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Juvenile Justice and Other Acts Amendment Bill 2009
Juvenile Justice and Other Acts
Amendment Bill 2009
Explanatory Notes
Title of the Bill
Juvenile Justice and Other Acts Amendment Bill 2009
General Outline
The objectivess of this Bill are to amend the Juvenile Justice Act 1992,
Child Protection Act 1993 and the Young Offenders (Interstate Transfer)
Act 1987 and other relevant legislation to provide a best practice youth
justice system with the capacity to respond to current demands and
challenges.
Summary
A review of the Act was publicly announced on 31 May 2007 to provide a
best practice youth justice system with the capacity to respond to current
demands and challenges. In line with the terms of reference for the review,
the Bill proposes legislative amendments to:
· give courts specific powers to place curfews on juvenile offenders to
reduce the chances of them reoffending and to ensure they are
properly supervised;
· widen court powers in relation to naming juvenile offenders, allowing
orders to be issued allowing publication of identifying information if
the court considers it to be in the interests of justice to do so;
· increase the minimum mandatory detention period for young people
convicted of multiple murders from 15 years to 20 years'
imprisonment;
· give police stronger powers to arrest and take to court young people
who:
· do not comply with youth justice conferencing requirements; or
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Juvenile Justice and Other Acts Amendment Bill 2009
· contravene an agreement; or
· fail to attend a drug assessment session;
· require courts to consider setting a date for the transfer of offenders
from youth detention to adult prison when sentencing young offenders
to be detained beyond the age of 18;
· automatically prohibit the publication of information which identifies
a child victim;
· contribute to reducing remand levels by:
· requiring courts to consider the likely sentence when making bail
decisions;
· clarifying that if a young person is remanded in detention
because of a threat of harm to their safety, the threat must arise
from the circumstances of the alleged offence (such as a threat of
retribution from a victim or a co-accused);
· update the name of the Juvenile Justice Act 1992 to the Youth Justice
Act 1992; and
· make minor amendments (eg to give victims the right to bring more
than one support person with them to a formal youth justice
conference) to improve the workability of the relevant Acts.
Assessment of administrative cost to government
The amendments in the Bill can be made without additional resourcing and
will contribute to the Queensland Government's package of funded
initiatives which support a robust and fiscally responsible youth justice
system that is based on evidence and community feedback, will support
victims of crime, meet community expectations of the justice system, and
address the underlying causes of crime.
Consistency with Fundamental Legislative Principles
Aspects of the Bill which raise possible fundamental legislative principles
issues are outlined below.
Section 198 time to complete community service order
It is proposed to allow the court to shorten the period within which a young
offender must complete a community service order of less than 50 hours.
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Juvenile Justice and Other Acts Amendment Bill 2009
This could impact on the rights and liberties of the individual by making it
more onerous to complete the order within the specified timeframe.
However, the amendment is intended to ensure that orders are completed in
line with the Juvenile Justice Principle 11 which requires that a decision
affecting a child should, if practicable, be made and implemented within a
timeframe appropriate to the child's sense of time.
In stipulating the timeframe, the court will be required to consider what is
reasonable in the circumstances of the case. Allowing the order to be
completed in a more timely way will ensure that young people do not have
the order `hanging over their head' any longer than necessary.
Increased minimum detention times for young people charged with
multiple murders
The proposal to increase the mandatory minimum non-parole period from
15 to 20 years for multiple murders is a potential breach of fundamental
legislative principles. Currently, a mandatory minimum period of 15 years
applies for juveniles and adults convicted of murder. However, for multiple
murders, only adults are subject to a minimum 20 year non-parole period.
The potential to infringe on the rights and liberties of the individual subject
to this provision is present in two respects. Firstly, it represents an increase
in penalty. This is justified on the grounds of making the multiple murder
provisions for juveniles consistent with the provisions relating to a single
murder. The penalty reflects the seriousness of the offending. Parliament
has previously determined that parity between juveniles and adults is
appropriate for single murders where there is a life sentence and there
appears to be no factors to justify a different principle being applied for
multiple murders.
