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New South Wales
Juvenile Offenders Legislation
Amendment Bill 2004
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Children (Criminal Proceedings) Act 1987
No 55 2
4 Amendment of Children (Detention Centres) Act 1987 No 57 2
5 Amendment of Crimes (Administration of Sentences) Act
1999 No 93 2
Schedule 1 Amendment of Children (Criminal Proceedings) Act 1987 3
Schedule 2 Amendment of Children (Detention Centres) Act 1987 5
Schedule 3 Amendment of Crimes (Administration of Sentences) Act
1999 11
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, , 2004
New South Wales
Juvenile Offenders Legislation
Amendment Bill 2004
Act No , 2004
An Act to amend the Children (Criminal Proceedings) Act 1987, the Children
(Detention Centres) Act 1987 and the Crimes (Administration of Sentences) Act 1999
in relation to juvenile offenders; 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 Juvenile Offenders Legislation Amendment Bill 2004
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Juvenile Offenders Legislation Amendment Act 2004.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Children (Criminal Proceedings) Act 1987 No 55
The Children (Criminal Proceedings) Act 1987 is amended as set out in
Schedule 1.
4 Amendment of Children (Detention Centres) Act 1987 No 57
The Children (Detention Centres) Act 1987 is amended as set out in
Schedule 2.
5 Amendment of Crimes (Administration of Sentences) Act 1999 No 93
The Crimes (Administration of Sentences) Act 1999 is amended as set
out in Schedule 3.
Page 2
Juvenile Offenders Legislation Amendment Bill 2004
Amendment of Children (Criminal Proceedings) Act 1987 Schedule 1
Schedule 1 Amendment of Children (Criminal
Proceedings) Act 1987
(Section 3)
[1] Section 3 Definitions
Insert after section 3 (3):
(4) Notes included in this Act do not form part of this Act.
[2] Section 19 Court may direct imprisonment to be served as a juvenile
offender
Omit "in a detention centre" wherever occurring.
Insert instead "as a juvenile offender".
[3] Section 19 (1)
Insert at the end of the subsection:
Note. The effect of such an order is that the person to whom the order
relates will be committed to a detention centre (see subsection (6)).
There he or she will be detained as specified in the order. In certain
circumstances, he or she may subsequently be transferred to a juvenile
correctional centre pursuant to an order under section 28 of the Children
(Detention Centres) Act 1987.
[4] Section 19 (6)
Insert after section 19 (5):
(6) The warrant of commitment that is issued under section 62 of the
Crimes (Sentencing Procedure) Act 1999 in relation to a sentence
of imprisonment the subject of an order under this section:
(a) must indicate that the sentence is the subject of such an
order, and
(b) must specify how much of the sentence is to be served as a
juvenile offender, and
(c) must, despite the provisions of that section, commit the
person to whom it relates to a detention centre.
[5] Schedule 2 Savings and transitional provisions
Insert at the end of clause 1 (1):
Schedule 1 to the Juvenile Offenders Legislation
Amendment Act 2004
Page 3
Juvenile Offenders Legislation Amendment Bill 2004
Schedule 1 Amendment of Children (Criminal Proceedings) Act 1987
[6] Schedule 2, Part 12
Insert after Part 11:
Part 12 Provisions consequent on enactment of
Juvenile Offenders Legislation
Amendment Act 2004
15 Section 19 orders
An order in force under section 19 (1), as in force immediately
before its amendment by Schedule 1 [2] to the Juvenile Offenders
Legislation Amendment Act 2004, is taken, on that
commencement, to be an order under that section, as so amended.
16 Warrants of commitment
Section 19 (6), as inserted by Schedule 1 [4] to the Juvenile
Offenders Legislation Amendment Act 2004, does not apply to a
warrant of commitment issued before the commencement of that
subsection.
Page 4
Juvenile Offenders Legislation Amendment Bill 2004
Amendment of Children (Detention Centres) Act 1987 Schedule 2
Schedule 2 Amendment of Children (Detention
Centres) Act 1987
(Section 4)
[1] Section 3 Definitions
Omit the definitions of classified person, prison and prisoner from section
3 (1).
[2] Section 3 (1)
Insert in alphabetical order:
correctional centre has the same meaning as it has in the Crimes
(Administration of Sentences) Act 1999.
inmate has the same meaning as it has in the Crimes
(Administration of Sentences) Act 1999.
juvenile correctional centre has the same meaning as it has in the
Crimes (Administration of Sentences) Act 1999.
juvenile inmate means an inmate who is under the age of 21
years.
older detainee means a detainee who is of or above the age of 16
years.
