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Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.*
Preliminary
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.
* Amended in committee--see table at end of volume.
Clause 3 sets out the objects of the proposed Act which are to establish a
scheme that provides an alternative process to court proceedings for children
alleged to have committed offences, through the use of youth justice
conferences, formal cautions and warnings and to provide an
and
direct response to the commission of certain offences by children.
Clause 4 defines certain words and expressions used in the proposed Act.
Clause 5 defines victim to mean a person who suffers harm as a direct result
of an act committed, or apparently committed, by a child in the course of an
offence. The harm covered includes physical harm and harm to property.
Clause 6 makes it clear that notes in the text do not form part of the
proposed Act.
Part 2
General principles of scheme
Clause 7 sets out the general principles that are to guide the operation of the
proposed Act and persons exercising functions under the proposed Act. They
include the principle that the least restrictive form of sanctions are to be
applied against a child who is alleged to have committed an offence and that
criminal proceedings are not to be instituted against a child if there is an
alternative and appropriate means of dealing with a matter.
Clause 8 sets out the offences to be covered by the proposed Act. The
offences to be covered will be summary offences and certain indictable
offences that may be dealt with summarily. It will not cover offences that are
not investigated by an investigating official within the meaning of the
proposed Act or in certain other circumstances.
Clause 9 sets out the procedures under the scheme. An investigating official
dealing with a child who is alleged to have committed an offence covered by
the proposed Act must consider whether the matter is to be dealt with by
warning, caution or youth justice conference before commencing criminal
proceedings.
Clause 10 requires any admissions made for the purposes of the proposed
Act, if possible, to be in the presence of a person responsible for the child, an
adult present with the consent of a person responsible for the child, an adult
chosen by the child (over age 16) or a legal practitioner chosen by the child.
Clause 11 makes it clear that the proposed Act does not affect any
jurisdiction of the Children's Court or limit the requirements of any law
relating to evidence.
Explanatory note page 2
Clause 12 makes it clear that the proposed Act does
not affect other
functions relating to methods of dealing with offences not covered by the
proposed Act.
Part 3
Warnings
Clause 13 states that warnings may be given for summary offences covered
by the proposed Act but not for any prescribed offence.
Clause 14 confers on a child who has committed an offence for which a
warning may be given an entitlement to be given a warning. However, this is
to be subject to the circumstances not involving violence and any opinion of
the investigating official that it is not in the interests of justice for the matter
to be dealt with by warning. A child may be given a warning even though the
child has previously committed offences.
Clause 15 provides that warnings may be given at any place and to more
than one child at the same time.
Clause 16 requires an investigating official to take steps to ensure that a
child understands the purpose, nature and effect of the warning.
Clause 17 requires an investigating official to record the fact that a warning
has been given but not the name of the child warned.
Part 4
Cautions
Clause 18 states that cautions may be given for offences covered by the
proposed Act, other than offences prescribed by the regulations.
Clause 19 sets out the conditions for giving a caution against further
offending. They are that the child admits the offence, that the child consents
to the giving of the caution and that the child is entitled to be given the
caution.
Clause 20 confers on a child who has committed an offence for which a
warning may not be given an entitlement to be given a caution. However, this
is to be subject to any opinion of the investigating official that it is not in the
interests of justice for the matter to be dealt with by warning. In forming such
an opinion, the investigating official is to consider the seriousness of the
offence, the degree of violence involved, the harm caused to the victim and
any previous offences committed by the child and may consider any other
matters. If the investigating official is concerned about harm caused to the
victim even though other serious factors are not involved, the investigating
Explanatory note page 3
official may refer the matter to a specialist youth officer to decide whether the
matter is an appropriate one for a caution. A child may be given a caution
even though the child has previously committed offences or been dealt with
under the proposed Act.
Clause 21 requires an investigating official to arrange a caution if the
official determines that a matter should be dealt with by caution and to refer a
matter to a specialist youth officer if the official determines that it is not in
the interests of justice for a matter to be dealt with by way of a warning or
caution.
