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YOUTH JUSTICE LEGISLATION AMENDMENT BILL 2017

Serial 29
Youth Justice Legislation Amendment Bill 2017
Ms Wakefield

A Bill for an Act to amend the Youth Justice Act and Youth Justice Regulations, and for related purposes

NORTHERN TERRITORY OF AUSTRALIA

YOUTH JUSTICE LEGISLATION AMENDMENT ACT 2017

____________________

Act No. [ ] of 2017

____________________

Table of provisions

Part 6AA Community youth justice officers and monitoring

Division 1 Community youth justice officers

140AA Community youth justice officers

Division 2 Monitoring

140AB Approval of monitoring devices

140AC Direction by community youth justice officer

140AD CEO may direct use of approved monitoring device

140AE Compliance with monitoring order

Division 3 Alcohol and drug testing

140AF Prescribed alcohol/drug tests

140AG Tampering with test samples

140AH Evidentiary matters in relation to prescribed alcohol/drug tests
167B Use of detention centre to accommodate sheriff's detainees
Division 4 Transitional matters for Youth Justice Legislation Amendment Act 2017

229 Definitions

230 Immunity continues

231 Prosecutions may be made by Commissioner of Correctional Services

232 Superseded references to certain offices
2A Definitions
Part 4AA Alcohol and drug testing

Division 1 Preliminary matters

28AA Definitions

28AB Prescribed tests

28AC Prescribed samplers

Division 2 Carrying out of tests

28AD Carrying out of breath test, saliva test or urine test

28AE Carrying out of breath analysis

28AF Carrying out of blood analysis

Division 3 Evidentiary matters

28AG Evidentiary certificates
8AB Relationship with Youth Justice Act

3AB Application to youth detainees

NORTHERN TERRITORY OF AUSTRALIA

____________________

Act No. [ ] of 2017

____________________

An Act to amend the Youth Justice Act and Youth Justice Regulations, and for related purposes

[Assented to [ ] 2017]

[Second reading [ ] 2017]

The Legislative Assembly of the Northern Territory enacts as follows:

Part 1 Preliminary matters
1 Short title

This Act may be cited as the Youth Justice Legislation Amendment Act 2017.

2 Commencement

This Act commences on the day fixed by the Administrator by Gazette notice.

Part 2 Amendment of Youth Justice Act
3 Act amended

This Part amends the Youth Justice Act.

4 Section 5 amended

(1) Section 5(1)

omit

, unless the contrary intention appears

(2) Section 5(1), definitions Commissioner, correctional officer, police officer and probation and parole officer

omit

(3) Section 5(1)

insert (in alphabetical order)

appropriate authority, in relation to a youth, means:

(a) for a youth sentenced to a term of imprisonment – the Commissioner of Correctional Services; or

(b) otherwise – the CEO.

approved monitoring device means a monitoring device approved under section 140AB.

approved project means a rehabilitation project or work, or both, approved under section 97.

CEO means the Chief Executive Officer.

community youth justice officer means a person who is appointed as a community youth justice officer under section 140AA.

monitoring device means one of the following:

(a) an electronic device attached to, or worn by, a person for one or more of the following purposes:

(i) to monitor a person's compliance with a monitoring order;

(ii) to monitor a person's compliance with this Act;

(iii) a purpose prescribed by regulation;

(iv) to enable electronic reporting of the results of the matters mentioned in subparagraphs (i) to (iii);

(b) a voice recognition system that is designed to:

(i) verify the voice of a particular person; and

(ii) enable the person's geographical location to be monitored.

monitoring order means any of the following:

(a) an alternative detention order;

(b) any other order made under this Act or the Sentencing Act that:

(i) imposes a condition on a youth; and

(ii) requires the CEO or a community youth justice officer to monitor compliance with the condition;

(c) a parole order as defined in section 3(1) of the Parole Act.

prescribed alcohol/drug test means a test prescribed as mentioned under section 140AF(6)(a).

restricted drug, for a youth, means any of the following:

(a) a dangerous drug as defined in section 3(1) of the Misuse of Drugs Act;

(b) a Schedule 4, 8 or 9 substance as defined in section 7 of the Medicines, Poisons and Therapeutic Goods Act;

(c) any other drug specified in the youth's monitoring order as one that the youth is not permitted to use.

