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YOUTH JUSTICE AND OTHER LEGISLATION AMENDMENT BILL 2014

          Queensland



Youth Justice and Other
Legislation Amendment Bill
2014

 


 

 

Queensland Youth Justice and Other Legislation Amendment Bill 2014 Contents Page Part 1 Preliminary 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Part 2 Amendment of Youth Justice Act 1992 2 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 3 Amendment of s 13 (Police officer's power of arrest preserved in particular general circumstances) . . . . . . . . . . . . . . . . . . . . . . . . 6 4 Insertion of new pt 5, div 1, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Division 1 Bail generally 5 Insertion of new pt 5, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Division 2 Offence committed while on bail 59A Finding of guilt while on bail . . . . . . . . . . . . . . . . . . . . 7 6 Amendment of s 62 (Childrens Court judge) . . . . . . . . . . . . . . . . 7 7 Amendment of s 74 (Chief executive's right of audience generally) 7 8 Amendment of s 148 (Evidence of childhood finding of guilt not admissible against adult) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9 Amendment of s 150 (Sentencing principles). . . . . . . . . . . . . . . . 8 10 Amendment of s 194D (Graffiti removal service to be performed within limited period). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 11 Amendment of s 198 (Community service to be performed within limited period). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 12 Omission of s 208 (Detention must be only appropriate sentence) 9 13 Amendment of s 234 (Court may allow publication of identifying information) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 14 Amendment of s 237 (Chief executive must warn child about contravention). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 15 Amendment of s 238 (Chief executive's application on contravention) 10

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Contents 16 Amendment of s 245 (Court's power on breach of a community based order other than a conditional release order or boot camp order) .......................................... 11 17 Amendment of s 246 (Court's power on breach of conditional release order) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 18 Amendment of s 246A (Court's power on breach of boot camp order) .......................................... 11 19 Amendment of s 263 (Management of detention centres) . . . . . . 11 20 Replacement of pt 8, div 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Division 2A Period of detention to be served as period of imprisonment 276A Definitions for div 2A. . . . . . . . . . . . . . . . . . . . . . . . . . 12 276B Application of div 2A. . . . . . . . . . . . . . . . . . . . . . . . . . 12 276C Chief executive must make prison transfer direction . 13 276D Application of Corrective Services Act 2006 . . . . . . . 14 276E Application of Judicial Review Act 1991 . . . . . . . . . . . 14 21 Insertion of new s 299A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 299A Prohibition of publication of identifying information about a child who is not a first-time offender . . . . . . . 15 22 Replacement of s 301 (Prohibition of publication of identifying information about a child) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 301 Prohibition of publication of identifying information about a first-time offender. . . . . . . . . . . . . . . . . . . . . . 17 23 Amendment of s 303 (Chief executive must collect and keep information) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 24 Insertion of new pt 11, div 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Division 11 Transitional provisions for Youth Justice and Other Legislation Amendment Act 2014 358 Definitions for div 11 . . . . . . . . . . . . . . . . . . . . . . . . . . 18 359 Evidence of childhood finding of guilt . . . . . . . . . . . . . 19 360 Detention orders and sentencing principles . . . . . . . . 19 361 Publication of identifying information . . . . . . . . . . . . . 19 362 Court's power on particular proceedings . . . . . . . . . . 19 363 Application of amendments about transfer direction for a child who will turn 17 years . . . . . . . . . . . . . . . . 19 364 Application of amendments about transfer direction for a person who is 17 years . . . . . . . . . . . . . . . . . . . 20 365 Applications not granted before commencement . . . . 21 366 Orders made before commencement. . . . . . . . . . . . . 21 25 Amendment of sch 1 (Charter of youth justice principles) . . . . . . 21 Page 2

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Contents 26 Amendment of sch 4 (Dictionary) . . . . . . . . . . . . . . . . . . . . . . . . . 21 Part 3 Amendment of Childrens Court Act 1992 27 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 28 Amendment of s 3 (Definitions) . . . . . . . . . . . . . . . . . . . . . . . . . . 22 29 Insertion of new pt 4, div 1, hdg . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Division 1 Constitution and sitting times 30 Omission of s 20 (Who may be present at a proceeding) . . . . . . 24 31 Insertion of new pt 4, div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Division 2 Closed and open proceedings 21A Definitions for div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 21B Who may be present at non-youth justice matters or particular youth justice matters. . . . . . . . . . . . . . . . . . 25 21C Who may be present at other youth justice matters . . 26 21D Application for closed proceedings. . . . . . . . . . . . . . . 28 21E Exclusion of public in particular youth justice matters 28 32 Insertion of new pt 7, div 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Division 4 Transitional provision for Youth Justice and Other Legislation Amendment Act 2014 37 Application of provision about open and closed proceedings ........................... 30 Part 4 Amendment of Penalties and Sentences Act 1992 33 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 34 Amendment of s 9 (Sentencing guidelines) . . . . . . . . . . . . . . . . . 31 35 Amendment of s 172D (Court not to have regard to possible order under Dangerous Prisoners (Sexual Offenders) Act 2003) . . . . . 34 36 Amendment of s 195B (Access to court files by representative of community justice group in offender's community) . . . . . . . . . . . 34 37 Amendment of s 195C (Confidentiality) . . . . . . . . . . . . . . . . . . . . 34 38 Amendment of s 195D (Protection from liability) . . . . . . . . . . . . . 34 39 Insertion of new pt 14, div 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Division 9 Transitional provision for Youth Justice and Other Legislation Amendment Act 2014 234 Sentencing guidelines . . . . . . . . . . . . . . . . . . . . . . . . 35 Part 5 Minor and consequential amendments 40 Acts amended in sch 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Schedule 1 Minor and consequential amendments . . . . . . . . . . . . . . . . . . 36 Police Powers and Responsibilities Act 2000 . . . . . . . . . . . . . . . . 36 Victims of Crime Assistance Act 2009 . . . . . . . . . . . . . . . . . . . . . 36 Page 3

