Young Offenders Act 1994

• Young persons (under 18): The Act applies to all young persons who have committed or are alleged to have committed offences in WA, with graduated responses from caution to detention.
• Families and responsible adults: Part 2, section 8 makes the role of responsible adults central. Parents and guardians are expected to participate in diversionary processes and sentencing.
• Police: Police have statutory obligations under Part 5 to consider cautioning before charging, and to administer cautions in accordance with prescribed procedures.
• Children's Court: The Children's Court applies the Act's principles when dealing with matters under its jurisdiction.
• Department of Justice: The department administers detention centres, supervises supervised release orders, and manages the juvenile justice system.
• Custodial officers: Officers at detention centres have specific statutory powers and duties under sections 11B, 11C and 11D.
• Victims: Section 7(e) and Part 5 provisions recognise victim participation rights in the juvenile justice process.
• Aboriginal young persons: Cultural appropriateness obligations in section 7 and specific consultation requirements apply particularly to Aboriginal young offenders, who are significantly overrepresented in the WA juvenile justice system.

Police obligations before charging. Section 22B requires every police officer to consider alternatives to court proceedings (including no action or a caution) before starting proceedings against a young person. This is a mandatory consideration.

Cautioning preference. Section 23 creates a preference for cautions over charges where the young person's previous offending record does not make a caution inappropriate.

Caution certificate. Section 23A requires police to give a caution certificate to the young person when a caution is administered.

Proportional sentencing. Section 46(3) requires courts to dispose of matters in a way that is proportionate to the seriousness of the offence and consistent with the treatment of other young offenders for similar offences.

Use of force limitation. Section 11C limits custodial officers to prescribed force in prescribed circumstances. Force beyond these limits is unlawful.

Restraint authorisation. Section 11D requires chief executive officer or superintendent authorisation before a detainee is restrained, except in immediate safety emergencies. Restraint conditions include preventing self-harm, medical grounds, and preventing escape.

Police discretion on cautioning. Police officers have discretion to caution rather than charge, subject to the mandatory prior consideration in section 22B. The decision is informed by the seriousness of the offence and the young person's prior history.

Minister and chief executive officer. The Minister and chief executive officer have powers to manage detention centres, declare detention centres (section 13), appoint staff (section 11), and make various administrative decisions.

Court discretion in sentencing. Section 46(2) requires the court to consider a wide range of factors in sentencing, including the nature and seriousness of the offence, prior history, cultural background, and impact on victims. The court has discretion within the available sentencing options.

Supervised release decisions. The chief executive officer determines whether to grant a supervised release order under Part 8, subject to the eligibility criteria in the Act.

The Act does not itself create criminal offences in the way a criminal code does. It governs the process by which existing offences are dealt with when committed by young persons, and creates administrative frameworks for managing young offenders.

The sentencing options available under Part 7 include:

• Fine.
• Community work conditions (section 73(1)(b)).
• Attendance conditions (section 73(1)(a)).
• Conditional release order (section 101).
• Supervised release order.
• Detention in a detention centre.

Detention is the most severe sanction. The Act requires that detention be imposed only as a last resort when other options are insufficient.

For breaches of conditions attached to community-based orders, the court may vary the conditions or impose a more severe sanction including detention.

Caution process. Police must consider cautioning before charging (section 22B). A caution may be given at the scene of the offence or at a police station. A caution certificate must be issued (section 23A). Admissions made by the young person during the caution process are not admissible in evidence (section 22(4)).

Court proceedings (Part 6). Where court proceedings are taken, the Children's Court has jurisdiction to deal with the matter. The Act applies juvenile justice principles to all court proceedings.

Sentencing. Part 7, Division 1 requires the court to apply the general principles of juvenile justice (section 46). The court considers all relevant factors before disposing of the matter. Proportionality to the offence and consistency with treatment of other young offenders are mandatory considerations.