5 Part 1, Division 3 and sections 105 to 109 and 132 repealed

Part 1, Division 3 and sections 105 to 109 and 132

repeal

6 Part 6AA inserted

After section 140

insert

Part 6AA Community youth justice officers and monitoring

Division 1 Community youth justice officers

140AA Community youth justice officers

(1) The CEO may appoint a public sector employee to be a community youth justice officer.

(2) A community youth justice officer:

(a) has the following functions:

(i) to prepare reports for the Court as required;

(ii) to supervise a youth who is the subject of supervision under a non-custodial order;

(iii) to monitor the compliance of a youth who is the subject of a monitoring order with the conditions of the order;

(iv) other duties as directed by a court or the CEO;

(v) any other functions conferred by this or any other Act; and

(b) has the powers necessary to perform those functions and any other powers conferred by this or any other Act.

(3) The CEO may exercise the powers and perform the functions of a community youth justice officer conferred by this or any other Act.

(4) In this section:

non-custodial order means any of the following:

(a) a monitoring order;

(b) a community work order;

(c) any other order made under this Act or the Sentencing Act that requires a youth to be supervised.

Division 2 Monitoring

140AB Approval of monitoring devices

The CEO may approve a monitoring device for use to monitor the location and activities of youth who are subject to monitoring orders.

140AC Direction by community youth justice officer

(1) A community youth justice officer may give a youth who is subject to a monitoring order any reasonable direction that the officer considers appropriate.

(2) The direction may be about a matter dealt with in the youth's monitoring order, but the direction must not contradict the conditions of the order.

(3) A failure by a youth to comply with the direction is taken to be a breach of the conditions of the monitoring order.

140AD CEO may direct use of approved monitoring device

The CEO may direct a youth who is subject to a monitoring order to submit to the use of an approved monitoring device (including its attachment to the youth) to monitor the youth's compliance with the order.

140AE Compliance with monitoring order

(1) This section applies in relation to a youth who is subject to a monitoring order.

(2) A community youth justice officer may do one or more of the following:

(a) enter the approved residence;

(b) search the approved residence;

(c) search the youth;

(d) place on, or attach to, the youth an approved monitoring device;

(e) at the approved residence, do either or both of the following:

(i) install an approved monitoring device and related equipment;

(ii) inspect or remove any installed device or equipment.

(3) A community youth justice officer may exercise the power mentioned in subsection (2)(e)(ii) after the monitoring order has expired in order to remove a device or related equipment.

(4) In this section:

approved residence, for a youth who is subject to a monitoring order, means the place at which the youth is required under the order to reside.

related equipment means a thing used in connection with the effective operation of an approved monitoring device.

Division 3 Alcohol and drug testing

140AF Prescribed alcohol/drug tests

(1) A community youth justice officer may direct a youth who is subject to a monitoring order to submit to:

(a) a prescribed alcohol/drug test to detect the presence, or ascertain the concentration of, alcohol in the youth's body if the youth is prohibited under the order from consuming alcohol; or

(b) a prescribed alcohol/drug test to detect the presence, or ascertain the concentration of, a restricted drug in the youth's body if the youth is prohibited under the order from using a restricted drug.

(2) If a youth is required under this Division to submit to a prescribed alcohol/drug test, the youth must:

(a) give to a prescribed sampler, or allow a prescribed sampler to take, (as the case requires) a sample of breath or a bodily substance that is sufficient for the purposes of the test; and

(b) comply with any reasonable direction of the sampler.

Note for subsection (2)

Tampering with a sample may constitute an offence against section 140AG.

