Children and Young Persons (Miscellaneous Amendments) Act 2005 (Vic)
Children and Young Persons (Miscellaneous Amendments) Act 2005
Act No. 21/2005
table of provisions
Section Page
Part 1—Preliminary
1.Purposes
2.Commencement
3.Principal Act
Part 2—Amendment of the Children and Young Persons Act 1989
4.Definitions
5.Delegation
6.Jurisdiction of Criminal Division
7.Court's powers under Magistrates' Court Act
8.Publication of proceedings
9.Reports to the Court
10.Interim accommodation order
11.New Division 7A inserted in Part 3
Division 7A—Case Stated
115A.Court may reserve question of law for determination by Supreme Court
12.Period of remand in custody
13.Restitution or compensation not to be part of sentencing order
14.Undertakings
15.Breach of accountable undertaking
16.Good behaviour bond
17.Section 149 substituted
149.Time for application
18.Payment of fines
19.Default in payment of fine or instalment
20.Weekend detention
21.Reduction of order by payment
22.Probation order
23.New sections 159A and 159B inserted
159A.Concurrent probation orders
159B.Court may require Secretary to report
24.Breach of probation order
25.New section 160A inserted
160A.Secretary's report
26.Application by Secretary etc. for warrant to arrest
27.Time for application for breach of probation order
28.Youth supervision order
29.New section 163A inserted
163A.Concurrent youth supervision orders
30.Reporting to Secretary under youth supervision order
31.New sections 164A and 164B inserted
164A.Suspension of youth supervision order
164B.Court may require Secretary to report
32.Breach of youth supervision order
33.Penalties for breach
34.Time for application for breach of youth supervision order
35.Youth attendance order
36.Repeal
37.Concurrent youth attendance orders
38.Breach of youth attendance order
39.Youth training centre orders
40.Deferral of sentencing
41.Orders in addition to sentence
42.New section 192 inserted
192.Enforcement of orders in addition to sentence
43.New section 196A inserted
196A.Proceedings for breach of sentencing order
44.New Division 7A inserted in Part 4
Division 7A—Case Stated
196B.Court may reserve question of law for determination by Supreme Court
45.Appeals
46.Transfer of persons to prison
47.Separation of remandees
48.Legal custody and fingerprinting
49.Arrest of person in youth training centre
50.New Division 13 inserted in Part 4
Division 13—Children and Young Persons Infringement Notice System
260A.CAYPINS procedure
260B.Certain agencies may give information for enforcement purposes
51.Transfer of proceedings from Magistrates' Court to Children's Court
52.Regulations
53.Practice notes
54.New Schedule 2A inserted
SCHEDULE 2A—Children and Young Persons Infringement Notice System
55.Transitional provisions
Part 3—Amendment of Other Acts
56.New section 89F inserted in Road Safety Act 1986
89F.Application and modification of Schedule 2A to Children and Young Persons Act 1989
57.Amendment of the Road Safety Act 1986
58.Amendment of the Melbourne City Link Act 1995
59.Amendment of the Mitcham-Frankston Project Act 2004
60.Amendment of the Bail Act 1977
5A.Power to return defendant to youth training centre
61.Amendment of the Children and Young Persons (Age Jurisdiction) Act 2004
62.Statute law revision
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Endnotes
Children and Young Persons (Miscellaneous Amendments) Act 2005
[Assented to 31 May 2005]
The Parliament of Victoria enacts as follows:
Part 1—Preliminary
1.Purposes
The purposes of this Act are—
(a)to amend the Children and Young Persons Act 1989—
(i)to enable the Children's Court to deal with unpaid infringement notices issued to children;
(ii)to clarify the criminal jurisdiction of the Children's Court and change the operation of sentencing orders;
(iii)to make other miscellaneous amendments to that Act; and
(b)to amend the Bail Act 1977 to provide for the holding of certain persons in youth training centres rather than prison; and
(c)to amend the Road Safety Act 1986 and certain other Acts to provide for the enforcement of infringement notices against children; and
(d)to make consequential and minor amendments to the Children and Young Persons (Age Jurisdiction) Act 2004 and the Children and Young Persons (Koori Court) Act 2004.
2.Commencement
(1)This Part and section 61 come into operation on the day after the day on which this Act receives the Royal Assent.
(2)Section 8(2) comes into operation on the same day as section 10 of the Children and Young Persons (Koori Court) Act 2004.
(3)Section 57(2) comes into operation on the same day as section 23(32) of the Road Safety (Drug Driving) Act 2003.
(4)Section 62 is deemed to have come into operation on 7 December 2004.
(5)Subject to sub-section (6), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(6)If a provision referred to in sub-section (5) does not come into operation before 1 July 2005, it comes into operation on that day.
3.Principal Act
In this Act, the Children and Young Persons Act 1989 is called the Principal Act.
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Part 2—Amendment of the Children and Young Persons Act 1989
4.Definitions
In section 3(1) of the Principal Act—
(a)in paragraph (a) of the definition of "child", for "at the time of being brought before the Court" substitute "when a proceeding for the offence is commenced in the Court";
(b)for the definition of "proceeding" substitute—
' "proceeding" means any matter in the Court, including a committal proceeding, but does not include the exercise by a registrar of any jurisdiction, power or authority vested in the registrar as registrar under Schedule 2A;';
(c)insert the following definition—
' "progress report" means a report prepared under section 160A, 164B, 179 or 185(5)(a);'.
5.Delegation
After section 7(1A) of the Principal Act insert—
"(1B)The Secretary may, by instrument, delegate to an executive within the meaning of the Public Administration Act 2004 who is employed at the level of EO-2 or above the power to approve under section 256C(3) a period of isolation of more than 24 hours.".
6.Jurisdiction of Criminal Division
After section 16(4) of the Principal Act insert—
"(5)Despite sub-section (4), if before or during the hearing of a charge for an offence it appears to the Children's Court that the defendant is of or above the age of 19 years but was a child when the proceeding for the offence was commenced in the Court, the Court must hear and determine the charge unless at any stage the Court considers that exceptional circumstances exist, having regard to—
(a)the age of the defendant;
(b)the nature and circumstances of the alleged offence;
(c)the stage of the proceeding;
(d)whether the defendant is the subject of another proceeding in any other court;
(e)any delay in the hearing of the charge and the reason for the delay;
(f)whether the sentencing orders available to the Court are appropriate;
(g)whether the defendant prefers the charge to be heard in the Children's Court or the Magistrates' Court;
(h)any other matter that the Court considers relevant.
(6)If the Court considers that exceptional circumstances exist under sub-section (5), the Court must discontinue the proceeding and order that it be transferred to the Magistrates' Court and in the meantime it may—
(a)permit the defendant to go at large; or
(b)grant the defendant bail conditioned for the appearance of the defendant before the Magistrates' Court at the time and place at which the proceeding is to be heard; or
(c)remand the defendant in prison or a police gaol or in accordance with section 49 of the Magistrates' Court Act 1989 until the proceeding is heard by the Magistrates' Court.".
7.Court's powers under Magistrates' Court Act
After section 24(2) of the Principal Act insert—
"(2A)Section 58 of the Magistrates' Court Act 1989 applies as if—
(a)a reference to a penalty enforcement warrant were a reference to a warrant to seize property issued in accordance with an order under section 155(1)(c) or a warrant to seize property to satisfy a fine issued under Schedule 2A; and
(b)a reference to 5 years were a reference to 3 years.".
8.Publication of proceedings
(1)In section 26(1)(a)(i) of the Principal Act, after "Court" insert ", other than the Koori Court (Criminal Division),".
(2)In section 26(1)(a)(i) of the Principal Act omit
", other than the Koori Court (Criminal Division),".
