 (3). Insert instead: 4
(3) The maximum amount of compensation that may be awarded is: 5
(a) the amount that is equivalent to 10 penalty units (in the 6
case of a person who is under the age of 16 years at the 7
time the order is made), or 8
(b) the amount that is equivalent to 20 penalty units (in any 9
other case). 10
[43] Section 38 Destruction of photographs, finger-prints etc 11
Omit section 38 (1) and (2). Insert instead: 12
(1) If the Children's Court finds a person not guilty of an offence to 13
which this Division applies, or finds a person guilty of such an 14
offence but makes an order dismissing the charge under section 15
33 (1) (a) (i), the Children's Court is to make an order that 16
requires any photographs, finger-prints and palm-prints, and any 17
other prescribed records (other than records of the Children's 18
Court), relating to the offence to be destroyed. 19
(2) If the Children's Court finds a person guilty of an offence to 20
which this Division applies and makes any other order in respect 21
of the person under section 33, it may, if it is of the opinion that 22
the circumstances of the case justify its doing so, make an order 23
(whether on the application of the person or otherwise) that 24
requires any photographs, finger-prints and palm-prints, and any 25
other prescribed records (other than records of the Children's 26
Court), relating to the offence to be destroyed. 27
[44] Section 40 Variation of good behaviour bond or probation 28
Omit "referred to in section 33 (1) (b) or (e)" from section 40 (1) and (2), 29
wherever occurring. 30
Insert instead "under section 33 that provides for a person to enter into a good 31
behaviour bond or that releases a person on probation". 32
[45] Section 41A Provisions applicable where control order suspended 33
subject to good behaviour bond 34
Omit section 41A (3) (b) and (c). Insert instead: 35
(b) Part 4 of the Crimes (Sentencing Procedure) Act 1999 36
applies to the order under section 33 (1) (g), as if the order 37
Page 10
Children (Criminal Proceedings) Amendment Bill 2008
Amendment of Children (Criminal Proceedings) Act 1987 Schedule 1
were a sentence of imprisonment being imposed following 1
the revocation of the good behaviour bond, and section 24 2
of that Act applies in relation to the setting of a non-parole 3
period under that Part. 4
[46] Section 51 Regulations 5
Omit "under section 33 (1) (b) and (e)" from section 51 (1) (a). 6
Insert instead "under section 33 that provide for a person to enter into a good 7
behaviour bond or release a person on probation". 8
[47] Schedule 2 Savings and transitional provisions 9
Insert at the end of clause 1 (1): 10
Children (Criminal Proceedings) Amendment Act 2008 11
[48] Schedule 2, Part 14 12
Insert after Part 13: 13
Part 14 Children (Criminal Proceedings) 14
Amendment Act 2008 15
19 Definition 16
In this Part: 17
amending Act means the Children (Criminal Proceedings) 18
Amendment Act 2008. 19
20 Detention of adults in juvenile detention centres 20
An amendment made to section 19 by the amending Act applies 21
in respect of any direction made under that section on or after the 22
commencement of the amendment. 23
21 Changes to penalty provisions 24
(1) An amendment made to section 33 by the amending Act applies 25
only in respect of an offence committed on or after the 26
commencement of the amendment, except as otherwise provided 27
by this clause. 28
(2) The amendment made to section 33 (1B) by the amending Act 29
relating to the setting of a non-parole period, and the amendment 30
made to section 41A by the amending Act, extend to proceedings 31
commenced (but not concluded) before the commencement of 32
the amendments (including proceedings for offences committed 33
before the commencement of the amendments). 34
Page 11
Children (Criminal Proceedings) Amendment Bill 2008
Schedule 1 Amendment of Children (Criminal Proceedings) Act 1987
(3) The amendment made to section 41A by the amending Act 1
extends to proceedings in respect of a good behaviour bond 2
entered into before the commencement of the amendment. 3
(4) The amendment to section 41A does not require a non-parole 4
period in respect of an order under section 33 (1) (g) to be set on 5
termination of a good behaviour bond entered into before the 6
commencement of the amendment if the non-parole period was 7
set at the time that the order under section 33 (1) (g) was 8
suspended. 9
22 Change to maximum amount of compensation 10
The amendment made to section 36 by the amending Act applies 11
only in respect of offences committed on or after the 12
commencement of the amendment. 13
Page 12
Children (Criminal Proceedings) Amendment Bill 2008
Amendment of other Acts Schedule 2
Schedule 2 Amendment of other Acts 1
(Section 4) 2
2.1 Children (Community Service Orders) Act 1987 No 56 3
[1] Section 3 Definitions 4
Omit the definitions of community service work and work from section 3 (1). 5
Insert in alphabetical order: 6
community service work means any unpaid work, service or 7
activity approved by the Minister, or of a class or description 8
approved by the Minister, and includes any personal 9
development, educational or other program of a class or 10
