2008
2008
2008-11-04
act
government
publicspecial
act.reprint
allinforce
2008-06-06
2008-06-06
1
2008-11-04
act-2008-054
2008
none
act-2008-054
36e4e4ba-b450-4111-8f76-5dc10f053e32
03e4b987-fcca-4c0d-b250-901402dc39ab
Note—
The Act was repealed by sec 7 (1) of this Act
with effect from 4.11.2008.
An Act to amend the Children (Criminal Proceedings) Act
1987 and certain other legislation to make further
provision with respect to the conduct of criminal proceedings against children
and other young persons.
1Name of
Act
This Act is the Children
(Criminal Proceedings) Amendment Act
2008.
2Commencement
(1)
This Act commences on a day or days to be
appointed by proclamation, except as provided by subsection
(2).
(2)
Section 6 commences on the date of assent to this
Act.
3Amendment of Children (Criminal Proceedings) Act 1987 No
55
The Children
(Criminal Proceedings) Act 1987 is amended as set out in
Schedule 1.
4Amendment of other
Acts
The Acts specified in Schedule 2 are amended as
set out in that Schedule.
5Consequential amendments to
other legislation
The Acts and Regulation specified in Schedule 3
are amended as set out in that Schedule.
6Repeal of Crimes Amendment (Detention
after Arrest) Act 1997 No 48
The Crimes Amendment (Detention after
Arrest) Act 1997 is repealed.
7Repeal of
Act
(1)
This Act is repealed on the day following the day
on which all of the provisions of this Act have
commenced.
(2)
The repeal of this Act does not, because of the
operation of section 30 of the Interpretation
Act 1987, affect any amendment made by this
Act.
Schedule 1Amendment of Children (Criminal Proceedings) Act
1987
(Section 3)
[1]Section 2
Commencement
Insert after section 2 (1):
(1A)
Section 9 commences on the date that section 9
(2) is repealed by the Children (Criminal Proceedings)
Amendment Act 2008.
[2]Section 3
Definitions
Omit the definition of parent from section 3 (1). Insert
instead:
parental
responsibility, in relation to a child, means all the
duties, powers, responsibilities and authority which, by law, parents have in
relation to their children.
[3]Section 3 (1), definition of
“person responsible”
Omit the definition. Insert instead:
person
responsible, in relation to a child, means:
(a)
a person having parental responsibility for the
child, or
(b)
a person who has the care of the child (whether
or not the person has parental responsibility for the
child).
[4]Section 3
(1)
Insert in alphabetical order:
road
transport legislation has the same meaning as it has in the
Road Transport (General) Act
2005.
[5]Section 3 (1), definition of
“traffic offence”
Omit “within the meaning of the Road Transport (General) Act 2005”
from paragraph (a).
[6]Section 3 (1), definition of
“traffic offence”
Omit paragraph (c). Insert instead:
(c)
the Motor Accidents
Compensation Act 1999, or
[7]Section 6 Principles relating
to exercise of functions under Act
Omit “A court, in exercising criminal
jurisdiction with respect to children, shall have regard to the following
principles”.
Insert instead “A person or body that has
functions under this Act is to exercise those functions having regard to the
following principles”.
[8]Section 6
(f)–(h)
Insert after section 6 (e):
(f)
that it is desirable that children who commit
offences be assisted with their reintegration into the community so as to
sustain family and community ties,
(g)
that it is desirable that children who commit
offences accept responsibility for their actions and, wherever possible, make
reparation for their actions,
(h)
that, subject to the other principles described
above, consideration should be given to the effect of any crime on the
victim.
[9]Section 9 Expedition where
child in custody
Omit section 9 (2).
[10]Section 10 Exclusion of
general public from criminal proceedings
Omit paragraphs (c) and (d) of the definition of
member of
the immediate family in section 10 (4).
Insert instead:
(c)
a parent or step-parent of the victim, or person
having parental responsibility for the victim, or
(d)
a child or step-child of the victim, or some
other child for whom the victim has parental responsibility,
or
[11]Section 12 Proceedings to be
explained to children
Omit section 12 (1)–(2A). Insert
instead:
(1)
If criminal proceedings are brought against a
child, the court that hears those proceedings must take such measures as are
reasonably practicable to ensure that the child understands the
proceedings.