(3)After section 26(2) of the Principal Act insert—
"(3)Without limiting the generality of sub-section (1), the following particulars are deemed to be particulars likely to lead to the identification of a person—
(a)the name, title, pseudonym or alias of the person;
(b)the address of any premises at which the person resides or works, or the locality in which those premises are situated;
(c)the address of a school attended by the person or the locality in which the school is situated;
(d)the physical description or the style of dress of the person;
(e)any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;
(f)the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;
(g)the recreational interests or the political, philosophical or religious beliefs or interests of the person;
(h)any real or personal property in which the person has an interest or with which the person is otherwise associated.".
9.Reports to the Court
In section 38 of the Principal Act—
(a)in paragraph (d), for "reports." substitute "reports;";
(b)after paragraph (d) insert—
"(e)progress reports.".
10.Interim accommodation order
In section 73(1) of the Principal Act—
(a)in paragraph (k), for "Part." substitute
"Part; or";
(b)after paragraph (k) insert—
"(l)a question of law has been reserved under section 115A for the opinion of the Supreme Court.".
11.New Division 7A inserted in Part 3
After Division 7 of Part 3 of the Principal Act insert—
"Division 7A—Case Stated
115A.Court may reserve question of law for determination by Supreme Court
(1)If a question of law arises in a proceeding before the Family Division, the Court, of its own motion or on the application of any person who is a party to the proceeding, may, with the consent of the President, reserve the question in the form of a special case stated for the opinion of the Supreme Court.
(2)If a question of law has been reserved for the opinion of the Supreme Court under sub-section (1), the Court cannot—
(a)finally determine the matter until the opinion of the Supreme Court has been given; or
(b)proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question of law.".
12.Period of remand in custody
After section 129(4) of the Principal Act insert—
"(4A)When a child is brought before the Court on the expiry of a period of remand in custody, the Court must not remand the child in custody for a further period longer than 21 days.".
13.Restitution or compensation not to be part of sentencing order
After section 137(3) of the Principal Act insert—
"(3A)The Court may not make an order referred to in sub-section (3) a special condition of another sentencing order.".
14.Undertakings
(1)In section 140 of the Principal Act omit "but in no case extending beyond the child's eighteenth birthday".
(2)At the end of section 140 of the Principal Act insert—
"(2)An undertaking may be given in relation to one, or more than one, offence.".
15.Breach of accountable undertaking
(1)In section 143(1)(a) of the Principal Act, after "the Court" insert "or another court".
(2)After section 143(2) of the Principal Act insert—
"(2A)A child alleged to have failed to comply with an undertaking under section 142 must appear or be brought before the Court constituted by—
(a)the magistrate who made the order under section 142, if he or she still holds the office of magistrate; or
(b)any other magistrate if—
(i)the first-mentioned magistrate does not still hold the office of magistrate; or
(ii)the child consents.
(2B)If a child does not consent to the Court constituted by any other magistrate dealing with the breach, the proceeding must be adjourned for hearing before the Court constituted by the magistrate who made the order under section 142, if he or she still holds the office of magistrate.".
16.Good behaviour bond
(1)For section 144(2) of the Principal Act substitute—
"(2)The period of an adjournment under this section must be specified by the Court and must not exceed—
(a)12 months; or
(b)if the child is aged 15 years or more on the day on which the proceeding is adjourned and the circumstances are exceptional, 18 months.".
(2)In section 144(3) of the Principal Act, for "a nominal amount" substitute "an amount less than one half of the maximum fine that may be imposed on the child under section 150".
(3)After section 144(3) of the Principal Act insert—
"(3A)A bond may be entered into in relation to one, or more than one, offence.".
17.Section 149 substituted
For section 149 of the Principal Act substitute—
"149.Time for application
If a breach of a bond is constituted by—
(a)any act the subject of a charge before a court, a proceeding for the breach must be commenced not later than 3 months after a finding of guilt in respect of the charge; or
(b)any other act, a proceeding for the breach must be commenced not later than 14 working days after the alleged breach and before the expiry of the period of the adjournment under section 144.".
18.Payment of fines
In section 152(1) of the Principal Act insert the following definition—
' "child" includes a person on whom the Court has imposed a fine but who is of or above the age of 19 years at the time of an application under section 154;'.
19.Default in payment of fine or instalment
(1)Before section 155(1)(a) of the Principal Act insert—
"(aa)determine that payment of the amount of the fine that remains unpaid not be enforced; or".
(2) After section 155(1)(a) of the Principal Act insert—
"(ab)order that the fine be varied as specified in the order of the Court; or".
(3)For section 155(1)(d) of the Principal Act substitute—
"(d)release the child on probation or a youth supervision order for a period not exceeding 3 months but in no case extending beyond the child's twenty-first birthday.".
(4)Section 155(1)(e) of the Principal Act is repealed.
20.Weekend detention
Sections 156, 156A, 157(1) and 267(1)(ba) of the Principal Act are repealed.
21.Reduction of order by payment
(1)Insert the following heading to section 157 of the Principal Act—
"Reduction of order by payment of portion of fine".
(2)In section 157(2) of the Principal Act—
(a)for paragraph (a) substitute—
"(a)a child is released on probation under section 155(1)(d) or a youth supervision order has been made under section 155(1)(d); and";
(b)after "total term of the" insert "period of probation or the youth supervision".
22.Probation order
For section 158(1) of the Principal Act substitute—
"(1)If the Court finds a child guilty of one or more offences, whether indictable or summary, the Court may, with or without conviction, place the child on probation for a specified term—
(a)not exceeding 12 months; or
(b)not exceeding 18 months if the offence or one of the offences is punishable by imprisonment for a term of more than 10 years—
and not extending beyond his or her twenty-first birthday.".
23.New sections 159A and 159B inserted
After section 159 of the Principal Act insert—
"159A.Concurrent probation orders
(1)If a person is found guilty on the same day, or in the same proceeding, of more than one offence, the aggregate period of any probation orders imposed in respect of the offences must not exceed 18 months or extend beyond the person's twenty-first birthday.
(2)Despite anything to the contrary in any Act, every probation order imposed on a person by the Court shall, unless otherwise directed by the Court at the time of making the probation order, be, as from the date of its commencement, served concurrently with any uncompleted probation order or orders imposed on that person, whether previously to or at the time the relevant order was made.
(3)If the Court imposes a probation order on a person who has not completed another probation order, it may direct that the order being imposed be served in part concurrently with the other order or wholly cumulatively on it.
159B.Court may require Secretary to report
(1)If a person has been placed on probation under section 158 and at any time during the period of probation the Court—
(a)finds the person guilty of an offence; and
(b)is aware that a probation order is in force in respect of the person—
the Court may require the Secretary to provide the Court with a report on the extent to and the manner in which the person has complied with the probation order.
(2)In dealing with the offence referred to in sub-section (1)(a), the Court—
(a)may take into account the report referred to in that sub-section; and
(b)must not impose on the person a penalty greater than the penalty which the Court may impose for that offence.".
24.Breach of probation order
(1)After section 160(2) of the Principal Act insert—
"(2A)A person alleged to have failed to observe any condition, or amended condition, of a probation order must appear or be brought before the Court—
(a)constituted by the magistrate who sentenced the person, if he or she still holds the office of magistrate; or
(b)constituted by any other magistrate—
(i)if the first-mentioned magistrate does not still hold the office of magistrate; or
(ii)with the person's consent.
(2B)If a person does not consent to the Court constituted by any other magistrate dealing with the breach, the proceeding must be adjourned for hearing before the Court constituted by the magistrate who sentenced the person, if he or she still holds the office of magistrate.".
(2)In section 160(3)(f) of the Principal Act, for "just." substitute "just; or".
(3)After section 160(3)(f) of the Principal Act insert—
"(g)if the probation order has expired, impose any sentencing order that the Court thinks just.".
(4)In section 160(4)(a) of the Principal Act, after "Secretary" insert "under section 160A".
(5)Sections 160(5) and 160(6) of the Principal Act are repealed.
