Part 1 Preliminary

1 Short title

This Act may be cited as the Youth Justice Act 1997 .

2 Commencement

[Section 2 Substituted by No. 47 of 1999, s. 4, Applied:01 Feb 2000] This Act commences on a day to be proclaimed.

3 Interpretation

[Section 3 Substituted by No. 3 of 2000, s. 4, Applied:28 Apr 2000]

(1)  In this Act, unless the contrary intention appears –[Section 3 Subsection (1) amended by No. 25 of 2005, s. 26, Applied:21 Jul 2005]

[Section 3 Subsection (1) amended by No. 25 of 2005, s. 26, Applied:21 Jul 2005] Aboriginal youth means a youth who is an Aboriginal person within the meaning of the Aboriginal Lands Act 1995 ;

Administrator means the Administrator appointed under section 16 of the Magistrates Court Act 1987 ;

amend means one or more of the following:

(a) omitting all or any matter;

(b) inserting matter;

(c) substituting matter;

authorised police officer means a police officer who has been authorised by the Commissioner of Police to administer formal cautions against further offending;

[Section 3 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 3 Subsection (1) amended by No. 4 of 2023, s. 182, Applied:25 Sep 2023]

[Section 3 Subsection (1) amended by No. 4 of 2023, s. 182, Applied:25 Sep 2023] Chief Psychiatrist has the same meaning as in the Mental Health Act 2013 ;

Chief Magistrate means the Chief Magistrate appointed under section 5 of the Magistrates Court Act 1987 ;

[Section 3 Subsection (1) amended by No. 27 of 2013, s. 5, Applied:01 Mar 2014] [Section 3 Subsection (1) amended by No. 2 of 2016, Sched. 4, Applied:01 Jul 2016]

[Section 3 Subsection (1) amended by No. 2 of 2016, Sched. 4, Applied:01 Jul 2016] Commissioner for Children and Young People means the Commissioner for Children and Young People appointed and holding office under the Commissioner for Children and Young People Act 2016 ;

community conference means a community conference convened, or to be convened, under Division 3 of Part 2 or on the order of the Court;

[Section 3 Subsection (1) amended by No. 27 of 2013, s. 5, Applied:01 Mar 2014] community service means attending, or undertaking, a community service activity;

[Section 3 Subsection (1) amended by No. 27 of 2013, s. 5, Applied:01 Mar 2014] community service activity means an activity that is approved under section 6A ;

community service order means an order made under section 47(1)(g) or 62(4)(b) requiring a youth to perform community service;

compensation order means an order made under section 47(2)(c) requiring a youth to make compensation;

complaint has the same meaning as in the Justices Act 1959 ;

[Section 3 Subsection (1) amended by No. 27 of 2013, s. 5, Applied:01 Mar 2014] controlled substance has the same meaning as in the Misuse of Drugs Act 2001 ;

[Section 3 Subsection (1) amended by No. 49 of 2007, s. 4, Applied:13 Dec 2007]

Court means the Magistrates Court (Youth Justice Division) established by section 159 ;

[Section 3 Subsection (1) amended by No. 30 of 2016, Sched. 2, Applied:16 Nov 2016] Custodial Inspector means the Custodial Inspector appointed under section 5 of the Custodial Inspector Act 2016 ;

detainee means a person who is being lawfully detained in a detention centre;

detention, in the case of a sentence of detention, means detention in a detention centre;

detention centre means a detention centre established under section 123 ;

[Section 3 Subsection (1) amended by No. 13 of 2019, Sched. 1, Applied:18 Jun 2019]

[Section 3 Subsection (1) amended by No. 13 of 2019, Sched. 1, Applied:18 Jun 2019] detention centre manager means a person appointed under section 124A ;

detention offence means an offence –

(a) specified in section 139 ; and

(b) specified in section 143 where the offender or alleged offender is a detainee;

detention order means an order made under section 47(1)(h) requiring a youth to be detained in a detention centre;

detention period means the period of detention specified in a detention order;

[Section 3 Subsection (1) amended by No. 27 of 2013, s. 5, Applied:01 Mar 2014] Director, Monetary Penalties Enforcement Service has the same meaning as in the Monetary Penalties Enforcement Act 2005 ;

district registrar means a district registrar appointed under section 16A of the Magistrates Court Act 1987 ;

[Section 3 Subsection (1) amended by No. 95 of 2001, Sched. 2, Applied:01 Jun 2002]

[Section 3 Subsection (1) amended by No. 95 of 2001, Sched. 2, Applied:01 Jun 2002] drug means –

(a) a scheduled substance within the meaning of the Poisons Act 1971 ; or

(b) a controlled substance within the meaning of the Misuse of Drugs Act 2001 ;

[Section 3 Subsection (1) amended by No. 23 of 2016, s. 4, Applied:23 Aug 2016] earliest release date means the day immediately following the completion of 50% of the period of detention during which a youth is liable to be detained or 3 months, whichever is the longer;

facilitator means a person holding an appointment as a facilitator under section 167 ;

[Section 3 Subsection (1) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] family violence offence means a family violence offence within the meaning of the Family Violence Act 2004 ;

fine means a fine imposed under section 47(1)(e) ;

formal caution means a caution administered under section 10 ;

goods includes a motor vehicle;

[Section 3 Subsection (1) amended by No. 27 of 2013, s. 5, Applied:01 Mar 2014] Government Agency has the same meaning as in the Children, Young Persons and Their Families Act 1997 ;

guardian means –

(a) a parent of a child; and

(b) a person who is the legal guardian of a child; and

(c) a person who has the legal custody of a child; and

(d) any other person who generally acts in the place of a parent of a child and has done so for a significant length of time;

indictable offence means an offence that may be prosecuted upon indictment even though it may, in some circumstances, be dealt with summarily;

informal caution means an informal caution given under section 8 ;

[Section 3 Subsection (1) amended by No. 27 of 2013, s. 5, Applied:01 Mar 2014] information-sharing entity has the same meaning as in the Children, Young Persons and Their Families Act 1997 ;

[Section 3 Subsection (1) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] legal practitioner means an Australian legal practitioner;

legal representative means a legal practitioner who represents a youth or another person;

[Section 3 Subsection (1) amended by No. 23 of 2016, s. 4, Applied:23 Aug 2016] next release date means the day specified by the Court under section 117(12) as the next release date when making an order cancelling a supervised release order;

[Section 3 Subsection (1) amended by No. 27 of 2013, s. 5, Applied:01 Mar 2014] nominated adult, in relation to a youth, means an adult who –

(a) has had a close association with the youth or has been counselling, advising or aiding the youth; and

(b) has not been charged with the offence in respect of which the youth has been taken into custody or is not suspected, by a police officer on reasonable grounds, of being directly or indirectly involved in the commission of that offence; and

(c) has been nominated by the youth;

[Section 3 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 3 Subsection (1) amended by No. 18 of 2021, s. 395, Applied:05 Nov 2021]

[Section 3 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] mental illness has the same meaning as in the Mental Health Act 2013 ;

offence means any offence other than a prescribed offence;

offence-affected property includes –

(a) property in respect of which an offence was committed; or

(b) property affected in the course of, or in connection with, the commission of an offence;

[Section 3 Subsection (1) amended by No. 49 of 2007, s. 4, Applied:13 Dec 2007] police investigation means the questioning by police officers of a detainee, or the carrying out by police officers of an investigation in which a detainee participates, in order to determine the detainee's involvement, if any, in relation to an offence;

[Section 3 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004]

prescribed offence means –

(a) in respect of a youth who is less than 14 years old –

(i) an offence under section 158 of the Criminal Code (murder); and

(ii) an offence under section 159 of the Criminal Code (manslaughter); and

(iii) an offence under section 299 of the Criminal Code in relation to an offence referred to in section 158 of the Criminal Code (attempted murder); and

(iv) an offence which is prescribed by the regulations to be a prescribed offence for the purposes of this subparagraph; and

(b) in respect of a youth who is 14, 15 or 16 years old –

(i) an offence referred to in paragraph (a) ; and

(ii) an offence under section 127A of the Criminal Code (aggravated sexual assault); and

(iii) an offence under section 185 of the Criminal Code (rape); and

(iiia) [Section 3 Subsection (1) amended by No. 27 of 2013, s. 5, Applied:01 Mar 2014] [Section 3 Subsection (1) amended by No. 8 of 2020, s. 13, Applied:06 Apr 2020] an offence under section 125A of the Criminal Code (persistent sexual abuse of a child [or young person]); and

(iv) an offence under section 240(3) of the Criminal Code (armed robbery); and

(v) an offence under section 240(4) of the Criminal Code (aggravated armed robbery); and

(vi) an offence under section 248(a) of the Criminal Code (being found prepared for the commission of a crime under Chapter XXVII of the Criminal Code armed with a dangerous or offensive weapon or instrument); and

(via) [Section 3 Amended by No. 20 of 2017, s. 17, Applied:13 Sep 2017] an offence under section 11A of the Police Powers (Vehicle Interception) Act 2000 ; and

(vii) an offence which is prescribed by the regulations to be a prescribed offence for the purposes of this subparagraph; and

(c) in respect of a youth who is 17 years old –

(i) an offence referred to in paragraph (b) ; and

(ia) [Section 3 Subsection (1) amended by No. 49 of 2007, s. 4, Applied:13 Dec 2007] an offence under section 37J of the Police Offences Act 1935 ; and

(ii) [Section 3 Subsection (1) amended by No. 90 of 1999, Sched. 1, Applied:14 Aug 2000] [Section 3 Subsection (1) amended by No. 25 of 2006, Sched. 2, Applied:23 Dec 2006] an offence under the Marine Safety (Misuse of Alcohol) Act 2006 , the Road Safety (Alcohol and Drugs) Act 1970 , the Traffic Act 1925 or the Vehicle and Traffic Act 1999 except where proceedings for that offence are, or are to be, determined in conjunction with proceedings for an offence that is not a prescribed offence; and

(iii) an offence which is prescribed by the regulations to be a prescribed offence for the purposes of this subparagraph;

prescription medicine means a medicine the issue of which is prohibited except in accordance with the prescription of a medical practitioner;

previous offending history includes –

(a) any offence in respect of which a youth has received a formal caution; and

(b) any offence in respect of which a youth has attended a community conference; and

(c) any offence, and any prescribed offence, in respect of which a youth has been found guilty, whether or not the charge for the offence or prescribed offence has been dismissed or a conviction recorded;

[Section 3 Subsection (1) amended by No. 1 of 2003, s. 4, Applied:16 Apr 2003] prison means a prison within the meaning of the Corrections Act 1997 ;

probation order means an order made under section 47(1)(f) placing a youth on probation;

provide includes cause to be provided;

[Section 3 Subsection (1) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] psychologist means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the psychology profession;

receiving State means the State to which a youth is transferred;

recognised Aboriginal organisation has the same meaning as in the Children, Young Persons and Their Families Act 1997 ;

regulations means the regulations made and in force under this Act;

[Section 3 Subsection (1) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] rehabilitation program means a structured treatment program designed to reduce the likelihood of a person who has committed a family violence offence re-offending;

[Section 3 Subsection (1) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] rehabilitation program order means an order to attend and participate in a rehabilitation program and in doing so comply with the reasonable directions of a person employed or engaged to conduct such a program;

release and adjournment order means an order made under section 47(1)(d) ;

[Section 3 Subsection (1) amended by No. 27 of 2013, s. 5, Applied:01 Mar 2014] responsible adult, in relation to a youth, means a person who –

