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TASMANIA
__________
YOUTH JUSTICE AMENDMENT BILL 2002
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 22 amended (Confidentiality)
6. Section 25 amended (How youth is to be dealt with if not
granted bail)
7. Section 27A inserted
27A. Taking plea if joint charge
8. Section 31 amended (Restrictions on reporting
proceedings)
9. Section 45 amended (Confidentiality of community
conference)
10. Section 49A inserted
49A. Court may impose single, general or mixed
sentence
11. Section 57 amended (Amount of fine)
12. Section 64 amended (Proceedings under Magistrates
Court (Civil Division) Act 1992 to recover fine)
13. Section 90 amended (Suspended detention order)
14. Sections 100A and 100B inserted
100A. Correction of sentence or order
[Bill 61]-X
100B. Sentencing by different magistrate
15. Section 107 substituted
107. Sanctions, &c., available to other courts
107A. Contravention of section 47 order made by other
court
16. Section 108A inserted
108A. Sentence, &c., not invalidated by non-compliance
with procedural requirements
17. Section 108B inserted
108B. Application of Part 5
18. Section 121 amended (Effect of suspension or cancellation
of supervised release order after youth reaches 19 years)
19. Section 126 amended (Authority for admission to
detention centre)
20. Section 146 amended (Registration of birth of child of
detainee)
21. Sections 146A and 146B inserted
146A. Treatment of youth in prison and prisoner in
detention centre
146B. Delegation by detention centre manager
22. Section 161 amended (Jurisdiction of Court)
23. Corrections Act 1997 amended
2
YOUTH JUSTICE AMENDMENT BILL 2002
(Brought in by the Minister for Health and Human
Services, the Honourable David Edward Llewellyn)
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:
Short title
1. This Act may be cited as the Youth Justice Amendment
Act 2002.
Commencement
2. This Act commences on the day on which this Act
receives the Royal Assent.
Principal Act
3. In this Act, the Youth Justice Act 1997* is referred to as
the Principal Act.
*No. 81 of 1997
[Bill 61] 3
s. 4 No. Youth Justice Amendment 2002
Section 3 amended (Interpretation)
4. Section 3(1) of the Principal Act is amended by omitting
"Prison Act 1977" from the definition of "prison" and
substituting "Corrections Act 1997".
Section 22 amended (Confidentiality)
5. Section 22(2) of the Principal Act is amended as follows:
(a) by omitting from paragraph (e) "officer" and
substituting "officer, or a person or a member
of an authority responsible for the enforcement
of laws in this State,";
(b) by inserting the following paragraph after
paragraph (e):
(ea) a member of the Australian
Federal Police, a member of the
police force of another State or a
Territory or a person or a member
of any other authority responsible
for the enforcement of laws of the
Commonwealth, any other State or
a Territory in the course of his or
her official functions; and
(c) by omitting from paragraph (h)(ii) "Police."
and substituting "Police; and";
(d) by inserting the following paragraph after
paragraph (h):
(i) a prescribed person, a person in
prescribed circumstances or a
person for a prescribed purpose.
4
2002 Youth Justice Amendment No. s. 6
Section 25 amended (How youth is to be dealt with if
not granted bail)
6. Section 25 of the Principal Act is amended as follows:
(a) by omitting from subsection (2)(a) "if it is at
all" and substituting "if, in the opinion of the
Secretary, it is";
(b) by omitting from subsection (2)(b) "if" and
substituting "if, in the opinion of the
Secretary,";
(c) by inserting in subsection (4) "unless the
Secretary determines that the youth is to be
remanded to a detention centre" after "adult".
Section 27A inserted
7. After section 27 of the Principal Act, the following
section is inserted in Division 1:
Taking plea if joint charge
27A. (1) If a youth is jointly charged with an adult
in respect of an offence, the youth is to enter his or
her plea to the charge in the court in which the adult
is to enter his or her plea.
(2) If a youth is jointly charged with an adult
in respect of an offence, the court in which the
youth's plea is entered must, after taking that plea
and if the proceedings are to be continued in the
Court, make an order
(a) transferring the proceedings to the
Court; and
(b) committing the youth to custody or
releasing the youth on bail, with or
5
s. 8 No. Youth Justice Amendment 2002
without sureties, to be brought or to
appear before the Court.