(3) If a youth does not submit to a test as required under subsection (2):

(a) the prescribed sampler may take the required sample without the youth's consent; and

(b) a police officer may assist to enable the test to be conducted, including by doing either or both of the following:

(i) taking the youth to a place where the required sample can be taken;

(ii) assisting a prescribed sampler to obtain the required sample.

(4) In providing the assistance, the police officer may use the force that is reasonably necessary.

(5) A sample of breath or a bodily substance given or taken for a prescribed alcohol/drug test is the property of the Territory.

(6) Regulations may prescribe one or more of the following:

(a) alcohol/drug tests for use under this Division;

(b) persons who are prescribed samplers for a prescribed alcohol/drug test;

(c) matters in relation to the carrying out of a prescribed alcohol/drug test.

(7) In this section:

alcohol/drug test means a test under which a sample of a person's breath, blood, saliva, urine or another bodily substance is tested or analysed to detect the presence, or ascertain the concentration of, alcohol or a restricted drug.

140AG Tampering with test samples

A person commits an offence if the person tampers with a sample of breath or a bodily substance given or taken for the purposes of a prescribed alcohol/drug test.

Maximum penalty: 200 penalty units or imprisonment for 2 years.

140AH Evidentiary matters in relation to prescribed alcohol/drug tests

(1) This section applies for the purposes of legal proceedings arising out of the operation of this Act in which the carrying out or results of a prescribed alcohol/drug test are relevant.

(2) If a prescribed alcohol/drug test detects:

(a) the presence of alcohol in a sample of a youth's breath; or

(b) the presence of alcohol or a restricted drug in a youth's body;

the youth is taken to have consumed or used alcohol or the drug, unless the contrary is proved.

(3) A certificate signed by a prescribed certifier stating matters relating to a certifiable matter is evidence of the matters stated in the certificate and the facts on which they are based.

(4) In this section:

certifiable matter, for a prescribed certifier, means a matter relating to a prescribed alcohol/drug test that is specified in the regulations as a matter in relation to which the certifier may issue an evidentiary certificate.

prescribed certifier means a person prescribed by regulation as a person who may issue an evidentiary certificate.

7 Sections 154 and 157B repealed

Sections 154 and 157B

repeal

8 Section 167B inserted

After section 167A

insert

167B Use of detention centre to accommodate sheriff's detainees

The CEO may, in accordance with an arrangement with the sheriff under section 12A of the Sheriff Act, agree to accommodate a youth who is in the custody of the sheriff at a detention centre.

9 Section 215 amended

Section 215(1)

omit, insert

(1) This section applies to a person who is, or has been, any of the following:

(a) the CEO;

(b) the Commissioner of Correctional Services;

(c) a superintendent of a detention centre;

(d) a community youth justice officer;

(e) a public sector employee performing functions under this Act.

10 Part 17, Division 4 inserted

After section 228

insert

Division 4 Transitional matters for Youth Justice Legislation Amendment Act 2017

229 Definitions

In this Division:

amending Act means the Youth Justice Legislation Amendment Act 2017.

commencement means the commencement of Part 2 of the amending Act.

probation and parole officer means a probation and parole officer as defined in section 5(1) of this Act as in force immediately before the commencement.

the Board means the Parole Board of the Northern Territory as defined in section 3(1) of the Parole Act.

230 Immunity continues

Despite the amendments made to section 215 by the amending Act, that section continues to apply to a person who is or has been a probation and parole officer, as if the amending Act had not commenced.

231 Prosecutions may be made by Commissioner of Correctional Services

(1) Despite section 215A, proceedings for an offence against this Act may be started by the Commissioner of Correctional Services.

(2) The proceedings must be started:

(a) within 6 months after the date on which the Commissioner of Correctional Services first became aware of the commission of the offence; and

(b) within 6 months after the commencement.

232 Superseded references to certain offices

(1) A reference to a probation and parole officer in an order:

(a) of the Board or of any Court in relation to a youth under this or any other Act; and

(b) that is in effect immediately before the commencement,

is taken, on and after the commencement, to be a reference to a community youth justice officer.

