New South Wales Consolidated Acts

CHILDREN (DETENTION CENTRES) ACT 1987 - SECT 38A

38A Extension of term of detention order following unlawful absence

(1) If a person subject to control is unlawfully absent from custody during the term of the detention order to which the person is subject:

(a) the term of the detention order, and

(b) if the absence occurs during a non-parole period of the term of the detention order-the non-parole period,

are, by this section, extended by the period for which the person is unlawfully absent from custody.

(2) For the purposes of this section, a person is unlawfully absent from custody if, and only if:

(a) the person has escaped from lawful custody, or

(b) the person has failed, without reasonable excuse, to return to a detention centre before the expiry of leave of absence granted to the person by order under section 24 (1) (a), or

(c) the person has failed, without reasonable excuse, to return to a detention centre following the revocation of an order that authorised the person’s absence from the detention centre, or

(d) the person has failed, without reasonable excuse, to return to a detention centre in accordance with the requirements of section 25 (4) (relating to return from medical treatment).

(3) This section applies to an unlawful absence from custody regardless of whether the person has been charged with or found guilty of an offence in connection with the absence. The application of this section does not prevent proceedings being taken against the person for such an offence.

(4) This section does not apply to an unlawful absence from custody in respect of which the non-parole period or term of the person’s detention order is extended by or under some other provision of this Act.

(5) For the purposes of this section, unlawful absence from custody does not include any period during which the person is in lawful custody, whether or not in relation to the detention order to which the person is subject.

(6) The date of commencement of any other detention order (the "later detention order") that is to be served consecutively with a detention order whose term or non-parole period is extended by this section (the "earlier detention order") is, by this subsection, postponed:

(a) if the later detention order commences at the end of the non-parole period of the earlier detention order-by the period for which the non-parole period of the earlier detention order is extended, or

(b) if the later detention order commences at the expiry of the earlier detention order-by the period for which the term of the earlier detention order is extended.

(7) As soon as practicable after a person whose detention order is extended by this section is returned to a detention centre, the centre manager is to give the person:

(a) a written notice of the extension, and

(b) an explanation of the effect of the notice.

A failure to comply with this subsection does not affect the validity of the extension of the detention order.

(8) This section extends to a period of unlawful absence before the commencement of this section, but does not apply if the unlawful absence ceased, and the detainee was released on parole or discharged, before that commencement.