 


 

 

2014 A Bill for An Act to amend the Childrens Court Act 1992, the Penalties and Sentences Act 1992 and the Youth Justice Act 1992 for particular purposes, and to make minor or consequential amendments of other legislation as stated in schedule 1 for purposes related to those purposes

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 1 Preliminary [s 1] The Parliament of Queensland enacts-- 1 Part 1 Preliminary 2 Clause 1 Short title 3 This Act may be cited as the Youth Justice and Other 4 Legislation Amendment Act 2014. 5 Part 2 Amendment of Youth Justice 6 Act 1992 7 Clause 2 Act amended 8 This part amends the Youth Justice Act 1992. 9 Clause 3 Amendment of s 13 (Police officer's power of arrest 10 preserved in particular general circumstances) 11 Section 13(1)(a)(iv), note-- 12 omit. 13 Clause 4 Insertion of new pt 5, div 1, hdg 14 Part 5, before section 47-- 15 insert-- 16 Division 1 Bail generally 17 Clause 5 Insertion of new pt 5, div 2 18 Part 5, after section 59-- 19 Page 6

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 6] insert-- 1 Division 2 Offence committed while 2 on bail 3 59A Finding of guilt while on bail 4 (1) This section applies to a child if-- 5 (a) the child is granted bail after being charged 6 with an offence (the original offence); and 7 (b) a finding of guilt is later made against the 8 child for an offence (the subsequent 9 offence) committed while on bail for the 10 original offence. 11 (2) The finding of guilt made against the child for the 12 subsequent offence is taken to be an offence 13 against this Act. 14 Maximum penalty (subject to part 7)--20 penalty 15 units or 1 year's imprisonment. 16 (3) For this section, if a finding of guilt is made 17 against the child for more than 1 subsequent 18 offence arising out of the same, or the same set 19 of, circumstances, subsection (2) applies to only 20 1 of the subsequent offences. 21 Clause 6 Amendment of s 62 (Childrens Court judge) 22 (1) Section 62(e)-- 23 omit. 24 (2) Section 62(f)-- 25 renumber as section 62(e). 26 Clause 7 Amendment of s 74 (Chief executive's right of audience 27 generally) 28 Section 74(3)(d)-- 29 Page 7

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 8] omit, insert-- 1 (d) the making of a order under section 2 299A(2); and 3 (e) the making of an order under the Childrens 4 Court Act 1992, section 21C; and 5 (f) without limiting paragraphs (a) to (e), 6 matters on which the court considers the 7 chief executive should be heard. 8 Clause 8 Amendment of s 148 (Evidence of childhood finding of 9 guilt not admissible against adult) 10 (1) Section 148(1), `In a proceeding'-- 11 omit, insert-- 12 Subject to subsection (3), in a proceeding 13 (2) Section 148(3)-- 14 omit, insert-- 15 (3) This section does not prevent a court that is 16 sentencing an adult from-- 17 (a) admitting evidence that the adult was found 18 guilty as a child of an offence even if a 19 conviction was not recorded; or 20 (b) receiving information about any other 21 sentence to which the adult is subject if that 22 is necessary to mitigate the effect of the 23 court's sentence. 24 Clause 9 Amendment of s 150 (Sentencing principles) 25 (1) Section 150(2)(e)-- 26 omit. 27 (2) Section 150-- 28 insert-- 29 Page 8

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 10] (5) This section overrides any other Act or law to the 1 extent that, in sentencing a child for an offence, 2 the court must not have regard to any principle 3 that a detention order should be imposed only as 4 a last resort. 5 Clause 10 Amendment of s 194D (Graffiti removal service to be 6 performed within limited period) 7 Section 194D(b), `245'-- 8 omit, insert-- 9 245(1)(aa)(ii) 10 Clause 11 Amendment of s 198 (Community service to be 11 performed within limited period) 12 Section 198(b), `245'-- 13 omit, insert-- 14 245(1)(b)(ii) 15 Clause 12 Omission of s 208 (Detention must be only appropriate 16 sentence) 17 Section 208-- 18 omit. 19 Clause 13 Amendment of s 234 (Court may allow publication of 20 identifying information) 21 (1) Section 234, heading, after `information'-- 22 insert-- 23 of first-time offender 24 (2) Section 234, `child'-- 25 omit, insert-- 26 first-time offender 27 Page 9

