Schedule 1—Interstate transfers of young offenders
1 Definitions
In this Schedule—
agreement means an agreement between the Minister and a Minister of another State or a Territory under clause 2;
arrangement means an arrangement made under clause 3 for the transfer of a young offender—
(a) from Victoria to another State or a Territory; or
(b) to Victoria from another State or a Territory;
Minister, in relation to a State (other than Victoria) or a Territory, means—
(a) in the case of New South Wales, Tasmania, Queensland, Western Australia or South Australia—a Minister of the Crown of that State; and
(b) in the case of the Australian Capital Territory—a Minister of the Crown of the Commonwealth; and
(c) in the case of the Northern Territory—a person holding Ministerial office, as defined in section 4(1) of the Northern Territory (Self-Government) Act 1978 of the Commonwealth;
receiving Stateor Territory means the State or Territory to which a young offender is transferred;
sending State or Territory means the State or Territory from which a young offender is transferred;
young offender means a person—
(a) in another State or a Territory who is under 18 years of age and has been dealt with under a law which applies in that State or Territory and which relates to the welfare or punishment of such a person; or
(b) in another State or a Territory who is 18 years of age or over but under 21 years of age and—
(i) has committed or is alleged to have committed an offence when the person was under 18 years of age; and
(ii) has been dealt with under a law which applies in that State or Territory and which relates to the welfare or punishment of such a person; or
(c) in Victoria who—
(i) is subject to a probation order, youth supervision and support order, youth control order or youth justice custodial order, whether the order was made by the Children's Court or another court; or
(ii) is subject to an order made under section 360(1)(f), (g), (h), (ha), (i) or (j) of the Children, Youth and Families Act 2005, as in force before the commencement of Chapter 7, whether the order was made by the Children's Court or another court; or
(iii) is under 21 years of age and serving a sentence of detention in a youth justice custodial centre; or
(iv) is under 21 years of age and has been released on parole under this Act; or
(d) who is in Victoria and is subject to an arrangement for the transfer of the person to Victoria or is being transferred through Victoria from one State or Territory to another under an agreement.
2 Minister may enter into general agreement
The Minister may enter into a general agreement with a Minister of another State or a Territory for the transfer of young offenders—
(a) into or out of Victoria; and
(b) through Victoria from one State or Territory to another.
3 Secretary may make arrangements
If the Minister enters into an agreement with a Minister of another State or a Territory, the Secretary may make an arrangement with the Minister of the other State or Territory, or with a person authorised by that Minister as provided in the agreement, for the transfer of a particular young offender—
(a) to that State or Territory from Victoria; or
(b) to Victoria from that State or Territory.
4 Arrangement for transfer out of Victoria
(1) The Secretary must not make an arrangement for the transfer of a young offender from Victoria to another State or a Territory unless—
(a) the young offender or a parent of the young offender applies for the transfer to be made; and
(b) the Secretary is of the opinion that the transfer is appropriate in all the circumstances including—
(i) the place or intended place of residence of the parents of the young offender; and
(ii) the education, further education, training or employment of the young offender; and
(iii) the medical or other needs of the young offender; and
(c) the young offender has been given independent legal advice as to the effect of the arrangement and consents to it; and
(d) the Secretary is satisfied that there is no appeal pending against an order of a court to which the young offender is subject.
(2) For the purposes of deciding whether or not to arrange for the transfer of a young offender from Victoria to another State or a Territory, the Secretary may ask—
(a) the young offender; or
(b) the parents of the young offender—
for any necessary information, and the young offender or parents must supply the information within the time specified by the Secretary.
5 Arrangement for transfer to Victoria
The Secretary must not make an arrangement for the transfer of a young offender from another State or a Territory to Victoria unless the Secretary is satisfied that there are adequate facilities in Victoria for the young offender to be accepted and dealt with as provided in the arrangement.