(a) is a nominated adult in relation to the youth; or

(b) if there is no nominated adult in relation to the youth, a justice of the peace or a person, or a member of a class of persons, approved by the Secretary;

restitution order means an order under section 47(2)(b) requiring a person to perform one or more of the actions specified in section 95(1) ;

Secretary means the Secretary of the Department;

[Section 3 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] secure mental health unit has the same meaning as in the Mental Health Act 2013 ;

sending State means the State from which a youth is transferred;

serve includes cause to be served;

State includes a Territory;

statutory authority means an incorporated or unincorporated body which is established, constituted or continued by or under an Act or under the royal prerogative, being a body which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister of the Crown or another statutory authority;

summons has the same meaning as in the Justices Act 1959 ;

supervised release order means an order made by the Secretary under section 110 ;

transfer agreement means an agreement between the Minister and a Minister of another State under section 148 ;

transfer arrangement means an arrangement made under section 149 for the transfer of a youth from Tasmania to another State or to Tasmania from another State;

transfer order means an order made under section 153 ;

[Section 3 Subsection (1) amended by No. 18 of 2021, s. 395, Applied:05 Nov 2021] Tribunal means the Tasmanian Civil and Administrative Tribunal;

undertaking to be of good behaviour means an undertaking entered into, or to be entered into, by a youth under section 47(1)(c) ;

victim, in the case of a victim that is a corporation, Government department, statutory authority or other organisation, includes a representative of that corporation, Government department, statutory authority or other organisation;

watch-house means –

(a) [Section 3 Subsection (1) amended by No. 76 of 2003, Sched. 1, Applied:01 Jan 2004] a building or part of a building at a police station used for the confinement of persons under arrest or otherwise lawfully detained in custody; and

(b) a place approved by the Minister under subsection (2) ;

[Section 3 Subsection (1) amended by No. 82 of 2000, Sched. 1, Applied:13 Dec 2000] working day means a Monday, Tuesday, Wednesday, Thursday or Friday except where that day is a statutory holiday as defined in the Statutory Holidays Act 2000 ;

youth means a person who is 10 or more years old but less than 18 years old at the time when the offence the person has committed, or is suspected of having committed, occurred;

[Section 3 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] [Section 3 Subsection (1) amended by No. 49 of 2007, s. 4, Applied:13 Dec 2007]

[Section 3 Subsection (1) amended by No. 49 of 2007, s. 4, Applied:13 Dec 2007] youth justice worker – see section 166A .

(2)  The Minister, in writing, may approve a place as a watch-house.

4 Objectives of Act

The main objectives of this Act are –

(a) to provide for the administration of youth justice; and

(b) to provide how a youth who has committed, or is alleged to have committed, an offence is to be dealt with; and

(c) to specify the general principles of youth justice; and

(d) to ensure that a youth who has committed an offence is made aware of his or her rights and obligations under the law and of the consequences of contravening the law; and

(e) [Section 4 Amended by No. 27 of 2013, s. 6, Applied:01 Mar 2014] to ensure that a youth who has committed an offence is given appropriate treatment and rehabilitation and, if necessary, is appropriately sanctioned; and

(f) to enhance and reinforce the roles of guardians, families and communities in –

(i) minimising the incidence of youth crime; and

(ii) [Section 4 Amended by No. 27 of 2013, s. 6, Applied:01 Mar 2014] sanctioning and managing youths who have committed offences; and

(iii) rehabilitating youths who have committed offences and directing them towards the goal of becoming responsible citizens; and

(g) to ensure that, whenever practicable, a youth who has committed, or is alleged to have committed, an offence is dealt with in a manner that is culturally appropriate and recognises and enhances his or her cultural identity; and

(h) [Section 4 Amended by No. 27 of 2013, s. 6, Applied:01 Mar 2014] to ensure that, whenever practicable, a youth who has committed, or is alleged to have committed, an offence is dealt with in a manner that takes into account the youth's social and family background and that enhances the youth's capacity to accept personal responsibility for his or her behaviour; and

(i) [Section 4 Amended by No. 27 of 2013, s. 6, Applied:01 Mar 2014] to ensure that, wherever practicable, a youth who has committed an offence is provided with appropriate opportunities to repair any harm caused by the commission of the offence to the victim of the offence and the community and to reintegrate himself or herself into the community.

5 General principles of youth justice

(1)  The powers conferred by this Act are to be directed towards the objectives mentioned in section 4 with proper regard to the following principles:

(a) that the youth is to be dealt with, either formally or informally, in a way that encourages the youth to accept responsibility for his or her behaviour;

(b) that the youth is not to be treated more severely than an adult would be;

(c) that the community is to be protected from illegal behaviour;

(d) that the victim of the offence is to be given the opportunity to participate in the process of dealing with the youth as allowed by this Act;

(e) guardians are to be encouraged to fulfil their responsibility for the care and supervision of the youth and should be supported in their efforts to fulfil this responsibility;

(f) guardians should be involved in determining the appropriate sanction as allowed by this Act;

(g) detaining a youth in custody should only be used as a last resort and should only be for as short a time as is necessary;

(h) [Section 5 Subsection (1) amended by No. 27 of 2013, s. 7, Applied:01 Mar 2014] any sanctioning of a youth is to be designed so as to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;

(i) [Section 5 Subsection (1) amended by No. 27 of 2013, s. 7, Applied:01 Mar 2014] any sanctioning of a youth is to be appropriate to the age, maturity and cultural identity of the youth;

(j) [Section 5 Subsection (1) amended by No. 27 of 2013, s. 7, Applied:01 Mar 2014] any sanctioning of a youth is to be appropriate to the previous offending history of the youth.

(2)  Effect is to be given to the following principles so far as the circumstances of the individual case allow:

(a) compensation and restitution should be provided, where appropriate, for victims of offences committed by youths;

(b) family relationships between a youth, the youth's parents and other members of the youth's family should be preserved and strengthened;

(c) a youth should not be withdrawn unnecessarily from his or her family environment;

(d) there should be no unnecessary interruption of a youth's education or employment;

(e) [Section 5 Subsection (2) amended by No. 27 of 2013, s. 7, Applied:01 Mar 2014] a youth's sense of racial, ethnic or cultural identity should not be impaired;

(f) [Section 5 Subsection (2) amended by No. 27 of 2013, s. 7, Applied:01 Mar 2014] an Aboriginal youth should be dealt with in a manner that involves his or her cultural community.

5A Inconsistency with Mental Health Act 2013

[Section 5A Inserted by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] Where there is an inconsistency between this Act and the Mental Health Act 2013 , this Act prevails to the extent of that inconsistency.

6 Determining age

(1)  In determining the age of a person, a court or police officer –

(a) must act on the best evidence or information that is reasonably available; but

(b) in the absence of any such evidence or information, may estimate the age of the person and act on that estimate.

(2)  For the purposes of subsection (1) , a statement in a complaint that a person is of a particular age is evidence that the person is that age.

(3)  If, in any proceedings before a court, it becomes apparent to that court that the person who is the subject of those proceedings should, by reason of age, be dealt with in some other court, the court may remand that person to appear in the appropriate court.

6A Activities that may be performed as community service

[Section 6A Inserted by No. 27 of 2013, s. 8, Applied:01 Mar 2014]

(1)  The Secretary is to approve the types of activity that may be undertaken in the performance of community service, other than community service for the purposes of section 10 .

(2)  The Commissioner of Police is to approve the types of activity that may be undertaken in the performance of community service for the purposes of section 10 .

(3)  Without limiting the generality of subsections (1) and (2) , the activities that may be approved under those subsections include attendance at –

(a) programs that constitute education or training; or

(b) programs run for the purpose of assisting youths who have committed offences to reintegrate into the community; or

(c) health and personal development programs.

(4)  The Secretary, or the Commissioner of Police, may not approve a type of activity under subsection (1) or (2) unless –

(a) he or she is of the opinion that the type of activity is suitable for the performance of community service by youths; and

(b) the type of activity is able to be provided to youths; and

(c) youths undertaking the activity will not be paid for doing so.

Part 2 Diverting youths from court system

Division 1 Preliminary

7 Purpose of Part 2

The purpose of this Part is to divert, in an appropriate case, a youth who admits committing an offence from the courts' criminal justice system.

Division 2 Diversionary procedure by police

8 Informal caution

(1)  If a youth admits the commission of an offence and a police officer is of the opinion that the matter does not warrant any formal action under this Act, the officer may informally caution the youth against further offending and proceed no further against the youth.

(2)  If a youth is informally cautioned under this section, no further proceedings may be taken against the youth for the offence in relation to which the youth was cautioned.

9 More formal proceedings

(1)  If a youth admits the commission of an offence and a police officer is of the opinion that the matter warrants a more formal action under this Act than an informal caution, the officer may deal with the matter as follows:

(a) the officer may require that the youth be formally cautioned against further offending;

(b) the officer may require the Secretary to convene a community conference to deal with the matter;

(c) the officer may file a complaint for the offence before the Court.

(2)  Before a police officer requires that a youth be formally cautioned against further offending or requires the Secretary to convene a community conference –

(a) the officer must explain to the youth –

(i) the nature of the offence and of the circumstances out of which it is alleged to arise; and

(ii) that the youth is entitled to obtain legal advice; and

(iii) that the youth is entitled (whether or not he or she exercises the right to obtain legal advice) to require that the matter be dealt with by the Court; and

(b) if the youth does not require the matter to be dealt with by the Court, the officer must record the admission of the commission of the offence in written form and request the youth to sign the admission; and

(c) the youth must agree to being formally cautioned or to the convening of a community conference.

(3)  Before a police officer requires that a youth be formally cautioned against further offending, if the police officer considers it appropriate in all the circumstances, the police officer must –

(a) ask the victim of the offence whether he or she wishes to be present at the administration of the formal caution; and

(b) where the victim wishes to be present, allow the victim the opportunity to attend the administration of the formal caution; and

(c) where the victim does not wish to be present, ask the victim whether he or she wishes to be informed of the identity of the offender and how the offence has been dealt with.

(4)  Before a police officer can require the Secretary to convene a community conference, the youth must sign an undertaking to attend the conference.

(5)  The following proceedings are to take place, if practicable, in the presence of a guardian or, if a guardian is not available, a responsible adult:

(a) the explanation given to the youth under subsection (2) ;

(b) the signing of an admission by the youth under subsection (2) ;

(c) the agreement of the youth under subsection (2) to being formally cautioned or to the convening of a community conference;

(d) the signing of an undertaking by the youth under subsection (4) .

(6)  A complaint may only be filed under subsection (1)(c)  –

(a) if the youth requires that the matter be dealt with by the Court; or

(b) if the police officer is of the opinion that a formal caution should be administered to the youth but the youth does not –

(i) agree to being formally cautioned; or

(ii) sign the formal caution; or

(iii) enter into an undertaking if required to do so under section 10(2) ; or

(c) if the police officer is of the opinion that a community conference should be convened to deal with the youth but the youth does not –

(i) agree to the convening of a community conference; or

(ii) enter into an undertaking to attend the community conference; or

(d) if, in the opinion of the police officer, the matter cannot be adequately dealt with by the administration of a formal caution or by a community conference in view of the seriousness or the nature of the offence.

10 Formal caution

(1)  A formal caution against further offending is to be administered to the youth by an authorised police officer.

