91Transitional provision—Youth Justice Act 2024—increase in minimum age of criminal responsibility

91 Transitional provision—Youth Justice Act 2024—increase in minimum age of criminal responsibility (1) If, before the commencement of Part 1.2 of the **Youth Justice Act 2024**, a court has declared that a child is liable to supervision under Division 5 of Part 5A because of conduct by the child when the child was 10 or 11 years of age, on that commencement— (a) the declaration is of no effect; and (b) any supervision order made under section 38ZH in respect of the child because of the declaration is, by virtue of this section, taken to be set aside; and (c) any order made under the **Bail Act 1977** in respect of the child is, by virtue of this section, taken to be set aside; and (d) any other order relating to the declaration is, by virtue of this section, taken to be set aside. (2) If a supervision order made under section 38ZH is taken to be set aside under this section— (a) the child is released from any obligation to comply with the conditions of the order; and (b) if the child is in custody, the child must be unconditionally released; and (c) any order made under section 38ZM that a warrant to arrest be issued against the child is, by virtue of this section, taken to be set aside. Pt 11 (Headings and ss 91–122) inserted by No. 11/2020 s. 30, amended by No. 27/2020 ss 11, 12, repealed by No. 65/1997 s. 122 (as amended by No. 27/2020 s. 12), new Pt 11 (Headings and new ss 91–120) inserted by No. 11/2022 s. 6, repealed by No. 65/1997 s. 120. Schedules Schedule 1––Provisions with respect to members of the Panel Section 59(3) 1 Judicial members (1) The judicial members— (a) are to be appointed by the Governor in Council; and (b) hold office for a period of 5 years; and (c) are eligible for re-appointment at the end of the term of office; and Sch. 1 cl. 1(1)(d) amended by Nos 46/1998 s. 7(Sch. 1), 108/2004 s. 117(1) (Sch. 3 item 50.2). (d) are not in respect of the office of member subject to the provisions of the **Public Administration Act 2004**. (2) The appointment of a judge to the Panel does not affect his or her tenure of office as a judge or rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of an office as a judge and, for all purposes, service as a member of the Panel is to be taken to be service as the holder of an office as a judge. (3) For the purposes of sections 80A(5A)(a) and 83(4) of the **Constitution Act 1975** and sections 13A(5A)(a) and (5C) of the **County Court Act 1958**, the office of judicial member is not to be taken to be a judicial office or an office or place of profit under the Crown. 2 Other members (1) Each member of the Panel (other than the judicial members and the chief psychiatrist or his or her nominee)— (a) is to be appointed by the Governor in Council on the nomination of the Minister; and (b) holds office for the term specified in his or her instrument of appointment, which must be no longer than 4 years; and (c) is eligible for re-appointment at the end of the term of office; and (d) is entitled to be paid— (i) the remuneration that is fixed from time to time by the Governor in Council; and (ii) the travelling and other expenses that are fixed by the Governor in Council; and Sch. 1 cl. 2(1)(e) amended by No. 46/1998 s. 7(Sch. 1), substituted by Nos 108/2004 s. 117(1) (Sch. 3 item 50.3), 80/2006 s. 26(Sch. item 22). (e) is in respect of the office of member subject to the **Public Administration Act 2004** (other than Part 3 of that Act). (2) In nominating people for appointment to the Panel, the Minister must have regard to— (a) the matters that the Panel has jurisdiction to hear and determine; and (b) the need for the Panel to be comprised of both males and females so qualified by knowledge and experience that the Panel is capable of exercising the jurisdiction and performing the functions conferred on it. (3) In the case of the first appointment of members of the Panel— (a) as nearly as possible to half the number of members appointed are to hold office for a term of 2 years from their respective appointments; and (b) the remainder of members first appointed are to hold office for a term of 4 years from their respective appointments. 3 Acting members (1) If a member is unable, whether on account of illness or otherwise, to perform the duties of office, the Governor in Council may appoint an eligible person to act as that member during the period of inability. (2) If an acting member has been appointed and the member for whom he or she is acting ceases to hold office without having resumed the performance of the duties of office, the appointment of the acting member continues until— (a) it is terminated by the Governor in Council; or (b) 12 months after the member ceases to hold office— whichever occurs first. (3) An acting member— (a) has all the powers and may perform all the duties of the member for whom they are acting; and (b) except in the case of an acting judicial member, is entitled to be paid— (i) the remuneration that is fixed from time to time by the Governor in Council; and (ii) the travelling and other expenses that are fixed by the Governor in Council. (4) If the appointment of an acting member expires (whether because of effluxion of time, the resumption of duty by the member for whom they are acting or the filling of the relevant vacancy) at a time when the acting member is engaged in a hearing of a matter by the Panel, the acting member's appointment continues until the matter has been finally determined by the Panel. 