Section 31 amended (Restrictions on reporting
proceedings)
8. Section 31 of the Principal Act is amended as follows:
(a) by omitting from subsection (1) "in any way a
report of the proceedings of the Court if the
report identifies, or contains any information,
picture or film that" and substituting "any
information in respect of any proceedings that
are to be, are being or have been taken in the
Court if the information identifies, or";
(b) by omitting from subsection (1)(a) "identity,
information, picture or film" and substituting
"identity or information";
(c) by omitting from subsection (1)(b) "identity,
information, picture or film" and substituting
"identity or information";
(d) by omitting from subsection (2) "identity,
information, picture or film" and substituting
"identity or information";
(e) by omitting from subsection (3) "a report" and
substituting "any information in respect";
(f) by omitting from subsection (3) "any report of
the proceedings" and substituting "the
information";
(g) by inserting the following subsection after
subsection (3):
(4) Subsections (1) and (3) do not apply
to the provision of information to
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2002 Youth Justice Amendment No. s. 8
(a) the youth or the legal practitioner
acting for the youth; and
(b) a guardian of the youth; and
(c) a victim of the offence; and
(d) a police officer, or a person or a
member of an authority
responsible for the enforcement of
laws in this State, in the course of
his or her official functions; and
(e) a member of the Australian
Federal Police, a member of the
police force of another State or a
Territory or a person or a member
of any other authority responsible
for the enforcement of laws of the
Commonwealth, any other State or
a Territory in the course of his or
her official functions; and
(f) a person employed or engaged in
the administration of this Act in
the course of his or her official
functions; and
(g) a person employed or engaged in
the administration of the Act
against which the offence was
committed in the course of his or
her official functions; and
(h) a person undertaking research
that does not involve the
identification of the youth, the
victim or any person involved in
the proceedings (otherwise than in
a professional capacity as a police
officer or a person employed or
7
s. 9 No. Youth Justice Amendment 2002
engaged in the administration of
this Act) who has not consented, in
writing, to the publication of the
report if the research has been
approved by the Commissioner of
Police or the Secretary; and
(i) a person undertaking research
that involves the identification of
the youth, the victim or any other
person referred to in paragraph (h)
if
(i) all persons to be identified
have consented, in writing,
to their identity being
provided to the researcher;
and
(ii) the research has been
approved by the
Commissioner of Police or
the Secretary; and
(j) a prescribed person or a person in
prescribed circumstances or for a
prescribed purpose.
Section 45 amended (Confidentiality of community
conference)
9. Section 45(2) of the Principal Act is amended as follows:
(a) by omitting paragraph (a) and substituting the
following paragraphs:
(a) the youth or the legal practitioner
acting for the youth; and
(aa) a guardian of the youth; and
8
2002 Youth Justice Amendment No. s. 10
(b) by inserting the following paragraph after
paragraph (b):
(ba) a victim of the offence; and
(c) by omitting from paragraph (c) "officer" and
substituting "officer, or a person or a member
of an authority responsible for the enforcement
of laws in this State,";
(d) by inserting the following paragraph after
paragraph (c):
(ca) a member of the Australian
Federal Police, a member of the
police force of another State or a
Territory or a person or a member
of any other authority responsible
for the enforcement of laws of the
Commonwealth, any other State or
a Territory in the course of his or
her official functions; and
(e) by omitting paragraph (g) and substituting the
following paragraph:
(g) a prescribed person, a person in
prescribed circumstances or a
person for a prescribed purpose.
Section 49A inserted
10. After section 49 of the Principal Act, the following
section is inserted in Division 5:
9
s. 11 No. Youth Justice Amendment 2002
Court may impose single, general or mixed
sentence
49A. (1) If a youth has been convicted of more than
one offence specified in one or more complaints, the
Court may impose on the youth
(a) one sentence for all of those offences; or
(b) a separate sentence for each of those
offences; or
(c) one sentence for a group of those
offences determined by the Court and
(i) one sentence for all of the
remaining offences; or
(ii) a separate sentence for each of the
remaining offences; or
(iii) a separate sentence for each other
group of the offences remaining as
the court determines and a
separate sentence for each offence
remaining, if any, as is not within
any such group.
(2) In imposing a single sentence on a youth
for more than one offence, the Court must not
impose a penalty exceeding the sum of the maximum
penalties that could otherwise have been imposed
under this Part if each of those offences had been
sentenced separately.