(2) A reference to the Commissioner of Correctional Services in an order:

(a) of any Court in relation to a youth under this or any other Act; and

(b) that is in effect immediately before the commencement,

is taken, on and after the commencement, to be a reference to the CEO, unless the Commissioner of Correctional Services is the appropriate authority.

11 Act further amended

Schedule 1 has effect.

Part 3 Amendment of Youth Justice Regulations
12 Regulations amended

This Part amends the Youth Justice Regulations.

13 Regulation 2A inserted

After regulation 2, in Part 1

insert

2A Definitions

In these Regulations:

blood analysis, for Part 4AA, see regulation 28AB(e).

breath analysis, for Part 4AA, see regulation 28AB(d).

breath test, for Part 4AA, see regulation 28AB(a).

health practitioner, for Part 4AA, see regulation 28AA.

pathologist, for Part 4AA, see regulation 28AA.

phlebotomist, for Part 4AA, see regulation 28AA.

prescribed breath analysis instrument, for Part 4AA, see regulation 28AA.

saliva test, for Part 4AA, see regulation 28AB(b).

urine test, for Part 4AA, see regulation 28AB(c).

14 Part 4AA inserted

After regulation 28

insert

Part 4AA Alcohol and drug testing

Division 1 Preliminary matters

28AA Definitions

In this Part:

blood analysis, see regulation 28AB(e).

breath analysis, see regulation 28AB(d).

breath test, see regulation 28AB(a).

health practitioner means a person registered under the Health Practitioner Regulation National Law to practise in a health profession (other than as a student).

pathologist means a medical practitioner who holds a specialist registration under the Health Practitioner Regulation National Law in the recognised speciality of pathology.

phlebotomist means person who has been trained to take samples of blood from persons by a registered training organisation (as defined in section 3 of the National Vocational Education and Training Regulator Act 2011 (Cth)).

prescribed breath analysis instrument, see section 3(1) of the Traffic Act.

saliva test, see regulation 28AB(b).

urine test, see regulation 28AB(c).

28AB Prescribed tests

For section 140AF(6)(a) of the Act, the following tests are prescribed:

(a) a test of a sample of a person's breath to detect whether alcohol may be present in the person's breath carried out using a device designed for that purpose (a breath test);

(b) a test of a sample of a person's saliva to detect whether a drug may be present in the person's body carried out using a device designed for that purpose (a saliva test);

(c) a test of a sample of a person's urine to detect whether a drug may be present in the person's body carried out using a device designed for that purpose (a urine test);

(d) an analysis of a sample of a person's breath to ascertain the concentration of alcohol in the person's breath carried out using a prescribed breath analysis instrument (a breath analysis);

(e) an analysis of a sample of a person's blood to do either or both of the following:

(i) detect whether alcohol or a drug may be present in the person's body;

(ii) ascertain the concentration of alcohol or a drug in the person's body (a blood analysis).

28AC Prescribed samplers

For section 140AF(6)(b) of the Act, a person is a prescribed sampler for a prescribed test if the person is authorised under regulation 28AD, 28AE or 28AF to take a sample for the test.

Division 2 Carrying out of tests

28AD Carrying out of breath test, saliva test or urine test

A breath test, saliva test or urine test (including the taking of the sample) must be carried out by one of the following:

(a) a community youth justice officer;

(b) a police officer;

(c) a person approved, or in a class of persons approved, in writing by the CEO.

28AE Carrying out of breath analysis

A breath analysis (including the taking of the sample) must be carried out by:

(a) a person authorised under the Traffic Act to use a prescribed breath analysis instrument; or

(b) a person approved, or in a class of persons approved, in writing by the CEO.

28AF Carrying out of blood analysis

(1) The taking of a sample for a blood analysis must be carried out by:

(a) a health practitioner; or

(b) a phlebotomist.

(2) The analysis of the sample must be carried out by a pathologist.

Division 3 Evidentiary matters

28AG Evidentiary certificates

(1) This regulation prescribes the prescribed certifiers and certifiable matters for section 140AH of the Act.