Clause 22 requires an investigating official to explain to the child certain
matters relating to the offence, the child's right to obtain legal advice, the
entitlement to have the matter dealt with by a court and the nature and effect
of a caution. If possible, the explanation is to be in the presence of a person
responsible for the child, an adult present with the consent of a person
responsible for the child, an adult chosen by the child (over age 16) or a legal
practitioner chosen by the child.
Clause 23 enables the Director of Public Prosecutions to refer children for
cautions.
Clause 24 requires a written caution notice to be given to a child before the
caution is given.
Clause 25 provides that a child may decide not to proceed with a caution
and may elect to have a matter dealt with by a court. It also enables an
investigating official to decide to proceed by court rather than by caution at
any time before the caution is given.
Clause 26 requires cautions, if practicable, to be given not less than 10 days,
and not more than 21 days, after notice is given of the caution. A caution
must generally be given at a police station.
Clause 27 enables cautions to be given by police officers or specialist youth
officers authorised by the Commissioner of Police. Any such authorised
person may, if the person thinks it appropriate, arrange for a caution to be
given by a respected member of the community.
Clause 28 sets out the persons who may be present when a caution is given.
They include a person responsible for the child, members of the child's
family or extended family, an adult chosen by the child, a respected member
of the community, interpreters and other skilled persons in the case of a child
who has a communication or cognitive disability or is subject to a probation
or a community service order.
Explanatory note page 4
Clause 29 sets out conditions for giving cautions, including requirements
that the person giving the caution must take steps to ensure that the child
understands the purpose, nature and effect of the caution, the requirement to
have the assistance of appropriately skilled persons where needed and the
requirement to ensure, if possible, that a person responsible for the child or
an adult chosen by the child is present. The person giving the caution may
request the child to provide an apology to any victim but must not impose
any other conditions on a caution.
Clause 30 provides that a caution notice must be given to a child who has
been cautioned.
Clause 31 enables courts to give cautions if the offence is one for which a
caution may be given under the proposed Part.
Clause 32 prohibits further criminal proceedings from being taken against a
child in respect of an offence for which a caution has been given or an
offence for which proceedings could not have been taken on a conviction of
the child.
Clause 33 requires records to be kept of cautions.
Part 5
Youth justice conferences
Division
Preliminary
1
Clause 34 sets out the principles and purposes of youth Justice conferences.
The principles require measures and sanctions taken or imposed by
conferences to promote acceptance by children of responsibility for offences
and, among other things, to take the least restrictive form that is appropriate
in the circumstances. The rights of victims are also to be enhanced. The
purpose of a conference is to make decisions and recommendations about,
and to determine outcome plans in respect of, children who commit offences.
Participants at conferences are to take into account the need to hold children
accountable for their behaviour, the need to encourage the acceptance of
responsibility, the need to make reparation to victims and the needs of the
children.
Clause 35 states that conferences may be held for offences covered by the
proposed Act, other than offences prescribed by the regulations.
Clause 36 sets out the conditions for holding a conference. They are that the
offence is one for which a conference may be held, that the child admits the
offence, that the child consents to the conference and that the child is entitled
to be the subject of a conference.
Explanatory note page 5
Clause 37 confers on a child who has committed an offence an entitlement
to be dealt with by holding a conference. However, this is to be subject to any
opinion of the investigating official that it is not in the interests of justice for
the matter to be dealt with by conference. In forming such an opinion, the
investigating official must consider the seriousness of the offence, the degree
of violence involved, the harm caused to any victim and any previous
offences committed by the child and may consider any other matters. A child
may be given a warning even though the child has previously committed
offences or been dealt with under the proposed Act.
Clause 38 provides for a specialist youth officer to refer a matter to a
conference administrator if the officer determines that a conference should be
held. If the specialist youth officer determines that the matter may be dealt
with by warning or a caution, the officer is to make the appropriate
arrangements. If the specialist youth officer determines that the matter should
be dealt with by commencing proceedings, the officer must refer the matter to
the investigating official or appropriate authority.
