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TASMANIA
__________
YOUTH JUSTICE AMENDMENT BILL 2007
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Part 2, Division 4: Heading amended
6. Part 2, Division 5: Heading repealed
7. Section 22A inserted
22A. Forfeiture of articles used in commission of offences
8. Section 124 amended (Management of detention centre)
9. Sections 133A, 133B, 133C and 133D inserted
133A. Secretary may allow police to visit detainee in
connection with police investigation
133B. Secretary may allow temporary removal of detainee
in connection with police investigation
133C. Court may authorise temporary removal of detainee
in connection with police investigation
133D. Other police powers unaffected
10. Section 166 amended (Evidentiary matters)
11. Section 166A inserted
166A. Youth justice workers
[Bill 44]-III
2
YOUTH JUSTICE AMENDMENT BILL 2007
(Brought in by the Minister for Health and Human Services,
the Honourable Larissa Tahireh Giddings)
A BILL FOR
An Act to amend the Youth Justice Act 1997
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Youth Justice
Amendment Act 2007.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
3. Principal Act
In this Act, the Youth Justice Act 1997* is
referred to as the Principal Act.
*No. 81 of 1997
[Bill 44] 3
Youth Justice Amendment Act 2007
Act No. of
s. 4
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by omitting the definition of
"contravene";
(b) by inserting the following definition after
the definition of "offence-affected
property":
"police investigation" means the
questioning by police officers of
a detainee, or the carrying out by
police officers of an investigation
in which a detainee participates,
in order to determine the
detainee's involvement, if any, in
relation to an offence;
(c) by inserting the following subparagraph
after subparagraph (i) in paragraph (c) of
the definition of "prescribed offence":
(ia) an offence under section 37J of
the Police Offences Act 1935; and
(d) by omitting the definition of "youth
justice worker" and substituting the
following definition:
"youth justice worker" see
section 166A.
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Youth Justice Amendment Act 2007
Act No. of
s. 5
5. Part 2, Division 4: Heading amended
Division 4 of Part 2 of the Principal Act is
amended by omitting "Instructions by
Commissioner of Police" from the heading to
that Division and substituting "Provisions of
general application".
6. Part 2, Division 5: Heading repealed
Part 2 is amended by omitting the heading
"Division 5 -- Confidentiality".
7. Section 22A inserted
After section 22 of the Principal Act, the
following section is inserted in Division 4:
22A. Forfeiture of articles used in commission of
offences
(1) This section applies if
(a) a youth has admitted committing
an offence; and
(b) an article used in connection
with, or obtained during or as a
result of, the commission of the
offence has been seized; and
(c) the matter is dealt with by way of
a diversionary procedure.
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Youth Justice Amendment Act 2007
Act No. of
s. 7
(2) At the conclusion of the diversionary
procedure, a commissioned police
officer, by an instrument in writing called
a forfeiture declaration, may declare that
the seized article is forfeit.
(3) In deciding whether or not to make the
forfeiture declaration, the commissioned
police officer may have regard to
(a) the prescribed guidelines, if any;
and
(b) any relevant instructions issued
under section 21; and
(c) such other matters as the
commissioned police officer
considers relevant and fair in the
circumstances.
(4) However
(a) the forfeiture declaration must be
made if
(i) the manufacture, use or
possession of the seized
article is prohibited under
a law of the State or the
Commonwealth; or
(ii) the seized article would,
under a law of the State,
be automatically forfeited
to the Crown or to an
officer or agency of the
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Youth Justice Amendment Act 2007
Act No. of
s. 7
Crown if the youth were
to be convicted or found
guilty of the offence by a
court; and
(b) the forfeiture declaration must not
be made if paragraph (a) does not
apply and the seized article is
owned by a person other than the
youth and the owner had no
knowledge of or involvement in
the commission of the offence.