25.New section 160A inserted
After section 160 of the Principal Act insert—
"160A.Secretary's report
(1)If a person is brought or appears before the Court under section 160, the Secretary must prepare a report on the person including—
(a)the nature and circumstances of the breach of the probation order; and
(b)the extent to which and the manner in which the person has complied with the probation order; and
(c)the recommendation of the Secretary with respect to an appropriate sentencing order for the person; and
(d)any other relevant matter.
(2)Any statement made in a report under sub-section (1) must be relevant to—
(a)the breach of the probation order; and
(b)the sentencing order (if any) recommended in the report.
(3)A report under sub-section (1) must be provided, after the Court is satisfied that a person has failed to observe a condition, or amended condition, of the probation order and before the Court makes an order under section 160(3), to—
(a)the Court; and
(b)the person who is the subject of the report; and
(c)the legal practitioners representing the person; and
(d)any other person whom the Court has ordered is to receive a copy of the report.".
26.Application by Secretary etc. for warrant to arrest
Section 161 of the Principal Act is repealed.
27.Time for application for breach of probation order
In section 162(b) of the Principal Act omit "and before the expiry of the probation order".
28.Youth supervision order
For section 163(1) of the Principal Act substitute—
"(1)If the Court finds a child guilty of one or more offences, whether indictable or summary, the Court may, with or without conviction, release the child on a youth supervision order for a specified term—
(a)not exceeding 12 months; or
(b)not exceeding 18 months if the offence or one of the offences is punishable by imprisonment for a term of more than 10 years—
and not extending beyond his or her twenty-first birthday.".
29.New section 163A inserted
After section 163 of the Principal Act insert—
"163A.Concurrent youth supervision orders
(1)If a person is found guilty on the same day, or in the same proceeding, of more than one offence, the aggregate period of any youth supervision orders imposed in respect of the offences must not exceed 18 months or extend beyond the person's twenty-first birthday.
(2)Despite anything to the contrary in any Act, every youth supervision order imposed on a person by the Court shall, unless otherwise directed by the Court at the time of making the youth supervision order, be, as from the date of its commencement, served concurrently with any uncompleted youth supervision order or orders imposed on that person, whether previously to or at the time the relevant order was made.
(3)If the Court imposes a youth supervision order on a person who has not completed another youth supervision order, it may direct that the order being imposed be served in part concurrently with the other order or wholly cumulatively on it.".
30.Reporting to Secretary under youth supervision order
After section 164(4) of the Principal Act insert—
"(4A)A requirement by the Secretary under sub-section (1)(b) that a person report to the Secretary must specify dates and times which, as far as practicable, avoid interference—
(a)with the attendance of the person at his or her place of employment, education, training or religious observance; or
(b)with the person's religious beliefs.".
31.New sections 164A and 164B inserted
After section 164 of the Principal Act insert—
"164A.Suspension of youth supervision order
(1)If—
(a)at the time the Court makes a youth supervision order, the person in respect of whom the order is made is in custody in a remand centre, youth residential centre, youth training centre or prison; or
(b)after the making of a youth supervision order, the person in respect of whom the order is made is taken into custody in a remand centre, youth residential centre, youth training centre or prison—
the Secretary may by a notice in writing in the prescribed form sent by registered post to, or served personally on, the person suspend the person's service of the youth supervision order.
(2)The Secretary must, after consultation with the appropriate parole board, superintendent of a youth residential centre or youth training centre or the Secretary to the Department of Justice, determine a time at and date on which a person shall commence or re‑commence service of the youth supervision order and must by a notice in writing sent by registered post to, or served personally on, the person specify the time at and date on which the person is first required to report to the Secretary.
(3)With the consent of the appropriate parole board, the Secretary may direct that the term of operation of a youth supervision order be served concurrently with a period of parole but the service of the youth supervision order must not be a condition of the parole.
164B.Court may require Secretary to report
(1)If a person has been released on a youth supervision order and at any time during the term of the order the Court—
(a)finds the person guilty of an offence; and
(b)is aware that a youth supervision order is in force in respect of the person—
the Court may require the Secretary to provide the Court with a report on the extent to and the manner in which the person has complied with the youth supervision order.
(2)In dealing with the offence referred to in paragraph (a) of sub-section (1), the Court—
(a)may take into account the report referred to in that sub-section; and
(b)must not impose on the person a penalty greater than the penalty which the Court may impose for that offence.".
32.Breach of youth supervision order
Sections 165(2) and 165(3) of the Principal Act are repealed.
33.Penalties for breach
(1)In section 166(1) of the Principal Act—
(a)in paragraph (d), after "order" insert "but not extending the term of the order";
(b)in paragraph (e), after "(e)" insert "confirming the youth supervision order and";
(c)in paragraph (f)—
(i)omit "other";
(ii)for "just." substitute "just; or";
(d)after paragraph (f) insert—
"(g)if the youth supervision order has expired, imposing any sentencing order that the Court thinks just.".
(2)Sections 166(2) and 166(3) of the Principal Act are repealed.
34.Time for application for breach of youth supervision order
In section 168(b) of the Principal Act omit "and before the expiry of the youth supervision order".
35.Youth attendance order
(1)In section 169 of the Principal Act, the definitions of "project" and "youth attendance project" are repealed.
(2)In section 170(1) of the Principal Act—
(a)for "an offence" substitute "one or more offences"; and
(b)for "nineteenth" substitute "twenty-first".
(3)In section 171 of the Principal Act—
(a)in paragraph (a), after "offence" insert "or one of the offences"; and
(b)for paragraph (b) substitute—
"(b)it has made enquiries of the Secretary and is satisfied that the child is a suitable person to be placed on a youth attendance order; and".
(4)In section 172(1) of the Principal Act—
(a)in paragraph (b), for "youth attendance project" substitute "youth supervision unit"; and
(b)in paragraph (c) omit ", unless the person is in custody at the time of the making of the order,".
(5)In sections 177(2) and 177(5) of the Principal Act, for "youth attendance project" substitute "youth supervision unit".
(6)In section 178(2) of the Principal Act, for "Office of Corrections" substitute "Secretary to the Department of Justice".
(7)Insert the following heading to section 179 of the Principal Act—
"Court may require Secretary to report".
(8)In section 181 of the Principal Act, for "youth attendance project" substitute "youth attendance order".
(9)In section 182 of the Principal Act, for "youth attendance project" (wherever occurring) substitute "youth supervision unit".
(10)In section 184(1) of the Principal Act, for "youth attendance project" (wherever occurring) substitute "youth supervision unit".
(11)In section 185(10) of the Principal Act, for "youth attendance project" substitute "youth supervision unit".
(12)In section 280(1) of the Principal Act—
(a)paragraphs (p) and (q) are repealed;
(b)in paragraph (s), for "youth attendance project" substitute "youth supervision unit";
(c)in paragraph (t) omit "youth attendance projects and";
(d)in paragraph (u), for "youth attendance projects" substitute "youth attendance orders".
36.Repeal
Section 180 of the Principal Act is repealed.
37.Concurrent youth attendance orders
In section 174(1)(a) of the Principal Act, for "nineteenth" substitute "twenty-first".
38.Breach of youth attendance order
(1)In section 184(2) of the Principal Act—
(a)in paragraph (a), after "varying" insert "the youth attendance order, but not extending the term of the order,";
(b)in paragraph (b), after "order" (where first occurring) insert "confirming the youth attendance order and";
(c)in paragraph (c), after "(c)" insert "whether or not the youth attendance order has expired,".
(2)In section 184(3)(b) of the Principal Act omit "and before the expiry of the youth attendance order".
(3)After section 184(7) of the Principal Act insert—
"(8)A person alleged to have breached a youth attendance order must appear or be brought before the Court—
(a)constituted by the magistrate who sentenced the person, if he or she still holds the office of magistrate; or
(b)constituted by any other magistrate—
(i)if the first-mentioned magistrate does not still hold the office of magistrate; or
(ii)with the person's consent.