(2)  If an authorised police officer administers a formal caution against further offending, the officer may also require the youth to enter into one or more of the following undertakings:

(a) an undertaking to pay compensation, in the manner specified in the undertaking, for –

(i) loss of or damage to offence-affected property; and

(ii) injury suffered, expenses incurred or other loss suffered by the victim of the offence; and

(iii) injury suffered, expenses incurred or other loss suffered by any other person by reason of the offence;

(b) an undertaking to make restitution of offence-affected property;

(c) [Section 10 Subsection (2) amended by No. 27 of 2013, s. 9, Applied:01 Mar 2014] if the youth is 13 or more years old when required to enter into the undertaking, an undertaking to perform a specified period (of not more than 35 hours) of community service consisting of a community service activity which is for the benefit of the victim of the offence or a purpose specified in section 6A(3) ;

(ca) [Section 10 Subsection (2) amended by No. 27 of 2013, s. 9, Applied:01 Mar 2014] if the youth is less than 13 years old when required to enter into the undertaking, an undertaking to perform a specified period (of not more than 35 hours) of community service consisting of a community service activity which is for a purpose specified in section 6A(3)(a) or (c) ;

(d) an undertaking to apologise to the victim of the offence;

(e) an undertaking to do anything else that may be appropriate in the circumstances of the case.

(2A)  [Section 10 Subsection (2A) inserted by No. 27 of 2013, s. 9, Applied:01 Mar 2014] An undertaking must not be required under subsection (2)(c) or (ca) if the effect would be to require the youth to undertake a number of hours of community service that would, when combined with the number of hours of community service the youth still has to perform under all community service orders, or all undertakings previously entered into under one of those subsections or section 16(1)(e) , total –

(a) more than 70 hours, if the youth is less than 16 years old when required to enter into the undertaking; or

(b) more than 210 hours, if the youth is 16 or more years old when required to enter into the undertaking.

(2B)  [Section 10 Subsection (2B) inserted by No. 27 of 2013, s. 9, Applied:01 Mar 2014] An undertaking under subsection (2)(c) or (ca) operates cumulatively to every other such undertaking under that subsection or section 16(1)(e) .

(3)  If a formal caution is to be administered in respect of an offence, the authorised police officer must explain to the youth –

(a) the nature of the caution; and

(b) that the administering of the caution may be treated as evidence of commission of the offence by a police officer, community conference or court if the youth has to be dealt with for a subsequent offence.

(4)  A formal caution must –

(a) if practicable, be administered in the presence of –

(i) a guardian; or

(ii) if a guardian is not available, a responsible adult; and

(b) be put in writing; and

(c) contain –

(i) details of the offence; and

(ii) the youth's name; and

(iii) the authorised police officer's name and rank; and

(iv) the name of the place where, and the time when, the caution was administered; and

(v) the names of all other persons present when the caution was administered; and

(vi) details of the nature and effect of the caution; and

(vii) details of all undertakings entered into by the youth under this section; and

(d) be signed by the youth, the authorised police officer and, if reasonably practicable, by the guardian or responsible adult.

(5)  Before requiring a youth to enter an undertaking under this section, the authorised police officer must give the youth, and any guardian or responsible adult present, an opportunity to make representations with respect to the matter.

(6)  If a youth enters into an undertaking under this section to apologise to the victim of the offence, the apology must be made in the presence of an adult approved by an authorised police officer.

(7)  An undertaking will have a maximum duration of 3 months.

(8)  [Section 10 Subsection (8) amended by No. 27 of 2013, s. 9, Applied:01 Mar 2014] A youth who signs a formal caution is not liable to be prosecuted for an offence if the youth enters into and substantially fulfils all undertakings the authorised police officer requires under this section.

(8A)  [Section 10 Subsection (8A) inserted by No. 27 of 2013, s. 9, Applied:01 Mar 2014] For the purposes of subsection (8) , a youth who has failed to substantially fulfil an undertaking is to be taken to have substantially fulfilled the undertaking if the youth has a reasonable excuse for the failure.

(9)  After administering a formal caution, the authorised police officer must –

(a) ask the victim of the offence whether he or she wishes to be informed of the identity of the offender and how the offence has been dealt with if the victim was not present and has not been asked those questions previously by a police officer; and

(b) give the victim that information if the victim has indicated to the authorised police officer or previously to another police officer that he or she does wish to have that information.

(10)  A record is to be kept of a formal caution.

(11)  In a proceeding under this Act, a document purporting to be a formal caution or a copy of a formal caution is evidence of the matters contained in the document.

11 Caution administered by Aboriginal Elder or representative

(1)  [Section 11 Subsection (1) amended by No. 27 of 2013, s. 10, Applied:01 Mar 2014] If a formal caution is to be administered to an Aboriginal youth, the caution is to be, if practicable, administered by an Elder of an Aboriginal community or a representative of a recognised Aboriginal organisation despite section 10 .

(2)  A formal caution may only be administered by an Elder of an Aboriginal community or a representative of a recognised Aboriginal organisation at the request, and in the presence, of an authorised police officer.

(3)  If an Elder of an Aboriginal community or a representative of a recognised Aboriginal organisation administers a formal caution –

(a) section 10 applies as if the Elder or representative were an authorised police officer; and

(b) the caution must contain, in addition to the information specified in section 10(4)(c) , the name of the Elder or representative, the name of the Aboriginal community or recognised Aboriginal organisation and the name and rank of the authorised police officer in whose presence the caution was administered.

12 Caution administered by community representative

(1)  If a formal caution is to be administered to a youth who is or considers himself or herself to be a member of a religious, ethnic or other community group and the authorised police officer who would, but for this section, administer the formal caution considers it appropriate, the caution may be administered by a representative of that group approved by that authorised police officer despite section 10 .

(2)  A formal caution may only be administered by a representative of a religious, ethnic or other community group at the request, and in the presence, of an authorised police officer.

(3)  If a representative of a religious, ethnic or other community group administers a formal caution –

(a) section 10 applies as if the representative were an authorised police officer; and

(b) the caution must contain, in addition to the information specified in section 10(4)(c) , the name of the representative, the name or other identification of the community group and the name and rank of the authorised police officer in whose presence the caution was administered.

12A Where undertakings in formal caution not substantially fulfilled

[Section 12A Inserted by No. 27 of 2013, s. 11, Applied:01 Mar 2014]

(1)  This section applies in relation to a youth in respect of an offence if –

(a) a formal caution is, in accordance with section 9(1)(a) , administered to the youth under section 10 in relation to an offence; and

(b) the youth fails, without reasonable excuse, to substantially fulfil an undertaking that he or she was required, when 13 or more years old, to enter into under section 10 in relation to the offence.

(2)  If this section applies in relation to a youth in respect of an offence, an authorised police officer –

(a) may decide to take no further action in relation to the offence; or

(b) after consultation with the Secretary, may deal with the youth again under section 9 in relation to the offence.

(3)  If a youth fails, without reasonable excuse, to substantially fulfil an undertaking (the previous undertaking) that he or she was required, when 13 or more years old, to enter into under section 10 in relation to the offence and, in accordance with subsection (2)(b) , an authorised police officer deals with the youth again under section 9 in relation to the offence –

(a) any undertakings, including the previous undertaking, in relation to the offence cease to be in force; and

(b) the failure to substantially fulfil the previous undertaking is to be taken, for the purpose of the application of section 10(8) to the offence, not to have occurred.

(4)  If this section applies in relation to a youth in respect of an offence, a complaint may, despite section 26(1)(a) of the Justices Act 1959 , be filed in accordance with section 9(1)(c) for the offence even though the complaint is filed after the end of the period of 6 months after the time when the matter of complaint arose, but may only be filed before the end of the relevant period in relation to the undertaking, in respect of the offence, that the youth has failed to substantially fulfil.

(5)  For the purposes of subsection (4) , the end of the relevant period in relation to an undertaking is –

(a) if a date or period was specified in the undertaking as the date or period by the expiry of which the undertaking is to be fulfilled, that date or the last day of that period, as the case may be; or

(b) if paragraph (a) does not apply to the undertaking, within 3 months after the undertaking was entered into.

Division 3 Community conferences

13 Notifying Secretary that community conference required

(1)  If a youth enters into an undertaking to attend a community conference, the police officer must notify the Secretary that he or she requires a community conference to be convened and provide the Secretary, whenever possible, with the names and addresses of –

(a) the youth; and

(b) the guardians of the youth; and

(c) any relative of the youth who may, in the opinion of the officer, be able to participate usefully in the community conference; and

(d) any other person who –

(i) has had a close association with the youth or has been counselling, advising or aiding the youth; and

(ii) in the opinion of the officer, may be able to participate usefully in the community conference; and

(e) any victim of the offence.

(2)  The notice requiring the convening of a community conference must specify the details of the offence committed by the youth.

14 Convening of community conference

(1)  On receipt of a notice from a police officer that the convening of a community conference is required, the Secretary must assign a facilitator to convene and facilitate the community conference.

(2)  The facilitator –

(a) must fix a time and place for the community conference; and

(b) must issue a notice specifying the time and place at which the community conference is to be held; and

(c) must invite the following persons to attend the community conference:

(i) the persons whose names and addresses are provided to the Secretary under section 13(1) ;

(ia) [Section 14 Subsection (2) amended by No. 27 of 2013, s. 12, Applied:01 Mar 2014] a youth justice worker;

(ii) if the youth is a member of an Aboriginal community, an Elder or other representative of that community;

(iii) any other person the facilitator, after consulting with the youth and the youth's guardians and family (if available), considers appropriate to attend the community conference; and

(d) must inquire of the victim of the offence whether he or she wishes to be informed of the outcome of the community conference.

(3)  The facilitator must provide the police officer who required the community conference or the Commissioner of Police with a copy of the notice specifying the time and place at which the community conference is to be held.

(4)  If reasonably practicable, the time fixed for a community conference must be within 3 weeks after the Secretary receives the notice from the police officer requiring the convening of a community conference.

15 Constitution of and attendance at community conference

(1)  A community conference consists of –

(a) the facilitator; and

(b) the youth; and

(c) those persons who attend the conference in response to the invitation of the facilitator; and

(d) the police officer who required the community conference or a representative of the Commissioner of Police.

(2)  The victim of an offence who attends a community conference is entitled to be accompanied by one or more persons of the victim's choice to provide support and assistance to the victim.

(3)  The youth who attends a community conference is entitled to be accompanied by one person of his or her choice to provide support and assistance to the youth.

(4)  A person may, with the permission of the facilitator, attend a community conference for the purpose of providing expert advice or information on matters relevant to the conference.

(5)  Despite this section, if the facilitator considers that a person attending the community conference is deliberately attempting to disrupt the conference, the facilitator may –

(a) require that person to leave the conference; and

(b) if the person refuses to leave, take such steps as are necessary to remove the person from the conference.

16 Powers of community conference

(1)  A community conference may impose one or more of the following sanctions:

(a) administer a caution against further offending;

(b) require the youth to enter into an undertaking to pay compensation for injury suffered by the victim or any other person by reason of the commission of the offence;

(c) require the youth to enter into an undertaking to pay compensation for loss or destruction of, or damage to, offence-affected property;

(d) require the youth to enter into an undertaking to make restitution of offence-affected property;

(e) [Section 16 Subsection (1) amended by No. 27 of 2013, s. 13, Applied:01 Mar 2014] if the youth is 13 or more years old, require the youth to enter into an undertaking to perform a specified period, not exceeding 70 hours, of community service;

(f) with the agreement of the victim of the offence, require the youth to enter into an undertaking to apologise to the victim;

(g) require the youth to enter into an undertaking to do anything else that may be appropriate in the circumstances of the case.

(2)  An undertaking may have a duration not exceeding 12 months.

(3)  [Section 16 Subsection (3) substituted by No. 27 of 2013, s. 13, Applied:01 Mar 2014] An undertaking must not be required under subsection (1)(e) if the effect would be to require the youth to undertake a number of hours of community service that would, when combined with the number of hours of community service the youth still has to perform under all community service orders, or all undertakings previously entered into under that subsection or section 10(2)(c) , total –

(a) more than 70 hours, if the youth is 13, 14 or 15 years old when required to enter into the undertaking; or

(b) more than 210 hours, if the youth is 16 or more years old when required to enter into the undertaking.