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 14] (3) Section 234(2)(c), `child's'-- 1 omit, insert-- 2 first-time offender's 3 Clause 14 Amendment of s 237 (Chief executive must warn child 4 about contravention) 5 Section 237(3)-- 6 omit, insert-- 7 (3) However, subsection (2) does not apply if the 8 chief executive-- 9 (a) for a community based order that is a boot 10 camp order--reasonably believes the child 11 has contravened the order by leaving the 12 boot camp centre stated in the order without 13 the chief executive's written consent; or 14 (b) otherwise--does not know the child's 15 whereabouts and can not reasonably find 16 out. 17 Clause 15 Amendment of s 238 (Chief executive's application on 18 contravention) 19 Section 238(6)(b)(ii)-- 20 omit, insert-- 21 (ii) that the chief executive-- 22 (A) does not know the child's 23 whereabouts and can not 24 reasonably find out; or 25 (B) reasonably believes the child 26 would not comply with a 27 summons; or 28 (C) reasonably believes the child has 29 contravened the order by leaving 30 the boot camp centre stated in the 31 Page 10

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 16] order without the chief executive's 1 written consent. 2 Clause 16 Amendment of s 245 (Court's power on breach of a 3 community based order other than a conditional release 4 order or boot camp order) 5 (1) Section 245(6)-- 6 omit. 7 (2) Section 245(7)-- 8 renumber as section 245(6). 9 Clause 17 Amendment of s 246 (Court's power on breach of 10 conditional release order) 11 Section 246(6)-- 12 omit. 13 Clause 18 Amendment of s 246A (Court's power on breach of boot 14 camp order) 15 Section 246A(8)-- 16 omit. 17 Clause 19 Amendment of s 263 (Management of detention centres) 18 Section 263(5), `19 and 20'-- 19 omit, insert-- 20 18 and 19 21 Clause 20 Replacement of pt 8, div 2A 22 Part 8, division 2A-- 23 omit, insert-- 24 Page 11

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 20] Division 2A Period of detention to be 1 served as period of 2 imprisonment 3 276A Definitions for div 2A 4 In this division-- 5 period of detention, for a person who is liable to 6 serve a further period of detention cumulatively 7 with a period of detention being served, includes 8 the further period of detention. 9 period of imprisonment see the Penalties and 10 Sentences Act 1992, section 4. 11 prison transfer direction see section 276C(1). 12 relevant individual see section 276B. 13 transfer day see section 276B(a)(iii). 14 transferred detention order see section 15 276B(b)(iii). 16 unserved period of detention see section 17 276B(a)(iii). 18 276B Application of div 2A 19 This division applies to the following (each a relevant 20 individual)-- 21 (a) a child who-- 22 (i) has been ordered to serve a period of 23 detention under a detention order; and 24 (ii) will, during the period of detention, 25 turn 17 years; and 26 (iii) from the day the child turns 17 years 27 (the transfer day), has to serve part of 28 the period of detention for a period (the 29 unserved period of detention) that is 6 30 months or more; and 31 Page 12

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 20] (iv) will not, within 6 months after the 1 transfer day, be required to be released 2 under section 227; 3 (b) an adult who-- 4 (i) is 17 years; and 5 (ii) is sentenced for an offence committed 6 by the adult as a child; and 7 (iii) is ordered to serve a period of detention 8 under a detention order (the 9 transferred detention order) that is 6 10 months or more; and 11 (iv) will not, within 6 months after being 12 sentenced, be required to be released 13 under section 227. 14 276C Chief executive must make prison transfer 15 direction 16 (1) Within 28 days after the child is sentenced to 17 serve a period of detention, the chief executive 18 must give a written direction (a prison transfer 19 direction) to-- 20 (a) the child; and 21 (b) the chief executive (corrective services). 22 (2) The prison transfer direction must state-- 23 (a) the transfer day; and 24 (b that the child is to be transferred to a 25 corrective services facility on the transfer 26 day; and 27 (c) that the unserved period of detention must 28 be served as a period of imprisonment. 29 (3) If the child can not be transferred on the transfer 30 day, the child must be transferred as soon as 31 practicable after that day. 32 Page 13

