Children (Criminal Proceedings) Act 1987

The Act’s reach is deliberately wide. Its primary subjects are “children” (persons under 18 at the time of the alleged offence) and “young persons” up to the age of 21 at the time of charge who committed offences while children (ss 3(1), 16, 28). This includes both those dealt with summarily in the Children’s Court and those committed for trial or sentence in the District or Supreme Court.

Police officers commencing proceedings are bound by the preference for court attendance notices (s 8) and the mandatory presence of a responsible adult or lawyer before a child’s statement can be used (s 13). Authorised justices and magistrates exercising bail functions must apply the Act’s procedural overlay (s 12A, s 30).

The Children’s Court, Local Court, District Court and Supreme Court are all “courts” to which Part 2 applies (s 4). The Children’s Court itself receives the bulk of matters (s 28) and must apply the s 6 principles, explain proceedings (s 12), exclude the public (s 10), and choose from the s 33 sentencing hierarchy. Higher courts exercising jurisdiction over children must have regard to the same principles and may exercise the Children’s Court’s sentencing functions (s 18(2)).

Media organisations and any person disseminating information by print, broadcast or internet are directly constrained by the s 15A prohibition. The definition of “publish” is technologically neutral and captures any material “likely to lead to the identification” of the child (s 15A(5)).

Victims, including “family victims” of deceased child victims, are granted explicit rights to attend hearings (s 10(1)(c)) and are considered in the s 6(h) principle and in s 15C(3)(b) authorisation decisions.

Parents and “persons responsible” (those with parental responsibility or care of the child) are given a statutory role in the admissibility of confessions (s 13(1)(a)(i)–(ii)) and in consent decisions for publication where the child is deceased (s 15E). Juvenile justice officers and community corrections officers share supervisory functions over bonds and probation (s 33(7)).

Finally, the Attorney General may trigger a s 45 review where an age-based jurisdictional error has occurred, and regulations may prescribe additional serious children’s indictable offences (s 3(1)).

Duties fall heaviest on the state. Police must prefer court attendance notices (s 8(1)) and ensure an appropriate adult or Australian legal practitioner is present before questioning (s 13(1)). Courts must explain proceedings in language the child can understand (s 12(1)), afford the child the fullest opportunity to participate (s 12(4)), and have regard to the s 6 principles whenever exercising any function. Before imposing a control order the court must be affirmatively satisfied that every lesser option in s 33(1)(a)–(f1) is wholly inappropriate (s 33(2)) and must record reasons (s 35). Background reports are mandatory before control orders or imprisonment (s 25(2)).

The Children’s Court must give reasons when committing for trial rather than dealing summarily (s 31(4)). In name-suppression matters, a court authorising publication of a serious children’s indictable offender’s name must weigh seriousness, victim impact, deterrence, rehabilitation prospects and the interests of justice, and record those reasons (s 15C(3)–(4)).

Rights of the child include the right to be heard (s 6(a), s 12(4)), the right to have proceedings explained (s 12(3)), the right to an appropriate adult during police interviews (s 13), and the right to anonymity that survives adulthood and death (s 15A(4)). A child aged 16 or over may consent personally to publication, but only in the presence of their own lawyer (s 15D(3)). The child also benefits from the evidentiary presumption in s 5 and the non-recording of convictions for those under 16 (s 14(1)(a)).

Victims have a statutory entitlement to remain in court (s 10(1)(c)) and to have their interests considered in publication-authorisation decisions (s 15C(3)(b)). Parents or persons responsible have a right to be present during interviews and to receive copies of background reports (s 13(1), s 25(2)(b)).

Breach of the name-suppression rule carries a maximum penalty of 500 penalty units for a corporation or 50 penalty units and/or 12 months’ imprisonment for an individual (s 15A(7)). Proceedings must be commenced within two years if brought in the Local Court (s 15A(8)).