Secondly, the amendment will prescribe a mandatory minimum sentence
which potentially impacts on judicial independence by limiting the court's
discretion. However, the amendment only applies to children sentenced to
life imprisonment for multiple murders under section 176(3)(b) of the JJA,
at which point the court will already have given consideration to the
specific circumstances of the offence and determined that it is particularly
heinous having regard to all the circumstances of the case. It is not intended
to apply unless a life sentence is given for more than one of the murders
and so achieves a balance between protection of the community and the
rights of the person who may be subject to the order. The Parliament has
previously decided that a mandatory minimum sentence is appropriate for a
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Juvenile Justice and Other Acts Amendment Bill 2009
single murder and there appear to be no factors to justify a different
approach being applied for multiple murders.
Confidentiality (disclosure of information to Queensland Police Service)
This amendment would have the effect of allowing information, such as
possible further offending, to be passed on to the Queensland Police
Service, thereby potentially impacting on the rights and liberties of the
young person.
This is considered to be justified given the need to hold young people
accountable for their offending in accordance with Juvenile Justice
Principle 8 which states that a young person who commits an offence
should be held accountable and encouraged to accept responsibility for the
offending behaviour. It is also considered to be justified given the need to
protect the public from the ongoing commission of offences.
As a safeguard, disclosure is only permitted by the Chief Executive of the
Department of Communities who may only disclose the information to the
Queensland Police Commissioner, and only where disclosure is in the
public interest. In addition, the decision by the Chief Executive to disclose
the information would be reviewable under the Judicial Review Act 1991.
Strengthened compliance with youth justice conferencing s 164, 165, 166
and 174 warrant for child failing to appear after and unsuccessful
conference, a contravention of an agreement and failure to attend a drug
assessment and education session
Sections 164, 165, 166 and 174 are to be amended to allow a warrant for
arrest to be issued for children who fail to appear at court following an
unsuccessful conference, contravention of an agreement or failure to attend
a drug assessment and education session. This may infringe on the rights
and liberties of children subjected to such warrants.
However, the infringement is justified as the arrest warrant process is
required to ensure that the child can be brought back to the court and
resentenced as is intended by the JJA. Further, it will ensure consistency
between the above circumstances and the process for dealing with a young
person who has breached a term of a community based order.
An additional amendment will be made to require that a warning be given
to children that an arrest warrant may be issued if the child fails to appear
in court. This provides further protection of the child's liberty in these
circumstances.
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Juvenile Justice and Other Acts Amendment Bill 2009
Consultation
The review of the Act was publicly announced on 31 May 2007. A
three-month consultation period commenced with the release of an Issues
Paper on 19 July 2007. More than 1100 copies of the Issues Paper were
sent directly to stakeholders or supplied to regional offices of the
Department of Communities for distribution locally.
The consultation was widely promoted to the public through newspaper
and radio advertisements, including announcements on the National
Indigenous Radio Service; media releases; and the Department of
Communities website. Posters about the consultation were distributed to
youth justice service providers, and notices about the consultation were
placed on the Queensland Government's youth consultation website and
other related government portals.
Regional Department of Communities offices supported the review by
meeting with local youth justice stakeholders such as court and legal
services staff, youth advocates, police officers, community representatives
and Indigenous Elders.
The Department of Communities received a total of 174 submissions of
which 53 were from young people. A consultation report on the results of
consultation was published on the Department of Communities internet site
and sent to stakeholders who made submissions to the review.
Notes on Provisions
Part 1 Preliminary
Short Title
Clause 1 provides that the short title of the Bill is the Juvenile Justice and
Other Acts Amendment Act 2009.
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Juvenile Justice and Other Acts Amendment Bill 2009
Commencement
Clause 2 specifies that Part 2 is taken to have commenced on 31 January
2009. The clause provides that remainder of the Bill commences on a day
to be fixed by proclamation. This delayed commencement is to allow
sufficient time for complimentary administrative arrangements to be made
and for promotion and awareness raising of the amendments.
Part 2 Amendment of Aboriginal and
Torres Strait Islander
Communities (Justice, Land and
Other Matters) Act 1984
Act amended
Clause 3 states that this part amends the Aboriginal and Torres Strait
Islander Communities (Justice, Land and Other Matters) Act 1984.