[3] Section 3 (1), definition of "detention order"
Omit "in a detention centre," from paragraph (a) of the definition.
Insert instead "as a juvenile offender, and pursuant to which the court has
committed the person to a detention centre, or".
[4] Section 3 (1), definition of "detention order"
Omit paragraph (c) of the definition. Insert instead:
(c) an order in force under section 10 of this Act whereby the
Minister administering the Crimes (Administration of
Sentences) Act 1999 or the Commissioner of Corrective
Services has directed the transfer of a juvenile inmate from
a correctional centre or juvenile correctional centre, as the
case may be, to a detention centre.
Page 5
Juvenile Offenders Legislation Amendment Bill 2004
Schedule 2 Amendment of Children (Detention Centres) Act 1987
[5] Section 10
Omit the section. Insert instead:
10 Transfer of juvenile inmates from correctional centres to detention
centres
(1) The Minister administering the Crimes (Administration of
Sentences) Act 1999 may, by order in writing made with the
consent of the Minister administering this Act, direct the transfer
of a juvenile inmate from a correctional centre to a detention
centre.
(2) The Commissioner of Corrective Services may, by order in
writing made with the consent of the Director-General, direct the
transfer of a juvenile inmate from a juvenile correctional centre
to a detention centre.
(3) An order may not be made under subsection (2) in respect of a
juvenile inmate unless he or she is an inmate pursuant to an order
under section 28 whereby he or she has been transferred from a
detention centre to a juvenile correctional centre.
(4) When an inmate is transferred from a correctional centre to a
detention centre pursuant to an order under this section:
(a) he or she ceases to be an inmate and becomes a person on
remand or a person subject to control, as the case requires,
and
(b) in the case of a person who becomes a person subject to
control, the unexpired portion of the sentence or sentences
of imprisonment to which he or she was subject when the
order was made is taken to be the period for which he or
she is required, under this Act, to be detained in a detention
centre.
[6] Section 17 Private property
Omit "prison" wherever occurring in section 17 (2) (b).
Insert instead "correctional centre".
[7] Section 24 Persons subject to control may be granted leave, discharged
etc
Omit section 24 (2). Insert instead:
(2) An order under subsection (1) (b) or (c) may not be made in
relation to a person who is a person subject to control pursuant to
an order in force under section 10 of this Act or section 19 (1) of
the Children (Criminal Proceedings) Act 1987.
Page 6
Juvenile Offenders Legislation Amendment Bill 2004
Amendment of Children (Detention Centres) Act 1987 Schedule 2
[8] Section 28
Omit the section. Insert instead:
28 Transfer of older detainees from detention centres to juvenile
correctional centres
(1) The Director-General may, by order in writing made with the
consent of the Commissioner of Corrective Services, direct the
transfer of an older detainee from a detention centre to a juvenile
correctional centre.
(2) An order may not be made under subsection (1) in respect of a
detainee unless:
(a) he or she is a person on remand or a person subject to
control by reason of an order in force under section 10, or
(b) he or she is a person on remand in relation to a serious
children's indictable offence within the meaning of the
Children (Criminal Proceedings) Act 1987, or
(c) he or she is a person subject to control by reason of an
order in force under section 19 of the Children (Criminal
Proceedings) Act 1987, or
(d) the Director-General is satisfied that the detainee's
behaviour is or has been such as warrants the making of
such an order.
(3) When a detainee is transferred from a detention centre to a
juvenile correctional centre pursuant to an order under this
section:
(a) he or she ceases to be a detainee and becomes an inmate,
and
(b) in the case of a detainee who, having been a person subject
to control, becomes a convicted inmate within the meaning
of the Crimes (Administration of Sentences) Act 1999, the
period for which he or she was required, under this Act, to
be detained in a detention centre when the order was made
is taken to be the unexpired portion of a sentence of
imprisonment to which he or she is subject.
[9] Section 28A Certain children may be remanded in correctional centres
Omit "prison" from section 28A (2). Insert instead "correctional centre".
[10] Section 28B Certain children etc may be committed to correctional
centres
Omit "prison" from section 28B (2). Insert instead "a correctional centre".
Page 7
Juvenile Offenders Legislation Amendment Bill 2004
Schedule 2 Amendment of Children (Detention Centres) Act 1987
[11] Section 28BA Certain persons to serve balance of detention order in
correctional centre
Omit section 28BA (2). Insert instead:
(2) When such a person is no longer required to serve his or her term
of imprisonment in custody, the person must be kept in custody
in a correctional centre:
(a) for the balance of any unexpired term of a detention order
to which he or she is then subject, and
(b) for the remainder of any period of remand to which he or
she is then subject or to which he or she becomes subject
while in custody as referred to in paragraph (a).