4 Judicial members A judicial member ceases to hold office on ceasing to hold the office of judge. 5 General provisions as to members (1) The Governor in Council may specify terms and conditions of appointment in the instrument of appointment of a member. (2) The Governor in Council, on the recommendation of the Minister after consultation with the judicial members, may remove or suspend any member (other than the judicial members or the chief psychiatrist or his or her nominee) from office. (3) A member may resign from the office of member by writing signed by the member and delivered to the Governor in Council. (4) If any member (other than the judicial members or the chief psychiatrist or his or her nominee)— (a) becomes bankrupt; or (b) is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or (c) becomes incapable of performing the duties of a member— the office held by that member becomes vacant. (5) If the appointment of any member expires at a time when that member is engaged in the hearing of a matter by the Panel, the appointment continues until the matter has been finally determined by the Panel. Schedule 2––Provisions with respect to the procedure of the Panel Section 64(2) 1 Constitution of Panel for hearings (1) For the purposes of a hearing, the Panel is to be constituted by— (a) a judicial member, being— (i) a Supreme Court judge in the case of an applicant for leave whose supervision order was made by the Supreme Court; or (ii) a County Court judge in the case of an applicant for leave whose supervision order was made by the County Court— who is to be chairperson of the Panel for that hearing; and (b) a member appointed to the Panel to represent the views and opinions of members of the community; and (c) if the applicant for leave is a forensic patient— (i) the chief psychiatrist or his or her nominee; and (ii) a member of the Panel who is a registered medical practitioner with experience in forensic psychiatry; and (d) if the applicant for leave is a forensic resident, a member of the Panel who is a registered psychologist with experience in the field of intellectual disabilities and with forensic experience. (2) The member of the Panel referred to in subclause (1)(c) or (d) must not be a person who is primarily responsible for the treatment or care of the applicant for leave. (3) The members to constitute the Panel for a hearing are to be selected by the President. 2 Procedure of the Panel (1) Unless clause 3 applies, a matter arising for determination by the Panel in a hearing is to be determined by the opinions of a majority of the members constituting the Panel for the purposes of that hearing, but if the Panel is evenly divided, the matter is to be determined by the opinion of the chairperson. (2) An act or decision of the Panel is not invalidated only because— (a) of a defect or irregularity— (i) in the appointment of a member; or (ii) in the selection of a member for a particular hearing; or (b) in the case of an acting member, the occasion for acting had not arisen or had ceased. (3) Subject to this Act, the procedure of the Panel is in its discretion. 3 Determination of questions of law (1) A question of law that arises in proceedings before the Panel is to be decided by the chairperson. (2) The Panel, of its own motion or at the request of a party, may refer a question of law arising in a proceeding before it to the Court of Appeal for decision. (3) A question of law may be referred under subclause (2) only if the chairperson of the Panel agrees to the referral. (4) If a question of law is referred under subclause (2), the Panel must not, in the proceeding— (a) give a decision to which the question is relevant while the referral is pending; or (b) proceed in a manner or make a decision that is inconsistent with the opinion of the Court of Appeal. 4 Directions as to arrangement of business and procedure The President, after consultation with the other members of the Panel, may give directions as to— (a) the arrangement of the business of the Panel; and (b) the procedure of the Panel. 5 Sittings of the Panel (1) The Panel is to sit— (a) at such times as the President determines; and (b) at the place where the applicant for leave is detained, unless the President determines otherwise. (2) The President may determine that there is to be a special sitting of the Panel in the case of an emergency. 6 Powers of Panel The Panel has power to— (a) order that any person who in the opinion of the Panel ought to be a party in any proceedings be added as a party or substituted for a party; and (b) order that any person who in the opinion of the Panel is not a proper or a necessary party in any proceedings cease to be a party; and (c) adjourn the hearing of any proceedings— (i) to any time and place; and (ii) for any purpose; and (iii) on any terms as to costs or otherwise— as the Panel considers necessary or just in the circumstances; and (d) reserve its decision in any proceedings to a date to be advised by the Panel; and (e) make an order that operates at a date after the making of the order as is specified in the order. 7 Reasons to be signed (1) Written reasons for determinations of the Panel (if requested under section 66) must be signed by the members constituting the Panel that made the determination. (2) If one or more members of the Panel are unavailable for the purpose of signing the reasons, it is sufficient if one of the members signs the reasons. (3) The production in any proceedings of a document purporting to be a copy of reasons for a determination made by the Panel and purporting to be signed by a member or members of the Panel is conclusive evidence of the reasons for the determination and of the due making and existence of the determination. 