(2) The CEO may issue an evidentiary certificate in relation to the fact that on a specified date:

(a) a specified person was any of the following:

(i) the CEO;

(ii) a superintendent of a detention centre;

(iii) a community youth justice officer;

(iv) a person approved by the CEO under regulation 28AD(c) or 28AE(b); or

(b) a specified class of persons was approved by the CEO under regulation 28AD(c) or 28AE(b).

(3) The Commissioner of Police may issue an evidentiary certificate in relation to the fact that on a specified date a specified person was any of the following:

(a) a police officer;

(b) a person authorised as mentioned in regulation 28AE(a).

(4) A person mentioned in regulation 28AD may issue an evidentiary certificate in relation to the following:

(a) that the person carried out a breath test, saliva test or urine test on a sample given by, or taken from, a specified person;

(b) when and how the sample was given or taken and the test was carried out;

(c) the results of the test.

(5) A person mentioned in regulation 28AE may issue an evidentiary certificate in relation to the following:

(a) that the person carried out a breath analysis on a sample of breath given by a specified person;

(b) when and how the sample was taken and the analysis was carried out;

(c) the results of the analysis.

(6) A health practitioner or phlebotomist may issue an evidentiary certificate in relation to the following:

(a) that the practitioner or phlebotomist took a sample of blood from a specified person;

(b) when and how the sample was taken;

(c) what the practitioner or phlebotomist did with the sample.

(7) A pathologist may issue an evidentiary certificate in relation to the following:

(a) that the pathologist carried out an analysis of a sample of blood identified as having been taken from a specified person at a specified date and time;

(b) when and how the analysis was carried out;

(c) the results of the analysis.

15 Regulations further amended

Schedule 2 has effect.

Part 4 Consequential amendments

Division 1 Bail Act
16 Act amended

This Division amends the Bail Act.

17 Section 3 amended

(1) Section 3(1), definition approved monitoring device

omit

(2) Section 3(1)

insert (in alphabetical order)

approved monitoring device:

(a) in relation to a youth – see section 5(1) of the Youth Justice Act; or

(b) otherwise – see section 165 of the Correctional Services Act.

CEO (Youth Justice) means the Chief Executive Officer (as defined in section 19 of the Public Sector Employment and Management Act) of the Agency responsible for youth justice.

community youth justice officer, see section 5(1) of the Youth Justice Act.

youth, see section 6 of the Youth Justice Act.

18 Section 4 amended

Section 4(1)

omit

child

insert

youth

19 Section 24 amended

Section 24(1)(b)(iiib)

omit

within the meaning of the Youth Justice Act

20 Section 26 amended

(1) Section 26(e)

omit

Services.

insert

Services; or

(2) After section 26(e)

insert

(f) the CEO (Youth Justice).

21 Section 27A amended

Section 27A(1)(ib)(ii), after "officer"

insert

or community youth justice officer

22 Section 27B amended

(1) Section 27B(1)(a), after "person"

insert

other than a youth

(2) After section 27B(2)

insert

(3) Subsection (4) applies if:

(a) a conduct agreement is in force for an accused person who is a youth; and

(b) the agreement is subject to a provision as mentioned in section 27A(1)(ia) or (ib).

(4) While the provision is in force, Part 6AA of the Youth Justice Act applies in relation to the accused person as if a reference:

(a) to a youth who is subject to a monitoring order were a reference to the accused person; and

(b) to a monitoring order were a reference to the conduct agreement.

Note for subsection (4)

Accordingly, Part 6AA of the Youth Justice Act as applied by subsection (4) provides powers for community youth justice officers for ensuring the accused person is complying with the conduct agreement.

23 Section 28 amended

Section 28(5), definition assessment report

omit, insert

assessment report means a report assessing the suitability of an accused person to enter into a conduct agreement containing a provision mentioned in section 27A(1)(ia) or (ib), prepared by:

(a) if the accused person is a youth – the CEO (Youth Justice); or

(b) otherwise – the Commissioner of Correctional Services.