[12]Section 13 Admissibility of
certain statements etc
Omit “16 years” from section 13 (1)
(a) (iii). Insert instead “14 years”.
[13]Section 13 (2)
(c)
Insert at the end of section 13 (2) (b):
, and
(c)
a reference to a person responsible for a child
does not include a member of the police force (unless he or she has parental
responsibility for the child).
[14]Section 18 Other indictable
offences
Omit section 18 (3). Insert instead:
(3)
If a court, in exercising the functions of the
Children’s Court under subsection (2), makes an order under section 33
that provides for a person to enter into a good behaviour bond or that
releases a person on probation, the court may, on referral from the
Children’s Court under section 40 (1A), deal with the order in the same
way as the Children’s Court may deal with it under section
40.
[15]Section 19 Court may direct
imprisonment to be served as a juvenile offender
Insert after section 19 (1):
(1A)
In the case of a person of or above the age of 18
years who is serving, or has previously served, the whole or any part of a
term of imprisonment in a correctional centre, such an order may not be made
unless the court decides that there are special circumstances justifying
detention of the person as a juvenile offender.
[16]Section 19
(4)–(4B)
Omit section 19 (4). Insert instead:
(4)
A finding of special circumstances for the
purposes of subsection (1A) or (3) may be made on one or more of the following
grounds, and not otherwise:
(a)
that the person is vulnerable on account of
illness or disability (within the meaning of the Anti-Discrimination Act
1977),
(b)
that the only available educational, vocational
training or therapeutic programs that are suitable to the person’s needs
are those available in detention centres,
(c)
that, if the person were committed to a
correctional centre, there would be an unacceptable risk of the person
suffering physical or psychological harm, whether due to the nature of the
person’s offence, any assistance given by the person in the prosecution
of other persons or otherwise.
(4A)
In particular, a finding of special circumstances
may not be made simply because of the person’s youth or simply because
the non-parole period of the person’s sentence will expire while the
person is still eligible to serve the sentence as a juvenile
offender.
(4B)
A court that makes a finding of special
circumstances must make a record of its reasons for making that finding in the
particular case.
[17]Section 19
(8)
Insert after section 19 (7):
(8)
In this section:
correctional centre has the same
meaning as it has in the Crimes (Administration of Sentences)
Act 1999.
[18]Section 31 Hearing of charges
in the Children’s Court
Insert “(including any background report of
a kind referred to in section 25)” after “evidence before
it” in section 31 (5) (c).
[19]Section 33
Penalties
Omit section 33 (1) (a). Insert instead:
(a)
it may make an order:
(i)
directing that the charge be dismissed (in which
case the Court may also, if it thinks fit, administer a caution to the
person), or
(ii)
discharging the person on condition that the
person enters into a good behaviour bond for such period of time, not
exceeding 2 years, as it thinks fit,
[20]Section 33 (1)
(b)
Omit the paragraph. Insert instead:
(b)
it may make an order directing the person to
enter into a good behaviour bond for a specified period, not exceeding 2
years,
[21]Section 33 (1)
(e1)
Insert after section 33 (1) (e):
(e1)
it may do both the things referred to in
paragraphs (c) and (e),
[22]Section 33 (1)
(f1)
Insert after section 33 (1) (f):
(f1)
it may do both of the things referred to in
paragraphs (e) and (f),
[23]Section 33 (1)
(g)
Omit the paragraph. Insert instead:
(g)
it may, subject to the provisions of the Crimes (Sentencing Procedure) Act 1999,
make an order committing the person for such period of time (not exceeding 2
years) as it thinks fit:
(i)
in the case of a person who is under the age of
21 years, to the control of the Minister administering the Children (Detention Centres) Act 1987,
or
(ii)
in the case of a person who is of or above the
age of 21 years, to the control of the Minister administering the Crimes (Administration of Sentences) Act
1999.
[24]Section 33
(1A)
Omit “referred to in subsection (1)
(b)”.
Insert instead “imposed under this
section”.