Replacement of s 60V (Annual report by IIB)
Clause 4 amends section 60V to change the reporting period for the Island
Industries Board to 1 February to 31 January in the succeeding year.
This amendment is to take effect on 31 January 2009 (retrospectively) to
ensure that the Board is not required to recast its accounts for the 2008
operational year and make subsequent adjustments to its accounts for two
financial years.
Part 3 Amendment of Child Protection
Act 1999
Act amended
Clause 5 states that this part amends the Child Protection Act 1999.
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Juvenile Justice and Other Acts Amendment Bill 2009
Amendment of s 193 (Restrictions on reporting certain court
proceedings)
Clause 6 amends section 193 to omit references to the person in relation to
whom the offence is alleged to have been committed, but to retain its
application to child witnesses in relation to certain court proceedings. The
definition of `proceedings' is amended to include proceedings for a charge
against a child.
Insertion of new ch 6, pt 6, div 4
Clause 7 inserts a new Chapter 6, Part 6, Division 4, sections 194-194B.
Under the clause:
· section 194 makes it an offence to publish identifying information about
a person who is or was a child in relation to whom an offence was
committed or is alleged to have been committed, and sets out the
circumstances in which the publication is not an offence;
· section 194A enables a defendant to apply to the court for a direction
that section 194(1) does not apply;
· section 194B enables an appellant to apply to the court for a direction
that section 194(1) does not apply.
Part 4 Amendment of Juvenile Justice
Act 1992
Act amended
Clause 8 states that this part amends the Juvenile Justice Act 1992.
Amendment of s 1 (Short title)
Clause 9 changes the short title of the Act to the Youth Justice Act 1992 to
reflect contemporary terminology.
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Juvenile Justice and Other Acts Amendment Bill 2009
Amendment of s 21 (Childrens court may dismiss charge if
caution should have been administered or no action taken)
Clause 10 makes a minor amendment to section 21(3)(a) to change a
reference from `the caution' to `a caution'.
Amendment of s 34 (Who may participate in a conference)
Clause 11 amends section 34 to enable a victim to invite more than 1
person to participate in a conference.
Clause 11 also makes minor amendments to sections 34(1)(h) and 34(3)(a)
to change each reference of `member' to `person' consistent with
terminology used throughout the Act.
Amendment of s 48 (Decisions about bail and related matters)
Clause 12 amends section 48 to require a court to have regard to the
sentence order or other order likely to be made if a child is found guilty
when deciding whether or not to grant bail.
Clause 12 also amends section 48(7)(a) to provide that a child is only to be
kept in custody where if released, the child's safety would be endangered
because of the alleged offence. The clause removes the examples for
paragraph (a) to reflect the amendment.
Amendment of s 52 (Conditions of release on bail)
Clause 13 amends section 52 to specify a court's power to impose a curfew
as a bail condition.
Amendment of s 62 (Childrens court judge)
Clause 14 makes a minor amendment to section 62 to replace a reference to
`section 270', with a reference to `part 8, division 2A'. The amendment
reflects the changes created by clause 38 and clause 39.
Amendment of s 120 (Preliminary procedure)
Clause 15 amends section 120 to require the proper officer of a court to
notify the chief executive when a child makes an application.
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Juvenile Justice and Other Acts Amendment Bill 2009
Amendment of s 121 (Stay of proceedings and suspension of
orders)
Clause 16 amends section 121 to require the proper officer of a court to
notify the chief executive if a Childrens Court judge orders a stay of a
proceeding under a sentence order.
Amendment of s 135 (Offender remanded in custody for adult
offences)
Clause 17 amends section 135 to clarify that if an offender is in custody in
a youth detention centre and then becomes subject to adult custody (either
remand or sentence) the adult custody is to be served in a youth detention
centre, until such time as the childhood custody expires. This section does
not limit the transfer of a person in a youth detention centre to a prison as
set out in clause 39. The time spent serving a term of custody in a youth
detention centre under this section is to be counted as part of the term of
imprisonment.