(9)If a person does not consent to the Court constituted by any other magistrate dealing with the breach, the proceeding must be adjourned for hearing before the Court constituted by the magistrate who sentenced the person, if he or she still holds the office of magistrate.".
(4)Sections 184(11), 184(12) and 184(13) of the Principal Act are repealed.
39.Youth training centre orders
In section 188(1)(b) of the Principal Act, for "18" substitute "21".
40.Deferral of sentencing
After section 190(2) of the Principal Act insert—
"(2A)The Court may, on application by the child, re-list the adjourned case at short notice if the Court considers it appropriate to do so.
(2B)Notice of an application under sub-section (2A) setting out the grounds of the application must be given to—
(a)the Court; and
(b)the informant; and
(c)if appropriate, the Secretary.".
41.Orders in addition to sentence
(1)In section 191 of the Principal Act, for "85H(1) and 86(2)" substitute "85H(1), 86(2) and 87J(1)".
(2)At the end of section 191 of the Principal Act insert—
"(2)The maximum amount that the Court may order an offender to pay under Part 4 of the Sentencing Act 1991 is $1000.".
42.New section 192 inserted
After section 191 of the Principal Act insert—
'192.Enforcement of orders in addition to sentence
(1)In this section, "appropriate court" means a court that has jurisdiction to enforce a debt of an amount equivalent to the amount required to be paid under an order made under section 191.
(2)A person in whose favour an order is made under section 191 may enforce the order, during the period of 5 years following the making of the order, by filing in the appropriate court—
(a)a copy of the order certified by the principal registrar to be a true copy; and
(b)that person's affidavit as to the amount not paid under the order.
(3)Despite any requirement by or under any other Act, no charge is to be made for filing a copy of an order or an affidavit under this section.
(4)On filing, the order must be taken to be an order of the appropriate court and may be enforced accordingly subject to the following—
(a)no order may be made under section 19 of the Judgment Debt Recovery Act 1984; and
(b)no order of imprisonment may be made under the Imprisonment of Fraudulent Debtors Act 1958.'.
43.New section 196A inserted
After section 196 of the Principal Act insert—
'196A.Proceedings for breach of sentencing order
(1)In this section, "breach of a sentencing order" includes default in the payment of a fine or of any instalment under an instalment order.
(2)A proceeding for breach of a sentencing order must be commenced in the Children's Court—
(a)whether the sentencing order was made by the Children's Court or by the Supreme Court or the County Court, on appeal or otherwise; and
(b)whether the person against whom the proceeding is commenced is aged 19 years or more.
(3)If the proceeding for breach of a sentencing order is against a child who is under the age of 19 years when the proceeding for breach is commenced, the Children's Court must hear and determine the proceeding unless—
(a)the sentencing order was made by the Supreme Court or the County Court and the child does not consent to the Children's Court hearing the proceeding for breach; or
(b)the Court considers that in all the circumstances of the case it is appropriate to transfer the proceeding to the court that made the sentencing order.
(4)If the proceeding for breach of a sentencing order is against a person who is aged 19 years or more when the proceeding for breach is commenced, the Children's Court must transfer the proceeding (other than a proceeding for breach of an accountable undertaking) to the Magistrates' Court or to the court that made the sentencing order unless the Children's Court considers that in all the circumstances of the case it is appropriate for the Children's Court to hear and determine the proceeding, having regard to the matters referred to in sub-section (5).
(5)For the purposes of sub-section (4), the Court must have regard to—
(a)the age of the person;
(b)the nature and circumstances of the alleged breach;
(c)the stage of the proceeding for breach;
(d)whether the person is the subject of another proceeding in any other court;
(e)the availability of appropriate sentencing orders in the other court if the breach were proved;
(f)whether the person prefers to be dealt with in the Children's Court or any other court;
(g)any other matter that the Court considers relevant.
(6)A proceeding must not be transferred on the sole ground that the sentencing order was made by another court.
(7)If the person does not consent to the Children's Court hearing and determining the proceeding or the Court considers that the proceeding should be transferred, the Court must discontinue the proceeding and order that it be transferred to the Magistrates' Court or to the court that made the sentencing order, as the case may be, and in the meantime may—
(a)permit the person to go at large; or
(b)grant the person bail conditioned for the appearance of the person before the Supreme Court, the County Court or the Magistrates' Court, as the case may be, at the time and place at which the proceeding is to be heard; or
(c)remand the person in custody or in accordance with section 49 of the Magistrates' Court Act 1989 until the proceeding is heard by the Supreme Court, the County Court or the Magistrates' Court, as the case may be.
(8)If a proceeding is transferred to the Magistrates' Court under this section—
(a)the Magistrates' Court may sentence the person as if the Magistrates' Court had just been satisfied of the person's guilt of the offence in respect of which the sentencing order was made; and
(b)for that purpose, the Magistrates' Court has jurisdiction, whether or not the Magistrates' Court would otherwise have had jurisdiction to deal with the offence.
(9)This section applies despite section 200(8) of this Act and section 86(2) of the Magistrates' Court Act 1989 as applied by sections 197(5) and 197(5A) of this Act.'.
44.New Division 7A inserted in Part 4
After Division 7 of Part 4 of the Principal Act insert—
"Division 7A—Case Stated
196B.Court may reserve question of law for determination by Supreme Court
(1)If a question of law arises in a proceeding before the Criminal Division, the Court, of its own motion or on the application of any person who is a party to the proceeding, may, with the consent of the President, reserve the question in the form of a special case stated for the opinion of the Supreme Court.
(2)If a question of law has been reserved for the opinion of the Supreme Court under sub-section (1), the Court cannot—
(a)finally determine the matter until the opinion of the Supreme Court has been given; or
(b)proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question of law.".
45.Appeals
In section 197(9) of the Principal Act, for "19" substitute "21".
46.Transfer of persons to prison
(1)After section 240(2)(a) of the Principal Act insert—
"(ab)it has had regard to the age and maturity of the person; and".
(2)After section 244B(2) of the Principal Act insert—
"(2A)A report from the Secretary under sub-section (2)(d) must set out the steps that have been taken to avoid the need to transfer the person concerned to prison.".
47.Separation of remandees
In section 252(1)(c) of the Principal Act, for "unless exceptional circumstances exist; and" substitute—
"unless—
(i)the Secretary considers it appropriate not to separate them, having regard to the best interests, rights and entitlements of the persons on remand; and
(ii)the persons on remand consent; and".
48.Legal custody and fingerprinting
For sections 253(2) and 253(3) of the Principal Act substitute—
"(2)As soon as possible after a person is received into a youth residential centre or youth training centre to serve the whole or a part of a sentence of detention, the officer in charge of the centre may take photographs of the person for the purpose of identifying the person and compiling records of detainees.".
49.Arrest of person in youth training centre
In section 259(2) of the Principal Act—
(a)for "does not apply" substitute "and section 5A of the Bail Act 1977 do not apply";
(b)after "Magistrates' Court" (where secondly occurring) insert ", County Court or Supreme Court, as the case may be,".
50.New Division 13 inserted in Part 4
After Division 12 of Part 4 of the Principal Act insert—
'Division 13—Children and Young Persons Infringement Notice System
260A.CAYPINS procedure
(1)The procedure set out in Schedule 2A may be used instead of commencing a proceeding against a child for—
(a)an offence for which an infringement notice or a penalty notice within the meaning of Schedule 2A could be issued; or
(b)a prescribed offence within the meaning of that Schedule.
(2)If a child may be prosecuted for an offence in respect of which an infringement notice may be issued—
(a)a reference in an Act to enforcement under Schedule 7 to the Magistrates' Court Act 1989 includes a reference to enforcement under Schedule 2A to the Children and Young Persons Act 1989; and
(b)a reference to a courtesy letter served under Schedule 7 to the Magistrates' Court Act 1989 includes a reference to a courtesy letter served under Schedule 2A to the Children and Young Persons Act 1989.
