alleged to have been committed by juveniles, the
establishment of the Juvenile Court, the procedures to
be adopted in and in
relation to proceedings against
juvenile offenders, the punishment of juvenile
offenders, the transfer of juvenile offenders
between
the Territory and the States, and for other purposes,
with the intention that juveniles be dealt with in the
criminal
law system in a manner consistent with their
age and level of maturity (including their being dealt
with, where appropriate,
by means of admonition and
counselling) and to extend to juveniles the same rights
and protections before the law as apply
to adults in
similar circumstances."
8. The defendants also relied upon the remark of Muirhead A.C.J., in Seears v
Oldfield
(1985) 36 NTR 65 at 70:
"The Juvenile Justice Act purports to provide a
modern code relating to young offenders."
9. The plaintiff countered
this argument by saying that His Honour was merely
using the word "Code" as a synonym for "Act" and not in the sense that he
believed
the Juvenile Justice Act was a codifying statute. The plaintiff
submitted that true it may be, the Juvenile Justice Act was a codifying
statute in relation to sentencing and the establishment and jurisdiction of
the juvenile court, but there were nevertheless a number
of sections in the
Juvenile Justice Act which referred to other statutes, notably s.25(3) which
refers to s.134 of the Police Administration Act, s.25(4) which refers to
sections 20 to 29 of the Traffic Act, s.26 which refers to s.75 of the Police
Administration Act. This was sufficient indication, the plaintiff said, that
the Juvenile Justice Act, at least in some regards, was not a codifying
statute.
10. What is a codifying statute? For present purposes it is sufficient to
employ the following statement from Maxwell:
Interpretation of Statutes, 12th
Ed, Sweet and Maxwell (1969) p 25:
"A codifying statute is one which purports to
state exhaustively
the whole of the law upon a
particular subject, the draftsman attempting to subsume
in his code both the pre-existing statutory
provisions
(as in a consolidation Act) and also the common law
rules relating to the matter."
11. In my opinion the long title
to the Juvenile Justice Act makes it plain
that the Juvenile Justices Act does not purport to codify the whole of the law
relating to young offenders. The long title says, inter alia:
"... and to extend
to juveniles the same rights
and protections before the law as apply to adults in
similar circumstances."
12. It is significant
that the Juvenile Justice Act is silent on such obvious
matters of relevance as arrest and release on bail. In my opinion the
Juvenile
Justice Act is not a code encapsulating the law with respect to
juveniles to the exclusion of all other law, both judge-made and
statutory.
13. The question, however, remains, does s.145 of the Police Administration
Act, notwithstanding the enactment of the Juvenile Justice Act, continue to
apply to juveniles? In deciding this question a number of
principles of
statutory interpretation need consideration. A number of them were resorted
to by the defendants. It was contended
the principle of expressum facit
cessare taciturn applied, that is that where a particular procedure is
designated to achieve something,
other procedures are thereby excluded, and
reliance was placed upon Pearce and Geddes Statutory Interpretation In
Australia 3rd Ed,
Butterworths 1988, at 82. This principle is a derivative of
the principle expressio unius est exclusio alterius, that is, that an
express
reference to one matter indicates that other matters are excluded (Pearce and
Geddes, supra, p 79). The defendants argued
that the Police Administration Act
procedure for the taking of blood specimens necessarily precluded application
of s.31(1) of the Juvenile Justice Act to such activities.
14. I do not accept this submission. It seems to me the statutory provisions
can be read together as relating to the same subject
matter. It seems to me
the provisions may be and are to be read as complementary, and that the
requirements of the Juvenile Justice
Act are superimposed upon the Police
Administration Act procedure when blood specimens are to be taken from
juveniles. Prior to the Juvenile Justice Act, s.145 of the Police
Administration Act, being a general provision relating to police powers,
applied to juveniles. In my view, the Juvenile Justice Act does not render
that provision inapplicable either expressly or by necessary implication.