24 Section 31 amended

Section 31(4), after "Services"

insert

or CEO (Youth Justice)

25 Section 36 amended

Section 36(4) and (5), after "Services"

insert

or CEO (Youth Justice)

26 Section 38 amended

Section 38(3)(b), after "Services"

insert

or CEO (Youth Justice)

Division 2 Correctional Services Act
27 Act amended

This Division amends the Correctional Services Act.

28 Section 4 amended

(1) Section 4, definition youth detainee

omit, insert

youth detainee means a detainee as defined in section 5(1) of the Youth Justice Act.

(2) Section 4, at the end

insert

Note for section 4

The Interpretation Act contains definitions and other provisions that may be relevant to this Act.

29 Section 13 amended

Section 13(b)(ii)

omit

66 or

30 Section 14 amended

Section 14(b)(ii)

omit

66 or

31 Section 40 amended

Section 40, notes

omit, insert

Note for section 40

Section 163(2)(b) requires that sheriff's detainees who are being accommodated at a custodial correctional facility be kept separate from prisoners.

32 Section 65 amended

(1) Section 65(1)(b)

omit

Commissioner

insert

superintendent of the youth detention centre

(2) Section 65(2)

omit

Commissioner may

insert

superintendent may, with the consent of the Commissioner,

33 Section 66 repealed

Section 66

repeal

34 Section 67 amended

Section 67

omit

, 65 or 66

insert

or 65

Division 3 Mental Health and Related Services Act
35 Act amended

This Division amends the Mental Health and Related Services Act.

36 Section 8AB inserted

After section 8AA

insert

8AB Relationship with Youth Justice Act

(1) This Act applies to a detainee as if:

(a) a reference to a prisoner were a reference to the detainee; and

(b) a reference to imprisonment were a reference to detention; and

(c) a reference to a custodial correctional facility were a reference to a detention centre; and

(d) a reference to the Commissioner of Correctional Services were a reference to the Chief Executive Officer (as defined in section 19 of the Public Sector Employment and Management Act) of the Agency responsible for youth justice.

(2) In this section:

detainee, see section 5(1) of the Youth Justice Act.

detention centre, see section 5(1) of the Youth Justice Act.

Division 4 Parole Act
37 Act amended

This Division amends the Parole Act.

38 Section 3AB inserted

After section 3AA, in Part 1

insert

3AB Application to youth detainees

(1) This Act applies to a youth detainee as if:

(a) a reference to a prisoner or offender were a reference to the youth detainee; and

(b) a reference to imprisonment included a reference to detention; and

(c) the reference to the Sentencing Act in section 5(1) included a reference to the Youth Justice Act; and

(d) a reference to the Commissioner of Correctional Services, other than a reference in Part 2, included a reference to the CEO (Youth Justice); and

(e) a reference to the Local Court were a reference to the Youth Justice Court; and

(f) a reference to a custodial correctional facility were a reference to a detention centre; and

(g) a reference to a probation and parole officer included a reference to a community youth justice officer; and

(h) a reference to an approved monitoring device were a reference to an approved monitoring device as defined in section 5(1) of the Youth Justice Act.

(2) In this section:

CEO (Youth Justice) means the Chief Executive Officer (as defined in section 19 of the Public Sector Employment and Management Act) of the Agency responsible for youth justice.

community youth justice officer, see section 5(1) of the Youth Justice Act.

detention centre, see section 5(1) of the Youth Justice Act.

youth detainee means a detainee as defined in section 5(1) of the Youth Justice Act.

Youth Justice Court means the Youth Justice Court continued in existence by section 45 of the Youth Justice Act.

Division 5 Other laws amended
39 Other laws amended

Schedule 3 has effect.

Part 5 Repeal of Act
40 Repeal of Act

This Act is repealed on the day after it commences.

Schedule 1 Youth Justice Act further amended

section 11

Schedule 2 Youth Justice Regulations further amended

section 15

Schedule 3 Other laws amended

section 39

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