Supervised release. Under Part 8, a detainee becomes eligible for supervised release on reaching the earliest release day (as defined in section 3). The chief executive officer may then grant a supervised release order, which takes effect on a specified date.

Reaching 18. Section 4 provides for transition when a young person reaches 18, allowing the Act to continue to apply in some circumstances to ensure continuity of proceedings or sentences already commenced.

• Children's Court of Western Australia Act 1988 (WA): The Children's Court's jurisdiction and procedures are established by this Act. The Young Offenders Act applies within the Children's Court's framework.
• Sentencing Act 1995 (WA): General sentencing principles under the Sentencing Act apply to young offenders except as modified by the Young Offenders Act (section 46(1)(a)).
• Criminal Procedure Act 2004 (WA): Section 5 provides that the Young Offenders Act overrides the Criminal Procedure Act in its application to young persons.
• Courts and Tribunals (Electronic Processes Facilitation) Act 2013 (WA): Part 2 of that Act applies under section 6A.
• Public Sector Management Act 1994 (WA): Officers and employees of the juvenile justice system are appointed under Part 3 of that Act (section 11(1)).
• Children and Community Services Act 2004 (WA): Responsible parenting agreements under section 131D of that Act are a factor in sentencing (section 46(2)(da)).
• Disability Discrimination Act 1992 (Cth): The EIX20 FCA case (2022) demonstrates that the treatment of young offenders in WA detention centres can be assessed against Commonwealth anti-discrimination law.
• Racial Discrimination Act 1975 (Cth): Similarly, racial discrimination claims can arise from the treatment of young Aboriginal detainees.
• Aboriginal Communities Act 1979 (WA): The definition of Aboriginal community is imported from this Act.
• Weapons Act 1999 (WA): Certain weapons offences under that Act are excluded from the cautioning regime (section 22(3)(b)).

Cautioning cannot apply to serious offences. Section 22(3) prohibits cautioning for Schedule 1 and Schedule 2 offences (the most serious categories) and certain weapons offences. Police do not have discretion to caution for these offences regardless of the young person's prior record or circumstances.

Use of force by custodial officers is tightly constrained. Sections 11C and 11D set strict limits on when force and restraints may be used. Use of force beyond "prescribed force" in "prescribed circumstances" is unlawful, as illustrated by the EIX20 litigation which alleged that isolation and force used at Banksia Hill Detention Centre was unlawful.

Caution admissions cannot be used in court. Section 22(4) makes admissions during cautioning inadmissible. Police who allow admissions to be made in anticipation of a caution and then charge the young person may face challenges to the admissibility of those admissions.

Responsible adults have a central role, but their absence does not necessarily prevent proceedings. The Act recognises the role of responsible adults, but the absence of a responsible adult does not automatically invalidate proceedings in all cases.

Category 1 and 2 offenders face special provisions. Young persons who are category 1 offenders (terrorism-related) or category 2 offenders (certain Commonwealth offences) are subject to special provisions that may limit diversionary options and affect sentencing.

Police officer encountering a young person with a stolen item. Under section 22B, the police officer must consider cautioning before laying a charge. If it is the young person's first offence and the offence is not a Schedule 1 or 2 offence, a caution is the preferred response under section 23. The officer administers the caution, gives the young person a certificate under section 23A, and any admission made cannot be used in evidence.

Young person charged with a serious assault. If the assault is a Schedule 1 offence, cautioning is not available. The matter goes to the Children's Court. The court considers section 46 factors including the seriousness of the offence, any prior history, the young person's cultural background, and the victim's impact. The court must dispose of the matter proportionately. If detention is ordered, the young person is held in a detention centre under the Part 9 management regime.

A detainee at Banksia Hill who requires restraint. A custodial officer cannot restrain a detainee without authorisation from the chief executive officer or superintendent (section 11D), unless an immediate safety emergency exists. Any force used must be no more than prescribed force in prescribed circumstances (section 11C). Failure to follow these requirements can expose the State to civil liability for assault and battery, as the EIX20 case illustrates.