Section 57 amended (Amount of fine)
11. Section 57(1) of the Principal Act is amended by
inserting "under another Act" after "adult" in the
definition of "maximum fine".
10
2002 Youth Justice Amendment No. s. 12
Section 64 amended (Proceedings under Magistrates
Court (Civil Division) Act 1992 to recover fine)
12. Section 64 of the Principal Act is amended by omitting
"imposed under this Act".
Section 90 amended (Suspended detention order)
13. Section 90(6)(d) of the Principal Act is amended by
omitting "the Crown in right of".
Sections 100A and 100B inserted
14. After section 100 of the Principal Act, the following
sections are inserted in Division 15:
Correction of sentence or order
100A. (1) A sentence passed or an order made by
the Court under this Part may be varied or revoked
by the Court
(a) on its own motion initiated within the 3
month period after the sentence was
passed or the order was made; or
(b) on an application made within that
period by the Secretary, a prescribed
person or the affected youth.
(2) The Court must not vary or revoke a
sentence or an order under this section unless it has
determined that
(a) the sentence or order is contrary to the
law; or
11
s. 14 No. Youth Justice Amendment 2002
(b) the Court failed to impose a sentence or
make an order that was in conformity
with the law; or
(c) the sentence or order included an order
that was based on, or contained, an error
of fact; or
(d) the youth's circumstances were wrongly
stated or not accurately presented to the
Court and it is in the interests of justice
to vary or revoke the sentence or order.
(3) A sentence or an order is not to be varied
or revoked under this section except
(a) by the Court constituted as it was when
the sentence was passed or the order
made; and
(b) after the Court has given the parties an
opportunity to be heard.
(4) Nothing in this section affects the
operation of Chapter XLVI of Part IX of the
Criminal Code or Part XI of the Justices Act 1959.
Sentencing by different magistrate
100B. (1) This section applies if, on the trial of an
offence under this Act
(a) a verdict of guilty has been found or a
plea of guilty has been received but no
judgment, or sentence or order under
this Part, has been given, passed or
made on it; and
(b) the magistrate who constituted the
Court at the trial or when the plea was
received goes out of office or it appears
12
2002 Youth Justice Amendment No. s. 14
probable that, because of incapacitating
illness or other serious cause, he or she
will be unable to give judgment or pass
sentence or make an order under this
Part within a reasonable time.
(2) If this section applies, any other
magistrate may
(a) take all necessary steps preliminary to
the giving of judgment, the passing of
sentence or the making of an order
under this Part; and
(b) give judgment, pass sentence or make an
order under this Part.
(3) In all cases where it is possible to do so, the
magistrate referred to in subsection (1)(b) is to be
consulted before judgment is given, sentence passed
or an order made.
(4) Non-compliance with subsection (3) does
not affect the validity of the judgment, sentence or
order.
(5) The question whether it appears probable
that a magistrate will be unable, for the reasons
referred to in subsection (1)(b), to give judgment,
pass sentence or make an order within a reasonable
time is to be decided by the Chief Magistrate and
that decision is final.
(6) If, on the trial of an offence
(a) a verdict of guilty has been found or a
plea of guilty has been received; and
(b) all steps preliminary to the giving of
judgment or the passing of sentence or
the making of an order under this Part
13
s. 15 No. Youth Justice Amendment 2002
have been taken but no judgment,
sentence or order has been given, passed
or made
the Court constituted by any other magistrate may
give the judgment, pass the sentence or make the
order under this Part determined by the magistrate
who constituted the Court at the trial or when the
plea was received.
(7) If, at any time before the commencement of
the trial of an indictable offence, including one heard
summarily, the youth pleads guilty before the Court
constituted by a magistrate, any magistrate may
take all necessary steps preliminary to the giving of
judgment, the passing of sentence or the making of
an order under this Part and may give judgment,
pass sentence or make an order under this Part.
(8) A judgment given, sentence passed or order
made under subsection (2), (6) or (7) has, for all
purposes, the same effects and consequences as if it
had been given, passed or made by the Court as
constituted at the trial or when the plea was
received.
Section 107 substituted
15. Section 107 of the Principal Act is repealed and the
following sections are substituted:
Sanctions, &c., available to other courts
107. (1) In this section, "summary court" means a
court of summary jurisdiction other than the
Magistrates Court (Youth Justice Division).