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 20] 276D Application of Corrective Services Act 2006 1 (1) The Corrective Services Act 2006 applies to the 2 relevant individual. 3 (2) A prison transfer direction or a transferred 4 detention order is taken for all purposes to be a 5 sentence to a period of imprisonment equal to the 6 unserved period of detention or the period of 7 detention. 8 (3) Subject to subsection (4), the relevant individual 9 must be released on parole on the day the relevant 10 individual would have been released under a 11 supervised release order as if the prison transfer 12 direction had not been given or transferred 13 detention order had not been made. 14 (4) Subsection (3) does not prevent-- 15 (a) the earlier release of the relevant individual 16 under an exceptional circumstances parole 17 order; or 18 (b) the continued custody of the relevant 19 individual for the unserved part of any other 20 sentence of imprisonment imposed against 21 the relevant individual. 22 276E Application of Judicial Review Act 1991 23 (1) The Judicial Review Act 1991, part 4 does not 24 apply to a decision of the chief executive to give a 25 prison transfer direction. 26 (2) Subject to subsection (3), unless the Supreme 27 Court decides that the decision is affected by 28 jurisdictional error, the decision-- 29 (a) is final and conclusive; and 30 (b) can not be challenged, appealed against, 31 reviewed, quashed, set aside or called in 32 question in any other way, under the Judicial 33 Page 14

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 21] Review Act 1991 or otherwise (whether by 1 the Supreme Court, another court, a tribunal 2 or another entity); and 3 (c) is not subject to any declaratory, injunctive 4 or other order of the Supreme Court, another 5 court, a tribunal or another entity on any 6 ground. 7 (3) The Judicial Review Act 1991, part 5 applies to 8 the decision to the extent it is affected by 9 jurisdictional error. 10 Clause 21 Insertion of new s 299A 11 Part 9, division 3-- 12 insert-- 13 299A Prohibition of publication of identifying 14 information about a child who is not a 15 first-time offender 16 (1) This section applies in a proceeding before a 17 court for a child who-- 18 (a) has been charged with an offence; and 19 (b) is not a first-time offender. 20 (2) The court may, at any time during a proceeding, 21 make an order it considers is in the interests of 22 justice prohibiting the publication of identifying 23 information about the child (a publication 24 prohibition order). 25 (3) The court may make a publication prohibition 26 order-- 27 (a) on its own initiative; or 28 (b) on application by a relevant party. 29 (4) In considering whether it would be in the 30 interests of justice to make a publication 31 Page 15

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 21] prohibition order, the court must have regard to 1 the following-- 2 (a) the number of the child's previous findings 3 of guilt; 4 (b) the seriousness of the offence; 5 (c) the period between the proceeding and any 6 previous offence committed by the child; 7 (d) the need to protect the community; 8 (e) the effect of publication on-- 9 (i) the safety of the child; or 10 (ii) the rehabilitation of the child; or 11 (iii) the safety or wellbeing of a person 12 other than the child; 13 (f) any other relevant matter. 14 (5) A person must not publish identifying 15 information about the child if the court has made 16 a publication prohibition order in relation to the 17 child. 18 Maximum penalty (subject to part 7)-- 19 (a) for an individual--100 penalty units or 2 20 years imprisonment; or 21 (b) for a corporation--1000 penalty units. 22 (6) In this section-- 23 relevant party means-- 24 (a) the child; or 25 (b) a parent or other member of the child's 26 family; or 27 (c) a party or person representing a party to the 28 proceeding, including, for example, a police 29 officer or another person in charge of a case 30 Page 16

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 22] against the child in relation to the offence 1 the subject of the proceeding; or 2 (d) the chief executive; or 3 (e) the chief executive (child safety); or 4 (f) if the child is an Aboriginal or Torres Strait 5 Islander person-- 6 (i) a representative of an organisation 7 whose principal purpose is the 8 provision of welfare services to 9 Aboriginal and Torres Strait Islander 10 children and families; or 11 (ii) a representative of the community 12 justice group in the child's community 13 who is to make submissions that are 14 relevant to sentencing the child. 15 Clause 22 Replacement of s 301 (Prohibition of publication of 16 identifying information about a child) 17 Section 301-- 18 omit, insert-- 19 301 Prohibition of publication of identifying 20 information about a first-time offender 21 (1) A person must not publish identifying 22 information about a first-time offender. 23 Maximum penalty (subject to part 7)-- 24 (a) for an individual--100 penalty units or 2 25 years imprisonment; or 26 (b) for a corporation--1000 penalty units. 27 (2) Subsection (1) does not apply to-- 28 (a) publication in a way permitted by a court 29 order; or 30 Page 17

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 23] (b) publication under written authority given 1 under subsection (3). 2 (3) The chief executive may give written authority to 3 a person to publish identifying information about 4 a first-time offender if the chief executive is 5 satisfied the publication is necessary to ensure a 6 person's safety. 7 Clause 23 Amendment of s 303 (Chief executive must collect and 8 keep information) 9 Section 303(3), `section 301'-- 10 omit, insert-- 11 sections 299A and 301 12 Clause 24 Insertion of new pt 11, div 11 13 Part 11-- 14 insert-- 15 Division 11 Transitional provisions for 16 Youth Justice and Other 17 Legislation Amendment 18 Act 2014 19 358 Definitions for div 11 20 In this division-- 21 amending Act means the Youth Justice and Other 22 Legislation Amendment Act 2014. 23 commencement means the commencement of 24 this section. 25 pre-amended Act means the Youth Justice Act 26 1992 as in force immediately before the 27 commencement. 28 Page 18