6 Provisions to be made in each arrangement
(1) An arrangement for the transfer of a young offender to or from Victoria must—
(a) provide for the acceptance and means of dealing with the young offender in the receiving State or Territory; and
(b) specify each order of a court of the sending State or Territory to which the young offender is subject (including an order deemed by a previous arrangement with Victoria or with another State or a Territory to have been made by a court of the sending State or Territory); and
(c) for each order specified under paragraph (b)—
(i) specify the way in which it is to operate in the receiving State or Territory, which must be as similar as possible to the way in which it would operate in the sending State or Territory if the arrangement were not made; and
(ii) specify the maximum time for which it is to operate, which must not be longer than the maximum time for which it would operate in the sending State or Territory if the arrangement were not made.
(2) An arrangement made by the Secretary for the transfer of a young offender from Victoria to another State or a Territory must provide for the escort referred to in clause 7(1)(b) to be authorised in that State or Territory to hold, take and keep custody of the young offender for the purpose of transferring the young offender to the place and the custody specified in the arrangement.
(3) A reference in subclause (1) to an order of a court of a sending State or Territory is a reference to any sentence, period of detention, probation, parole or other order which could be made or imposed by that court.
7 Transfer order made under an arrangement
(1) If the Secretary makes an arrangement under this Schedule for the transfer of a young offender to another State or a Territory, the Secretary must make a transfer order which—
(a) directs the person who has the custody of the young offender to deliver the young offender to the custody of the escort; and
(b) authorises the escort to take and keep custody of the young offender for the purpose of transferring the young offender to the place in the receiving State or Territory and to the custody specified in the arrangement.
(2) A reference in subclause (1) to a person having the custody of a young offender is a reference to—
(a) a person in charge of a youth justice custodial centre; or
(b) a person in charge of any other establishment conducted and managed by the Department; or
(c) any other person who has custody of the young offender.
(3) A reference in subclause (1) to an escort is a reference to any one or more of the following—
(a) a youth justice custodial officer;
(b) a police officer;
(c) a person appointed by the Secretary by instrument to be an escort for the purposes of this Schedule.
8 Transfer to Victoria in custody of escort
If under an arrangement for the transfer of a young offender to Victoria an escort authorised under the arrangement brings the young offender to Victoria, the escort, while in Victoria, is authorised to hold, take and keep custody of the young offender for the purpose of transferring the young offender to the place in Victoria and to the custody specified in the arrangement.
9 Reports
(1) For the purpose of forming an opinion or exercising a discretion under this Schedule, the Secretary may be informed as the Secretary thinks fit and, in particular, may have regard to reports from any person who has or has had the custody or supervision of a young offender in Victoria or in another State or a Territory.
(2) Reports of any person who has or has had the custody or supervision of a young offender may be sent to a Minister of another State or a Territory who has entered into an agreement or to a person authorised under an agreement to make arrangements with the Secretary.
10 Transfer of sentence or order with transferee
If under an arrangement a young offender is transferred from Victoria to another State or a Territory, then from the time the young offender arrives in that State or Territory any sentence imposed on, or order made in relation to, the young offender in Victoria before that time ceases to have effect in Victoria except—
(a) in relation to any period of detention served by the young offender before that time; or
(b) in relation to any part of the order carried out in respect of the young offender before that time; or
(c) in relation to the remittance of money to the Minister which is paid in discharge or partial discharge of a sentence of default detention or default imprisonment originally imposed on the young offender by a court in Victoria.
11 Sentence etc. taken to have been imposed in this State
(1) If under an arrangement a young offender is transferred to Victoria from another State or a Territory, then from the time the young offender arrives in Victoria—
(a) any sentence imposed on, or order made in relation to, the young offender by a court of the sending State or Territory and specified in the arrangement is taken to have been imposed or made by the court in Victoria specified in the arrangement; and
(b) any sentence or order deemed by a previous arrangement with Victoria or with another State or a Territory to have been imposed or made by a court of the sending State or Territory and specified in the arrangement under which the young offender is transferred to Victoria is taken to have been imposed or made by the court in Victoria specified in the arrangement; and
(c) any direction or order given or made by a court of the sending State or Territory concerning the time when anything to be done under an order made by a court of that State or Territory commences is, so far as practicable, taken to have been given or made by the court in Victoria specified in the arrangement.