description approved by the Minister. 11
perform community service work includes participate in any 12
personal development, educational or other program that is 13
community service work. 14
[2] Section 5 Making of children's community service orders 15
Insert after section 5 (1A): 16
(1B) An order under this section may recommend that the community 17
service work to be performed by the person in respect of whom 18
the order is made should include participation in a personal 19
development, educational or other program. 20
[3] Section 13 Number of hours of community service work 21
Omit "hours of work" from section 13 (3) (a) and (b), (3A) and (5), wherever 22
occurring. 23
Insert instead "hours of community service work". 24
[4] Section 17 Obligations of persons subject to children's community 25
service orders 26
Omit "work" from section 17 (1) (b) and (c) and (2), wherever occurring. 27
Insert instead "community service work". 28
[5] Section 17 (3) 29
Insert after section 17 (2): 30
(3) The community service work to be performed by a person in 31
respect of whom a children's community service order is in force 32
(being an order containing a recommendation referred to in 33
Page 13
Children (Criminal Proceedings) Amendment Bill 2008
Schedule 2 Amendment of other Acts
section 5 (1B)) must, if practicable, include participation in a 1
personal development, educational or other program. 2
[6] Section 18 Directions 3
Omit "work" from section 18 (1) and (1A) wherever occurring. 4
Insert instead "community service work". 5
[7] Section 18 (1B) 6
Insert after section 18 (1A): 7
(1B) Subsection (1) does not apply in respect of participation in a 8
personal development, educational or other program. 9
[8] Part 6, heading 10
Omit "work incidents". Insert instead "community service work". 11
[9] Sections 26B, 26C (except heading), 26D (except heading) and 26F 12
Omit "work" wherever occurring. Insert instead "community service work". 13
[10] Schedule 1 Savings and transitional provisions 14
Insert at the end of clause 1 (1): 15
Children (Criminal Proceedings) Amendment Act 2008, to the 16
extent that it amends this Act 17
[11] Schedule 1, clause 4 18
Insert after clause 3: 19
4 Provisions consequent on enactment of Children (Criminal 20
Proceedings) Amendment Act 2008 21
Any approval of the Minister or the Director-General in respect 22
of work under this Act that is in force immediately before the 23
repeal of the definition of work by the Children (Criminal 24
Proceedings) Amendment Act 2008 is taken, on that repeal, to be 25
an approval in respect of community service work. 26
2.2 Criminal Procedure Act 1986 No 209 27
Section 210 Penalties applying to traffic offences committed by children 28
Insert at the end of paragraph (d) of the definition of traffic offence in section 29
210 (4): 30
or 31
(e) the Motor Accidents Compensation Act 1999, 32
Page 14
Children (Criminal Proceedings) Amendment Bill 2008
Consequential amendments to other legislation Schedule 3
Schedule 3 Consequential amendments to other 1
legislation 2
(Section 5) 3
3.1 Children (Criminal Proceedings) Regulation 2005 4
[1] Clause 7 Conditions that may be imposed on certain orders 5
Omit "under section 33 (1) (b) or (e) of the Act". 6
Insert instead "under section 33 of the Act that provides for the child to enter 7
into a good behaviour bond or releases the child on probation". 8
[2] Clause 7 (2) 9
Insert at the end of clause 7: 10
(2) If the Children's Court makes an order releasing a person on 11
probation under section 33 (1) (e) of the Act and also makes an 12
order requiring the person to perform community service work 13
under section 33 (1) (f) of the Act, the order releasing the person 14
on probation may include a condition that requires the person to 15
comply with the community service work order. 16
3.2 Children (Interstate Transfer of Offenders) Act 1988 No 85 17
Section 3 Definitions 18
Omit "order under section 33 (1) (b), (e) or (f)" from paragraph (b) (ii) of the 19
definition of young offender. 20
Insert instead "order providing for the person to enter into a good behaviour 21
bond, releasing the person on probation or requiring the person to perform 22
community service work under section 33". 23
3.3 Crimes (Administration of Sentences) Act 1999 No 93 24
[1] Section 4 Application of Part 25
Insert after section 4 (1) (d): 26
(d1) any person the subject of an order under section 33 (1) (g) 27
of the Children (Criminal Proceedings) Act 1987 by which 28
the Children's Court has committed the person to the 29
control of the Minister administering this Act, and 30
Page 15
Children (Criminal Proceedings) Amendment Bill 2008
Schedule 3 Consequential amendments to other legislation
[2] Section 4 (1) (e) 1
Omit "referred to in paragraph (a), (b), (c) or (d)". 2
Insert instead "referred to above". 3
3.4 Victims Support and Rehabilitation Act 1996 No 115 4
Dictionary 5
Omit paragraph (b) of the definition of conviction. 6
Insert instead: 7
(b) (except in Part 4) an order made under section 33 of the 8
Children (Criminal Proceedings) Act 1987 (other than 9
section 33 (1) (a) (i)). 10
Page 16
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