[12] Section 28BA (4), (5) and (6)
Omit the subsections.
[13] Section 28E Consideration of suitability for detention centre
Omit "prison" from section 28E (1) (e). Insert instead "a correctional centre".
[14] Section 28F Consent of Minister administering Crimes (Administration
of Sentences) Act 1999 required
Omit "prison" from section 28F (1) wherever occurring.
Insert instead "a correctional centre".
[15] Section 32 Termination of detention orders
Omit "prison" from section 32 (c) and (d) wherever occurring.
Insert instead "correctional centre".
[16] Schedule 1 Savings and transitional provisions
Insert at the beginning of the Schedule:
Part 1 Preliminary
1A Savings and transitional regulations
(1) The regulations may contain provisions of a savings or
transitional nature consequent on the enactment of the following
Acts:
Juvenile Offenders Legislation Amendment Act 2004
(2) Such a provision may, if the regulations so provide, take effect
from the date of assent to the Act concerned or a later day.
Page 8
Juvenile Offenders Legislation Amendment Bill 2004
Amendment of Children (Detention Centres) Act 1987 Schedule 2
(3) To the extent to which such a provision takes effect from a date
that is earlier than the date of its publication in the Gazette, the
provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than
the State or an authority of the State), the rights of that
person existing before the date of that publication, or
(b) to impose liabilities on any person (other than the State or
an authority of the State) in respect of anything done or
omitted to be done before the date of that publication.
[17] Schedule 1
Omit the heading appearing before clause 1. Insert instead:
Part 2 Provisions consequent on enactment of
Children (Detention Centres) Amendment
Act 1988
[18] Schedule 2, Part 3
Insert after clause 2:
Part 3 Provisions consequent on enactment of
Juvenile Offenders Legislation
Amendment Act 2004
3 Definition
In this Part, the 2004 amending Act means the Juvenile
Offenders Legislation Amendment Act 2004.
4 Section 10 transfer orders
The substitution of section 10 by Schedule 2 [5] to the 2004
amending Act does not affect any transfer made under that
section before the section was substituted.
5 Section 28 transfer orders
The substitution of section 28 by Schedule 2 [8] to the 2004
amending Act does not affect any transfer made under that
section before the section was substituted.
6 Section 28BA applications
The amendment of section 28BA by Schedule 2 [12] to the 2004
amending Act does not affect any application made before that
Page 9
Juvenile Offenders Legislation Amendment Bill 2004
Schedule 2 Amendment of Children (Detention Centres) Act 1987
amendment, and proceedings on such an application may be
continued and completed, and any decision on such an
application has effect, as if that amendment had not been made.
Page 10
Juvenile Offenders Legislation Amendment Bill 2004
Amendment of Crimes (Administration of Sentences) Act 1999 Schedule 3
Schedule 3 Amendment of Crimes (Administration
of Sentences) Act 1999
(Section 5)
[1] Section 3 Interpretation
Insert ", including any juvenile correctional centre or periodic detention
centre" after "section 225" in paragraph (a) of the definition of correctional
centre in section 3 (1).
[2] Section 3 (1)
Insert in alphabetical order:
juvenile correctional centre means any correctional centre
declared to be a juvenile correctional centre by a proclamation in
force under section 225A.
[3] Section 23 Transfers from one correctional centre to another
Insert at the end of the section:
(2) In relation to an inmate who is under the age of 18 years, such an
order may not be made on a ground referred to in subsection (1)
(d), (e) or (f) so as to transfer the inmate from a juvenile
correctional centre to a correctional centre that is not a juvenile
correctional centre.
Note. Such an inmate may only be transferred to such a correctional
centre in accordance with section 41C (2).
[4] Section 38 Absent inmates taken to be in custody
Insert "or 41C" after "section 23" in section 38 (1) (b).
[5] Part 2, Division 3A
Insert after Division 3 of Part 2:
Division 3A Juvenile inmates
41A Definitions
In this Division:
adult correctional centre means a correctional centre that is not
a juvenile correctional centre.
juvenile inmate means an inmate who is under the age of 21
years.
Page 11
Juvenile Offenders Legislation Amendment Bill 2004
Schedule 3 Amendment of Crimes (Administration of Sentences) Act 1999
section 28 juvenile inmate means a juvenile inmate who has been
transferred to a juvenile correctional centre pursuant to an order
under section 28 of the Children (Detention Centres) Act 1987.
41B Custody of section 28 juvenile inmates
Subject to this Act, a section 28 juvenile inmate is to be held in
custody in a juvenile correctional centre.