Sentencing options under s 33 are not “penalties” in the conventional sense; the Act deliberately uses the language of orders. The most serious is a control order under s 33(1)(g), which can be for up to two years and, for a person under 21, may direct that the sentence be served as a juvenile offender in a detention centre (s 19). Special circumstances are required before an 18-year-old or older person can remain in a detention centre (s 19(1A), (3)–(4)). Breach of a good behaviour bond or probation order may result in the bond being revoked and the original court dealing with the offender as though the order had never been made (s 41(5)–(7)). Suspension of a control order on a bond is automatically revoked on breach unless the breach is trivial or there are good reasons to excuse it (s 41A(2)).

Enforcement of bonds and probation is by court attendance notice or warrant issued by an authorised justice on reasonable belief of breach (s 41(1)). The Children’s Court or Local Court (depending on the person’s age) then determines whether to take no action, vary conditions, vary duration (not beyond the original two-year maximum from the s 33 order), or revoke (s 41(5)). A revoked order allows the court to impose any sentence that could have been imposed at first instance (s 41(7)).

Court costs levies may be ordered in addition to any penalty (s 42A), capped at the amount that would apply under s 211A of the Criminal Procedure Act 1986.

The Act is expressly subject to the Bail Act 2013 in the event of inconsistency (s 50). It applies the Criminal Procedure Act 1986 to Children’s Court proceedings subject to Part 2 and the Court’s rules (s 27(1)–(2)), but carves out s 211A (court costs in certain cases) and modifies committal procedures for non-serious children’s indictable offences (s 27(2B)). Part 2 of Chapter 3 of the Criminal Procedure Act (committals) does not apply to indictable offences that are not serious children’s indictable offences (note to s 27(2B)).

Serious children’s indictable offences are defined by cross-reference to homicide, life/25-year offences, certain sexual offences under the Crimes Act 1900 ss 61J, 61K, firearms manufacturing/sale offences, attempts, and any offence prescribed by regulation (s 3(1)). These must be dealt with according to law (s 17) and attract full committal proceedings.

The Young Offenders Act 1997 interacts at several points: cautions and conferences cannot be used to rebut the doli incapax presumption (s 5(8)), and prior diversions are inadmissible in later proceedings (s 15(3)). Outcome plans under that Act can be imposed as a sentencing option (s 33(1)(c1)) and enforced under s 41.

The Children (Detention Centres) Act 1987 supplies the meaning of “detention centre” and “person subject to control” (s 3(1)) and governs the mechanics of juvenile detention, including the 18-year-old transfer rule (note to s 19) and remission for assault on juvenile justice officers (s 33AA).

Sentencing under s 33(1)(g) engages the Crimes (Sentencing Procedure) Act 1999 for non-parole periods, good behaviour bonds, and cumulative sentencing (ss 33C, 33(1B), 33A(5)). Non-association and place-restriction orders are available for offences carrying six months’ imprisonment or more (s 33D) and attract the procedural regime in Part 8A of the Crimes (Sentencing Procedure) Act 1999.

The Evidence Act 1995 applies to committal proceedings with the explicit exclusion of ss 90 and Part 3.11 discretions (s 31B(7)). The Victims Rights and Support Act 2013 supplies the mechanism for compensation orders (s 36(1)).

The most significant recent change is the wholesale substitution of s 5 by the Children (Criminal Proceedings) and Young Offenders Legislation Amendment Act 2025. The new section retains the conclusive presumption for children under 10 (s 5(1)) and the rebuttable presumption for 10–13 year olds (s 5(2)), but now expressly states that the presumption is rebutted only on proof beyond reasonable doubt that the child knew the conduct was “seriously wrong” in a moral sense (s 5(3)–(4)). Courts must have regard to a non-exhaustive list of matters—conduct, circumstances (with an example of planning or avoiding detection), intellectual and moral development, education and upbringing environment (s 5(5))—but cannot infer knowledge merely from the act itself (s 5(4)(b)). To avoid doubt, a court may rely solely on the conduct and circumstances if satisfied they suffice (s 5(7)). Critically, admissions or statements made in youth justice cautions or conferences (other than formal guilty pleas) cannot be used (s 5(8)). These amendments respond to concerns that the previous formulation allowed too ready rebuttal and risked stigmatising early contact with the youth justice system.