[25]Section 33
(1AA)
Insert after section 33 (1A):
(1AA)
Before making an order imposing a fine on a
child, the Children’s Court is to consider the age of the child and the
following matters, where information is available in relation to those
matters:
(a)
the child’s ability to pay the
fine,
(b)
the potential impact of the fine on the
rehabilitation of the child.
[26]Section 33
(1B)
Omit “except to the extent to which it
deals with setting the non-parole period and the balance of the term of the
order”.
[27]Section 33
(1C)
Insert after section 33 (1B):
(1C)
If the Children’s Court makes an order
under subsection (1) (g) (ii) committing a person to the control of the
Minister administering the Crimes
(Administration of Sentences) Act 1999, the period for
which the person is committed is taken to be a sentence of imprisonment for
the purposes of that Act.
[28]Section 33
(2)
Omit “(f)”. Insert instead
“(f1)”.
[29]Section 33 (5)
(a)
Omit “within the meaning of the Road Transport (General) Act
2005”.
[30]Section 33
(6)
Insert after section 33 (5):
(6)
For the purposes of any provision of the road
transport legislation that confers power on a court with respect to a person
who has been convicted of an offence, a finding of guilt by the
Children’s Court for an offence is taken to be a conviction for the
offence. Accordingly, following a finding of guilt, the Children’s Court
may exercise any power it could exercise under that legislation if the person
had been convicted of the offence, unless the Court makes an order in respect
of the person under section 33 (1) (a).
Note—
Section 14 limits the circumstances in which a
court can proceed to, or record, a conviction following a finding of guilt in
relation to a child offender.
[31]Section 33A Cumulative or
concurrent orders etc
Insert “or other control orders”
after “another control order” in section 33A
(3).
[32]Section 33A
(4)
Omit the subsection. Insert instead:
(4)
The Children’s Court must not make a new
control order, or give a direction under this section, if the order or
direction would have the effect of requiring a person to be detained for a
continuous period of more than 3 years (taking into account any other control
orders relating to the person).
[33]Section 33AA Cumulative or
concurrent orders—assault on juvenile justice
officers
Omit “another control order (the existing
control order)” from section 33AA (2)
(b).
Insert instead “one or more other control
orders (an existing
control order)”.
[34]Section 33AA
(3)
Insert “or, if there is more than one, the
last of them” after “an existing control
order”.
[35]Section 33AA
(5)
Omit the subsection. Insert instead:
(5)
The Children’s Court must not make a new
control order, or give such a direction, if the order or direction would have
the effect of requiring a person to be detained for a continuous period of
more than 3 years (taking into account any other control orders relating to
the person).
[36]Section 33C Application of
Crimes (Sentencing Procedure) Act 1999
to children
Omit “The provisions”. Insert instead
“Subject to this Act, the provisions”.
[37]Section 33C
(d)
Insert at the end of section 33C (c):
, and
(d)
a reference in those provisions to a good
behaviour bond were a reference to a good behaviour bond imposed under section
33.
[38]Section 33C
(2)
Insert at the end of section 33C:
(2)
To avoid doubt, Division 2 of Part 3 of the
Crimes (Sentencing Procedure) Act 1999
(which relates to victim impact statements) applies to any offence dealt with
by the Children’s Court that is an offence to which that Division would
apply if it were being dealt with by a Local Court.
[39]Section 33D Non-association
and place restriction orders
Omit “section 33 (1) (paragraphs
(a),” from section 33D (2).
Insert instead “section 33 (subsection (1)
(a) (i),”.
[40]Section 33D
(5)
Omit “referred to in section 33 (1) (b) or
(e)”.
Insert instead “under section 33 providing
for a person to enter into a good behaviour bond or releasing a person on
probation”.
[41]Section 34 Restrictions on the
imposition of control orders etc
Insert “, (f1)” after
“(f)” in section 34 (1).
[42]Section 35 Reasons for
decision to be given
Omit “(f)” from section 35 (b).
Insert instead “(f1)”.
[43]Section 36
Compensation
Omit section 36 (3). Insert instead:
(3)
The maximum amount of compensation that may be
awarded is:
(a)
the amount that is equivalent to 10 penalty units
(in the case of a person who is under the age of 16 years at the time the
order is made), or
(b)
the amount that is equivalent to 20 penalty units
(in any other case).