260B.Certain agencies may give information for enforcement purposes
(1)In this section, "specified agency" means a person or body—
(a)that holds information that may be of use in the enforcement of court orders and fines; and
(b)that is stated by regulations made for the purposes of this section to be a specified agency—
but does not include a person or body listed in section 90A(1) of the Melbourne City Link Act 1995.
(2)Words and expressions used in this section have the same meanings as in section 124A of the Magistrates' Court Act 1989 and Schedule 2A to this Act.
(3)A registrar of the Court, the sheriff and any contractor or sub-contractor supporting the functions of the sheriff may, for the purpose of the enforcement of court orders and fines, request information that may assist in carrying out that purpose from any person or body.
(4)On the written request of a registrar of the Court, the sheriff or any contractor or sub-contractor supporting the functions of the sheriff, a specified agency may give the person or body making the request access to any information held by the agency that may be of use in the enforcement of court orders and fines.
(5)A person who obtains access to any information as a result of a request made under this section—
(a)may use the information to enforce court orders and fines; but
(b)is otherwise subject to all the requirements and restrictions concerning the use and disclosure of the information that apply to the person who provided, or granted access to, the information in response to the request.'.
51.Transfer of proceedings from Magistrates' Court to Children's Court
In section 275(1) of the Principal Act, after "child" insert "or was a child when the proceeding for the offence was commenced in the Magistrates' Court".
52.Regulations
(1)After section 280(1)(y) of the Principal Act insert—
"(ya)prescribing the fees, costs and charges payable in respect of the exercise by a registrar of any jurisdiction, power or authority vested in the registrar as registrar under Schedule 2A; and".
(2)After section 280(2)(b) of the Principal Act insert—
"(ba)so as to confer a discretionary authority on a specified court official or a specified class of court official; and
(bb)so as to provide for the exemption of persons or proceedings or a class of persons or proceedings from any of the regulations providing for the imposition of fees; and".
53.Practice notes
In section 280D(1) of the Principal Act, after "Division" (where last occurring) insert "or in relation to the exercise by a registrar of any jurisdiction, power or authority vested in the registrar as registrar under Schedule 2A".
54.New Schedule 2A inserted
After Schedule 2 to the Principal Act insert—
'SCHEDULE 2A
Section 260A
Children and Young Persons Infringement Notice System
PART 1—INTRODUCTORY
1.Application of Schedule
(1)The procedures set out in this Schedule may be used for the enforcement of infringement penalties and penalties imposed by penalty notices.
(2)If the procedures set out in this Schedule are used, they apply without prejudice to the application of so much of any other procedure as is consistent with this Schedule.
(3)The procedures set out in Part 2 may be used in relation to any infringement notice, whenever issued.
(4)The procedures set out in Part 3 apply to penalty notices and prescribed offences despite anything to the contrary in a Code.
2.Definitions
In this Schedule—
"appropriate officer", in relation to an infringement notice or penalty notice or an infringement penalty, means—
(a)a person who is the enforcement agency; or
(b)a person appointed by the enforcement agency as an appropriate officer for the purposes of the notice or the class of notice; or
(c)a prescribed person or a person who is a member of a prescribed class of person;
"certificate" means a certificate under clause 5(1)(b);
"Code" means a Code within the meaning of section 32 of the Interpretation of Legislation Act 1984;
"continuing offence provision" means a prescribed provision of an Act or a Code;
"courtesy letter" means a notice served under clause 3(1);
"enforcement agency", in relation to an infringement notice or penalty notice or an infringement penalty, means—
(a)a person or body authorised by or under an Act to take proceedings for the offence in respect of which the notice was issued; or
(b)a person by whom, or body by which, a person or body referred to in paragraph (a) is employed or engaged to provide services if the taking of the proceedings referred to in that paragraph would occur in the course of that employment or in the course of providing those services; or
(c)a prescribed person or body or a person who, or body that, is a member of a prescribed class of person or body; or
(d)a prescribed administrative unit; or
(e)a prescribed group of people;
"enforcement order" means an order under clause 7(3)(e), 8(2)(c), 8(2)(d), 8(2)(e) or 9(5);
"fine" includes any costs that may be required to be paid under this Schedule by the child on whom the infringement notice was served;
"infringement notice" means an infringement notice under a prescribed provision of—
(a)any Act or statutory rule; or
(b)any local law made under the Local Government Act 1989; or
(c)any Commonwealth Act or subordinate instrument that applies as a law of Victoria;
"infringement penalty" means the amount specified in an infringement notice as payable in respect of the offence for which the infringement notice was issued;
"penalty notice" means a penalty notice under a prescribed provision of an Act or a Code;
"prescribed offence" means an offence within the meaning of, or prescribed under, a prescribed provision of an Act or a Code;
"registrar" means principal registrar, registrar or deputy registrar;
"statutory rule" has the same meaning as in the Subordinate Legislation Act 1994.
PART 2—INFRINGEMENT NOTICES
3.Courtesy letters
(1)If it appears to an appropriate officer that an infringement penalty has not been paid before the end of the time specified in the infringement notice, the officer may serve a notice (a "courtesy letter") on the child on whom the infringement notice was served.
(2)A courtesy letter must state—
(a)that the child on whom it is served has a further 28 days in which to pay the infringement penalty together with any prescribed costs; and
(b)that in default of payment, the child may be dealt with under this Part; and
(c)that the child may obtain further information from a person or agency specified in the letter.
(3)If—
(a)the enforcement agency is prepared to accept payment of the infringement penalty and costs by instalments; and
(b)the payment of the infringement penalty would result in the loss of demerit points under the Road Safety Act 1986—
the courtesy letter must also contain a warning that entering into an arrangement to pay the infringement penalty and costs by instalments will result in the loss of demerit points under that Act.
(4)A courtesy letter may contain any other information that is prescribed for the purposes of this sub-clause.
(5)If a child is served with a courtesy letter in relation to an infringement notice, the time for payment of the infringement penalty is extended until the end of 28 days after service of the courtesy letter.
(6)The infringement penalty together with the prescribed costs may be paid within the extended period as if the infringement notice or law under which the notice was served also required the payment of those costs.
(7)A child who has been served with a courtesy letter may decline to be dealt with under this Part by serving a written statement to that effect on the officer or person specified for that purpose in the letter within 28 days after service of the letter.
4.Agreeing to pay by instalments has same effect as a full payment
(1)This clause applies in respect of an offence that would result in a child losing demerit points under the Road Safety Act 1986 if the child were convicted of the offence.
(2)For the purposes of the Road Safety Act 1986, the child is to be taken as paying the infringement penalty in respect of the offence on entering into an arrangement to pay the infringement penalty and costs by instalments.
5.Registration of infringement penalties
(1)An enforcement agency may seek to have an infringement penalty registered by providing to a registrar—
(a)a document in the form required by the regulations containing the details required by the regulations in relation to a child—
(i)who has not paid an infringement penalty; or
(ii)who has entered into an arrangement to pay an infringement penalty by instalments but who has subsequently failed to comply with the arrangement; and
(b)a certificate in the prescribed form signed by an appropriate officer and certifying that in respect of the child referred to in the document the requirements set out in sub-clause (2), and any other prescribed requirements, have been satisfied.