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 24] 359 Evidence of childhood finding of guilt 1 (1) This section applies to a proceeding against an 2 adult for an offence. 3 (2) This Act, as amended by the amending Act, 4 applies even if 1 or both of the following 5 happened before the commencement-- 6 (a) the commission of the offence; 7 (b) the start of the proceeding for the offence. 8 360 Detention orders and sentencing principles 9 (1) This section applies to a child who is found guilty 10 of an offence after the commencement. 11 (2) This Act, as amended by the amending Act, 12 applies even if 1 or both of the following 13 happened before the commencement-- 14 (a) the commission of the offence; 15 (b) the start of the proceeding for the offence. 16 361 Publication of identifying information 17 This Act, as amended by the amending Act, applies to 18 a proceeding against a child or first-time offender for 19 an offence started before the commencement. 20 362 Court's power on particular proceedings 21 This Act, as amended by the amending Act, applies to 22 a proceeding against a child under the pre-amended 23 Act, section 245, 246 or 246A that is started before the 24 commencement. 25 26 363 Application of amendments about transfer 27 direction for a child who will turn 17 years 28 (1) This section applies to a child who-- 29 Page 19

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 24] (a) is subject to a detention order made after the 1 commencement; or 2 (b) at the commencement-- 3 (i) is serving a period of detention; and 4 (ii) during the period of detention, will turn 5 17 years; and 6 (iii) on the transfer day, will have 6 months 7 or more to be served in detention. 8 (2) This Act applies to the child even if 1 or both of 9 the following happened before the 10 commencement-- 11 (a) the commission of the offence for which the 12 child is subject to a detention order or is 13 serving a period of detention; 14 (b) the start of the proceeding for the offence. 15 (3) In this section-- 16 transfer day see section 276B. 17 364 Application of amendments about transfer 18 direction for a person who is 17 years 19 (1) This section applies to a person who, at the 20 commencement-- 21 (a) is 17 years or more and is serving a period 22 of detention; and 23 (b) is not subject to an order made under the 24 pre-amended Act, section 276B or 276C; 25 and 26 (c) will have 6 months or more to be served in 27 detention. 28 (2) The chief executive must, as soon as practicable 29 after the commencement, comply with section 30 276C. 31 Page 20

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 2 Amendment of Youth Justice Act 1992 [s 25] 365 Applications not granted before 1 commencement 2 (1) This section applies to an application made under 3 the pre-amended Act, section 276C or 276E but 4 not granted before the commencement. 5 (2) The application is taken to have never been made. 6 366 Orders made before commencement 7 A transfer order made under the pre-amended Act, 8 section 276B or 276C in relation to a person, and in 9 force immediately before the commencement, 10 continues to apply to the person. 11 Clause 25 Amendment of sch 1 (Charter of youth justice principles) 12 (1) Schedule 1, item 17-- 13 omit. 14 (2) Schedule 1, items 18 to 20-- 15 renumber as items 17 to 19. 16 Clause 26 Amendment of sch 4 (Dictionary) 17 (1) Schedule 4-- 18 insert-- 19 first-time offender means a child who at any time 20 during a proceeding has not been found guilty of 21 an offence. 22 period of detention, for part 8, division 2A, see 23 section 276A. 24 period of imprisonment, for part 8, division 2A, 25 see section 276A. 26 prison transfer direction, for part 8, division 2A, 27 see section 276C(1). 28 Page 21

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 3 Amendment of Childrens Court Act 1992 [s 27] relevant individual, for part 8, division 2A, see 1 section 276B. 2 transfer day, for part 8, division 2A, see section 3 276B(a)(iii). 4 transferred detention order, for part 8, division 5 2A, see section 276B(b)(iii). 6 unserved period of detention, for part 8, division 7 2A, see section 276B(a)(iii). 8 (2) Schedule 4, definition publish, after `radio,'-- 9 insert-- 10 internet, 11 Part 3 Amendment of Childrens Court 12 Act 1992 13 Clause 27 Act amended 14 This part amends the Childrens Court Act 1992. 15 Clause 28 Amendment of s 3 (Definitions) 16 Section 3-- 17 insert-- 18 child's community means the child's Aboriginal 19 or Torres Strait Islander community, whether it 20 is-- 21 (a) an urban community; or 22 (b) a rural community; or 23 (c) a community on DOGIT land under the 24 Aboriginal Land Act 1991 or the Torres 25 Strait Islander Land Act 1991. 26 Page 22