Clause 39 requires a specialist youth officer to explain to the child certain
matters relating to the offence, the child's right to obtain legal advice, the
entitlement to have the matter dealt with by a court and the nature and effect
of a conference. If possible, the explanation is to be in the presence of a
person responsible for the child, an adult present with the consent of a person
responsible for the child, an adult chosen by the child (over age 16) or a legal
practitioner chosen by the child.
Clause 40 enables a court or the Director of Public Prosecutions to refer
matters to conference administrators for conferences. The matters must relate
to offences for which conferences may be held and the children concerned
must
held.
admit the relevant offences and consent to the conference being
Clause 41 enables a conference administrator to consult with a specialist
youth officer as to whether a matter should be dealt with by caution or
conference. If they fail to agree, the Director of Public Prosecutions is to
determine
with.
how the matter is to be dealt
Division
Conferences
2
Clause 42 requires a conference administrator to appoint a conference
convenor
conference.
when a matter is referred for a
Clause 43 requires a conference to be held not later than 21 days after a
referral and not less than 10 days after notice is given to the child.
Explanatory note page 6
Clause 44 provides that a child may decide not to proceed with a conference
and may elect to have a matter dealt with by a court. It also enables a
specialist youth officer, the Director of Public Prosecutions or a court to
decide to proceed by court proceedings rather than by conference at any time
before
held.
the conference is
Clause 45 sets out the matters to be dealt with, and the steps to be taken,
before a conference is held. They include setting a date, time and place for a
conference, consulting with the person who referred the matter, the child, a
person responsible for the child and any victim, giving written notice of the
conference, providing information to those attending and obtaining the views
of
attend.
those unable to
Clause 46 provides that conferences may be held at an agreed place, other
Juvenile than a police station, court house or office of the Department of
Justice.
Clause 47 sets out the persons who may be present when a conference is
held. They include a person responsible for the child, members of the child's
family or extended family, an adult chosen by the child, any victim or a
representative of the victim, a support person for the victim, a respected
member of the community, interpreters and other skilled persons in the case
of a child who has a communication or cognitive disability or is subject to a
probation
order.
or a community service
Clause 48 sets out conditions for the conduct of a conference by a
conference convenor. The conference is to be conducted in a way that best
assists the reaching of an agreement about an outcome plan and participants
may, subject to any guidelines prepared by the Director-General of Juvenile
Justice, regulate the procedure as they think fit. The convenor may exclude a
person (other than the child or any victim) if the convenor feels that the
presence of that person may frustrate the purpose or conduct of a conference.
No recommendations can be made by a conference if the participants cannot
determine whether the child admits the offence. Conferences may be
adjourned
after
and are, if practicable, to be finished not later than 7 days
they
start.
first
Clause 49 enables the Director-General to prepare written guidelines for the
conduct of conferences and requires conference convenors to conduct
conferences in accordance with them.
Clause 50 entitles a child to be advised, but not represented, by a legal
practitioner at a conference. However, legal representation may be permitted
by the conference convenor.
Explanatory note page 7
Clause 51 provides that a matter must be referred back to the person or
body that referred it for a conference if a child fails, without reasonable
cause,
conference.
to attend a
Clause 52 enables participants to agree to make suck recommendations or
decisions as they think fit, but only if the child and the victim (if personally
present) agree. An outcome plan is, if possible, to be agreed by consensus.
The kinds of matters that may be contained in an outcome plan include a
requirement for an apology, the making of reparation to any victim or the
community, participation by the child in an appropriate program and actions
to reintegrate the child into the community. The proposed section also sets
out limitations on outcome plans.
Clause 53 requires a conference convenor to refer a matter back to the
person who referred the matter for a conference if the conference is unable to
agree on an outcome plan. Proceedings may be commenced or continued
against the child.