(4)  [Section 16 Subsection (4) inserted by No. 27 of 2013, s. 13, Applied:01 Mar 2014] An undertaking under subsection (1)(e) operates cumulatively to every other such undertaking under that subsection or section 10(2)(c) .

17 Procedure at community conference

(1)  The facilitator must ensure that all persons attending a community conference understand its nature, purpose and consequences.

(2)  In deciding an appropriate sanction, a community conference is to consider –

(a) the objectives specified in section 4 and the principles specified in section 5 ; and

(b) the sanctions imposed by courts, community conferences and police officers on youths in respect of similar offences if that information is readily available to the community conference.

(3)  If practicable, a community conference should reach a decision on the sanctions to be imposed on a youth by consensus.

(4)  A community conference fails to reach a decision unless all the following persons agree to the imposition of a sanction:

(a) the youth;

(b) the police officer or representative of the Commissioner of Police;

(c) if the victim is present at the conference, the victim.

(5)  If the facilitator considers it appropriate, the facilitator may adjourn a community conference from time to time and from place to place.

18 Concluding community conference

(1)  Before a community conference ends –

(a) a decision of the community conference must be recorded in writing and signed by each of the following persons:

(i) the youth;

(ii) the police officer or representative of the Commissioner of Police;

(iii) if the victim is present at the conference, the victim; and

(b) if a caution is administered to the youth, the caution must be –

(i) administered to the youth by the person the community conference has determined is to do so; and

(ii) recorded in writing and signed by the youth; and

(c) if the youth is required to enter into an undertaking, the undertaking must be recorded in writing and signed by the youth; and

(d) if the youth enters into an undertaking to apologise to the victim of the offence, the police officer or representative of the Commissioner of Police must approve an adult in whose presence the apology is to be made.

(2)  The decision must include –

(a) the names of the persons who attended the conference; and

(b) details of the time and place at which the conference was held; and

(c) the name of the person determined by the conference to administer the caution; and

(d) details of any approval given under subsection (1)(d) .

19 Procedure after community conference

(1)  If a community conference reaches a decision, the facilitator must –

(a) [Section 19 Subsection (1) amended by No. 27 of 2013, s. 14, Applied:01 Mar 2014] file with the district registrar each undertaking to pay compensation or make restitution entered into by the youth; and

(b) provide the youth and each person who attended the community conference in response to the invitation of the facilitator with a copy of the decision and each undertaking entered into by the youth; and

(c) provide the victim of the offence with a copy of the decision and each undertaking entered into by the youth if the victim was not present at the community conference but has indicated that he or she wishes to be informed of the outcome of the community conference.

(1A)  [Section 19 Subsection (1A) inserted by No. 27 of 2013, s. 14, Applied:01 Mar 2014] If an undertaking to pay compensation or make restitution is filed with the district registrar in accordance with subsection (1)(a) , the district registrar must –

(a) refer the undertaking to the Director, Monetary Penalties Enforcement Service for collection of the amount of compensation or restitution; and

(b) notify the Director, Monetary Penalties Enforcement Service of the date the undertaking was entered into.

(2)  [Section 19 Subsection (2) amended by No. 27 of 2013, s. 14, Applied:01 Mar 2014] If a youth enters into an undertaking at a community conference to pay compensation or make restitution, payments of compensation or restitution must be made to the Director, Monetary Penalties Enforcement Service who will disburse the compensation or restitution to the victims named in the undertaking.

(3)  [Section 19 Subsection (3) amended by No. 27 of 2013, s. 14, Applied:01 Mar 2014] The Director, Monetary Penalties Enforcement Service must notify the Secretary if the youth does not complete the payment of compensation or the making of restitution as required by an undertaking entered into at a community conference.

(4)  If a youth enters into an undertaking at a community conference to apologise to the victim of the offence, the apology must be made in the presence of an adult approved under section 18(1)(d) .

(5)  If a youth apologises to the victim of the offence in accordance with an undertaking entered into at a community conference, the adult in whose presence the apology is made must notify the Secretary that the apology has been made.

(6)  [Section 19 Subsection (6) amended by No. 27 of 2013, s. 14, Applied:01 Mar 2014] When the youth has fulfilled all undertakings entered into at a community conference, the Secretary must file with the Commissioner of Police a certificate stating that fact.

(7)  The Secretary must notify the Commissioner of Police if the youth does not fulfil all undertakings entered into at the community conference.

20 Liability of youth to be prosecuted

(1)  A youth is not liable to be prosecuted for an offence in respect of which a community conference was convened if –

(a) the community conference administers a caution against further offending but does not require the youth to enter into an undertaking; or

(b) the youth enters into the undertakings required by the community conference and performs the obligations arising from those undertakings.

(2)  A police officer may file a complaint before the Court for an offence in respect of which a community conference is convened if –

(a) the youth fails to attend the community conference; or

(b) the community conference fails to reach a decision; or

(c) the youth fails to enter into an undertaking as required by the community conference; or

(d) the youth fails to perform the obligations arising from undertakings entered into as required by the community conference.

(3)  A complaint may be filed under subsection (2) even though a period of limitation relating to the commencement of proceedings for the relevant offence has expired, but the complaint must be filed –

(a) if the youth fails to attend the community conference, not more than 2 months after that failure to attend; or

(b) if the community conference fails to reach a decision, not more than 2 months after the community conference ends; or

(c) if the youth fails to enter into an undertaking as required by the community conference, not more than 2 months after that failure to enter into the undertaking; or

(d) if the youth fails to perform an obligation arising from an undertaking, not more than 6 months after the end of the period of the undertaking.

Division 4 Provisions of general application

[Division 4 of Part 2 Heading amended by No. 49 of 2007, s. 5, Applied:13 Dec 2007]

21 Instructions by Commissioner of Police

In the exercise of their powers under this Part, authorised police officers must comply with any instructions issued by the Commissioner of Police.

22 Confidentiality

(1)  A person must not publish any information in respect of any action or proceedings that are to be, are being or have been taken by a police officer, an Elder of an Aboriginal community, a representative of a recognised Aboriginal organisation or a religious, ethnic or other community group or a community conference under this Part against a youth if the information identifies, or may lead to the identification of –

(a) the youth; or

(b) the victim; or

(c) any other person involved in the action or proceedings (otherwise than in a professional capacity as a police officer or a person employed or engaged in the administration of this Act) who has not consented to the publication of the information.

Penalty:  Fine not exceeding 100 penalty units.

(2)  Subsection (1) does not apply to the provision of information to –

(a) [Section 22 Subsection (2) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] the youth or his or her legal representative; and

(b) a guardian of the youth; and

(c) a person who is present at the administration of an informal caution, a formal caution or at a community conference; and

(d) a victim of the offence; and

(e) [Section 22 Subsection (2) amended by No. 1 of 2003, s. 5, Applied:16 Apr 2003] a police officer, or a person or a member of an authority responsible for the enforcement of laws in this State, in the course of his or her official functions; and

(ea) [Section 22 Subsection (2) amended by No. 1 of 2003, s. 5, Applied:16 Apr 2003] a member of the Australian Federal Police, a member of the police force of another State or a Territory or a person or a member of any other authority responsible for the enforcement of laws of the Commonwealth, any other State or a Territory in the course of his or her official functions; and

(f) a person employed or engaged in the administration of this Act in the course of his or her official functions; and

(g) a person undertaking research that does not involve the identification of the youth, the victim or any person referred to in subsection (1)(c) if the research has been approved, in writing, by the Commissioner of Police; and

(h) a person undertaking research that involves the identification of the youth, the victim or any person referred to in subsection (1)(c) if –

(i) all persons to be identified have consented, in writing, to their identity being provided to the researcher; and

(ii) [Section 22 Subsection (2) amended by No. 1 of 2003, s. 5, Applied:16 Apr 2003] the research has been approved, in writing, by the Commissioner of Police; and

(i) [Section 22 Subsection (2) amended by No. 1 of 2003, s. 5, Applied:16 Apr 2003] a prescribed person, a person in prescribed circumstances or a person for a prescribed purpose.

(3)  Subsection (1) does not apply to the provision of information relating to the administration of a formal caution to –

(a) a court, or a party or legal practitioner acting for a party, in proceedings in which the administration of the formal caution is relevant to a matter in issue; and

(b) persons attending a community conference when determining an appropriate sanction in respect of an offence committed by the youth after the administration of that formal caution.

(4)  Subsection (1) does not apply to the provision of information to a court, or a party or legal practitioner acting for a party, in proceedings in which that information is relevant to a matter in issue if the information relates to –

(a) the decision of a community conference; and

(b) the undertakings entered into by a youth as a result of a community conference; and

(c) the performance or non-performance by the youth of obligations arising from those undertakings; and

(d) the compliance or non-compliance by the youth with a requirement to enter into an undertaking imposed by a community conference.

(4A)  [Section 22 Subsection (4A) inserted by No. 27 of 2013, s. 15, Applied:01 Mar 2014] Subsection (1) does not apply to the provision of information in relation to a youth –

(a) if the youth, or the youth's guardian, consents in writing to the provision of the information for the purpose of the rehabilitation of the youth or a related purpose; or

(b) between an information-sharing entity and a Government Agency for the purpose of the rehabilitation of the youth or a related purpose; or

(ba) [Section 22 Subsection (4A) amended by No. 4 of 2021, s. 32, Applied:01 Mar 2021] if the information is provided as part of a Commission established under the Commissions of Inquiry Act 1995 ; or

(c) [Section 22 Subsection (4A) amended by No. 2 of 2016, Sched. 4, Applied:01 Jul 2016] between an information-sharing entity and the Commissioner for Children and Young People, or between a Government Agency and the Commissioner for Children and Young People.

(4B)  [Section 22 Subsection (4B) inserted by No. 4 of 2021, s. 32, Applied:01 Mar 2021] Subsection (1) does not apply to the provision of information in relation to a youth –

(a) to a person involved in the action or proceedings, taken in respect of the youth, other than the youth or the victim of the offence; or

(b) to a person seeking to bring an action, whether criminal or civil, if –

(i) the person to whom the information relates is an intended defendant to the action or an alleged perpetrator in respect of the matter to which the action relates; and

(ii) the information is relevant to that action; or

(c) to a person responding, on behalf of the State, to an action, whether criminal or civil and whether proposed or commenced, against the State if the information is relevant to that action; or

(d) to a person undertaking an employment screening or review process, or disciplinary investigations or proceedings, in respect of the person to whom the information relates if the person to whom the information relates is –

(i) an employee or contractor, or prospective employee or contractor, of the person to whom the information is provided; or

(ii) a volunteer or assistant, or prospective volunteer or assistant, whether paid or unpaid, of an organisation of which the person, to whom the information is provided, is in a position of management or control.

(4C)  [Section 22 Subsection (4C) inserted by No. 4 of 2021, s. 32, Applied:01 Mar 2021] Subsection (1) does not apply to the provision of information in relation to a youth if the information –

(a) is provided to a person –

(i) seeking to bring an action, whether criminal or civil; or

(ii) responding, on behalf of the State, to an action, whether criminal or civil and whether proposed or commenced; or

(iii) undertaking an employment screening or review process, or disciplinary investigations or proceedings; and

(b) in the case of information provided to a person referred to in paragraph (a)(i) or (ii) , the information –

(i) is relevant to the action; and

(ii) does not disclose the identity of, or lead to the identification of, a person other than an intended defendant to the action or an alleged perpetrator in respect of the matter to which the action relates; and

(c) in the case of information provided to a person referred to in paragraph (a)(iii) , the information –

(i) is relevant to the employment screening or review process, or disciplinary investigations or proceedings, being undertaken by the person to whom the information is provided; and

(ii) does not disclose the identity of, or lead to the identification of, a person other than the person being screened or reviewed or the subject of those disciplinary investigations or proceedings.