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 3 Amendment of Childrens Court Act 1992 [s 29] community justice group, for a child, means a 1 group of persons made up of any of the 2 following-- 3 (a) an entity within the child's community, 4 other than a department of government, that 5 is involved in the provision of any of the 6 following-- 7 (i) information to a court about Aboriginal 8 or Torres Strait Islander offenders; 9 (ii) diversionary, interventionist or 10 rehabilitation activities relating to 11 Aboriginal or Torres Strait Islander 12 offenders; 13 (iii) other activities relating to local justice 14 issues; 15 (b) elders or other respected persons of the 16 child's community. 17 first-time offender, for part 4, division 2, see 18 section 21A. 19 interested person, for part 4, division 2, see 20 section 21A. 21 non-youth justice matter, for part 4, division 2, 22 see section 21A. 23 relevant person, for part 4, division 2, see section 24 21A. 25 youth justice matter, for part 4, division 2, see 26 section 21A. 27 Clause 29 Insertion of new pt 4, div 1, hdg 28 Part 4, before section 18-- 29 insert-- 30 Page 23

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 3 Amendment of Childrens Court Act 1992 [s 30] Division 1 Constitution and sitting 1 times 2 Clause 30 Omission of s 20 (Who may be present at a proceeding) 3 Section 20-- 4 omit. 5 Clause 31 Insertion of new pt 4, div 2 6 After section 21-- 7 insert-- 8 Division 2 Closed and open 9 proceedings 10 21A Definitions for div 4 11 In this division-- 12 first-time offender means a child who, at any 13 time during a proceeding for a youth justice 14 matter, has not been found guilty of an offence. 15 interested person means-- 16 (a) a person who is engaged in-- 17 (i) a course of professional study relevant 18 to the operation of the court; or 19 (ii) research approved by the chief 20 executive; or 21 (b) a person who, in the court's opinion, will 22 assist the court. 23 non-youth justice matter means a proceeding 24 under the Adoption Act 2009 or the Child 25 Protection Act 1999. 26 relevant person, for a proceeding in relation to a 27 child, means-- 28 Page 24

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 3 Amendment of Childrens Court Act 1992 [s 31] (a) the child; or 1 (b) for a non-youth justice matter--a parent or 2 other adult member of the child's family; or 3 (c) for a youth justice matter--a parent or other 4 member of the child's family; or 5 (d) a witness giving evidence in the proceeding; 6 or 7 (e) a party or person representing a party to the 8 proceeding, including, for example, a police 9 officer or another person in charge of a case 10 against the child in relation to the offence 11 that is the subject of the proceeding; or 12 (f) the chief executive; or 13 (g) if the child is an Aboriginal or Torres Strait 14 Islander person-- 15 (i) a representative of an organisation 16 whose principal purpose is the 17 provision of welfare services to 18 Aboriginal and Torres Strait Islander 19 children and families; or 20 (ii) a representative of the community 21 justice group in the child's community 22 who is to make submissions that are 23 relevant to sentencing the child. 24 youth justice matter means a proceeding under 25 the Youth Justice Act 1992. 26 21B Who may be present at non-youth justice 27 matters or particular youth justice matters 28 (1) In a proceeding before the court for a non-youth 29 justice matter in relation to a child or for a youth 30 justice matter in relation to a child who is a 31 first-time offender, the court must exclude from 32 Page 25

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 3 Amendment of Childrens Court Act 1992 [s 31] the room in which the court is sitting a person 1 who is not-- 2 (a) a relevant person for the proceeding; or 3 (b) an interested person whom the court permits 4 to be present under subsection (2). 5 (2) The court may permit an interested person to be 6 present. 7 (3) Subsection (1) applies subject to any order made 8 by the court under the Evidence Act 1977, section 9 21A-- 10 (a) excluding any person (including a 11 defendant) from the place in which the court 12 is sitting; or 13 (b) permitting any person to be present while a 14 special witness within the meaning of that 15 section is giving evidence. 16 (4) Also, subsection (1) applies even though the 17 court's jurisdiction is being exercised conjointly 18 with another jurisdiction. 19 (5) However, subsection (1) does not prevent an 20 infant or young child in the care of an adult being 21 present in court with the adult. 22 21C Who may be present at other youth justice 23 matters 24 (1) A proceeding before the court for a youth justice 25 matter in relation to a child who is not a first-time 26 offender must be held in open court, other than if 27 the court-- 28 (a) orders the court be closed; or 29 (b) excludes a person under section 21E. 30 (2) The court may close the court to the public or 31 particular persons if it considers it is necessary 32 and desirable in the interests of justice. 33 Page 26