(2) Except as otherwise provided in this Schedule, a sentence, order or direction referred to in subclause (1)(a), (b) or (c) has effect in Victoria as specified in the arrangement in accordance with clause 6, and the laws of Victoria apply, as if that court—
(a) had had power to impose the sentence and give or make the direction or order; and
(b) did in fact impose the sentence and give or make the direction or order.
12 Lawful custody for transit through Victoria
(1) The Secretary may authorise the person in charge of a youth justice custodial centre or any other person to receive young offenders being transferred through Victoria from one State or Territory to another.
(2) If under an agreement for the transfer of young offenders through Victoria from one State or Territory to another, a young offender is brought into Victoria by an escort authorised as provided in the agreement—
(a) while in Victoria, the escort is authorised to take, hold and keep custody of the young offender for the purposes of the transfer; and
(b) a person authorised under subclause (1) may at the request of the escort and on receiving from the escort written authority for the transfer as provided in the agreement—
(i) receive and detain the young offender in the custody and for the time the escort requests, if it is reasonably necessary for the purposes of the transfer; and
(ii) at the end of that time deliver the young offender into the custody of the escort.
13 Escape from custody of young offender being transferred
(1) A young offender being transferred through Victoria from one State or Territory to another in the custody of an escort and who escapes from that custody may be apprehended without warrant by the escort, a police officer or any other person.
(2) If a young offender being transferred through Victoria from one State or Territory to another in the custody of an escort—
(a) has escaped and been apprehended; or
(b) has attempted to escape—
the young offender may be taken before a magistrate who may issue a warrant for the young offender to be held in custody at a youth justice custodial centre.
(3) A warrant issued under subclause (2) may be executed according to law.
(4) A young offender who is the subject of a warrant under subclause (2) must as soon as possible be brought before the Magistrates' Court or the Children's Court (as the case requires) which may order—
(a) that the young offender be delivered to the custody of an escort; or
(b) that the young offender be held in custody for no longer than 7 days until an escort is available from the sending State or Territory to carry out the arrangement or any orders made by a court of that State or Territory.
(5) If a young offender who is the subject of an order under subclause (4)(b) is not, in accordance with the order, delivered into the custody of an escort within a period of 7 days after the making of the order, the order has no further effect.
(6) A reference in this clause to an escort in relation to a young offender being transferred through Victoria from one State or Territory to another under an agreement is a reference to any one or more of the following—
(a) the escort authorised in the manner provided for in the agreement;
(b) if the young offender has escaped or attempted to escape—
(i) that escort; or
(ii) a member of the police force of the sending State or Territory; or
(iii) a person appointed by the Minister of the sending State or Territory by instrument to be an escort for the purposes of carrying out any orders of a court of the sending State or Territory.
14 Escape from custody—penalty
(1) A young offender—
(a) who is in custody under an arrangement made for the offender's transfer from Victoria to another State or a Territory; and
(b) who was subject before the arrangement to detention in Victoria; and
(c) who escapes or attempts to escape from that custody while the offender is not within Victoria or the receiving State or Territory—
is guilty of an offence and is liable to imprisonment for a term not exceeding 6 months or to detention in a youth justice custodial centre for a term not exceeding 6 months, to be served after the end of any term of detention to which the young offender was subject at the time of the escape or attempted escape.
(2) Without limiting section 460, that section applies to a young offender—
(a) who is in custody under an arrangement for the transfer of the offender from Victoria to another State or a Territory; and
(b) who escapes from that custody while the offender is not within Victoria or the receiving State or Territory—
in the same way as it applies to a young offender who escapes, attempts to escape or is absent without lawful authority from a youth justice custodial centre in which the offender is lawfully detained or from the custody of any person in whose custody the offender may be.