(2)A certificate under sub-clause (1)(b) must certify that—
(a)an infringement notice has been served on the child; and
(b)a courtesy letter has been served on the child after the end of the time specified in the infringement notice as the time within which the infringement penalty may be paid; and
(c)a period of at least 28 days has passed since the courtesy letter was served; and
(d)the infringement penalty and any prescribed costs had not been paid before the certificate was issued; and
(e)if the child entered into an arrangement to pay the infringement penalty and any prescribed costs by instalments—
(i)the child has failed to comply with the arrangement; and
(ii)a specified amount still remains to be paid under the arrangement; and
(f)the child has not, under clause 3(7), declined to be dealt with under this Part; and
(g)a charge in relation to the offence has not been filed; and
(h)a charge may still be filed in relation to the offence, having regard to the time when the offence is alleged to have been committed; and
(i)if the infringement notice was served under section 87 of the Road Safety Act 1986, the child was at the time of the alleged offence—
(i)the owner of the vehicle within the meaning of Part 7 of that Act; or
(ii)the person in charge of the vehicle as shown in a statement or declaration supplied in accordance with section 86(3)(a), (aab) or (ab) of that Act; and
(j)if the infringement notice was issued in respect of an offence to which section 66 of the Road Safety Act 1986 applies, the child was at the time of the alleged offence—
(i)the owner of the motor vehicle within the meaning of section 66 of that Act; or
(ii)the driver of the motor vehicle as shown in a statement or declaration supplied in accordance with section 66(3)(a), (aab) or (ab) of that Act; and
(k)if the infringement notice was issued in respect of an offence against section 73(1) of the Melbourne City Link Act 1995, the child was at the time of the alleged offence—
(i)the owner of the vehicle within the meaning of Part 4 of that Act; or
(ii)the driver of the vehicle as shown in a statement or declaration supplied in accordance with section 87(3)(a), (aab) or (ab) of that Act; and
(l)if the infringement notice was issued in respect of an offence under section 204 of the Mitcham-Frankston Project Act 2004, the child was at the time of the trip to which the alleged offence relates—
(i)the owner of the vehicle within the meaning of that Act; or
(ii)the driver of the vehicle as shown in a statement supplied under section 199 or 219 of that Act.
(3)If it appears to the registrar from the certificate provided under sub-clause (1)(b) that the requirements listed in sub-clause (2) and any other prescribed requirements have been satisfied in relation to a child referred to in the document provided with the certificate, the registrar may register the infringement penalty or the part of the infringement penalty together with any prescribed costs for the purpose of enforcement under this Part.
(4)Despite sub-clause (3), the registrar must not register an infringement penalty that is for an amount less than the amount, if any, specified by the regulations for the purposes of this sub-clause.
Note:See section 150 for maximum fines that may be imposed by the Court.
(5)The enforcement agency may, by notice in the prescribed form filed with the registrar at any time before an infringement penalty or a part of an infringement penalty is registered under sub-clause (3) in relation to a child, request the registrar not to register the infringement penalty or part.
(6)A registrar must comply with a request made in accordance with sub-clause (5).
6.Child's options
(1)On registering an infringement penalty or a part of an infringement penalty together with any prescribed costs, the registrar must cause to be sent by post to the child to whom the infringement penalty was issued at the address contained in the document provided under clause 5(1)(a) or any other address given by that child a notice in writing setting out the matters referred to in sub-clauses (2), (3) and (4).
(2)A child may—
(a)pay to the Court the amount of the infringement penalty or part and any prescribed costs on or before the date specified in the notice; or
(b)make an application referred to in clause 7; or
(c)appear before the registrar on the date specified in the notice; or
(d)request that consideration of the matter be deferred to another date so that the child may appear before the registrar; or
(e)decline to be dealt with by the registrar and request that the matter of the alleged offence in respect of which the infringement notice was issued be heard and determined by the Court; or
(f)do nothing and leave the matter of the infringement notice to be dealt with by the registrar on the date specified in the notice.
(3)In addition to sub-clause (2), a child may provide to the registrar information in writing by or on behalf of the child in relation to—
(a)the child's employment or school attendance;
(b)the child's personal and financial circumstances.
(4)If a child wishes to exercise the option referred to in sub-clause (2)(e)—
(a)the child must notify the registrar on or before the date specified in the notice under sub-clause (1); and
(b)on receipt of the child's notification, the registrar must cancel the registration of the infringement penalty and remit the infringement notice to the enforcement agency.
(5)Nothing in this Part prohibits an enforcement agency from filing a charge with the Court in respect of an infringement notice that has been remitted to it under sub-clause (4)(b).
7.Applications concerning payment of fine
(1)A child against whom an infringement penalty or part of an infringement penalty has been registered may apply to the registrar personally or in writing or in any other manner approved by the registrar for one or more of the following—
(a)an order that the time within which the fine is to be paid be extended; or
(b)an order that the fine be paid by instalments; or
(c)an order for the variation of an instalment order; or
(d)an order that payment of the fine not be enforced.
(2)An application under sub-clause (1)(d) must be made in the prescribed form.
(3)On receipt of an application under sub-clause (1), the registrar may do one or more of the following—
(a)allow additional time for the payment of the fine or the balance of the fine;
(b)direct payment of the fine to be made by instalments;
(c)direct payment of the fine or instalments to be made at the time or times specified by the registrar;
(d)vary the amount of instalments;
(e)order that the fine not be enforced.
(4)If the registrar orders that a fine not be enforced, the registrar must give notice of the order and a copy of the application for the order to the enforcement agency within 3 working days after the making of the order.
8.Enforcement order
(1)If—
(a)the child against whom an infringement penalty or part of an infringement penalty has been registered has not paid the infringement penalty and does not decline to be dealt with by the registrar; and
(b)an order under clause 7 has not been made—
the registrar must consider the matter on the date specified in the notice under clause 6.
(2)After hearing the child, if the child appears before the registrar, and after considering any information provided to the registrar under clause 6(3), the registrar may—
(a)if the child contests the matter of the alleged offence in respect of which the infringement notice was issued or declines to be dealt with by the registrar, cancel the registration of the infringement penalty and remit the infringement notice to the enforcement agency; or
(b)defer making a decision to a later date on which the child is to appear before the registrar; or
(c)make an order confirming the infringement penalty and order that the child pay to the Court the amount of the infringement penalty or part and any prescribed costs; or
(d)make an order reducing the infringement penalty and order that the child pay to the Court the amount of the infringement penalty or part as so reduced and any prescribed costs; or
(e)if the registrar is satisfied that it is appropriate to do so, order that payment of the amount of the infringement penalty and any costs that remain unpaid not be enforced.
(3)In exercising his or her discretion under sub-clause (2), the registrar must have regard to the age and personal and financial circumstances of the child.
(4)An order made under sub-section (2) must not require payment of an amount exceeding the amount of a fine that the Court may impose under section 150.
(5)An enforcement order is deemed to be an order of the Court—
(a)in the case of an order made under sub-clause (2)(c) or (2)(d), on the expiry of 28 days after the making of the order unless an application is made under clause 9 within that period;
(b)in the case of an order under sub-clause (2)(e) or clause 7(3)(e), on the expiry of 14 days after the making of the order unless an application is made under clause 9 within that period.
(6)Not later than 3 working days after the making of an enforcement order, the registrar must cause a notice in the prescribed form to be sent by post to the child against whom the order is made at the address contained in the document provided under clause 5(1)(a) or any other address given by the child.
(7)If the registrar orders that payment of the amount of the infringement penalty and any costs that remain unpaid not be enforced, the registrar must give notice of the order and a copy of any information provided by the child under clause 6(3) to the enforcement agency not later than 3 working days after the making of the order.
(8)A child against whom an enforcement order is made may apply for an order under clause 7.
9.Court review of enforcement order
(1)If the registrar makes an order under clause 8(2)(c) or 8(2)(d), the child may, by notice in writing to the Court within 28 days after the registrar's decision, apply to the Court for a review of the registrar's order.
(2)If the registrar makes an order under clause 7(3)(e) or 8(2)(e), the enforcement agency may, by notice in writing to the Court within 14 days after the date of the order, apply to the Court for a review of the registrar's order.
(3)On receipt of a notice under sub-clause (1) or (2), the registrar must cause notice of the time and place of hearing of the review to be given or sent to the child and the enforcement agency.
