Children (Detention Centres)
Amendment Bill 2006

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Children (Detention Centres) Act 1987 so as:

(a) to enable the Director-General of the Department of Juvenile Justice (the
Director-General) to make use of the services of the Commissioner of
Corrective Services (the Commissioner) with respect to the handling of riots
and disturbances at detention centres, and

(b) to make provision with respect to the transfer of detainees from detention
centres to correctional centres, and

(c) to increase the time for which detainees may be segregated or isolated from
other detainees, and

(d) to make provision with respect to the provision of medical treatment to
persons who are detained in detention centres, and

(e) to make provision with respect to the functions of Justice Health in relation to
the care of persons who are detained in detention centres, and

(f) to make provision with respect to the testing of juvenile justice officers for
alcohol and prohibited drugs, and

(g) to make other provision of a minor, consequential or ancillary nature.

The Bill also makes minor and consequential amendments to the Children (Criminal
Proceedings) Act 1987, the Crimes (Administration of Sentences) Act 1999 and the
Freedom of Information Act 1989.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the Children
(Detention Centres) Act 1987 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to other Acts set
out in Schedule 2.

Clause 5 provides for the repeal of the proposed Act after all the amendments made
by the proposed Act have commenced. Once the amendments have commenced the
proposed Act will be spent. Section 30 of the Interpretation Act 1987 provides that
the repeal of an amending Act does not affect the amendments made by that Act.

Schedule 1 Amendment of Children (Detention
Centres) Act 1987
Handling of riots and disturbances at detention centres
Schedule 1 [10] inserts a new section 26. The proposed section provides that:

(a) the Director-General may enter into a memorandum of understanding with the
Commissioner with respect to the handling of riots and disturbances at
detention centres (proposed subsection (1)), and

(b) the Director-General may, in accordance with any such memorandum, request
assistance from the Commissioner to deal with any such riot or disturbance at
a detention centre (proposed subsection (2)), and

(c) the Commissioner, and any correctional officer authorised by the
Commissioner, may deal with a riot or disturbance in respect of which such a
request has been made as if it were a riot or disturbance in a correctional
centre, for which purpose the Commissioner is to have the control and
management of the detention centre (proposed subsection (3)), and

(d) dogs may be used to assist in the maintenance of good order and security
(proposed subsection (4)), and

(e) control and management of a detention centre is to be returned to the
Director-General as soon as good order and security have been restored
(proposed subsection (5)), and

(f) the Director-General is not to exercise any function in relation to a detention
centre while its control and management belong to the Commissioner, as
referred to in proposed subsection (3) (proposed subsection (6)), and

(g) a request under proposed subsection (2) may relate to part only of a detention
centre (proposed subsection (7)).

Schedule 1 [3] makes a consequential amendment to section 6.

Transfer of detainees
Section 28 currently enables detainees who are over 16 to be transferred from a
detention centre to a juvenile correctional centre (part of the adult correctional
system), but only if they have previously been transferred to the detention centre
from a correctional centre, are on remand for a serious offence, have been sent to the
detention centre by a court other than the Children’s Court or have severe
behavioural problems.

Schedule 1 [14] amends section 28 (2) so as to provide that the transfer of a detainee
who is under 18 can be effected only in the circumstances referred to above.

Schedule 1 [15] inserts a new section 28 (2A) that provides that the transfer of a
detainee who is between 18 and 21 can be effected not only in those circumstances
but also if the Children’s Court authorises the transfer or the detainee requests the
transfer. A consequential effect of these amendments is that detainees who are over
21 will be able to be transferred without any restriction.

Schedule 1 [13] inserts a new section 28 (1A) which makes it clear that a transfer
order may be made in relation to a detainee who is absent from, or has not yet been
received at, a detention centre. The effect of this amendment is that detainees who
are over the age of 21 (such as those who have been arrested following revocation of
their parole) can be taken directly to a correctional centre rather than to a detention
centre.

Schedule 1 [12] amends section 28 (1) and (3) so as to enable transfers to be made
to any correctional centre. However, Schedule 1 [15] inserts a new section 28 (2B)
that requires detainees who are under 18 to be transferred to a juvenile correctional
centre (that is, a correctional centre established for juveniles).

Segregation and isolation of detainees
Section 19 enables detainees to be segregated for their own protection for up to
6 hours in any period of 24 hours. Schedule 1 [7] amends section 19 so as to allow
for segregation for an indefinite period if the Director-General so approves.

Section 21 enables detainees to be isolated for up to 3 hours (in the case of detainees
under 16) or 12 hours (in the case of detainees 16 or over) by way of punishment for
misbehaviour. Schedule 1 [8] amends section 21 so as to increase the maximum
periods of isolation to 12 hours and 24 hours, respectively.