Clause 54 requires an outcome plan to be sent back to a court if the matter
was referred for a conference by the court. The court may approve the plan
or,
proceedings.
if it does not, may continue the
Clause 55 enables conferences to be reconvened at the request of more than
one participant for the purpose of reconsidering any aspect of the outcome
plan.
conference.
An outcome plan may be varied or replaced at a reconvened
Clause 56 confers on conference administrators the function of supervising
and monitoring the implementation of outcome plans and requires written
notice to be given as to whether or not outcome plans have been satisfactorily
completed by the child.
Clause 57 provides for notice that an outcome plan has not been
satisfactorily completed to be accompanied by reports and recommendations
by
convenor.
the conference
Clause 58 prohibits further criminal proceedings from being taken against a
child who has satisfactorily completed an outcome plan.
Clause 59 requires records to be kept of conferences.
Division 3
Co-ordination of conferences
Clause 60 provides for the appointment of conference convenors.
Clause 61 provides for the appointment of conference administrators.
Explanatory note page 8
Part 6
Miscellaneous
Clause 62 provides that the proposed Act binds the Crown.
Clause 63 provides that proceedings for offences under the proposed Act or
regulations are to be dealt with summarily before a Local Court constituted
by a Magistrate sitting alone.
Clause 64 provides for the commencement or continuation of proceedings
against a child when a decision is made not to give a caution or hold a
conference or when a child elects not to proceed with a caution or conference
or fails to attend a conference or fails to satisfactorily complete an outcome
plan
agreement.
or a conference fails to reach an
Clause 65 makes it an offence to publish or broadcast the name of any child
dealt with under the proposed Act, or any information tending to identify the
child. The maximum penalty for the offence is to be $50,000 for a
corporation or $5,000 for an individual.
Clause 66 prohibits the disclosure of information acquired, or records made,
under the proposed Act, except to a child, a person responsible for a child or
a legal adviser of the child, or for the purpose of determining whether to take
action under the proposed Act or to a court for the purpose of making a
decision concerning sentencing. The maximum penalty for the offence is to
be $50,000 for a corporation or $5,000 for an individual.
Clause 67 prevents statements, confessions or information made or given by
a child during a warning, caution or conference from being admissible as
evidence against the child in criminal proceedings.
Clause 68 makes it clear that a person need not disclose, for the purposes of
revealing the person's criminal history, that the person has received a warning
or caution, or has been dealt with by a conference, under the proposed Act.
Clause 69 makes it clear that an investigating official may act on
information obtained during the course of a warning, caution or conference in
relation to offences other than offences the subject of the warning, caution or
conference.
Clause 70 sets out how notices under the proposed Act may be given.
Clause 71 provides that the Director-General, a conference administrator, a
conference convenor or a person acting under their direction, are not
personally liable for matters or things done in good faith for the purpose of
executing the proposed Act or any other Act. The proposed section also
excludes such persons for being liable for an offence relating to disclosure of
information about crimes.
Explanatory note page 9
Clause 73 gives effect to the amendments to the Children (Criminal
Proceedings)
1987.
Act
Clause 74 gives effect
to
Schedule containing savings and transitional
provisions.
Clause 75 provides that the Act is to be reviewed by the Minister as soon as
possible after 3 years from the date of commencement of the proposed
section.
Schedule 1
Conference convenors
The proposed Schedule sets out provisions relating to the appointment and
employment of conference convenors.
Schedule 2
Amendment of Children (Criminal
Proceedings) Act 1987
The proposed Schedule amends the Children (Criminal Proceedings) Act
1987 to make it clear that previous actions, such as warnings, cautions and
youth justice conferences, are not to be disclosed in evidence in criminal
proceedings relating to other offences. The amendments also enable the
Children's Court to make an order releasing a person on condition that a
person comply with an outcome plan determined by a youth justice
conference.
Schedule 3
Savings and transitional provisions
The proposed Schedule contains savings and transitional provisions.
Explanatory note page 10