15. The principle of expressio unius arises in another
way. The defendants
pointed out that various sections of the Juvenile Justice Act expressly refer
to and embrace particular provisions
of the Police Administration Act, see eg
s.25(3) Juvenile Justice Act. Here, said the defendants, had s.145 of the
Police Administration Act been intended to apply to juveniles, the Juvenile
Justice Act would have expressly said so.
16. It seems to me this argument is
met in two ways. First, the Juvenile
Justice Act does not refer to a number of important police powers which, as
one wo o expect,
clearly do continue to apply to juveniles. Notable among
these are powers of arrest and bail, of which very little is said in the
Juvenile Justice Act. Enforcement of bonds is also not elaborated upon in the
Juvenile Justice Act.
17. Another answer to the defendants'
argument is by reference to a
recognised qualification to the principle of expressio unius, namely that the
principle will not be
used to exclude certain "legal assumptions" (Pearce,
supra, at 81). One such legal assumption, relevant here, is that the court
will uphold fundamental legal rights, whether they be common law rights or
statutory rights (Pearce, supra, at 102-107, particularly
at 107). If s.31
(construed to include blood sampling) were to stand alone by operation of
expressio unius, then it would take away
the right of freedom from assault and
the right against self-incrimination. Such an intention will not be
attributed to Parliament
in the absence of clear words. Section 31 of the
Juvenile Justice Act should not be read so as to exclude application of the
Police Administration Act; the two should be read together.
18. The defendants argued that if s.145 of the Police Administration Act
applies to the taking of a blood specimen from a juvenile, then it leaves s.31
of the Juvenile Justice Act with no work to do. It
was said that section 31
of the Juvenile Justice Act covered the field in relation to the collection of
identifying evidence and
if there was a gap in the legislation, that is, a
failure to provide proper procedures then that must be remedied by amendment
to
the statute. The plaintiff argued, and I agree, that s.31 necessitates
extra requirements when such procedures are being carried
out in relation to
juveniles. First it is necessary to comply with s.25 of the Juvenile Justice
Act, which lays down certain requirements
in respect of the interview or
investigation of juveniles, particularly that someone should be present with
the juvenile during interviews
and investigation. Secondly, a magistrate may
approve the taking of identifying material only after hearing from the
authorised officer
or member of the police force, and the juvenile in custody
(s.31(4)).
19. The procedures for taking a blood specimen from a juvenile
appear to me
to be as follows. Under s.31 of the Juvenile Justice Act, it is necessary for
the identifying material to fall in the
categories outlined in s.31(1). Blood
falls into the category of "material from the body". To obtain material from
the body of a
juvenile, the juvenile must be in lawful custody (s.31(2)), and
a magistrate must have approved the taking of identifying material
under
s.31(4). Section 31(2) is subject to s.25 which provides that a juvenile
shall not be interviewed or investigated unless a
person specified in
s.25(1)(c) is present. Having fulfilled the requirements of s.25 and
s.31(1)(2) and (4) of the Juvenile Justice
Act, it is then necessary to comply
with s.145 of the Police Administration Act which lays down the procedures for
the taking of a blood sample by a medical practitioner.
20. My conclusion, then, is that the
words "material from the body" include
blood. A magistrate may authorise the taking of a blood specimen from a
juvenile by virtue
of the joint operation of s.31 of the Juvenile Justice Act
and s.145 of the Police Administration Act. Such a blood specimen can only be
taken from a juvenile if the requirements of both s.145 of the Police
Administration Act and s.31 of the Juvenile Justice Act are adhered to.
21. For these reasons the plaintiff is entitled to orders, first, quashing
the first defendant's determination to refuse approval for the taking of a
blood specimen from the second defendant and, secondly,
directing the first
defendant to hear and determine the application according to law.
22. I order accordingly. There will be a
stay of these orders until further
order with liberty to any party to apply on 48 hours' written notice to the
other.