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 3 Amendment of Childrens Court Act 1992 [s 31] (3) The court may order the court to be closed for all 1 or part of the proceedings-- 2 (a) on its own initiative; or 3 (b) on application under section 21D. 4 (4) However, an order under subsection (3) must not 5 exclude from the room in which the court is 6 sitting-- 7 (a) a relevant person; or 8 (b) if a witness is a complainant within the 9 meaning of the Criminal Law (Sexual 10 Offences) Act 1978--a person whose 11 presence will provide emotional support to 12 the witness. 13 (5) Subsection (4) applies subject to any order made 14 by the court under the Evidence Act 1977, section 15 21A-- 16 (a) excluding any person (including a 17 defendant) from the place in which the court 18 is sitting; or 19 (b) permitting any person to be present while a 20 special witness within the meaning of that 21 section is giving evidence. 22 (6) Also, despite an order under subsection (3), the 23 court may permit to be present-- 24 (a) an interested person; or 25 (b) a representative of the media; or 26 (c) a person, in the court's opinion-- 27 (i) who has a proper interest in the 28 proceeding; and 29 (ii) whose presence would not be 30 prejudicial to the interests of the child. 31 Page 27

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 3 Amendment of Childrens Court Act 1992 [s 31] (7) Subsection (2) does not apply to the court when 1 constituted by a judge exercising jurisdiction to 2 hear and determine a charge on indictment. 3 21D Application for closed proceedings 4 (1) An application to the court to close the court for 5 all or a part of the proceeding may be made by-- 6 (a) a relevant person for the proceeding; or 7 (b) the chief executive (child protection); or 8 (c) the child guardian. 9 (2) An application under subsection (1) may be made 10 at any time during the proceeding. 11 (3) In this section-- 12 chief executive (child protection) means the 13 chief executive of the department in which the 14 Child Protection Act 1999 is administered. 15 child guardian means the commissioner under 16 the Commission for Children and Young People 17 and Child Guardian Act 2000. 18 21E Exclusion of public in particular youth justice 19 matters 20 (1) This section applies to a proceeding in relation to 21 a child who is charged with a sexual offence. 22 (2) When a complainant is giving evidence in any 23 examination of a witness or trial, the court must 24 exclude from the room in which it is sitting all 25 persons other than-- 26 (a) a person representing the complainant; or 27 (b) the defendant and any person representing 28 the defendant; or 29 Page 28

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 3 Amendment of Childrens Court Act 1992 [s 31] (c) a Crown law officer or a person authorised 1 by a Crown law officer; or 2 (d) the prosecutor; or 3 (e) any person whose presence is, in the court's 4 opinion, necessary or desirable for the 5 proper conduct of the examination or trial; 6 or 7 (f) any person whose presence will provide 8 emotional support to the complainant; or 9 (g) if the complainant is under or apparently 10 under 17 years--the parent or guardian of 11 the child unless, in the court's opinion, the 12 presence of that person would not be in the 13 child's interests; or 14 (h) any person who makes application to the 15 court to be present and whose presence, in 16 the court's opinion-- 17 (i) would serve a proper interest of the 18 applicant; and 19 (ii) would not be prejudicial to the interests 20 of the complainant; or 21 (i) the chief executive. 22 (3) Subsection (2) does not limit the power of the 23 court under any other provision or rule of law to 24 exclude from the room in which it is sitting any 25 person, including the defendant. 26 (4) In this section-- 27 complainant means a person in respect of whom 28 a sexual offence is alleged to have been 29 committed. 30 defendant means a person charged with having 31 committed a sexual offence. 32 prescribed sexual offence means any of the 33 following offences-- 34 Page 29

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 4 Amendment of Penalties and Sentences Act 1992 [s 32] (a) rape; 1 (b) attempt to commit rape; 2 (c) assault with intent to commit rape; 3 (d) an offence defined in the Criminal Code, 4 section 352. 5 sexual offence means any offence of a sexual 6 nature, and includes a prescribed sexual offence. 7 Clause 32 Insertion of new pt 7, div 4 8 Part 7-- 9 insert-- 10 Division 4 Transitional provision for 11 Youth Justice and Other 12 Legislation Amendment 13 Act 2014 14 37 Application of provision about open and 15 closed proceedings 16 Part 4, division 2 applies to a proceeding for an 17 offence even if 1 or both of the following happened 18 before the commencement of this section-- 19 (a) the commission of the offence; 20 (b) the start of the proceeding for the offence. 21 Part 4 Amendment of Penalties and 22 Sentences Act 1992 23 Clause 33 Act amended 24 This part amends the Penalties and Sentences Act 1992. 25 Page 30

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 4 Amendment of Penalties and Sentences Act 1992 [s 34] Clause 34 Amendment of s 9 (Sentencing guidelines) 1 (1) Section 9(2)(a)-- 2 omit. 3 (2) Section 9(2)(b) to (r)-- 4 renumber as section 9(2)(a) to (q). 5 (3) Section 9(3)-- 6 omit. 7 (4) Section 9(4), `an offender to whom subsection (3) applies'-- 8 omit, insert-- 9 a violent offender 10 (5) Section 9(5)-- 11 omit, insert-- 12 (5) In sentencing an offender for any offence of a 13 sexual nature committed in relation to a child 14 under 16 years, the offender must serve an actual 15 term of imprisonment, unless there are 16 exceptional circumstances. 17 (6) Section 9(5A), `(5)(b)'-- 18 omit, insert-- 19 (4) 20 (7) Section 9(6), `(5)'-- 21 omit, insert-- 22 (4) 23 (8) Section 9(6A)-- 24 omit. 25 (9) Section 9(6B), `an offender to whom subsection (6A) 26 applies'-- 27 omit, insert-- 28 a child-images offender 29 Page 31