(4D)  [Section 22 Subsection (4D) inserted by No. 4 of 2021, s. 32, Applied:01 Mar 2021] Information provided under subsection (4B)(c) or (d) is subject to the rules of procedural fairness in respect of the person whose information is so provided.

(4E)  [Section 22 Subsection (4E) inserted by No. 4 of 2021, s. 29, Applied:22 Apr 2021] A person to whom information is provided under subsection (4B) or (4C) must not use or disclose the information other than –

(a) for the purpose for which the information was so provided to the person; or

(b) as authorised, or required, by law.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both.

(5)  Subsection (1) does not apply in relation to the provision of information as required or allowed under any other provision of this Act.

22A Forfeiture of articles used in commission of offences

[Section 22A Inserted by No. 49 of 2007, s. 7, Applied:13 Dec 2007]

(1)  This section applies if –

(a) a youth has admitted committing an offence; and

(b) an article used in connection with, or obtained during or as a result of, the commission of the offence has been seized; and

(c) the matter is dealt with by way of a diversionary procedure.

(2)  At the conclusion of the diversionary procedure, a commissioned police officer, by an instrument in writing called a forfeiture declaration, may declare that the seized article is forfeit.

(3)  In deciding whether or not to make the forfeiture declaration, the commissioned police officer may have regard to –

(a) the prescribed guidelines, if any; and

(b) any relevant instructions issued under section 21 ; and

(c) such other matters as the commissioned police officer considers relevant and fair in the circumstances.

(4)  However –

(a) the forfeiture declaration must be made if –

(i) the manufacture, use or possession of the seized article is prohibited under a law of the State or the Commonwealth; or

(ii) the seized article would, under a law of the State, be automatically forfeited to the Crown or to an officer or agency of the Crown if the youth were to be convicted or found guilty of the offence by a court; and

(b) the forfeiture declaration must not be made if paragraph (a) does not apply and the seized article is owned by a person other than the youth and the owner had no knowledge of or involvement in the commission of the offence.

(5)  If the forfeiture declaration is made and the identity and address of the owner of the seized article have been established (and the owner is a person other than the youth) –

(a) the commissioned police officer is to give the owner a copy of the forfeiture declaration as soon as practicable; and

(b) the owner may apply to the Magistrates Court (Administrative Appeals Division) for a review of the decision to make the forfeiture declaration; and

(c) subject to the making of such an application for review and its outcome, the forfeiture declaration takes effect immediately after the appeal period.

(6)  If the forfeiture declaration is made but it has not been possible to establish the identity and address of the owner of the seized article despite the making of reasonable inquiries in that regard (or the owner is or appears to be the youth) the forfeiture declaration takes effect as soon as it is made.

(7)  If the forfeiture declaration takes effect, the seized article is forfeited to the Crown and may be disposed of as the Commissioner of Police thinks fit.

(8)  For the purposes of this section, the police officer responsible for the diversionary procedure (or another police officer) is to warn the youth of the prospective forfeiture before, or as soon as practicable after, the diversionary procedure begins.

(9)  However, a failure to comply with subsection (8) does not affect the operation of other provisions of this section.

(10)  For the purposes of this section, a diversionary procedure is taken to have been concluded once (depending on the procedure) –

(a) an informal caution has been administered to the youth under section 8(1) ; or

(b) a formal caution against further offending has been administered to the youth, put in writing and signed by the youth under section 10(4)(d) ; or

(c) a copy of the decision of a community conference has been provided to the youth under section 19(1)(b) .

(11)  In this section –

appeal period means the period within which, under the Magistrates Court (Administrative Appeals Division) Act 2001 , a person may apply for a review of a decision;

diversionary procedure means a procedure under section 8(1) or section 9(1) or (2) ;

owner, of an article, means the person who, but for the making of a forfeiture declaration, would be entitled to possession of the article.

Part 3 Arrest, search, bail and custody of youth

[Part 3 Heading amended by No. 27 of 2013, s. 16, Applied:01 Mar 2014]

23 Application of general law

Subject to this Act, the law of the State relating to investigation, interrogation, arrest, bail, remand and custody applies to youths, with necessary adaptations and any further adaptations that are set out in this Act or the regulations.

24 Limit on power to arrest

A police officer may only arrest a youth in relation to an offence if the arresting officer believes the offence is serious enough to warrant an arrest and also believes, on reasonable grounds, that –

(a) [Section 24 Amended by No. 27 of 2013, s. 17, Applied:01 Mar 2014] the arrest is necessary to prevent a continuation or repetition of the offence or the commission of another offence that, if it were committed by the youth, would be sufficiently serious to warrant the youth being arrested in relation to the commission of that offence; or

(b) [Section 24 Amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] the arrest is necessary to facilitate the making of a police family violence order, within the meaning of the Family Violence Act 2004 , an application for a family violence order under that Act or an application for a restraint order under Part XA of the Justices Act 1959 ; or

(c) the arrest is necessary to prevent concealment, loss or destruction of evidence relating to the offence; or

(d) the youth is unlikely to appear before the Court in response to a complaint and summons.

24A Duties of police officer where youth arrested

[Section 24A Inserted by No. 27 of 2013, s. 18, Applied:01 Sep 2014]

(1)  If a youth is arrested, a reference in the Criminal Law (Detention and Interrogation) Act 1995 to a friend is to be taken, in relation to the youth, to include a reference to a person who is a responsible adult, within the meaning of this Act, in respect of the youth.

(2)  A police officer who arrests a youth must, as soon as practicable –

(a) inform the youth of the youth's right to refuse to answer questions, or to participate in investigations, except where required to do so by or under an Act of the State or of the Commonwealth; and

(b) ensure that, if practicable, the youth's guardian is notified of the arrest.

(3)  Subsection (2) does not derogate from any other duties that a police officer who arrests a youth has under any other law of the State relating to investigation, interrogation, arrest, bail, remand or custody.

24B Conditions of bail

[Section 24B Inserted by No. 27 of 2013, s. 18, Applied:01 Sep 2014] A court or justice, or a police officer, who intends to admit a youth to bail must have regard to the principles set out in section 5 , so far as they may apply to the circumstances of the youth, in deciding whether to impose any conditions on the bail and in determining the conditions that are imposed on the bail.

24C Breach of condition of bail

[Section 24C Inserted by No. 27 of 2013, s. 18, Applied:01 Sep 2014]

(1)  In this section –

relevant contravention, in relation to a youth, means a contravention by the youth, without reasonable cause, of any condition of bail that has effect after the release of the youth from custody, other than a contravention consisting of a failure to appear before a justice or a court, as required under section 5 or 7 of the Bail Act 1994 .

(2)  If a relevant contravention by a youth occurs –

(a) sections 5(4) and 9 of the Bail Act 1994 do not apply in relation to the contravention; and

(b) a court (including the Court) may take the contravention into account in sentencing the youth for the offence in relation to which the bail to which the contravention relates was granted.

(3)  If a youth is arrested under section 5(5A) of the Bail Act 1994 in respect of a relevant contravention, a reference in section 34(1) or section 34A of the Justices Act 1959 to a simple offence, or to an offence, respectively, is, in its application to the youth in respect of the arrest, to be taken to include a reference to a relevant contravention.

(4)  If a youth is arrested under section 5(5A) or 10 of the Bail Act 1994 in respect of a relevant contravention, a reference in section 4 of the Criminal Law (Detention and Interrogation) Act 1995 to an offence, in its application to the youth in respect of the arrest, is to be taken to be a reference to a relevant contravention.

25 How youth is to be dealt with if not granted bail

(1)  If a youth is not admitted to bail under section 34 of the Justices Act 1959 or under section 4 of the Criminal Law (Detention and Interrogation) Act 1995 , the youth must be detained in a watch-house while waiting to be brought before a justice under section 34A of the Justices Act 1959 .

(2)  [Section 25 Subsection (2) amended by No. 72 of 2005, s. 138, Applied:20 Feb 2006] If a youth who is less than 19 years old is refused bail by a justice under section 35 of the Justices Act 1959 but an order is not made under section 47(2) of that Act, the youth must be detained –

(a) [Section 25 Subsection (2) amended by No. 1 of 2003, s. 6, Applied:16 Apr 2003] in a detention centre if, in the opinion of the Secretary, it is practicable to do so; or

(b) [Section 25 Subsection (2) amended by No. 1 of 2003, s. 6, Applied:16 Apr 2003] in a prison if, in the opinion of the Secretary, it is not practicable to detain the youth in a detention centre.

(3)  If a youth who is less than 19 years old is detained in a prison or watch-house, the person for the time being in charge of the prison or watch-house must take such steps as are reasonably practicable to keep the youth from coming into contact with any adult detained in that place.

(4)  [Section 25 Subsection (4) amended by No. 1 of 2003, s. 6, Applied:16 Apr 2003] If a youth who is 19 or more years old is refused bail by a justice under section 35 of the Justices Act 1959 , the youth is to be remanded to a prison as if he or she were an adult unless the Secretary determines that the youth is to be remanded to a detention centre.

25A Interpretation of Division 3

[Section 25A of Part 3 Inserted by No. 14 of 2022, s. 6, Applied:01 Dec 2022] In this Division –

body cavity search, in relation to a youth, means a search of the rectum or vagina of the youth, but does not include a search of the youth by a scanning device that does not touch the youth;

clothed search, in relation to a youth, means a search (other than a body cavity search) of the youth that is not an unclothed search;

commissioned police officer has the same meaning as in the Police Service Act 2003 ;

correctional officer has the same meaning as in the Corrections Act 1997 ;

custodial facility means –

(a) a detention centre; and

(b) a prison; and

(c) a reception prison watch-house; and

(d) a police watch-house;

custody officer, in relation to a police watch-house, means the person who is, under section 14 of the Criminal Law (Detention and Interrogation) Act 1995 , the custody officer in relation to the watch-house;

Director means the Director of Corrective Services appointed under section 5 of the Corrections Act 1997 ;

offence means any offence, including a prescribed offence;

person in charge, in relation to a custodial facility, means –

(a) if the custodial facility is a detention centre – the detention centre manager of the detention centre; or

(b) if the custodial facility is a prison – the Director; or

(c) if the custodial facility is a reception prison watch-house – the Director; or

(d) if the custodial facility is a police watch-house – the custody officer in relation to the police watch-house;

police watch-house means a watch-house within the meaning of paragraph (a) of the definition of watch-house in section 3(1) ;

reception prison watch-house means a watch-house within the meaning of paragraph (b) of the definition of watch-house in section 3(1) ;

relevant authorising officer, in relation to a custodial facility, means –

(a) if the custodial facility is a detention centre – the Secretary or the detention centre manager of the detention centre; or

(b) if the custodial facility is a prison – the Director; or

(c) if the custodial facility is a reception prison watch-house – the Director; or

(d) if the custodial facility is a police watch-house – a commissioned police officer or the custody officer in relation to the watch-house;

relevant instruction, in relation to a custodial facility, means –

(a) if the custodial facility is a detention centre – instructions issued by the Secretary under section 124(2) ; and

(b) if the custodial facility is a prison – standing orders made by the Director under section 6(3) of the Corrections Act 1997 ; and

(c) if the custodial facility is a reception prison watch-house – standing orders made by the Director under section 6(3) of the Corrections Act 1997 ; and

(d) if the custodial facility is a police watch-house – orders, directions, procedures and instructions issued by the Commissioner of Police under section 7(3) of the Police Service Act 2003 ;

relevant search purpose – see section 25F ;

scanning device means –

(a) a hand-held electronic device that detects or displays the presence of an article on or in the body of a person; and

(b) an electronic device, between or under the components of which a person stands, that detects or displays an article on or in the body of the person;

search officer means a person who may, under section 25C , conduct a search of a youth;

transgender has the same meaning as in the Anti-Discrimination Act 1998 ;

transsexual has the same meaning as in the Anti-Discrimination Act 1998 ;

unclothed search, in relation to a youth, means a search of the youth that requires the youth’s torso or genitals to be exposed to view or the youth’s torso or genitals, clothed only in underwear, to be exposed to view.