41C Transfers to and from juvenile correctional centres
(1) The Commissioner may order that a juvenile inmate be
transferred from an adult correctional centre to a juvenile
correctional centre for any reason specified in the order.
(2) The Minister may order that a juvenile inmate be transferred from
a juvenile correctional centre to an adult correctional centre if:
(a) the Commissioner, in the case of a juvenile inmate who is
of or above the age of 18 years, or
(b) the Review Council, in the case of a juvenile inmate who
is under the age of 18 years,
recommends to the Minister that the inmate should be
transferred.
(3) A recommendation for the transfer of a juvenile inmate from a
juvenile correctional centre to an adult correctional centre may
not be made unless the Commissioner or Review Council, as the
case may be, is satisfied that:
(a) the inmate wishes to be transferred, or
(b) the inmate's behaviour is or has been such that he or she
should be transferred, or
(c) it is in the inmate's best interests that he or she be
transferred, or
(d) the association of the inmate with other juvenile inmates at
the juvenile correctional centre constitutes, or is likely to
constitute, a threat to:
(i) the personal safety of any other person, or
(ii) the security of the juvenile correctional centre, or
(iii) good order and discipline within the juvenile
correctional centre.
Page 12
Juvenile Offenders Legislation Amendment Bill 2004
Amendment of Crimes (Administration of Sentences) Act 1999 Schedule 3
(4) Subsection (2) does not limit the operation of section 23 (1) in
relation to juvenile inmates who are of or above the age of 18
years.
Note. Section 23 (2) limits the operation of section 23 (1) in relation to
juvenile inmates who are under the age of 18 years.
41D Procedure to be followed by Review Council as to transfer of
juvenile inmate to adult correctional centre
(1) On the application of the Commissioner, the Review Council is
to conduct an inquiry for the purpose of deciding whether or not
to recommend the transfer of a juvenile inmate from a juvenile
correctional centre to an adult correctional centre, as referred to
in section 41C (2) (b).
(2) In conducting an inquiry under this section, the Review Council
is not bound by the rules of evidence but may inform itself of any
matter in such manner as it thinks appropriate.
(3) The Review Council must cause notice of any hearing in relation
to an inquiry under this section to be given to the Commissioner
and to the juvenile inmate to whom the inquiry relates.
(4) If the inmate so wishes, the Review Council must allow the
juvenile inmate to be present, and to be heard, at the hearing.
(5) The juvenile inmate may be represented by a legal practitioner
chosen by the inmate or, if the Review Council so approves, by
some other person chosen by the inmate.
(6) The Commissioner may be represented by a legal practitioner or
by some other person.
(7) For the purposes of an inquiry under this section, the Review
Council must co-opt a person who is:
(a) a Children's Magistrate or former Children's Magistrate,
or
(b) a legal practitioner of at least 7 years' standing who has
experience as an advocate on behalf of children,
unless such a person is already a member of the Review Council
and is available for the inquiry.
Page 13
Juvenile Offenders Legislation Amendment Bill 2004
Schedule 3 Amendment of Crimes (Administration of Sentences) Act 1999
(8) A person who is co-opted to the Review Council under
subsection (7):
(a) may be co-opted:
(i) as a community member, if the Review Council, as
constituted for the purposes of the inquiry, includes
a judicial member, or
(ii) as a judicial member, if the Review Council, as
constituted for the purposes of the inquiry, does not
include some other judicial member, and
(b) is taken, for the purposes of the inquiry, to be a judicial
member or community member, as the case may be, and
has, in relation to the inquiry, all of the powers and
immunities of such a member.
(9) Division 2 of Part 9 applies to the conduct of an inquiry by the
Review Council under this section.
[6] Section 72 Custody of inmates
Insert "or 41C" after "section 23" in section 72 (1).
[7] Section 197 Functions of Review Council
Insert after section 197 (2) (d):
(d1) to make recommendations to the Minister with respect to
the transfer of juvenile inmates from juvenile correctional
centres to adult correctional centres under Division 3A of
Part 2,
[8] Section 225A
Insert after section 225:
225A Juvenile correctional centres
(1) The Governor may, by the proclamation by which any premises
are declared to be a correctional centre or by a subsequent
proclamation, declare the correctional centre to be a juvenile
correctional centre for the purposes of this Act.
(2) The Governor may, by the proclamation by which any
correctional centre is declared to be a juvenile correctional centre
or by a subsequent proclamation, give a name to the juvenile
correctional centre.
Page 14
Juvenile Offenders Legislation Amendment Bill 2004
Amendment of Crimes (Administration of Sentences) Act 1999 Schedule 3
(3) The Governor may, by proclamation, vary or revoke any
proclamation under this section.
Page 15
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