The clause also makes a minor amendment to section 135 to replace a
reference to `section 270' with a reference to `part 8, division 2A'. The
amendment reflects the changes created by clause 38 and clause 39.
Amendment of s 139 (Application to be held in detention
centre)
Clause 18 makes a minor amendment to section 139 to replace a reference
to `section 270' with a reference to `part 8, division 2A'. The amendment
reflects the changes created by clause 38 and clause 39.
Amendment of s 151 (Pre-sentence report)
Clause 19 amends section 151 to clarify that the reference to `days' means
`business days', as defined in the Acts Interpretation Act 1954.
Amendment of s 160 (Copy of court order to be given to child,
parent etc.)
Clause 20 amends section 160 to clarify that the proper officer of a court
sentencing a child for an offence must promptly reduce to writing specified
decisions or orders and give a copy of the decision or order to the child, the
parent of the child and the chief executive.
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Juvenile Justice and Other Acts Amendment Bill 2009
Amendment of s 164 (Powers of proper officer if indefinite
referral is unsuccessful or if child contravenes agreement
made on court's indefinite referral)
Clause 21 inserts new provisions in section 164 to:
· ensure that a notice given to a child under section 164(4) includes a
warning that the court may issue a warrant for the child's arrest if the
child fails to appear before the court in answer to the notice;
· provide that if the child fails to appear before the court in answer to
the notice, the court may issue a warrant for the child's arrest;
· provide that a child arrested under the warrant must be treated as if
arrested on a charge of an offence.
Amendment of s 165 (If an agreement is made on a referral by a
court to a conference before sentence)
Clause 22 amends section 165 to clarify that where a child contravenes a
term of a conference agreement included in a community based order,
contraventions proceed under division 12. Contraventions of a conference
agreement included in or as part of any other sentence order proceed under
section 165. The clause amends the section heading to better reflect the
section itself.
The clause also inserts new provisions to:
· ensure that a notice given to a child under section 165(6) includes a
warning that the court may issue a warrant for the child's arrest if the
child fails to appear before the court in answer to the notice;
· provide that if the child fails to appear before the court in answer to
the notice, the court may issue a warrant for the child's arrest;
· provide that a child arrested under the warrant must be treated as if
arrested on a charge of an offence.
Amendment of s 166 (Court may take no further action if
agreement is made)
Clause 23 inserts new provisions in section 166 to:
· ensure that a notice given to a child under section 166(4) includes a
warning that the court may issue a warrant for the child's arrest if the
child fails to appear before the court in answer to the notice;
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Juvenile Justice and Other Acts Amendment Bill 2009
· provide that if the child fails to appear before the court in answer to
the notice, the court may issue a warrant for the child's arrest;
· provide that a child arrested under the warrant must be treated as if
arrested on a charge of an offence;
· clarify that a decision by the court to take no further action does not
form part of the child's criminal history.
Amendment of s 174 (If child fails to attend drug assessment
and education session)
Clause 24 amends section 174 to:
· ensure that a notice given to a child under section 174(4) includes a
warning that the court may issue a warrant for the child's arrest if the
child fails to appear before the court in answer to the notice;
· provide that the commissioner of the police service must help the
proper office to give notice if request;
· provide that if the child fails to appear before the court in answer to
the notice, the court may issue a warrant for the child's arrest;
· provide that a child arrested under the warrant must be treated as if
arrested on a charge of an offence.
Amendment of s 176 (Sentence orders -- serious offences)
Clause 25 amends section 176 to provide that despite section 155, section
305(2) and (3) of the Criminal Code Act 1899 applies to a court sentencing
a child to detention for life on a conviction of murder.
Amendment of s 193 (Probation orders -- requirements)
Clause 26 amends section 193 to specify a court's power to impose a
curfew as a condition of a probation order.
Amendment of s 196 (Requirements to be set out in community
service order)
Clause 27 amends section 196 to enable the parent of a child to inform the
chief executive of every change in the child's place of residence.