[44]Section 38 Destruction of
photographs, finger-prints etc
Omit section 38 (1) and (2). Insert
instead:
(1)
If the Children’s Court finds a person not
guilty of an offence to which this Division applies, or finds a person guilty
of such an offence but makes an order dismissing the charge under section 33
(1) (a) (i), the Children’s Court is to make an order that requires any
photographs, finger-prints and palm-prints, and any other prescribed records
(other than records of the Children’s Court), relating to the offence to
be destroyed.
(2)
If the Children’s Court finds a person
guilty of an offence to which this Division applies and makes any other order
in respect of the person under section 33, it may, if it is of the opinion
that the circumstances of the case justify its doing so, make an order
(whether on the application of the person or otherwise) that requires any
photographs, finger-prints and palm-prints, and any other prescribed records
(other than records of the Children’s Court), relating to the offence to
be destroyed.
[45]Section 40 Variation of good
behaviour bond or probation
Omit “referred to in section 33 (1) (b) or
(e)” from section 40 (1) and (2), wherever occurring.
Insert instead “under section 33 that
provides for a person to enter into a good behaviour bond or that releases a
person on probation”.
[46]Section 41A Provisions
applicable where control order suspended subject to good behaviour
bond
Omit section 41A (3) (b) and (c). Insert
instead:
(b)
Part 4 of the Crimes
(Sentencing Procedure) Act 1999 applies to the order under
section 33 (1) (g), as if the order were a sentence of imprisonment being
imposed following the revocation of the good behaviour bond, and section 24 of
that Act applies in relation to the setting of a non-parole period under that
Part.
[47]Section 51
Regulations
Omit “under section 33 (1) (b) and
(e)” from section 51 (1) (a).
Insert instead “under section 33 that
provide for a person to enter into a good behaviour bond or release a person
on probation”.
[48]Schedule 2 Savings and
transitional provisions
Insert at the end of clause 1 (1):
Children
(Criminal Proceedings) Amendment Act
2008
[49]Schedule 2, Part
14
Insert after Part 13:
Part 14Children (Criminal Proceedings) Amendment Act
2008
19Definition
In this Part:
amending
Act means the Children
(Criminal Proceedings) Amendment Act
2008.
20Detention of adults in
juvenile detention centres
An amendment made to section 19 by the amending
Act applies in respect of any direction made under that section on or after
the commencement of the amendment.
21Changes to penalty
provisions
(1)
An amendment made to section 33 by the amending
Act applies only in respect of an offence committed on or after the
commencement of the amendment, except as otherwise provided by this
clause.
(2)
The amendment made to section 33 (1B) by the
amending Act relating to the setting of a non-parole period, and the amendment
made to section 41A by the amending Act, extend to proceedings commenced (but
not concluded) before the commencement of the amendments (including
proceedings for offences committed before the commencement of the
amendments).
(3)
The amendment made to section 41A by the amending
Act extends to proceedings in respect of a good behaviour bond entered into
before the commencement of the amendment.
(4)
The amendment to section 41A does not require a
non-parole period in respect of an order under section 33 (1) (g) to be set on
termination of a good behaviour bond entered into before the commencement of
the amendment if the non-parole period was set at the time that the order
under section 33 (1) (g) was suspended.
22Change to maximum amount of
compensation
The amendment made to section 36 by the amending
Act applies only in respect of offences committed on or after the commencement
of the amendment.
Schedule 2Amendment of other
Acts
(Section 4)
2.1Children (Community Service Orders) Act 1987 No
56
[1]Section 3
Definitions
Omit the definitions of and work from section 3
(1).
Insert in alphabetical order:
means any unpaid work, service or activity
approved by the Minister, or of a class or description approved by the
Minister, and includes any personal development, educational or other program
of a class or description approved by the Minister.
perform community service work
includes participate in any personal development, educational or other program
that is community service work.
[2]Section 5 Making of
children’s community service orders
Insert after section 5 (1A):
(1B)
An order under this section may recommend that
the community service work to be performed by the person in respect of whom
the order is made should include participation in a personal development,
educational or other program.
