Juvenile Offenders Legislation
Amendment Bill 2004

New South Wales
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 (Criminal Proceedings) Act 1987, the
Children (Detention Centres) Act 1987 and the Crimes (Administration of Sentences)
Act 1999 so as:

(a) to enable offenders who are dealt with under the Children (Criminal
Proceedings) Act 1987 (otherwise than by the Children’s Court) to be required
to serve any sentence of imprisonment imposed on them either at a detention
centre or at a proposed juvenile correctional centre, and

(b) to modify the scheme established under the Children (Detention Centres) Act
1987 for the transfer of juvenile offenders between detention centres and
correctional centres, and

(c) to provide for the management of juvenile offenders within the correctional
centre system under the Crimes (Administration of Sentences) Act 1999,
including, in particular, the establishment of juvenile correctional centres
within that system.

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
(Criminal Proceedings) Act 1987 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to the Children
(Detention Centres) Act 1987 set out in Schedule 2.

Clause 5 is a formal provision that gives effect to the amendments to the Crimes
(Administration of Sentences) Act 1999 set out in Schedule 3.

Schedule 1 Amendment of Children (Criminal
Proceedings) Act 1987
Schedule 1 [2] amends section 19 of the Act so that an order under that section will
require a sentence of imprisonment imposed by a court to be served “as a juvenile
offender” rather than, as is currently the case, “in a detention centre”. As referred to
in the note to be inserted in section 19 by Schedule 1 [3], this amendment removes
any implication that the sentence must be served at a detention centre, and supports
the scheme whereby young offenders may, in accordance with the proposed
amendments to the Children (Detention Centres) Act 1987, be transferred to a
proposed juvenile correctional centre. Schedule 1 [1] is a consequential amendment
that ensures that the proposed note does not form part of the Act.

Schedule 1 [4] further amends section 19 of the Act to ensure that the warrant of
commitment that is issued in connection with a sentence of imprisonment the subject
of an order under that section is appropriately addressed.

Schedule 1 [5] amends Schedule 2 to the Act so as to enable savings and transitional
regulations to be made as a consequence of the enactment of the proposed Act.

Schedule 1 [6] further amends Schedule 2 so as to enact savings and transitional
provisions consequent on the enactment of the proposed Act.

Schedule 2 Amendment of Children (Detention
Centres) Act 1987
Transfers of juvenile inmates from correctional centres to detention
centres
Schedule 2 [5] substitutes section 10 of the Act. The new section allows juvenile
inmates of a correctional centre to be transferred to a detention centre by order of the
Minister administering the Crimes (Administration of Sentences) Act 1999 made with
the consent of the Minister administering the Children (Detention Centres) Act 1987
(an existing power) and also allows juvenile inmates of a juvenile correctional centre
to be transferred by order of the Commissioner of Corrective Services made with the
consent of the Director-General of the Department of Juvenile Justice (a new power).

The Commissioner may only exercise the new power in relation to juvenile inmates
who have previously been transferred to the correctional centre system from a
detention centre. Existing provisions concerning the effect of a transfer on the
transferee are continued.

Schedule 2 [4] makes a consequential amendment to section 3 of the Act.

Transfers of older detainees from detention centres to juvenile
correctional centres
Schedule 2 [8] substitutes section 28 of the Act. The new section allows older
detainees (that is, detainees who are over 16) to be transferred to a juvenile
correctional centre by order of the Director-General of the Department of Juvenile
Justice made with the consent of the Commissioner of Corrective Services. This
replaces the existing scheme under which transfers to a correctional centre are
effected by order of the Minister administering the Children (Detention Centres) Act
1987 made with the consent of the Minister administering the Crimes
(Administration of Sentences) Act 1999. Such an order will not be able to be made
unless the detainee has previously been transferred to a detention centre from a
correctional centre, is on remand for a serious children’s indictable offence, has been
committed to a detention centre under section 19 of the Children (Criminal
Proceedings) Act 1987 or has behaved in a way that warrants transfer. Existing
provisions concerning the effect of a transfer on the transferee are continued.

Schedule 2 [2] makes consequential amendments to section 3.