8 Power to amend determination (1) The Panel may at any time make a determination correcting a determination made by it if there is in the determination— (a) a clerical mistake or an error arising from any accidental slip or omission; or (b) any evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the determination. (2) A determination under subclause (1) may be made on the application of any person or on the Panel's own initiative. Schedule 3––Savings and transitional provisions 1 Definitions In this Schedule— ***commencement day*** means the day on which this Schedule comes into operation; ***existing detainee*** means a person who, immediately before the commencement day, was subject to an order under section 393 or 420 of the **Crimes Act 1958** (whether by the court or by the Governor). 2 Existing detainees (1) Each existing detainee is, on and after the commencement day, deemed to be subject to a custodial supervision order under this Act. (2) The nominal term of the custodial supervision order is to be determined in accordance with section 28 as if the maximum penalty for the offence which led to the person becoming an existing detainee were the maximum penalty attaching to that offence on the commencement day. (3) If the offence referred to in subsection (2) no longer exists— (a) the Supreme Court, on application by the existing detainee or the Director of Public Prosecutions, must determine whether there is an existing offence, as at the commencement day, with which the existing detainee could have been charged had it existed at the time of the original charge; and (b) if there is such an offence, the nominal term is to be determined by reference to the maximum penalty for that offence as at the commencement day. (4) The nominal term runs from the day on which the existing detainee was made subject to the order under section 393 or 420 of the **Crimes Act 1958**. Sch. 3 cl. 2(5) amended by No. 43/1998 s. 40(b)(i). (5) If the nominal term has expired, a major review must be held within 6 months after the commencement day. 3 Leave (1) Subject to this clause, an existing detainee who, immediately before the commencement day, was on leave from the place of detention that corresponds to leave that may be granted under Part 7 is deemed to be on the corresponding leave as if granted under that Part, and any conditions to which the leave was subject immediately before the commencement day continue to apply. Sch. 3 cl. 3(2) amended by No. 43/1998 s. 40(b)(ii). (2) Subclause (1) applies for the period of 12 months commencing on, and including, the commencement day. (3) For the purposes of this clause, leave granted before the commencement day corresponds to leave that may be granted under Part 7 if it is substantially similar to that leave. Sch. 3 cl. 3(4) inserted by No. 7/2002 s. 33(1). (4) Sections 53 and 54, as in force immediately before the commencement of sections 24 and 25 of the **Forensic Health Legislation (Amendment) Act 2002**, continue to apply in relation to any limited off-ground leave granted before that commencement, until the expiry of that leave. 4 Revocation of supervision order (1) Despite anything to the contrary in Part 5, an existing detainee who has been, or is deemed to have been, on extended leave for a period of at least 12 months may apply to the court that made the original order under which he or she was detained for revocation of his or her supervision order. (2) On an application under subclause (1) the court may revoke the supervision order if satisfied on the evidence available that the safety of the existing detainee or members of the public will not be seriously endangered as a result of the revocation of the order. (3) In considering an application for revocation of a supervision order in respect of an existing detainee the court may take into account any reports on the existing detainee made by, or submitted to, the Adult Parole Board before the commencement day. 5 Persons released under section 498 of Crimes Act 1958 Despite the repeal of section 498 of the **Crimes Act 1958**, any conditions imposed on a person under that section that were in force immediately before the commencement day continue to apply on and after the commencement day. 6 Unfitness to stand trial (1) Part 2 applies with respect to an offence that is alleged to have been committed, whether before, on or after the commencement day. (2) If a person has been found unfit to stand trial but no order has been made in respect of the person before the commencement day, the court must proceed to hold a special hearing under Part 3 in respect of the person. 7 Mental impairment and insanity (1) Despite section 25, the defence of insanity continues to apply with respect to any offence alleged to have been committed before the commencement day. (2) If a jury returns a verdict of not guilty on account of insanity in relation to a person charged with an offence alleged to have been committed before the commencement day, that verdict is to be taken for all purposes to be a finding of not guilty because of mental impairment under Part 4. Sch. 3 cl. 8 inserted by No. 7/2002 s. 33(2). 