(2) The Supreme Court, or a summary court,
may exercise all the powers of the Magistrates Court
14
2002 Youth Justice Amendment No. s. 15
(Youth Justice Division) under this Part in addition
to, or instead of, any other power it may exercise
when sentencing for an offence, including a
prescribed offence, a person who was 10 years old or
more but less than 18 years old at the time when he
or she committed the offence.
(3) If, under subsection (2), the Supreme Court
or a summary court makes an order under
section 47, the Supreme Court or summary court
(a) must specify in the order that it is made
under this Part; and
(b) may specify in the order whether the
responsible Department in relation to
this Act or the responsible Department
in relation to the Sentencing Act 1997 is
to be responsible for all or any matters
relating to the administration of the
order.
(4) A failure to comply with subsection (3)(a)
does not affect the validity of the order.
(5) If, in making an order referred to in
subsection (3), the Supreme Court or summary court
does not specify which Department is to be
responsible for matters relating to the
administration of the order, the responsible
Department in relation to this Act is responsible for
those matters.
Contravention of section 47 order made by
other court
107A. (1) In this section
"offence" includes prescribed offence;
15
s. 16 No. Youth Justice Amendment 2002
"offender" means the person against whom
the original order was made;
"original order" means an order under
section 47 made by the Supreme Court,
or a summary court, exercising powers
under section 107;
"summary court" means a court of summary
jurisdiction other than the Magistrates
Court (Youth Justice Division).
(2) If proceedings under this Part are to be
brought in respect of the contravention of an original
order or the conditions to which an original order is
subject, the proceedings are to be brought in the
Supreme Court or summary court that made the
original order.
(3) In proceedings referred to in subsection (2),
the Supreme Court or summary court may
(a) exercise all the powers of the
Magistrates Court (Youth Justice
Division) under this Part; or
(b) revoke the contravened order and
impose any sentence under the
Sentencing Act 1997 or another law in
respect of the original offence that it
could have imposed if it had not made
the original order.
Section 108A inserted
16. After section 108 of the Principal Act, the following
section is inserted in Division 15:
16
2002 Youth Justice Amendment No. s. 17
Sentence, &c., not invalidated by non-
compliance with procedural requirements
108A. (1) The failure of the Court
(a) to cause an order imposing a sentence to
be promptly reduced to writing; or
(b) to comply with any other procedural
requirement of this Act
does not invalidate the order or any sentence
imposed.
(2) Subsection (1) does not prevent a court on
an appeal against a sentence imposed or an order
made under section 47 from reviewing a sentence
imposed or an order made under section 47 by the
Court in circumstances where there has been a
failure that is referred to in that subsection.
Section 108B inserted
17. Before section 109 of the Principal Act, the following
section is inserted in Part 5:
Application of Part 5
108B. This Part applies in respect of a youth
serving a period of detention under a detention order
whether that period of detention is being served in a
detention centre or a prison.
Section 121 amended (Effect of suspension or
cancellation of supervised release order after youth
reaches 19 years)
18. Section 121 of the Principal Act is amended as follows:
17
s. 19 No. Youth Justice Amendment 2002
(a) by omitting from paragraph (a) "prison, within
the meaning of the Prison Act 1977" and
substituting "prison";
(b) by omitting from paragraph (e) "Prison Act
1977" and substituting "Corrections Act 1997";
(c) by omitting from paragraph (f) "Prison Act
1977" and substituting "Corrections Act 1997".
Section 126 amended (Authority for admission to
detention centre)
19. Section 126 of the Principal Act is amended as follows:
(a) by omitting from paragraph (c) "person." and
substituting "person: or";
(b) by inserting the following paragraph after
paragraph (c):
(d) if the person has been sentenced to
a term of imprisonment under
another Act and that sentence, or
part of that sentence, is to be
served in a detention centre,
evidence of the agreement between
the Secretary and the Director of
Corrective Services providing for
the person to serve that sentence
in a detention centre.
Section 146 amended (Registration of birth of child
of detainee)
20. Section 146(1) of the Principal Act is amended by
omitting "Registration of Births and Deaths Act 1895" from
18
2002 Youth Justice Amendment No. s. 21
the definition of "birth record" and substituting "Births,
Deaths and Marriages Registration Act 1999".