Miscellaneous amendments
Schedule 2 [11] amends section 28BA of the Act to clarify that a person who serves
a term of imprisonment in a correctional centre as a consequence of having
committed a detention centre offence must remain in custody in a correctional centre
for any unexpired portion of a detention order and for the remainder of any period of
remand to which he or she is subject. Schedule 2 [12] further amends section 28BA
so as to omit provisions that allow the Children’s Court to direct that the person be
returned to a detention centre.

Schedule 2 [3] amends section 3 as a consequence of the amendments to section 19
of the Children (Criminal Proceedings) Act 1987 that are made by Schedule 1 [2].

Schedule 2 [1], [6], [7], [9], [10], [13], [14] and [15] make law revision amendments
to sections 3, 17, 24, 28A, 28B, 28E, 28F and 32 in relation to certain nomenclature.

Schedule 2 [16] amends Schedule 1 to the Act so as to enable savings and transitional
regulations to be made as a consequence of the enactment of the proposed Act.

Schedule 2 [17] further amends Schedule 1 so as to insert a new Part heading.

Schedule 2 [18] further amends Schedule 1 so as to enact savings and transitional
provisions consequent on the enactment of the proposed Act.

Schedule 3 Amendment of Crimes (Administration
of Sentences) Act 1999
Establishment of juvenile correctional centres
Schedule 3 [8] inserts proposed section 225A into the Act. The new section enables
the Governor to declare a correctional centre to be a juvenile correctional centre for
the purposes of the Act. Schedule 3 [1] and [2] make consequential amendments to
section 3 (containing the definitions used in the Act).

Treatment of juvenile inmates
Schedule 3 [5] inserts proposed Division 3A into Part 2 of the Act. The new Division
contains the following provisions:

Proposed section 41A defines, for the purposes of the proposed Division, the
expressions adult correctional centre (meaning a correctional centre that is not a
juvenile correctional centre), juvenile inmate (meaning an inmate who is under the
age of 21 years) and section 28 juvenile inmate (meaning a juvenile inmate who has
been transferred to a juvenile correctional centre under proposed section 28 of the
Children (Detention Centres) Act 1987).

Proposed section 41B requires a section 28 juvenile inmate to be held in custody in
a juvenile correctional centre, subject to the Act.

Proposed section 41C deals with the transfer of juvenile inmates between juvenile
and adult correctional centres. Transfers “down” (from an adult to a juvenile
correctional centre) are effected by an order by the Commissioner of Corrective
Services. Transfers “up” (from a juvenile to an adult correctional centre) are effected
by an order by the Minister administering the Act. An order for a transfer up cannot
be made except on the recommendation of the Commissioner (in the case of a
juvenile inmate who is over 18) or the Serious Offenders Review Council (in the case
of a juvenile inmate who is under 18). In either case, a recommendation cannot be
made unless the Commissioner or Review Council, as the case may be, is satisfied
that the inmate wants to be transferred, that the inmate’s behaviour is such as to
warrant the transfer, that the transfer is in the inmate’s best interests or that the inmate
is a security threat.

Proposed section 41D sets out the procedure to be followed for the purpose of
obtaining a recommendation from the Serious Offenders Review Council for the
purposes of proposed section 41C. The Commissioner must apply for an inquiry. The
juvenile inmate the subject of the inquiry is entitled to be heard, and to be legally
represented. For the purposes of the inquiry, the Review Council must co-opt a
Children’s Magistrate or former Children’s Magistrate or a legal practitioner of 7
years’ standing who has experience as a children’s advocate (unless such a person is
already a member of the Review Council and is available for the inquiry). The
co-opted person has all of the powers and immunities of a member of the Review
Council.

Schedule 3 [3] amends section 23 of the Act (which deals with the transfer of
inmates) so as to prevent juvenile inmates who are under the age of 18 years from
being transferred to adult correctional centres except in restricted circumstances. The
transfer of these inmates to adult correctional centres will be wholly governed by
proposed section 41C.

Schedule 3 [7] amends section 197 of the Act (which lists the functions of the
Serious Offenders Review Council) so as to ensure that the section reflects the
functions being conferred on the Review Council under proposed Division 3A of
Part 2.

Schedule 3 [4] and [6] make consequential amendments to sections 38 and 72 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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