(4)On a review under this clause, the child and the enforcement agency are entitled to appear.
(5)On a review under this clause, the Court may make an order—
(a)confirming the registrar's order; or
(b)requiring the child to pay an amount not exceeding the amount that the Court may impose under section 150; or
(c)that payment of the amount of the infringement penalty and any costs that remain unpaid not be enforced.
10.Enforcement hearing
(1)If—
(a)an order is made under clause 7, 8(2)(c), 8(2)(d) or 9(5) in respect of a child; and
(b)for a period of more than 1 month the child defaults in the payment of an amount ordered to be paid or of any instalment under an instalment order—
the Court may, by notice in writing served on the child, require the child to appear before the Court at a specified time and place for an enforcement hearing.
(2)On an enforcement hearing, the Court may make any order that it could make under section 155.
11.Effect of enforcement order
(1)If an enforcement order is made in relation to an offence alleged to have been committed by a child—
(a)the child is not thereby to be taken to have been convicted of the offence; and
(b)the child is not liable to any further proceedings for the alleged offence; and
(c)the making of the order does not in any way affect or prejudice any civil claim, action or proceeding arising out of the same occurrence; and
(d)payment in accordance with the order is not an admission of liability for the purpose of, and does not in any way affect or prejudice, any civil claim, action or proceeding arising out of the same occurrence.
(2)Any amount recovered as a result of the making of an enforcement order is to be dealt with in the same way as an amount recovered as a result of a conviction.
(3)Despite anything to the contrary in this clause, the making of an enforcement order in relation to an offence which is a traffic infringement within the meaning of the Road Safety Act 1986 does not prevent the incurring of demerit points under section 25 of that Act in relation to that infringement.
(4)Despite anything to the contrary in this clause, the making of an enforcement order—
(a)may be recorded for the purposes of a heavy vehicle registration suspension scheme within the meaning of section 89(7) of the Road Safety Act 1986; and
(b)does not prevent the suspension of the registration of a vehicle under that scheme.
12.Expiry of enforcement order
(1)An enforcement order expires—
(a)if an order is made under clause 7(3)(a), (b), (c) or (d) in relation to the enforcement order—
(i)on the payment in full of the fine; or
(ii)if one or more payments are made under the order but the fine is not paid in full, 3 years after the receipt of the last payment; or
(iii)in any other case, 3 years after the making of the order under clause 7(3);
(b)if a warrant to seize property has been issued in respect of the order, on that warrant becoming void under section 58(2) of the Magistrates' Court Act 1989 as applied by section 24(2A);
(c)if an order is made directing that an infringement penalty and any costs that remain unpaid not be enforced or an order is made under clause 7(3)(e), on the making of that order;
(d)in any other case, 3 years after the order was made.
(2)If both sub-clauses (1)(a) and (1)(b) apply, the enforcement order expires on the warrant to seize property becoming void.
(3)If an enforcement order expires as a result of this clause, any amount still outstanding in respect of the fine for which it was made ceases to be enforceable or recoverable.
(4)On the expiry of an enforcement order, any warrant to seize property that was issued in respect of that order is void.
(5)An enforcement order that has expired may be reinstated by the registrar on the application of the enforcement agency.
(6)Despite sub-clause (3), if an enforcement order is reinstated, the fine in respect of which it was made again becomes enforceable or recoverable as if there had been no cessation.
(7)Sub-clause (1) does not apply to a reinstated enforcement order.
(8)A reinstated enforcement order expires 3 years after it was reinstated.
(9)This clause does not apply to an enforcement order in respect of which a warrant has been issued under the Service and Execution of Process Act 1992 of the Commonwealth.
13.Service of documents
(1)All documents required or permitted by this Part to be given or served, may be served personally or by post or in any other prescribed manner.
(2)If a courtesy letter is served by post it must be addressed—
(a)to the last known place of residence or business of the child alleged to have committed the offence; or
(b)if the infringement notice was served under section 87 of the Road Safety Act 1986—
(i)to the last address of the owner of the vehicle within the meaning of Part 7 of that Act; or
(ii)if a statement or declaration has been supplied under section 86(3)(a), (aab) or (ab) of that Act, to the last address of the person alleged in that statement or declaration to have been in charge of the vehicle; or
(c)if the infringement notice was issued in respect of an offence to which section 66 of the Road Safety Act 1986 applies—
(i)to the last address of the owner of the motor vehicle within the meaning of section 66 of that Act; or
(ii)if a statement or declaration has been supplied under section 66(3)(a), (aab) or (ab) of that Act, to the last address of the person alleged in that statement or declaration to have been the driver of the motor vehicle; or
(d)if the infringement notice was issued in respect of an offence against section 73(1) of the Melbourne City Link Act 1995—
(i)to the last address of the owner of the vehicle within the meaning of Part 4 of that Act; or
(ii)if a statement or declaration has been supplied under section 87(3)(a), (aab) or (ab) of that Act, to the last address of the person alleged in that statement or declaration to have been the driver of the vehicle.
(3)Any other document served by post under this Part must be addressed—
(a)to the address for service given by the person on whom the document is to be served; or
(b)if no address for service has been given, to the address contained in the document provided under clause 5(1)(a).
PART 3—PENALTY NOTICES
14.Application of Part 2 to penalty notices
Part 2, with any necessary modifications, applies to penalty notices and prescribed offences as if—
(a)any reference in that Part to an infringement notice were a reference to a penalty notice; and
(b)for clause 11(1)(a) there were substituted the following—
"(a)the person is not thereby to be taken to have been convicted of the offence, except as provided in clause 15;".
15.Deemed conviction where failure to do act or thing
If a penalty notice has been served on a child in relation to a prescribed offence constituted by a failure to do a particular act or thing and—
(a)the child pays the infringement penalty together with any prescribed costs after the end of the period specified in the penalty notice but before an enforcement order is made under this Part in relation to the prescribed offence but does not do the act or thing and at the date of payment that act or thing was still able to be done, the obligation to do that act or thing continues and the relevant continuing offence provision applies in relation to the continued failure to do the act or thing as if, on the day on which the child made the payment, the child had been convicted of an offence constituted by a failure to do the act or thing; or
(b)an enforcement order is made and at the date on which the enforcement order was made that act or thing had not been done and was still able to be done, the obligation to do that act or thing continues and the relevant continuing offence provision applies in relation to the continued failure to do that act or thing as if, on the day on which the enforcement order was made, the child had been convicted of an offence constituted by a failure to do the act or thing.
__________________'.
55.Transitional provisions
At the end of Schedule 3 to the Principal Act insert—
"29.Section 58 of the Magistrates' Court Act 1989 as applied by section 24(2A) of this Act applies to a warrant to seize property issued in accordance with an order made under section 155(1)(c) of this Act before the commencement of section 7 of the Children and Young Persons (Miscellaneous Amendments) Act 2005 if the warrant has not been executed before that commencement or the fine in respect of which it was issued has not been paid before that commencement.
30.An amendment made to this Act by a provision of the Children and Young Persons (Miscellaneous Amendments) Act 2005 (other than sections 50 and 54) applies to a proceeding for an offence or for a breach of a sentencing order commenced on or after the commencement of that provision, regardless of when the offence to which the proceeding relates is alleged to have been committed or the sentencing order was made.
31.An amendment made to this Act by a provision of sections 50 and 54 of the Children and Young Persons (Miscellaneous Amendments) Act 2005 applies to an infringement notice issued on or after the commencement of that provision.
32.Despite their repeal by section 20 of the Children and Young Persons (Miscellaneous Amendments) Act 2005, sections 156, 156A, 157(1) and 267(1)(ba) as in force immediately before their repeal continue to apply in relation to orders made under section 155(1)(e) before its repeal by section 19(4) of that Act.