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Juvenile Justice and Other Acts Amendment Bill 2009
The clause also enables a court to make a requirement that a community
service order of less than 50 hours be performed within a period that is less
than 1 year. Before imposing this requirement, the court must consider
what period is reasonable in all the circumstances.
Amendment of s 198 (Community service to be performed
within limited period)
Clause 28 amends section 198 to clarify the period in which community
service orders must be performed.
Amendment of s 200 (Limitation on number of hours of
community service)
Clause 29 amends section 200 to clarify that where a child is subject to
more than one community service order, the hours ordered to be performed
in the community service orders operate cumulatively -- if an order is
made where there is an existing order, the number of hours in each order is
added together to give the total number of hours to be performed.
Amendment of s 204 (Intensive supervision order --
requirements)
Clause 30 amends section 204 to specify a court's power to impose a
curfew as a condition of an intensive supervision order.
Amendment of s 218 (Period of custody on remand to be
treated as detention on sentence)
Clause 31 inserts an example after section 218 to clarify that, in
determining when to release a child from detention under section 227 and
228, the chief executive counts the period of time for which the child was
held in custody pending the proceeding for an offence.
Amendment of s 221 (Conditional release order --
requirements)
Clause 32 amends section 221 to specify a court's power to impose a
curfew as a condition of a conditional release order.
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Juvenile Justice and Other Acts Amendment Bill 2009
Amendment of s 227 (Release of child after service of period of
detention)
Clause 33 amends the example in section 227 to clarify that the chief
executive reduces the period of detention a child has been ordered to serve
by the custody period before releasing the child on a supervised release
order.
Amendment of s 228 (Chief executive's supervised release
order)
Clause 34 amends section 228 to provide circumstances in which the chief
executive is not required to make a supervised release order.
Omission of s 231 (Cancellation of supervised release order)
Clause 35 omits section 231. This section is replaced by clause 37.
Amendment of s 234 (Court may allow publication of identifying
information)
Clause 36 amends section 234 to provide that if a court makes a detention
order against a child under section 176(3)(b), it may order that identifying
information about the child be published if it considers it would be in the
interests of justice.
In determining whether it would be in the interests of justice to allow the
publication, the court has regard to:
· the need to protect the community; and
· the safety or wellbeing of a person other than the child; and
· the impact of the publication on the child's rehabilitation; and
· any other relevant matter.
Division 12A Contravention of supervised release
orders and related matters
Clause 37 inserts a new part 7 division 12A after section 252 to step out
how a child who has contravened a supervised release order can be dealt
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Juvenile Justice and Other Acts Amendment Bill 2009
with. A new provision is also added to step out how a child can be dealt
with if found guilty of breaching a supervised release order by being found
guilty of committing an indictable offence. In addition, the clause replaces
section 231. Under the clause:
· section 252A provides definitions for the division;
· section 252B states the circumstances in which the chief executive
must warn the child of the consequences of contravening a supervised
release order;
· section 252C enables the chief executive to make application to a
Children's Court magistrate for a finding that a child has contravened
a supervised release order;
· section 252D applies to applications under section 252C and provides
the options available to a Children's Court magistrate who is satisfied
beyond a reasonable doubt that a child has contravened a supervised
release order;
· section 252E specifies the options available to a court when it finds a
child guilty of an indictable offence while on release from detention
under a supervised release order;
· section 252F outlines the options available to the court before which a
child is ordered to appear;
· section 252G provides that a court must have regard to anything done
by a child in compliance with the supervised release order when
making an order under section 252D, 252E or 252F, clarifies the right
of appeal or review of a finding or order made under sections 252D,
252E or 252F, and clarifies that a finding that the child has
contravened a supervised release order is not part of the child's
criminal history;
· section 252H enables a court to commit a child to custody or release
under Part 5 pending appearance before another court;
· section 252I enables a justice or a court to issue a warrant for a child's
arrest if the child fails to appear before a court in answer to a
summons under section 252C(2) or cannot be found;
· section 252J provides that an application under this division expires if
a child's supervised release order expires before the application is
finalised, and that a child in custody under a warrant or court order in
these circumstances must be released from custody.