The Local Court and Bail Legislation Amendment Act 2025 amended s 30 to align bail functions with the Bail Act 2013 and made consequential changes to ss 29 and 36 of Schedule 2. Earlier 2018 amendments inserted Division 3AA to create a paper-based committal process for child sexual assault offences, reflecting a policy of minimising re-traumatisation while preserving the accused’s right to test the prosecution case where substantial or special reasons exist (ss 31AC–31AE).

The 2009 insertion of Division 3A (ss 15A–15G) dramatically expanded name-suppression rules in response to media reporting that was perceived to undermine rehabilitation. The 2017–2018 committal reforms aligned the Children’s Court with the abolition of traditional committals in the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017, replacing them with a streamlined “reasonable prospect” test (s 31F).

These changes collectively tighten procedural protections, reduce reliance on custodial outcomes, and strengthen anonymity to promote reintegration.

The source text itself does not record specific litigation, but the structure of the Act reveals several inherent tension points. The rebuttable presumption in s 5 has been legislatively calibrated to prevent mere proof of the act from satisfying the knowledge requirement (s 5(4)(b)), yet s 5(7) expressly permits a court to rely on conduct and circumstances alone if the court considers that evidence sufficient. This internal balance has generated debate about whether the provision adequately protects developmentally immature children.

Section 15A’s lifetime prohibition, extending even after death (s 15A(4)), has been criticised for colliding with open justice and the public’s interest in knowing the identity of serious offenders. The s 15C exception for serious children’s indictable offences requires the sentencing court to balance seriousness, victim impact, deterrence, rehabilitation and “the interests of justice” (s 15C(3)), injecting a discretionary element that can produce inconsistent outcomes across courts.

The jurisdictional split between summary disposition and committal (s 31) has produced controversy when the Children’s Court forms the opinion that a matter “may not properly be disposed of in a summary manner” after hearing all prosecution evidence (s 31(3)). The requirement to give reasons for committal (s 31(4)) is designed to promote transparency, yet the statutory test remains broad.

Section 33(2)’s “wholly inappropriate” threshold before a control order can be imposed has been the subject of appellate emphasis that detention must be a last resort, yet the statutory language leaves considerable room for judicial variation. The exclusion of certain youth justice admissions from the doli incapax inquiry (s 5(8)) reflects a policy choice to prevent “net-widening” but may deprive courts of relevant contextual evidence.

The interaction between s 19 juvenile-offender directions and the Children (Detention Centres) Act 1987 s 9A (which generally prevents 18-year-olds from remaining in detention centres) has required courts to articulate “special circumstances” on one of the three exhaustive grounds in s 19(4). The statutory insistence that youth alone or an expiring non-parole period is insufficient (s 19(4A)) has narrowed judicial discretion.

Most practitioners do not realise that the s 15A prohibition is not limited to the child offender; it extends to any person who “appears as a witness”, is “mentioned in the proceedings in relation to something that occurred when the person was a child”, or is a sibling of a child victim (s 15A(1)(b)–(e)). Identification material includes photographs or any detail “likely to lead to the identification” (s 15A(5)), so seemingly innocuous references to a school, sporting team or suburb can breach the section.

The doli incapax presumption now contains an explicit “to avoid doubt” clause (s 5(7)) that permits the court to rely solely on the conduct and circumstances even in the absence of direct evidence of moral understanding. This reverses the previous tendency to require psychiatric or parental evidence and places a premium on careful police recording of planning behaviour or steps taken to avoid detection (the statutory example in s 5(5)(b)).