Sections 146A and 146B inserted
21. After section 146 of the Principal Act, the following
sections are inserted in Division 6:
Treatment of youth in prison and prisoner in
detention centre
146A. (1) In this section
"prescribed detention centre" means
(a) a detention centre that is not also
a prison; and
(b) a detention centre that is also a
prison but whose primary use is as
a detention centre for the purposes
of detaining youths serving
sentences of detention under the
Youth Justice Act 1997;
"prescribed prison" means
(a) a prison that is not also a
detention centre; and
(b) a prison that is also a detention
centre but whose primary use is as
a prison for the purposes of
incarcerating prisoners serving
sentences of imprisonment;
"prison" has the same meaning as in the
Corrections Act 1997;
19
s. 22 No. Youth Justice Amendment 2002
"prisoner" has the same meaning as in the
Corrections Act 1997.
(2) If a youth is serving a sentence of
detention, or part of a sentence of detention, in a
prescribed prison, section 83C(3) of the Corrections
Act 1997 applies.
(3) If a prisoner is serving a sentence of
imprisonment, or part of a sentence of
imprisonment, in a prescribed detention centre, this
Part applies as if the prisoner were a detainee
serving a sentence of detention unless, and except in
so far as, the Secretary determines that the
Corrections Act 1997 is to apply to that prisoner.
Delegation by detention centre manager
146B. A detention centre manager may delegate to
the Director of Corrective Services or a person
nominated by the Director of Corrective Services any
of his or her functions or powers under this Part,
other than this power of delegation.
Section 161 amended (Jurisdiction of Court)
22. Section 161 of the Principal Act is amended as follows:
(a) by omitting subsection (2) and substituting the
following subsections:
(2) If a youth who is 15 years old or
more is charged before the Court with an
indictable offence that is not a prescribed
offence, the Court must ask the youth if he or
she is willing to be tried by the Court instead
of by jury.
20
2002 Youth Justice Amendment No. s. 23
(2A) If a youth referred to in
subsection (2) stands mute when asked if he or
she is willing to be tried by the Court instead
of by jury, the youth is taken to be willing to
be tried by the Court.
(2B) If a youth referred to in
subsection (2) is willing to be tried by the
Court and the youth's guardian, if present,
does not object to the youth being so tried, the
section creating the offence is taken to have
created a simple offence and the Court must
proceed to hear and determine the charge.
(b) by omitting from subsection (3) "elects to have
a charge heard and determined in the
Supreme Court" and substituting "is not
willing to be tried by the Court or the youth's
guardian objects to the youth being tried by
the Court";
(c) by omitting subsection (4).
Corrections Act 1997 amended
23. (1) After section 83 of the Corrections Act 1997, the
following Division is inserted in Part 8:
Division 3 Miscellaneous
Part 8 does not apply to youth serving period
of detention
83A. This Part does not apply in respect of a
sentence of detention imposed under the Youth
Justice Act 1997 on a person who is serving that
sentence, or part of that sentence, in a prison.
21
s. 23 No. Youth Justice Amendment 2002
Application of Part 8 to prisoner in detention
centre
83B. This Part applies in respect of a sentence of
imprisonment which is being served, or part of
which is being served, by a prisoner in a detention
centre, within the meaning of the Youth Justice Act
1997.
(2) Before section 84 of the Corrections Act 1997, the
following section is inserted in Part 9:
Treatment of prisoner in detention centre and
youth in prison
83C. (1) In this section
"detention centre" has the same meaning as
in the Youth Justice Act 1997;
"prescribed detention centre" means
(a) a detention centre that is not also
a prison; and
(b) a detention centre that is also a
prison but whose primary use is as
a detention centre for the purposes
of detaining youths serving
sentences of detention under the
Youth Justice Act 1997;
"prescribed prison" means
(a) a prison that is not also a
detention centre; and
(b) a prison that is also a detention
centre but whose primary use is as
a prison for the purposes of
22
2002 Youth Justice Amendment No. s. 23
incarcerating prisoners serving
sentences of imprisonment.
(2) If a prisoner is serving a sentence of
imprisonment, or part of a sentence of
imprisonment, in a prescribed detention centre,
section 146A(3) of the Youth Justice Act 1997
applies.
(3) If a person is serving a sentence of
detention, or part of a sentence of detention, imposed
under the Youth Justice Act 1997 in a prescribed
prison, this Act other than Part 8 applies as if the
person were a prisoner serving a sentence of
imprisonment unless, and except in so far as, the
Director determines that the Youth Justice Act 1997
is to apply to that person.
Government Printer, Tasmania 23