(5) If the forfeiture declaration is made and
the identity and address of the owner of
the seized article have been established
(and the owner is a person other than the
youth)
(a) the commissioned police officer
is to give the owner a copy of the
forfeiture declaration as soon as
practicable; and
(b) the owner may apply to the
Magistrates Court
(Administrative Appeals
Division) for a review of the
decision to make the forfeiture
declaration; and
(c) subject to the making of such an
application for review and its
outcome, the forfeiture
declaration takes effect
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Youth Justice Amendment Act 2007
Act No. of
s. 7
immediately after the appeal
period.
(6) If the forfeiture declaration is made but it
has not been possible to establish the
identity and address of the owner of the
seized article despite the making of
reasonable inquiries in that regard (or the
owner is or appears to be the youth) the
forfeiture declaration takes effect as soon
as it is made.
(7) If the forfeiture declaration takes effect,
the seized article is forfeited to the
Crown and may be disposed of as the
Commissioner of Police thinks fit.
(8) For the purposes of this section, the
police officer responsible for the
diversionary procedure (or another police
officer) is to warn the youth of the
prospective forfeiture before, or as soon
as practicable after, the diversionary
procedure begins.
(9) However, a failure to comply with
subsection (8) does not affect the
operation of other provisions of this
section.
(10) For the purposes of this section, a
diversionary procedure is taken to have
been concluded once (depending on the
procedure)
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Youth Justice Amendment Act 2007
Act No. of
s. 7
(a) an informal caution has been
administered to the youth under
section 8(1); or
(b) a formal caution against further
offending has been administered
to the youth, put in writing and
signed by the youth under
section 10(4)(d); or
(c) a copy of the decision of a
community conference has been
provided to the youth under
section 19(1)(b).
(11) In this section
"appeal period" means the period
within which, under the
Magistrates Court
(Administrative Appeals Division)
Act 2001, a person may apply for
a review of a decision;
"diversionary procedure" means a
procedure under section 8(1) or
section 9(1) or (2);
"owner", of an article, means the
person who, but for the making of
a forfeiture declaration, would be
entitled to possession of the
article.
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Youth Justice Amendment Act 2007
Act No. of
s. 8
8. Section 124 amended (Management of detention
centre)
Section 124(2) of the Principal Act is amended
by inserting after paragraph (d) the following
paragraph:
(da) contact between detainees and police
officers; and
9. Sections 133A, 133B, 133C and 133D inserted
After section 133 of the Principal Act, the
following sections are inserted in Division 3:
133A. Secretary may allow police to visit detainee
in connection with police investigation
(1) The Secretary may allow a police officer
to visit a detainee in a detention centre if
satisfied that
(a) it is for the purposes of a police
investigation; and
(b) the detainee has no objection.
(2) The visit is to be on such conditions as to
time, duration, termination, supervision,
setting, secrecy or otherwise as the
Secretary determines and it is the duty of
the police officer and detention centre
manager to comply with those
conditions.
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Youth Justice Amendment Act 2007
Act No. of
s. 9
(3) The Secretary, by any available means,
may vary the conditions at any time.
(4) The detainee has the following rights in
respect of the visit:
(a) to confer, on request, with a legal
representative before it takes
place, either in person or by
telephone or video link;
(b) to have, on request, a legal
representative, a parent or other
relative, a guardian or an
independent person present;
(c) to refuse to answer any question
that may be put to the detainee;
(d) to end the visit at any time.
(5) The visitation of a detainee in a detention
centre under and in accordance with this
section is lawful notwithstanding the
terms of any detention order or the
operation of any other law.
133B. Secretary may allow temporary removal of
detainee in connection with police
investigation
(1) The Secretary may allow a police officer
to remove a detainee from a detention
centre for a period not exceeding 6 hours
if satisfied that
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Youth Justice Amendment Act 2007
Act No. of
s. 9
(a) it is for the purposes of a police
investigation; and
(b) police access or further access to
the detainee under section 133A
would not suffice for those
purposes or cannot for any reason
take place; and
(c) the detainee has no objection.
(2) The detainee's removal is to be on such
conditions as to time, duration,
termination, supervision, secrecy,
reporting or otherwise as the Secretary
thinks fit and it is the duty of the
detention centre manager and all police
officers to comply with those conditions.