Section 13 admissibility rules apply not only to the initial interview but to “any statement, confession, admission or information” made or given to a member of the police force (s 13(1)). The exception for statements required by law (s 13(3)) is narrower than many assume; it does not automatically cover roadside breath tests or other statutory demands unless they fall within the precise wording.

Control orders under s 33(1)(g) can be made only up to the maximum penalty for the offence (s 34(3)), yet the two-year statutory cap in s 33(1)(g) itself can produce anomalies when the maximum penalty is shorter. Conversely, the “wholly inappropriate” test in s 33(2) is not satisfied merely because the offence is serious; the court must expressly negate every lesser option.

The power to direct that a sentence be served as a juvenile offender under s 19 is available only at the time of sentence; a later application under s 19(5) requires leave and is not a routine review mechanism. Once a person turns 21, eligibility ceases except in narrowly defined non-parole or sentence-expiry windows (s 19(2)).

Background reports required by s 25 are not discretionary; failure to tender one before a control order invalidates the sentencing process. The report must be prepared strictly in accordance with the regulations.

Finally, the s 15A prohibition continues to apply even if the child consents after turning 16, unless that consent is given in the presence of the child’s own Australian legal practitioner (s 15D(3)). Media outlets frequently overlook this independent legal advice requirement.

For police and investigative agencies: Always commence by court attendance notice unless one of the three exceptions in s 8(2) is clearly engaged and documented. Before any interview, ensure a person responsible, consenting adult, or the child’s chosen lawyer is physically present for the entire period (s 13(1)(a)). Record the identity and role of that person. Do not rely on cautions or youth justice conference material to rebut doli incapax (s 5(8)). Prepare detailed notes of any planning or concealment behaviour if the child is 10–13.

For prosecutors: When electing to request that a child sexual assault offence proceed according to law, do so no later than the first return date or later date permitted by the court (s 31AB). Serve written statements compliant with Division 3AA and Part 3A of Chapter 6 of the Criminal Procedure Act 1986. In committal proceedings, be prepared to justify oral evidence only on substantial or special reasons grounds (s 31AD(3)–(4)). For publication applications under s 15C, assemble evidence on each of the six statutory factors.

For defence lawyers: Advise clients and families that the anonymity rule is strict and survives adulthood. Obtain instructions in the presence of a lawyer before any consent to publication is given (s 15D(3)). In doli incapax matters, lead affirmative evidence of the child’s moral development, education and home environment; do not assume the presumption will protect the child without it. At sentencing, insist on a background report (s 25) and systematically address why each lesser s 33(1) option is not wholly inappropriate before a control order can be imposed. Seek variation or review of bonds under ss 40–41 promptly upon changed circumstances.

For the Children’s Court: Maintain a checklist for s 6 principles in every decision. Record reasons whenever a control order is made (s 35) or when committing for trial (s 31(4)). For s 15C applications, weigh each statutory factor and record the balancing exercise. Ensure background reports are tendered and considered before any control order (s 25(2)).

For media organisations: Adopt a “no name, no identifying detail” policy for any matter falling within s 15A(1). Even after finalisation of proceedings or the child’s death, the prohibition continues. The only safe routes to identification are a court order under s 15C, valid consent given in accordance with s 15D, or senior-next-of-kin consent for a deceased child after proper inquiries (s 15E). Assume any photograph or reference to a school, club or suburb is capable of identification.

For juvenile justice and corrections officers: Coordinate supervision of bonds and probation under the arrangements in s 33(7). When preparing background reports, address all matters required by the regulations so the report can be tendered without objection. Advise the court of any breach promptly so that s 41 enforcement proceedings can be initiated before the bond expires (s 42).

Compliance is best achieved by treating the Act as an integrated code rather than a collection of isolated sections. Regular cross-checking against the definitions in s 3, the principles in s 6, and the procedural overlays in ss 27 and 31 will avoid the majority of inadvertent breaches.