25B Searches to which this Division applies

[Section 25B of Part 3 Inserted by No. 14 of 2022, s. 6, Applied:01 Dec 2022]

(1)  This Division applies only to a clothed search, or an unclothed search, of a youth who is in custody, that is conducted in a custodial facility.

(2)  This Division does not apply to a search under the Terrorism (Preventative Detention) Act 2005 .

(3)  This Division does not apply to, or in relation to, a body cavity search.

(4)  Nothing in this Division, including subsection (5) , is to be taken to authorise the carrying out of a body cavity search by a person.

(5)  In the event of an inconsistency between the application of a provision of this Division and the application, to a search, of a provision of –

(a) another Act; or

(b) an instrument made under an Act –

the provision of this Division applies to the extent of the inconsistency.

25C Persons who may conduct searches of youths

[Section 25C of Part 3 Inserted by No. 14 of 2022, s. 6, Applied:01 Dec 2022]

(1)  A search of a youth may only be conducted by the following persons:

(a) the Director;

(b) a correctional officer who is within a class of officers that is specified, in standing orders, made by the Director under section 6(3) of the Corrections Act 1997 , to be authorised to conduct such a search;

(c) a correctional officer who is ordered by the Director to conduct the search;

(d) the Secretary;

(e) a detention centre manager;

(f) a person who is within a class of persons that is specified, in instructions issued under section 124(2) , to be authorised to conduct such a search;

(g) a person who is ordered by the Secretary, or a detention centre manager, to conduct the search;

(h) a police officer.

(2)  A search of a youth must be conducted in accordance with –

(a) this Division; and

(b) the requirements, if any, of the relevant instruction in relation to the custodial facility in which the search is conducted, except to the extent that those requirements are inconsistent with the requirements of this Division.

25D Requirements as to gender of search officer conducting search, &c.

[Section 25D of Part 3 Inserted by No. 14 of 2022, s. 6, Applied:01 Dec 2022]

(1)  In this section –

person of the required gender, in relation to a youth, means –

(a) if the youth is male or female and paragraph (b) does not apply to the youth, a person who is male or female, respectively; or

(b) [Section 25D Subsection (1) amended by No. 19 of 2023, s. 14, Applied:21 Sep 2023] if the youth is transsexual, transgender or has variations of sex characteristics –

(i) a person of the gender that the youth requests; or

(ii) if a person of the gender requested is not immediately available, a person who is, at the further request of the youth, male or female.

(2)  A search of a youth that does not involve the removal of any clothing being worn by the youth or the touching of the youth is to be conducted as far as is reasonable and practicable by a search officer who is a person of the required gender in relation to the youth.

(3)  A search of a youth that involves the removal of any clothing being worn by the youth or the touching of the youth –

(a) is to be conducted by a search officer who is a person of the required gender in relation to the youth; and

(b) is, if the search is an unclothed search and is conducted in the presence of persons other than the youth and the search officer – to be conducted in the presence only of other persons who are persons of the required gender in relation to the youth.

(4)  Subsection (3) does not apply in relation to a youth if the person in charge of the custodial facility in which the search is conducted believes on reasonable grounds that it is not reasonable or practicable for that subsection to apply in relation to the youth because of the urgency with which the search is required in order to address the risk of harm or trauma to the youth or another person.

25E Conduct of searches

[Section 25E of Part 3 Inserted by No. 14 of 2022, s. 6, Applied:01 Dec 2022]

(1)  A search officer must not conduct a search of a youth unless the search officer believes on reasonable grounds that –

(a) the search is necessary for a relevant search purpose; and

(b) the type of search, and the manner of search, are proportionate to the circumstances.

(2)  A search officer conducting a search of a youth must ensure, as far as practicable, that –

(a) the search is conducted in a manner that –

(i) is, to the extent possible, consistent with retaining the youth’s dignity and self-respect; and

(ii) minimises any trauma, distress or harm that may be caused to the youth by the conduct of the search; and

(b) the search is the least intrusive type of search that is necessary and reasonable to achieve a relevant search purpose for which the search is conducted; and

(c) the search is conducted in the least intrusive manner that is necessary and reasonable to achieve a relevant search purpose for which the search is conducted; and

(d) the search is completed as quickly as is reasonably possible, consistent with achieving a relevant search purpose for which the search is conducted; and

(e) the search is conducted in circumstances that accord reasonable privacy to the youth being searched; and

(f) the search officer does not remove, or require the youth to remove, more clothing than is necessary and reasonable to achieve a relevant search purpose for which the search is conducted; and

(g) if clothing of the youth is seized during the conduct of a search of the youth, the youth is, after the search is completed, left with, or provided with, adequate clothing to wear.

(3)  In determining for the purposes of subsection (2)(a) the manner in which a search is to be conducted, the search officer conducting the search must consider –

(a) any information that is provided to the search officer by the youth (including as to the search that the youth would prefer) and that is relevant to the determination of the matters referred to in subsection (2)(a)(i) or (ii) ; and

(b) any information that the search officer has, or that is, on reasonable inquiry by the officer, available to the officer, as to the youth’s age, intellectual maturity, sex, sexual or gender identity, religion, disabilities and history.

(4)  A search officer conducting a search of a youth –

(a) may, subject to this subsection and subsection (2) , use force to conduct the search; and

(b) must not use force to conduct the search unless using force is the only means, in the circumstances, by which the search can reasonably be conducted; and

(c) must ensure, as far as practicable, that if force is used, it is the least amount of force that is reasonable and necessary to enable the search to be conducted.

(5)  A search officer must not conduct an unclothed search of a youth in a custodial facility unless the relevant authorising officer in relation to the custodial facility has authorised under subsection (6) the search to be conducted and the search is conducted in accordance with the conditions, if any, specified in the authorisation.

(6)  A relevant authorising officer in relation to a custodial facility may, orally or in writing, authorise a search officer to conduct an unclothed search of a youth on the conditions, if any, specified in the authorisation.

(7)  A relevant authorising officer must not authorise an unclothed search of a youth to be conducted unless the relevant authorising officer believes on reasonable grounds that –

(a) the search is necessary for a relevant search purpose; and

(b) the type of search, and the manner of search, are proportionate to the circumstances; and

(c) an unclothed search of the youth, despite being the most intrusive type of search, is necessary and reasonable to achieve a relevant search purpose for which the search is to be conducted; and

(d) the search is to be conducted in the least intrusive manner that is necessary and reasonable to achieve a relevant search purpose for which the search is to be conducted.

(8)  The surrender by a youth of an article before a search of the youth is conducted must be taken into account in determining whether the search may be conducted under this section.

25F Relevant search purposes

[Section 25F of Part 3 Inserted by No. 14 of 2022, s. 6, Applied:01 Dec 2022] For the purposes of this Division, a relevant search purpose is a search of a youth for one or more of the following purposes:

(a) to ensure the safety of the youth or other persons;

(b) to obtain evidence relating to the commission of an offenceor to prevent the loss or destruction of evidence in relation to the commission of an offence;

(c) to ascertain whether the youth has possession of a concealed weapon, or other article capable of being used as a weapon, to inflict injury or to assist the youth, or another youth, to escape from custody;

(d) to ascertain whether the youth has possession of drugs or any other things which the youth is prohibited by law from taking into, or having possession of in, the custodial facility in which the youth is situated;

(e) if the search is a clothed search – to remove into safe keeping any articles belonging to, or in the possession of, the youth.

25G Determination of least intrusive type and manner of search

[Section 25G of Part 3 Inserted by No. 14 of 2022, s. 6, Applied:01 Dec 2022]

(1)  For the purposes of this Division, the degree of intrusiveness of the following types of searches is taken to increase in the following order:

(a) a search (which may be a search by way of a scanning device) that involves no touching of a youth or clothing being worn by a youth;

(b) a search that includes minimal touching of a youth or of clothing being worn by a youth;

(c) a search that includes the removal of some clothing being worn by a youth but that is not an unclothed search;

(d) a search that includes touching, that is more than minimal touching, of a youth or of clothing being worn by a youth;

(e) an unclothed search of a youth.

(2)  In determining for the purposes of this Division whether a search of a youth is, or is to be, conducted in the least intrusive manner that is necessary and reasonable to achieve a relevant search purpose for which the search is being, or is to be, conducted, the search officer, or relevant authorising officer, making the determination must have regard to –

(a) the health and safety of the youth; and

(b) any information that the search officer, or the relevant authorising officer, respectively, has, or that is, on reasonable inquiry by the officer, available to the officer, as to –

(i) the youth’s age, intellectual maturity, sex, sexual or gender identity, religion, disabilities and history; and

(ii) any other matter that is relevant to the determination.

25H Information to be given to youth before search conducted

[Section 25H of Part 3 Inserted by No. 14 of 2022, s. 6, Applied:01 Dec 2022] Before a search of a youth is conducted by a search officer, the search officer must –

(a) inform the youth that a search is to be conducted; and

(b) if the search is to be an unclothed search – inform the youth that an unclothed search of the youth is to be conducted; and

(c) inform the youth that the youth may, before the search of the youth occurs, surrender an article that is on the person of the youth; and

(d) give the youth an opportunity, before the search of the youth occurs, to surrender, in circumstances that afford reasonable privacy to the youth, an article that is on the person of the youth.

25I Seizure of articles found during searches

[Section 25I of Part 3 Inserted by No. 14 of 2022, s. 6, Applied:01 Dec 2022] A search officer who conducts a search of a youth may seize an article found during the search –

(a) that may be evidence relating to the commission of an offence; or

(b) that may prejudice the safety of any person or the safety or good order of a custodial facility; or

(c) to remove the article into safekeeping.

25J Reporting of use of force

[Section 25J of Part 3 Inserted by No. 14 of 2022, s. 6, Applied:01 Dec 2022]

(1)  A search officerwho has conducted a search of a youth in a custodial facility must, if force used during the conduct of the search is reportable force, provide to the person in charge of the facility a report containing the information, in relation to the search, that is specified, in the relevant instruction in relation to the custodial facility, to be required to be included in such a report.

(2)  A person conducting a search of a youth must provide under subsection (1) the report in relation to the search as soon as practicable after the search is conducted but in any case within 7 days after the search is conducted.

(3)  For the purposes of this section, reportable force, in relation to a youth, is –

(a) force used in the course of a search of the youth; and

(b) force used, before the search is conducted, to enable the search to be conducted –

but does not include excluded force in relation to the youth.

(4)  For the purposes of this section, each of the following is excluded force in relation to a youth:

(a) touching of the youth that is not for the purpose of restraining the youth so as to enable the search to occur and that is incidental to the conduct of the search;

(b) force, including the application and use of handcuffs or physical restraint, used to ensure that the youth –

(i) remains in custody; or

(ii) moves to a place where the search is to commence, remains in a place where the search has commenced or moves to a place after the search has been conducted –

unless the touching or force is such that the person conducting the search had reasonable grounds to believe, or ought reasonably to have been aware, that the touching or force has caused or may cause an injury to the youth.