(3) The Secretary, by any available means,
may vary the conditions at any time.
(4) The detainee has the following rights in
respect of the removal:
(a) to confer, on request, with a legal
representative before it takes
place, either in person or by
telephone or video link;
(b) to be accompanied, on request, by
a legal representative, a parent or
other relative, a guardian or an
independent person;
(c) to refuse to answer any question
that may be put to the detainee;
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Youth Justice Amendment Act 2007
Act No. of
s. 9
(d) to refuse to participate in any
activity related to the police
investigation;
(e) to be returned, on request made
or signified by any means at any
time, to the detention centre.
(5) The removal of a detainee from a
detention centre under and in accordance
with this section is lawful
notwithstanding the terms of any
detention order or the operation of any
other law.
133C. Court may authorise temporary removal of
detainee in connection with police
investigation
(1) The Court, on the application of a
commissioned police officer, may issue a
warrant authorising that commissioned
police officer or another police officer to
remove a detainee from a detention
centre temporarily if the Court is
satisfied that
(a) it is for the purposes of a police
investigation; and
(b) police access or further access to
the detainee under section 133A
would not suffice for those
purposes or cannot for any reason
take place; and
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Youth Justice Amendment Act 2007
Act No. of
s. 9
(c) the removal cannot, for any
reason, be effected under
section 133B.
(2) If issued, the warrant is authority for the
detention centre manager to allow the
police officer named in the warrant to
remove the detainee from the detention
centre, once, for such temporary period
and on such terms as the Court specifies
in the warrant.
(3) The Court may revoke the warrant at any
time before it would otherwise expire.
(4) In determining the terms of the warrant,
the Court may have regard to
(a) the nature of the police
investigation; and
(b) the physical and mental
condition, and cultural
background, of the detainee; and
(c) the principles in section 5; and
(d) such other considerations as the
Court thinks fit.
(5) For the purposes of subsection (4)(b), the
Court may direct the applicant for the
warrant to obtain a report on the detainee
from the Secretary and furnish that report
to the Court within such time as the
Court, by the direction, specifies.
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Youth Justice Amendment Act 2007
Act No. of
s. 9
(6) For the avoidance of doubt, a warrant
under this section
(a) is not capable of being applied for
or issued by telephone; and
(b) is not to authorise the temporary
removal of a detainee from a
detention centre on more than one
occasion; and
(c) is not conditional on anybody's
express or implied consent.
(7) In this section
"temporary" means no longer than 12
hours.
133D. Other police powers unaffected
Nothing in section 133A, 133B or 133C
is to be taken as preventing or restricting
police officers from
(a) exercising ordinary investigative,
enforcement or other powers as
regards unlawful conduct by
detainees or other persons in
detention centres; or
(b) exercising, in respect of
detainees, powers under the
Forensic Procedures Act 2000; or
(c) doing, in respect of detainees or
detention centres, anything else
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Youth Justice Amendment Act 2007
Act No. of
s. 10
that may be authorised by or
under other laws or by any court.
10. Section 166 amended (Evidentiary matters)
Section 166(2)(a) of the Principal Act is
amended by inserting ", authorisation" after
"appointment".
11. Section 166A inserted
After section 166 of the Principal Act, the
following section is inserted in Part 9:
166A. Youth justice workers
(1) The Secretary may
(a) appoint a State Service officer or
State Service employee employed
in the Department to be a youth
justice worker for the purposes of
this Act; and
(b) with the consent of the Head of
another State Service Agency,
appoint a State Service officer or
State Service employee employed
in that Agency to be a youth
justice worker for the purposes of
this Act.
(2) A person appointed as a youth justice
worker under this section may hold that
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Youth Justice Amendment Act 2007
Act No. of
s. 11
office in conjunction with State Service
employment.
(3) The Secretary may authorise a person
who is not a State Service officer or State
Service employee to perform the
functions and exercise the powers of a
youth justice worker for the purposes of
this Act.
Government Printer, Tasmania 17