[3]Section 13 Number of hours of
community service work
Omit “hours of work” from section 13
(3) (a) and (b), (3A) and (5), wherever occurring.
Insert instead “hours of community service
work”.
[4]Section 17 Obligations of
persons subject to children’s community service
orders
Omit “work” from section 17 (1) (b)
and (c) and (2), wherever occurring.
Insert instead “community service
work”.
[5]Section 17
(3)
Insert after section 17 (2):
(3)
The community service work to be performed by a
person in respect of whom a children’s community service order is in
force (being an order containing a recommendation referred to in section 5
(1B)) must, if practicable, include participation in a personal development,
educational or other program.
[6]Section 18
Directions
Omit “work” from section 18 (1) and
(1A) wherever occurring.
Insert instead “community service
work”.
[7]Section 18
(1B)
Insert after section 18 (1A):
(1B)
Subsection (1) does not apply in respect of
participation in a personal development, educational or other
program.
[8]Part 6,
heading
Omit “work incidents”. Insert
instead “community service work”.
[9]Sections 26B, 26C (except
heading), 26D (except heading) and 26F
Omit “work” wherever occurring.
Insert instead “community service work”.
[10]Schedule 1 Savings and
transitional provisions
Insert at the end of clause 1 (1):
Children
(Criminal Proceedings) Amendment Act 2008, to the extent
that it amends this Act
[11]Schedule 1, clause
4
Insert after clause 3:
4Provisions consequent on
enactment of Children (Criminal Proceedings)
Amendment Act 2008
Any approval of the Minister or the
Director-General in respect of work under this Act that is in force
immediately before the repeal of the definition of work by the Children (Criminal Proceedings) Amendment Act
2008 is taken, on that repeal, to be an approval in
respect of community service work.
2.2Criminal Procedure Act 1986 No
209
Section 210 Penalties applying
to traffic offences committed by children
Insert at the end of paragraph (d) of the
definition of traffic
offence in section 210 (4):
or
(e)
the Motor Accidents
Compensation Act 1999,
Schedule 3Consequential amendments to
other legislation
(Section 5)
3.1Children (Criminal Proceedings) Regulation
2005
[1]Clause 7 Conditions that may
be imposed on certain orders
Omit “under section 33 (1) (b) or (e) of
the Act”.
Insert instead “under section 33 of the Act
that provides for the child to enter into a good behaviour bond or releases
the child on probation”.
[2]Clause 7
(2)
Insert at the end of clause 7:
(2)
If the Children’s Court makes an order
releasing a person on probation under section 33 (1) (e) of the Act and also
makes an order requiring the person to perform community service work under
section 33 (1) (f) of the Act, the order releasing the person on probation may
include a condition that requires the person to comply with the community
service work order.
3.2Children (Interstate Transfer of Offenders) Act
1988 No 85
Section 3
Definitions
Omit “order under section 33 (1) (b), (e)
or (f)” from paragraph (b) (ii) of the definition of young offender.
Insert instead “order providing for the
person to enter into a good behaviour bond, releasing the person on probation
or requiring the person to perform community service work under section
33”.
3.3Crimes
(Administration of Sentences) Act 1999 No
93
[1]Section 4 Application of
Part
Insert after section 4 (1) (d):
(d1)
any person the subject of an order under section
33 (1) (g) of the Children (Criminal Proceedings) Act
1987 by which the Children’s Court has committed the
person to the control of the Minister administering this Act,
and
[2]Section 4 (1)
(e)
Omit “referred to in paragraph (a), (b),
(c) or (d)”.
Insert instead “referred to
above”.
3.4Victims Support and Rehabilitation Act 1996 No
115
Dictionary
Omit paragraph (b) of the definition of conviction.
Insert instead:
(b)
(except in Part 4) an order made under section 33
of the Children (Criminal Proceedings) Act
1987 (other than section 33 (1) (a)
(i)).
Historical
notes
Table of amending
instruments
Children
(Criminal Proceedings) Amendment Act 2008 No 54. Assented
to 1.7.2008. Date of commencement, except sec 6, 3.11.2008, sec 2 (1) and GG
No 138 of 31.10.2008, p 10469; date of commencement of sec 6, assent, sec
(2).