(5)  Nothing in this section is to be taken to limit a provision of another Act that requires a person to provide a report in relation to a search that is specified in or under another Act.

25K Register of searches

[Section 25K of Part 3 Inserted by No. 14 of 2022, s. 6, Applied:01 Dec 2022]

(1)  In this section –

relevant information, in relation to a search, means –

(a) the information prescribed for the purposes of this section; and

(b) details as to the degree of intrusiveness of the search, as determined under section 25G ; and

(c) details of reportable force, within the meaning of section 25J , used in the conduct of the search.

(2)  The Secretary, Director or Commissioner of Police must establish and maintain a register (a search register) in relation to each custodial facility for which the Secretary, Director or Commissioner of Police, respectively, is responsible.

(3)  The search register in relation to a custodial facility must contain the relevant information in relation to each search of a youth that is conducted in the custodial facility.

(4)  The Secretary, Director or Commissioner of Police must ensure that a register that the Secretary, Director or the Commissioner of Police, respectively, is required under this section to establish and maintain is available for inspection by any of the following persons:

(a) the Custodial Inspector;

(b) the Ombudsman;

(c) a person approved by the person in charge of the custodial facility;

(d) a prescribed person or body.

25L Provision of information

[Section 25L of Part 3 Inserted by No. 14 of 2022, s. 6, Applied:01 Dec 2022]

(1)  The person in charge of a custodial facility must ensure that there is made available, for viewing by a youth who is in custody in the custodial facility, leaflets, posters, or other documents, that set out the obligations of the person in charge of the custodial facility under the other provisions of this section.

(2)  The person in charge of a custodial facility must ensure that –

(a) on the request of a youth who is in custody in the facility, the required information in relation to searches, of youths in custody, conducted in the custodial facility is made available to the youth; and

(b) on the request of a person who is representing a youth who is in custody in the facility, the required information in relation to searches, of youths in custody, conducted in the custodial facility is made available to the person; and

(c) the required information in relation to searches, of youths in custody, conducted in a custodial facility is available for viewing by members of the public on a website in relation to the custodial facility.

(3)  For the purposes of this section, the required information in relation to searches, of youths in custody, conducted in a custodial facility is –

(a) information as to the circumstances and manner in which a search of a youth is authorised to be conducted in the custodial facility; and

(b) information as to –

(i) the rights of a youth who is in custody to make a complaint in relation to any search of the youth that is conducted in the custodial facility, if the youth believes the search was not authorised by, or conducted in accordance with, this Division or any other law; and

(ii) the person to whom such a complaint is to be directed; and

(c) provisions, relating to searches, that are contained in relevant instructions that apply in relation to searches of youths in custody that are conducted in the custodial facility, as those provisions are redacted, if at all, as necessary to ensure the security and good order of the custodial facility.

Part 4 Court proceedings against a youth

26 Commencing proceedings

(1)  If a youth is to be charged with an offence, proceedings are to be commenced by complaint in accordance with section 27 of the Justices Act 1959 .

(2)  If a complaint and summons is served on a youth in respect of an offence, a copy of the complaint and summons is to be served by the complainant on the guardian, unless one cannot be found after reasonable inquiry, and on the Secretary.

27 Limitation on joint charge

A youth who is under 15 years of age may not be jointly charged with an adult.

27A Taking plea if joint charge

[Section 27A Inserted by No. 1 of 2003, s. 7, Applied:16 Apr 2003]

(1)  If a youth is jointly charged with an adult in respect of an offence, the youth is to enter his or her plea to the charge in the court in which the adult is to enter his or her plea.

(2)  If a youth is jointly charged with an adult in respect of an offence, the court in which the youth's plea is entered must, after taking that plea and if the proceedings are to be continued in the Court, make an order –

(a) transferring the proceedings to the Court; and

(b) committing the youth to custody or releasing the youth on bail, with or without sureties, to be brought or to appear before the Court.

28 Limitation on power of Court to hear joint charge

(1)  The Court is not entitled to hear and determine a charge against a youth if –

(a) the youth is 15 or more years old; and

(b) the youth is charged jointly with an adult; and

(c) the youth and the adult both plead not guilty to the charge.

(2)  If a youth is jointly charged with an adult and the adult or the youth, or both, plead guilty to the charge, the Court must hear and determine the charge against the youth unless the prosecutor objects.

(3)  If the prosecutor makes an objection under subsection (2) , the Court may hear and determine the charge against the youth or determine that the charge is to be transferred to the Supreme Court under Part VII of the Justices Act 1959 .

29 Duty of Court

(1)  The Court has a duty, as far as practicable –

(a) to ensure that the youth before the Court and the guardian, if present, understand –

(i) the nature and purpose of the proceedings; and

(ii) the right of the youth to have legal representation; and

(iii) the rights of the youth in relation to entering a plea and the consequences of entering a plea; and

(iv) the rights of the youth to have a copy of any report, or record of previous offending history, relating to the youth and to comment on any such report or record; and

(v) the right to make, and the importance of making, a plea in mitigation if the youth is guilty of the offence; and

(b) to respect the cultural identity of the youth before the Court.

(2)  In any proceedings under this Act, the Court has a duty to take into account the objectives specified in section 4 and the principles specified in section 5 .

30 Persons who may be present in Court

(1)  Only the following persons may be present at a sitting of the Court:

(a) the youth to whom the proceeding relates;

(b) the legal representative of the youth;

(c) the parents, other members of the youth's family and guardians of the youth;

(d) a responsible adult;

(e) the prosecutor;

(f) [Section 30 Subsection (1) amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] a person approved under section 4 or section 8(2)(b)(i) of the Evidence (Children and Special Witnesses) Act 2001 while the youth or special witness who is being supported by the person remains in the Court;

(g) a witness while giving evidence or permitted by the Court to remain in the Court;

(h) [Section 30 Subsection (1) amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] State Service officers and State Service employees employed in the Department;

(i) if the youth is an Aboriginal person and consents to the presence of a representative of an organisation whose principal purpose is the provision of welfare services to Aboriginal persons, that representative;

(j) the victim;

(k) officers of the Court;

(l) a person engaged in professional study relevant to the operation of the Court or research if the Court permits the person to be present;

(m) a person who, in the Court's opinion, will assist the Court;

(n) any other person if the Court considers that the interests of justice require that person's presence;

(o) an infant or young child who is in the care of an adult present at the sitting.

(2)  [Section 30 Subsection (2) amended by No. 80 of 2001, Sched. 1, Applied:01 Jul 2002] Subject to sections 4 and 8 of the Evidence (Children and Special Witnesses) Act 2001 , the Court may exclude a person referred to in subsection (1) from the Court if it considers it necessary to do so in the interests of justice.

31 Restrictions on reporting proceedings

(1)  [Section 31 Subsection (1) amended by No. 1 of 2003, s. 8, Applied:16 Apr 2003] A person must not publish any information in respect of any proceedings that are to be, are being or have been taken in the Court if the information identifies, or may lead to the identification of, a youth who is the subject of or a witness in the proceedings except where –

(a) [Section 31 Subsection (1) amended by No. 1 of 2003, s. 8, Applied:16 Apr 2003] permission to publish the identity or information has been granted under subsection (2) ; and

(b) [Section 31 Subsection (1) amended by No. 1 of 2003, s. 8, Applied:16 Apr 2003] the identity or information is published in accordance with any conditions specified in respect of the permission.

Penalty:  Fine not exceeding 100 penalty units or a term of imprisonment not exceeding 2 years, or both.

(2)  [Section 31 Subsection (2) amended by No. 1 of 2003, s. 8, Applied:16 Apr 2003] The Court may grant a person permission to publish an identity or information subject to any conditions specified by the Court.

(3)  [Section 31 Subsection (3) amended by No. 1 of 2003, s. 8, Applied:16 Apr 2003] [Section 31 Subsection (3) amended by No. 1 of 2003, s. 8, Applied:16 Apr 2003] A person must not publish in any way any information in respect of the proceedings of the Court if the Court prohibits publication of the information.

Penalty:  Fine not exceeding 100 penalty units or a term of imprisonment not exceeding 2 years, or both.

(4)  [Section 31 Subsection (4) inserted by No. 1 of 2003, s. 8, Applied:16 Apr 2003] Subsections (1) and (3) do not apply to the provision of information to –

(a) [Section 31 Subsection (4) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] the youth or his or her legal representative; and

(b) a guardian of the youth; and

(c) a victim of the offence; and

(d) a police officer, or a person or a member of an authority responsible for the enforcement of laws in this State, in the course of his or her official functions; and

(e) a member of the Australian Federal Police, a member of the police force of another State or a Territory or a person or a member of any other authority responsible for the enforcement of laws of the Commonwealth, any other State or a Territory in the course of his or her official functions; and

(f) a person employed or engaged in the administration of this Act in the course of his or her official functions; and

(g) a person employed or engaged in the administration of the Act against which the offence was committed in the course of his or her official functions; and

(ga) [Section 31 Subsection (4) amended by No. 4 of 2021, s. 33, Applied:01 Mar 2021] a Commission established under the Commissions of Inquiry Act 1995 if the information is relevant to the matter in respect of which the Commission was so established; and

(h) a person undertaking research that does not involve the identification of the youth, the victim or any person involved in the proceedings (otherwise than in a professional capacity as a police officer or a person employed or engaged in the administration of this Act) who has not consented, in writing, to the publication of the report if the research has been approved by the Commissioner of Police or the Secretary; and

(i) a person undertaking research that involves the identification of the youth, the victim or any other person referred to in paragraph (h) if –

(i) all persons to be identified have consented, in writing, to their identity being provided to the researcher; and

(ii) the research has been approved by the Commissioner of Police or the Secretary; and

(j) a prescribed person or a person in prescribed circumstances or for a prescribed purpose.

(5)  [Section 31 Subsection (5) inserted by No. 27 of 2013, s. 20, Applied:01 Mar 2014] Subsection (1) does not apply to the provision of information in relation to a youth if the youth, or the youth's guardian, consents in writing to the provision of the information for the purpose of the rehabilitation of the youth or a related purpose.

(6)  [Section 31 Subsection (6) inserted by No. 27 of 2013, s. 20, Applied:01 Mar 2014] Subsections (1) and (3) do not apply to the provision of information in relation to a youth –

(a) between an information-sharing entity and a Government Agency for the purpose of the rehabilitation of the youth or a related purpose; or

(b) [Section 31 Subsection (6) amended by No. 2 of 2016, Sched. 4, Applied:01 Jul 2016] between an information-sharing entity and the Commissioner for Children and Young People, or between a Government Agency and the Commissioner for Children and Young People.

(7)  [Section 31 Subsection (7) inserted by No. 4 of 2021, s. 33, Applied:01 Mar 2021] Subsections (1) and (3) do not apply to the provision of information in relation to a person –

(a) to a person seeking to bring an action, whether criminal or civil, if –

(i) the person to whom the information relates is an intended defendant to the action or an alleged perpetrator in respect of the matter to which the action relates; and

(ii) the information is relevant to that action; or

(b) to a person responding, on behalf of the State, to an action, whether criminal or civil and whether proposed or commenced, against the State if the information is relevant to that action; or

(c) to a person undertaking an employment screening or review process, or disciplinary investigations or proceedings, in respect of the person to whom the information relates if the person to whom the information relates is –

(i) an employee or contractor, or prospective employee or contractor, of the person to whom the information is provided; or

(ii) a volunteer or assistant, or prospective volunteer or assistant, whether paid or unpaid, of an organisation of which the person, to whom the information is provided, is in a position of management or control.