8 Periodic major reviews Section 35, as amended by section 14 of the **Forensic Health Legislation (Amendment) Act 2002**, applies to a supervision order made before, on or after the commencement of that section 14. Sch. 3 cl. 9 inserted by No. 7/2002 s. 33(2). 9 Notification requirements Sections 38A, 38B, 38C and 38E, as inserted by section 17 of the **Forensic Health Legislation (Amendment) Act 2002**, apply to— (a) applications that are made after the commencement of that section 17; and (b) reviews that are listed by the court after the commencement of that section 17. Sch. 3 cl. 10 inserted by No. 7/2002 s. 33(2). 10 Appeals (1) An order for unconditional release can be appealed under section 19A or 24A (as the case may be) whether the order was made before or after the commencement of that section, unless— (2) A supervision order can be appealed under section 28A whether the order was made before or after the commencement of that section, unless— (3) An order confirming, varying or revoking a supervision order can be appealed under section 34 (as substituted by section 13 of the **Forensic Health Legislation (Amendment) Act 2002**) or section 34A (as the case may be) whether the order was made before or after the commencement of that section, unless— (4) A refusal to grant extended leave or a grant of extended leave can be appealed under section 57B whether the refusal or grant was made before or after the commencement of that section. (5) A revocation of extended leave or a refusal to revoke extended leave can be appealed under section 58A whether the revocation or refusal was made before or after the commencement of that section. (6) Any appeal referred to in subclause (1)(a), (2)(a) or (3)(a) that has not been determined before the commencement referred to in that subclause is to be determined in accordance with this Act as in force immediately before that commencement. Sch. 3 cl. 11 inserted by No. 68/2009 s. 97(Sch. item 39.52). 11 Transitional provisions—Criminal Procedure Act 2009 (1) Section 14A as inserted by section 423 of the **Criminal Procedure Act 2009** applies to a finding on an investigation under Part 2 that an accused is unfit to stand trial made on or after the commencement of section 423 of that Act. (2) Section 24AA as inserted by section 424 of the **Criminal Procedure Act 2009** applies to a verdict of not guilty because of mental impairment recorded on or after the commencement of section 424 of that Act. Sch. 3 cl. 12 inserted by No. 68/2009 s. 97(Sch. item 39.52). 12 Transitional provisions—Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 (1) Section 19A as amended by item 39.17 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item. (2) Section 24A as amended by item 39.24 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item. (3) Section 28A as amended by item 39.25 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item. (4) Section 34 as amended by item 39.28 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item. (5) Section 34A as amended by item 39.31 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal against the revocation of a non-custodial supervision order where the order revoking the supervision order is made on or after the commencement of that item. (6) Section 57B as amended by item 39.38 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the application for extended leave is refused or granted, as the case may be, on or after the commencement of that item. (7) Section 58A as amended by item 39.40 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the extended leave is revoked or the application for revocation of extended leave is refused, as the case may be, on or after the commencement of that item. (8) Section 73H as amended by item 39.44 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item. (9) Section 73N as amended by item 39.46 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item. Sch. 3 cl. 13 (Heading) amended by No. 29/2011 s. 3(Sch. 1 item 23). Sch. 3 cl. 13 inserted by No. 29/2010 s. 36. 13 Transitional provision—Health and Human Services Legislation Amendment Act 2010 Any act matter or thing of a continuing nature that was done by or in relation to, or any proceeding brought by or against, the Secretary to the Department of Human Services before the commencement of Division 1 of Part 5 of the **Health and Human Services Legislation Amendment Act 2010** is to be taken to be done by or in relation to, and may be brought by or against, the Secretary to the Department of Health after that commencement if the act matter or thing or proceeding relates to— (a) a forensic patient; or (b) an approved mental health service. Sch. 3 cl. 15 inserted by No. 55/2014 s. 131. 15 Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014 This Act as amended by Division 1 of Part 5 of the **Criminal Organisations Control and Other Acts Amendment Act 2014** applies to— (a) a proceeding for an offence that is commenced on or after the commencement of Division 1 of Part 5 of that Act; and (b) a proceeding for an offence that, on the commencement of Division 1 of Part 5 of that Act, is before the Children's Court, irrespective of when the proceeding was commenced. Sch. 3 cl. 16 inserted by No. 6/2017 s. 12. 16 Transitional provision—Crimes Legislation Further Amendment Act 2017 This Act as amended by Part 3 of the **Crimes Legislation Further Amendment Act 2017** applies to an investigation into the fitness of an accused to stand trial that commences on or after the day on which that Part comes into operation. Sch. 3 cl. 16A inserted by No. 11/2020 s. 31.