Medical treatment
Schedule 1 [11] inserts a new section 27. The proposed section requires detainees to
be provided with appropriate medical treatment, and allows them to be given medical
treatment without their consent if it is necessary for the purpose of saving life or
preventing serious damage to health.

Justice Health
Schedule 1 [18] inserts provisions with respect to the functions of Justice Health, a
statutory corporation established to provide health services in correctional centres
(proposed Part 4A, Division 1).

Proposed section 37E provides for Justice Health to have the same functions in
relation to detainees as it has in relation to the inmates of a correctional centre.

Proposed section 37F provides for Justice Health to have the same rights of access
to detention centres, detainees and their medical records as it has in relation to
correctional centres, inmates and their medical records.

Proposed section 37G provides for the appointment of medical officers for
detention centres, and requires statistical records to be kept of the health services
provided to detainees.

Proposed section 37H enables the Chief Executive Officer of Justice Health to
delegate his or her functions under the Act.

Drug and alcohol testing of staff
Schedule 1 [18] inserts provisions with respect to the testing of juvenile justice
officers for alcohol and prohibited drugs (proposed Part 4A, Division 2). These
provisions are substantially identical to similar provisions with respect to the testing
of correctional officers contained in the Crimes (Administration of Sentences) Act
1999.

Proposed section 37I defines certain words and expressions for the purposes of the
proposed Division.

Proposed section 37J enables a juvenile justice officer who is on duty or on site in
a detention centre to be required to submit to a breath analysis or to provide a sample
for the purpose of testing for drugs and alcohol.

Proposed section 37K enables a juvenile justice officer who has been taken to
hospital following an incident in which a person has been injured or died to provide
a sample for the purpose of testing for drugs and alcohol.

Proposed section 37L protects doctors and nurses from liability for taking samples
for the purposes of the Act.

Proposed section 37M extends the range of matters for which regulations may be
made so as to include certain matters for which regulations can be made under the
Crimes (Administration of Sentences) Act 1999. The matters concerned deal with
specific aspects of the matters dealt with by the proposed Division.

Miscellaneous amendments
Schedule 1 [16] inserts a new section 32A. The proposed section extends the range
of matters for which regulations may be made so as to include certain matters for
which regulations can be made under the Crimes (Administration of Sentences) Act
1999. The matters concerned deal with specific aspects of the management, control,
administration and supervision of detention centres, such as visits, the making and
receiving of telephone calls, the conduct of searches, the use of force and the testing
of detainees for drugs and alcohol.

Schedule 1 [6] amends section 14 so as to require the Director-General to consult
with, and have regard to the recommendations of, the Director-General of the
Department of Health in relation to matters concerning a detainee who is a forensic
patient within the meaning of the Mental Health Act 1990.

Schedule 1 [1] inserts new definitions of Chief Executive Officer, Justice Health,
correctional officer, Justice Health and medical officer, and a new definition of
juvenile justice officer (to replace the existing definition of officer), into section
3 (1). Schedule 1 [2] omits the definition of officer. Schedule 1 [4], [5], [9], [17] and
[19]–[21] amend various sections to replace references to “officer” with references
to “juvenile justice officer” (to distinguish them from references elsewhere to
“correctional officer”).

Schedule 1 [22] and [23] enact savings and transitional provisions consequent on the
enactment of the proposed Act.

Schedule 2 Amendment of other Acts
Amendment of Children (Criminal Proceedings) Act 1987
Schedule 2.1 [1] amends section 19 so as to ensure that nothing in that section, or in
any order under that section, limits the operation of section 28 of the Children
(Detention Centres) Act 1987. Consequently, that section and the orders under it, will
not prevent detainees from being transferred to a correctional centre pursuant to the
proposed amendments to section 28 (to be effected by Schedule 1 [12]–[15]).

Schedule 2.1 [2] makes a consequential amendment to the note to section 19 (1).

Amendment of Crimes (Administration of Sentences) Act 1999
Schedule 2.2 [1] amends the definition of section 28 juvenile inmate in section 41A
so as to restrict the definition to persons who are under 18. The effect of this
amendment will be to allow inmates who are 18 or over, and who have been
transferred to a juvenile correctional centre pursuant to section 28 of the Children
(Detention Centres) Act 1987, to be subsequently transferred into the general prison
population.

Schedule 2.2 [2] amends section 253 (which states that Part 13, dealing with the
temporary custody of persons required to be kept in custody, is subject to the
Children (Detention Centres) Act 1987) so as to provide that section 253 does not
limit the operation of Part 13 in relation to persons over 21.

Amendment of Freedom of Information Act 1989
Schedule 2.3 amends Schedule 1 so as to provide that documents created by the Drug
Intelligence Unit of the Department of Juvenile Justice are exempt documents for the
purposes of the Act.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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