(8)  [Section 31 Subsection (8) inserted by No. 4 of 2021, s. 33, Applied:01 Mar 2021] Subsections (1) and (3) do not apply to the provision of information in relation to a youth if the information –

(a) is provided to a person –

(i) seeking to bring an action, whether criminal or civil; or

(ii) responding, on behalf of the State, to an action, whether criminal or civil and whether proposed or commenced; or

(iii) undertaking an employment screening or review process, or disciplinary investigations or proceedings; and

(b) in the case of information provided to a person referred to in paragraph (a)(i) or (ii) , the information –

(i) is relevant to the action; and

(ii) does not disclose the identity of, or lead to the identification of, a person other than an intended defendant to the action or an alleged perpetrator in respect of the matter to which the action relates; and

(c) in the case of information provided to a person referred to in paragraph (a)(iii) , the information –

(i) is relevant to the employment screening or review process, or disciplinary investigations or proceedings, being undertaken by the person to whom the information is provided; and

(ii) does not disclose the identity of, or lead to the identification of, a person other than the person being screened or reviewed or the subject of those disciplinary investigations or proceedings.

(9)  [Section 31 Subsection (9) inserted by No. 4 of 2021, s. 33, Applied:01 Mar 2021] Information provided under subsection (7)(b) or (c) is subject to the rules of procedural fairness in respect of the person whose information is so provided.

(10)  [Section 31 Subsection (10) inserted by No. 4 of 2021, s. 30, Applied:22 Apr 2021] A person to whom information is provided under subsection (7) or (8) must not use or disclose the information other than –

(a) for the purpose for which the information was so provided to the person; or

(b) as authorised, or required, by law.

Penalty:  Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both.

32 Application of Division 3

This Division applies after a youth is found guilty of an offence.

33 Presentence report

(1)  In any proceedings under this Part, the Court may order the Secretary to provide to it a presentence report concerning the youth.

(2)  The Court may request that the report contain specified information, assessments and reports relating to the youth or the youth's family or other matters.

(3)  The Secretary must cause the presentence report to be prepared and provided to the Court expeditiously and, in any case, within 20 working days.

(4)  The limit of 20 days may be extended by the Court.

33AA Court may request oral presentence report

[Section 33AA Inserted by No. 27 of 2013, s. 21, Applied:01 Mar 2014]

(1)  The Court may order a youth justice worker to provide to the Court a presentence report orally during a hearing of the Court, if the Court is of the opinion that it is appropriate to do so.

(2)  If a presentence report is provided orally by a youth justice worker in accordance with an order under subsection (1)  –

(a) sections 33 and 34 do not apply in relation to the report; and

(b) section 35 applies in relation to the report as if the reference in subsection (1) of that section to the author of a presentence report were a reference to the youth justice worker who gave the report.

33A Court may order rehabilitation program assessment

[Section 33A Inserted by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] In any proceedings under this Part in relation to a family violence offence the Court may, in addition to the matters referred to in section 33  –

(a) order a rehabilitation program assessment of a youth; and

(b) direct the youth to submit to that assessment.

34 Disclosure of presentence report

[Section 34 Amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] The Secretary must provide a copy of the presentence report and any rehabilitation program assessment as soon as practicable to –

(a) the prosecutor; and

(b) the youth; and

(c) the legal representative of the youth; and

(d) the guardian, unless one cannot be found after reasonable inquiry.

35 Presentence report evidence

(1)  [Section 35 Subsection (1) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] [Section 35 Subsection (1) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] The Court may, or at the request of the youth, his or her legal representative or the prosecutor must, require the author of a presentence report and any rehabilitation program assessment, or a person who gave a statement included in the report or assessment, to attend before the Court in the manner indicated by the Court for the purpose of giving more information.

(2)  The Court may ask, and allow the youth, his or her legal representative or the prosecutor to ask, questions of a person attending the Court under subsection (1) .

36 Disputed presentence report

(1)  [Section 36 Subsection (1) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] The youth, his or her legal representative or the prosecutor may dispute the whole or any part of a presentence report or rehabilitation program assessment.

(2)  [Section 36 Subsection (2) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] [Section 36 Subsection (2) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] If the whole or any part of a presentence report or rehabilitation program assessment is disputed before sentencing is to take place, the Court must not take the report or assessment or part in dispute into consideration when determining sentence unless the person who raised the dispute has been given the opportunity –

(a) to lead evidence on the disputed matters; and

(b) [Section 36 Subsection (2) amended by No. 67 of 2004, Sched. 1, Applied:30 Mar 2005] to cross-examine the author of the report or assessment on its contents.

36A Victim impact statements

[Section 36A Inserted by No. 27 of 2013, s. 22, Applied:01 Mar 2014]

(1)  In this section –

immediate family, in respect of a deceased victim, includes –

(a) the spouse or partner, within the meaning of the Relationships Act 2003 , of the deceased victim; and

(b) a parent, guardian or step-parent of the deceased victim; and

(c) a child or stepchild of the deceased victim; and

(d) a brother, sister, stepbrother or stepsister of the deceased victim;

indictable offence means –

(a) an offence that is punishable on indictment even though in some instances it may be dealt with summarily; or

(b) any other offence that is prescribed for the purposes of this definition;

victim, in respect of an offence, means –

(a) a person who has suffered injury, loss or damage as a direct consequence of the offence; and

(b) a member of the immediate family of a deceased victim of the offence.

(2)  If the Court finds a youth guilty of an indictable offence, a victim of that offence may provide to the Court a written statement that –

(a) gives particulars of any injury, loss or damage suffered by the victim as a direct consequence of the offence; and

(b) describes the effects on the victim of the commission of the offence.

(3)  If the Court finds a youth guilty of an indictable offence, the Court may, if it considers it appropriate to do so, allow a person, other than the victim of that offence, to provide to the Court, in the place of a statement under subsection (2) , a written statement that –

(a) gives particulars of the injury, loss or damage suffered by the victim as a direct consequence of the offence; and

(b) describes the effects on the victim of the commission of the offence.

(4)  A statement referred to in subsection (2) or (3) must comply with, and be provided in accordance with, applicable Rules of Court or rules made under subsection (6) .

(5)  If the Court finds a youth guilty of an indictable offence, the Court must allow –

(a) the victim; or

(b) a person who has provided a statement under subsection (3) ; or

(c) another person nominated by the victim or a person referred to in paragraph (b)  –

to read the victim's statement to the Court, if the victim or the person referred to in paragraph (b) has asked to do so at the time of providing the statement to the Court.

(6)  For the purposes of this section –

(a) Rules of Court may be made under section 12 of the Criminal Code Act 1924 ; and

(b) rules of court may be made under section 144 of the Justices Act 1959 .

37 Court may order community conference

(1)  Instead of proceeding to sentence a youth under section 47 , the Court may –

(a) order the Secretary to convene a community conference; and

(b) order the youth to attend a community conference.

(2)  An order under subsection (1)(a) may specify persons who are to be invited to attend the community conference.

(3)  The district registrar is to provide the Secretary with a copy of an order made under subsection (1)(a) .

38 Convening of community conference

(1)  Except to the extent that the Court orders otherwise, section 14 , other than subsection (2)(c) , applies in relation to a community conference to be convened on the order of the Court –

(a) as if the references in that section to the notice from a police officer were references to the order of the Court; and

(b) with necessary modifications.

(2)  The facilitator must invite the following persons to a community conference to be convened on the order of the Court:

(a) the guardians of the youth;

(b) the persons specified in the order;

(c) any relatives of the youth or other persons who the facilitator, after consulting with the youth and the youth's guardians and family (if available), considers appropriate to attend the community conference;

(d) any other person who –

(i) has had a close association with the youth or has been counselling, advising or aiding the youth; and

(ii) in the opinion of the facilitator, may be able to participate usefully in the community conference;

(da) [Section 38 Subsection (2) amended by No. 27 of 2013, s. 23, Applied:01 Mar 2014] a youth justice worker;

(e) if the youth is a member of an Aboriginal community, an Elder or other representative of that community;

(f) any victim of the offence.

39 Constitution of, attendance and procedure at, powers of and finalising of community conference

Sections 15 , 16 , 17 and 18 apply, with any necessary modifications, in relation to a community conference convened on the order of the Court.

40 Procedure after successful community conference

Section 19 applies, with any necessary modifications, in relation to the procedure after a successful community conference convened on the order of the Court.

40A Additional requirements for court-ordered community conference

[Section 40A Inserted by No. 27 of 2013, s. 24, Applied:01 Mar 2014]

(1)  If a community conference convened on the order of the Court reaches a decision that did not require the youth to enter into an undertaking, the facilitator must file with the district registrar a copy of the decision.

(2)  If a youth fulfils all undertakings entered into at a community conference convened on the order of the Court, the Secretary, as soon as practicable, must file with the district registrar a certificate stating that fact.

41 Dismissal of charge

(1)  The charge against a youth in respect of which a community conference was convened on the order of the Court is dismissed –

(a) [Section 41 Subsection (1) amended by No. 27 of 2013, s. 25, Applied:01 Mar 2014] [Section 41 Subsection (1) amended by No. 27 of 2013, s. 25, Applied:01 Mar 2014] on the filing with the Court under section 40A(1) of a copy of the decision of the community conference; or

(b) [Section 41 Subsection (1) amended by No. 27 of 2013, s. 25, Applied:01 Mar 2014] on the filing with the Court under section 40A(2) of a certificate stating that the youth has fulfilled all undertakings entered into; or

(c) at the end of the prescribed period, if a report has not been filed with the Court under section 43 in respect of a contravention of an undertaking before the end of that period.

(2)  If a charge is dismissed under this section, the district registrar must amend the records of the Court accordingly.

(3)  In this section,

prescribed period means the period of 60 days commencing on the day by which all undertakings entered into by the youth at the community conference are to be fulfilled.

42 Procedure after unsuccessful community conference

(1)  If the youth fails to attend a community conference convened on the order of the Court or that community conference fails to reach a decision, the facilitator must –

(a) file with the Court a report –

(i) stating that fact; and

(ii) in the case of a failure to reach a decision, stating the reasons, in the facilitator's opinion, for that failure; and

(b) provide a copy of the report to –

(i) the youth; and

(ii) the prosecutor of the charge in respect of which the community conference was convened; and

(iii) each person who attended the community conference in response to the invitation of the facilitator; and

(iv) the victim of the offence.

(2)  On receipt of a report under subsection (1) , the Court must proceed to make an order under section 47 .

43 Failure to fulfil undertaking

(1)  If a youth fails to fulfil an undertaking entered into at a community conference convened on the order of the Court, the Secretary must –

(a) file with the Court a report –

(i) stating that fact and specifying whether the youth has taken any action towards fulfilling that undertaking and the circumstances of the contravention; and

(ii) specifying whether the youth has fulfilled any other undertaking entered into at the community conference; and

(iii) specifying any action the youth has taken towards fulfilling any other undertaking entered into at the community conference; and

(b) provide a copy of the report to –

(i) the youth; and

(ii) the prosecutor of the charge in respect of which the community conference was convened; and

(iii) each person who attended the community conference in response to the invitation of the facilitator; and

(iv) the victim of the offence.

(2)  On receipt of a report under subsection (1) , the Court must proceed to make an order under section 47 .

44 Requiring community conference facilitator to attend Court

(1)  The Court may require the facilitator to attend before the Court in the manner indicated by the Court for the purpose of giving more information.

(2)  The Court may ask, and allow the youth, the complainant or a legal representative to ask, questions of a facilitator.