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Juvenile Justice and Other Acts Amendment Bill 2009
Omission of s 270 (Childrens Court may order transfer to
prison)
Clause 38 omits section 270. This section is replaced by clause 39.
Insertion of new pt 8, div 2A
Division 2A Period of detention to be served as
term of imprisonment
Clause 39 inserts a new Part 8, division 2A, sections 276A-276E. These
sections enable a court to make an order (transfer order) that the unserved
part of a child's period of detention be served as a period of imprisonment.
Under the clause:
· section 276A provides definitions for the division;
· section 276B requires a court to consider making a transfer order
when it sentences a person who is 16 years or more to a period of
detention and the person will be detained when they are 18 or more;
· section 276C sets out the circumstances in which a person serving a
period of detention under a detention order or the chief executive may
apply for a transfer order;
· section 276D provides matters for the court to consider when deciding
whether to make a transfer order,and outlines appeal rights relating to
transfer orders;
· section 276E enables a person serving a period of detention, or the
chief executive, to make application to vary or revoke a transfer order
where there has been a material change in circumstances since the
transfer order was made;
· section 276E also enables a court to grant an application if it considers
it would be in the interests of justice, having regard to the matters in
section 276D(1).
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Juvenile Justice and Other Acts Amendment Bill 2009
Insertion of new s 289AA
289AA Disclosure to the commissioner of the police service
Clause 40 inserts a new provision after section 289 to enable the chief
executive to disclose confidential information to the commissioner of the
police services if the chief executive is satisfied the disclosure is in the
public interest.
Insertion of new pt 11, div 6
Division 6 Transitional provisions for Juvenile
Justice and Other Acts Amendment
Act 2009
Clause 41 inserts a new Part 11, division 6 to provide transitional
provisions for the Juvenile Justice and Other Acts Amendment Act 2009.
Under the clause:
· section 343 provides definitions for the division;
· section 344 specifies references to the term `juvenile' which are taken
to be references to the term `youth' from the commencement of this
Act;
· section 345 clarifies when a court can issue a warrant under section
164(7), 165(9), 166(7) and 174(7) after the commencement of this
Act;
· section 346 clarifies the powers of a court dealing with a child who
has been given a notice under section 165(6) for a contravention of a
term of a conference agreement, but who has not been entirely dealt
with before the commencement of this Act ;
· section 346 also specifies that, despite the commencement of this Act,
a child in these circumstances must be dealt with for the contravention
under the section as it existed at that time;
· section 347 clarifies the effect of the new clause 25;
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Juvenile Justice and Other Acts Amendment Bill 2009
· section 348 provides for circumstances where an application is made
under the repealed section 231, but not entirely dealt with before the
commencement of clauses 35 and 37;
· section 349 clarifies the powers of a court dealing with an application
made under the repealed section 270, but not entirely dealt with before
the commencement of clauses 38 and 39;
· section 350 clarifies the power of the Governor in Council to further
amend or repeal a regulation which is amended by this Act.'.
Amendment of Schedule 4 (Dictionary)
Clause 42 inserts a definition for `curfew' in the dictionary. The clause
also corrects the dictionary reference to the Commission for Children and
Young People and Child Guardian Act 2000 within the definition of
`community visitor'.
Part 5 Amendment of Youth Offenders
(Interstate Transfer) Act 1987
Act amended
Clause 43 states that this part amends the Youth Offenders (Interstate
Transfer) Act 1987.
Amendment of s 17 (Escape from custody -- penalty)
Clause 44 amends section 17 to make it consistent with the provisions in the
Juvenile Justice Act 1992 relating to the escape of a young offender from
custody.
The clause also amends section 17 to remove reference to section 20 of the
Criminal Code Act 1899 which was omitted by the Penalties and Sentences
Bill 1992.
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Juvenile Justice and Other Acts Amendment Bill 2009
Part 6 Other amendments
Schedule amendments
Clause 45 inserts Schedule Part 1, Part 2, Part 3 and Part 4 to replace
references to the term `juvenile' in specified legislation with the term
`youth'.
Schedule Consequential amendments
The schedule lists the legislation amended by clause 45.
© State of Queensland 2009
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