33.A reference to a youth attendance project in an order made under section 170 is deemed, on and after the commencement of section 35(1) of the Children and Young Persons (Miscellaneous Amendments) Act 2005, to be a reference to a youth supervision unit.
34.A person who is remanded in custody in a prison, police gaol or youth training centre by a court or a bail justice and is under the age of 18 years on or after the commencement of section 3 of the Children and Young Persons (Age Jurisdiction) Act 2004 must, on that commencement, be placed in a remand centre and section 130 applies to the person as if the person were a child.".
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Part 3—Amendment of Other Acts
56.New section 89F inserted in Road Safety Act 1986
After section 89E of the Road Safety Act 1986 insert—
"89F.Application and modification of Schedule 2A to Children and Young Persons Act 1989
(1)The following provisions of Schedule 2A to the Children and Young Persons Act 1989 do not apply to or in relation to a traffic infringement notice in respect of a drink-driving infringement, a drug-driving infringement or an excessive speed infringement—
(a)clause 3(7);
(b)clause 5(2)(f) and (h);
(c)clause 11(1)(a) and (b).
(2)Subject to sub-section (1), and sections 89A to 89D of this Act, the procedures set out in Schedule 2A to the Children and Young Persons Act 1989 may be used for the enforcement of the amount specified in a traffic infringement notice issued in respect of a drink-driving infringement, a drug-driving infringement or an excessive speed infringement as payable in respect of the offence for which the notice was issued.".
57.Amendment of the Road Safety Act 1986
(1)In the Road Safety Act 1986—
(a)in section 66(3)(aab), after "Magistrates' Court Act 1989" insert "or under Schedule 2A to the Children and Young Persons Act 1989";
(b)in section 66(3AA)(c), after "Magistrates' Court Act 1989" insert "or under Schedule 2A to the Children and Young Persons Act 1989";
(c)in section 67(1), after "Magistrates' Court" insert "or the Children's Court, as the case may be,";
(d)in section 67(3)(f), after "Magistrates' Court Act 1989" insert "or in Schedule 2A to the Children and Young Persons Act 1989";
(e)in section 67(4), after "Magistrates' Court Act 1989" insert "or under Schedule 2A to the Children and Young Persons Act 1989";
(f)in section 86(3)(aab), after "Magistrates' Court Act 1989" insert "or under Schedule 2A to the Children and Young Persons Act 1989";
(g)in section 86(4)(c), after "Magistrates' Court Act 1989" insert "or under Schedule 2A to the Children and Young Persons Act 1989";
(h)in section 88(3AA), after "Magistrates' Court Act 1989" insert "or under Schedule 2A to the Children and Young Persons Act 1989";
(i)in section 89B(3)(d), after "Magistrates' Court Act 1989" insert "or in Schedule 2A to the Children and Young Persons Act 1989";
(j)in section 92(3)(e)(ii), after "Magistrates' Court Act 1989" insert "or in Schedule 2A to the Children and Young Persons Act 1989".
(2)In section 89F of the Road Safety Act 1986 omit ", a drug-driving infringement" (wherever occurring).
58.Amendment of the Melbourne City Link Act 1995
(1)In the Melbourne City Link Act 1995—
(a)in section 83(2A), after "Magistrates' Court Act 1989" insert "or under Schedule 2A to the Children and Young Persons Act 1989";
(b)in section 86(1), after "Magistrates' Court Act 1989" insert "or in Schedule 2A to the Children and Young Persons Act 1989";
(c)in section 86(2), after "Magistrates' Court Act 1989" insert "or the Children and Young Persons Act 1989, as the case may be,".
(2)After section 86(3) of the Melbourne City Link Act 1995 insert—
"(4)The Children and Young Persons Act 1989 applies as if—
(a)an infringement notice under this Part were an infringement notice within the meaning of Schedule 2A to that Act;
(b)an offence referred to in sub-section (1) were a prescribed offence within the meaning of that Schedule;
(c)the prescribed penalty for the offence stated in the infringement notice were the infringement penalty for the purposes of that Schedule.".
(3)In the Melbourne City Link Act 1995—
(a)in section 87(3)(aab), after "Magistrates' Court Act 1989" insert "or under Schedule 2A to the Children and Young Persons Act 1989";
(b)in section 87(3A)(c), after "Magistrates' Court Act 1989" insert "or under Schedule 2A to the Children and Young Persons Act 1989";
(c)in section 87A(1), after "Magistrates' Court" insert "or the Children's Court, as the case may be,";
(d)in section 87A(3)(c), after "Magistrates' Court Act 1989" insert "or in Schedule 2A to the Children and Young Persons Act 1989";
(e)in section 87A(4), after "Magistrates' Court Act 1989" insert "or under Schedule 2A to the Children and Young Persons Act 1989".
59.Amendment of the Mitcham-Frankston Project Act 2004
(1)In the Mitcham-Frankston Project Act 2004—
(a)in section 213(a), after "Magistrates' Court Act 1989" insert "or under Part 2 of Schedule 2A to the Children and Young Persons Act 1989";
(b)in section 218(1), after "Magistrates' Court Act 1989" insert "or Part 2 of Schedule 2A to the Children and Young Persons Act 1989, as the case may be,".
(2)After section 218(2) of the Mitcham-Frankston Project Act 2004 insert—
"(3)The Children and Young Persons Act 1989 applies as if—
(a)an infringement notice under this Division were an infringement notice within the meaning of Schedule 2A to that Act; and
(b)an offence referred to in section 204 were a prescribed offence within the meaning of that Schedule; and
(c)the infringement penalty for the offence were the infringement penalty for the purposes of that Schedule.".
(3)In the Mitcham-Frankston Project Act 2004—
(a)in section 219(3)(ab), after "Magistrates' Court Act 1989" insert "or under Schedule 2A to the Children and Young Persons Act 1989";
(b)in section 219(6)(c), after "Magistrates' Court Act 1989" insert "or under Schedule 2A to the Children and Young Persons Act 1989".
60.Amendment of the Bail Act 1977
After section 5 of the Bail Act 1977 insert—
'5A.Power to return defendant to youth training centre
(1)Despite anything in this Act, if—
(a)the defendant in a criminal proceeding in the Supreme Court or the County Court is a person undergoing a sentence of detention in a youth training centre; and
(b)the Supreme Court or the County Court, as the case may be, adjourns the proceeding—
the Supreme Court or the County Court may, instead of remanding the defendant in custody—
(c)direct that the defendant be returned to the custody of the Secretary to the Department of Human Services until the end of the sentence of detention or the resumption of the hearing, whichever is the sooner; and
(d)either—
(i)grant the defendant bail on a special condition that bail is not to be entered until the end of the sentence of detention; or
(ii)refuse bail and direct that the defendant be brought before the Supreme Court or the County Court, as the case may be, at a later date for it to consider the granting of bail.
(2)In this section, "the end of the sentence of detention" means the time when the defendant is released from custody, whether on parole or otherwise.
Note:See also section 49 of the Magistrates' Court Act 1989.'.
61.Amendment of the Children and Young Persons (Age Jurisdiction) Act 2004
Sections 7, 8, 9, 11, 13(b), 14, 16 and 17(b) of the Children and Young Persons (Age Jurisdiction) Act 2004 are repealed.
62.Statute law revision
In section 10(3) of the Children and Young Persons (Koori Court) Act 2004 for "section 8(3)(b)" substitute "sections 8(3)(b) and 8(3)(c)".
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Endnotes
Minister's second reading speech—
Legislative Assembly: 21 April 2005
Legislative Council: 18 May 2005
The long title for the Bill for this Act was "to amend the Children and Young Persons Act 1989, the Children and Young Persons (Age Jurisdiction) Act 2004, the Children and Young Persons (Koori Court) Act 2004, the Bail Act 1977, the Road Safety Act 1986, the Melbourne City Link Act 1995 and the Mitcham-Frankston Project Act 2004 and for other purposes."
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