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 4 Amendment of Penalties and Sentences Act 1992 [s 34] (10) Section 9(7), `(2)(p)'-- 1 omit, insert-- 2 (2)(o) 3 (11) Section (9)(7A) and (7B)-- 4 omit, insert-- 5 (7A) In sentencing an offender, a court must not have 6 regard to the following-- 7 (a) the offender levy imposed under section 8 179C; 9 (b) whether or not the offender-- 10 (i) may become, or is, the subject of a 11 dangerous prisoners application; or 12 (ii) may become subject to an order 13 because of a dangerous prisoners 14 application. 15 (12) Section 9(9), `(8)'-- 16 omit, insert-- 17 (10) 18 (13) Section 9-- 19 insert-- 20 (9A) This section overrides any other Act or law to the 21 extent that, in sentencing an offender for any 22 offence, the court must not have regard to any 23 principle that a sentence of imprisonment should 24 be imposed only as a last resort. 25 (14) Section 9(10)-- 26 insert-- 27 child-images offender means an offender being 28 sentenced for any of the following offences-- 29 (a) an offence against the Classification of 30 Computer Games and Images Act 1995, 31 Page 32

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 4 Amendment of Penalties and Sentences Act 1992 [s 34] section 28, if the objectionable computer 1 game is a child abuse computer game under 2 the Act; 3 (b) an offence against any of the following 4 provisions of the Classification of Films Act 5 1991-- 6 (i) section 41(3) or 42(3) or (4); 7 (ii) section 43, if the offence involves a 8 child abuse film under the Act; 9 (c) an offence against any of the following 10 provisions of the Classification of 11 Publications Act 1991-- 12 (i) section 14; 13 (ii) section 12, 13, 15, 16 or 17, if the 14 offence involves a child abuse 15 publication or child abuse photograph 16 under the Act; 17 (d) an offence against the Criminal Code, 18 section 228A, 228B, 228C or 228D. 19 violent offender means an offender being 20 sentenced for any offence-- 21 (a) that involved the use of, or counselling or 22 procuring the use of, or attempting or 23 conspiring to use, violence against another 24 person; or 25 (b) that resulted in physical harm to another 26 person. 27 (15) Section 9(4) to (10)-- 28 renumber as section 9(3) to (13). 29 Page 33

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 4 Amendment of Penalties and Sentences Act 1992 [s 35] Clause 35 Amendment of s 172D (Court not to have regard to 1 possible order under Dangerous Prisoners (Sexual 2 Offenders) Act 2003) 3 Section 172D, note, `9(7B)'-- 4 omit, insert-- 5 9(9)(b) 6 Clause 36 Amendment of s 195B (Access to court files by 7 representative of community justice group in offender's 8 community) 9 Section 195B(2), `9(2)(o)'-- 10 omit, insert-- 11 9(2)(n) 12 Clause 37 Amendment of s 195C (Confidentiality) 13 Section 195C(2)(a)(i), `9(2)(o)'-- 14 omit, insert-- 15 9(2)(n) 16 Clause 38 Amendment of s 195D (Protection from liability) 17 Section 195D(1)(b), `9(2)(o)'-- 18 omit, insert-- 19 9(2)(n) 20 Clause 39 Insertion of new pt 14, div 9 21 Part 14-- 22 insert-- 23 Page 34

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Part 5 Minor and consequential amendments [s 40] Division 9 Transitional provision for 1 Youth Justice and Other 2 Legislation Amendment 3 Act 2014 4 234 Sentencing guidelines 5 This Act applies to the sentencing of an offender 6 convicted after the commencement of this section 7 even if 1 or both of the following happened before the 8 commencement-- 9 (a) the commission of the offence the subject of 10 the conviction; 11 (b) the start of the proceeding for the offence. 12 Part 5 Minor and consequential 13 amendments 14 Clause 40 Acts amended in sch 1 15 Schedule 1 amends the Acts mentioned in it. 16 Page 35

 


 

Youth Justice and Other Legislation Amendment Bill 2014 Schedule 1 Schedule 1 Minor and consequential 1 amendments 2 section 40 3 Police Powers and Responsibilities Act 2000 4 1 Section 365(3), editor's note -- 5 omit. 6 Victims of Crime Assistance Act 2009 7 1 Section 15(3), note, paragraph (a), `section 9(2)(c)(i)'-- 8 omit insert-- 9 section (9)(2)(b)(i) 10 © State of Queensland 2014 Authorised by the Parliamentary Counsel Page 36

 


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