Untitled document

Children and Young Persons (Miscellaneous

Amendments) Act 1996

Act No. 44/1996

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purposes	1
2.	Commencement	2
3.	Principal Act	2

PART 2—TRANSFERS 3

4.	Custody	3
5.	Amendment of section 237	3
6.	Amendment of section 239	3
7.	Amendment of section 243	4
8.	Subdivision heading	5
9.	Amendment of section 244	5
10.	Insertion of new sections 244A and 244B	6

244A.	Person in prison may be transferred to youth residential
centre 6
244B.	Person transferred from prison to YTC or YRC may be
transferred back to prison 8

11. Amendment of the Corrections Act 1986 10

PART 3—CHILDREN'S COURT 11

12.	Chief Magistrate to appoint when Court is to be held	11
13.	Chief Magistrate may arrange for attendance of an acting
magistrate	11
14.	Assignment of acting magistrates	11
15.	Acting magistrate must carry out assigned duties	12
16.	Protection and immunity of acting magistrate	12
17.	Supreme Court—limitation of jurisdiction	12
18.	New Division 5A inserted in Part 5	12
Division 5A—Rules	12
280A. Rules	12

i

Section	Page
PART 4—MISCELLANEOUS	14

19.	Repeal	14
20.	Consequential amendments	14
21.	Statute law revision	14
22.	Savings	14
23.	Transitional	15

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NOTES 16

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Victoria

No. 44 of 1996

Children and Young Persons

(Miscellaneous Amendments) Act 1996†

[Assented to 26 November 1996]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purposes

The purposes of this Act are—

(a) to permit in certain circumstances the transfer of a young person—

(i)  from a prison to a youth residential centre; or

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(ii)  from a youth residential centre to a youth training centre; or

(iii) from a youth training centre to a prison;

(b)	to clarify the issue of custody when a child is brought back to the Children's Court after the adjournment of a proceeding;
(c)	to make other miscellaneous amendments to the Children and Young Persons Act 1989;

(d) to repeal the Youth Affairs Act 1986.

2. Commencement

This Act comes into operation on the day on which it receives the Royal Assent.

3. Principal Act

No. 56/1989.

In this Act, the Children and Young Persons Act

Reprinted to

1989 is called the Principal Act. No. 109/1994.

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PART 2—TRANSFERS

4. Custody

In section 25 of the Principal Act, after sub- section (5) insert—

"(5A) A child being removed from a remand centre

or a secure welfare service to be brought
before the Court in compliance with an order
under sub-section (4) is, during the time of
removal, deemed to be in the legal custody of
the member of the police force, protective
services officer or other officer having the
custody of the child.".

5. Amendment of section 237

In section 237 of the Principal Act—

(a)	after "court" insert "or a person transferred to a youth residential centre under this Division"; and
(b)	for "detention in a youth residential centre" substitute "sentence"; and
(c)	after "person" (where last occurring) insert "or the age and maturity of the person".

6. Amendment of section 239

In section 239 of the Principal Act, after sub- section (4) insert—

"(5) Despite section 231, the Youth Parole Board must not release a person who—

(a)	has been sentenced to a period of imprisonment; and
(b)	has been transferred from prison and is currently detained in a youth training centre—

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on parole before the expiry of any non-parole period fixed in accordance with Subdivision (1) of Division 2 of Part 3 of the Sentencing Act 1991.

(6) Despite section 231, the Youth Parole Board must not release a person on parole if—

(a)	the person has been sentenced to a period of imprisonment of 12 months or more; and
(b)	a non-parole period has not been fixed in accordance with Subdivision (1) of Division 2 of Part 3 of the Sentencing Act 1991.

(7) In determining whether to release a person

on parole, the Youth Parole Board may take
into account the periods which that person
has spent in prison and in a youth residential
centre.".

7. Amendment of section 243

In section 243 of the Principal Act, for sub-section
(6) substitute—

"(6) Despite section 227, the Youth Residential Board must not release a person who—

(a)	has been sentenced to a term of imprisonment; and
(b)	has been transferred from prison and is currently detained in a youth residential centre—

on parole before the expiry of any non-parole period fixed in accordance with Subdivision (1) of Division 2 of Part 3 of the Sentencing Act 1991.

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(7) Despite section 227, the Youth Residential Board must not release a person on parole if—

(a)	the person has been sentenced to a term of imprisonment of 12 months or more; and
(b)	a non-parole period has not been fixed in accordance with Subdivision (1) of Division 2 of Part 3 of the Sentencing Act 1991.

(8) In determining whether to release a person

on parole, the Youth Residential Board may
take into account the periods which that
person has spent in prison and in a youth
training centre.".

8. Subdivision heading

For the heading to Subdivision 5 of Division 10 of

Part 4 of the Principal Act substitute—

"Subdivision 5—Transfers to and from

Prison".

9. Amendment of section 244

In section 244 of the Principal Act, for sub- sections (6) and (7) substitute—

"(6) Despite section 231, the Youth Parole Board must not release a person who—

(a)	has been sentenced to a term of imprisonment; and
(b)	has been transferred from prison and is currently detained in a youth training centre—

on parole before the expiry of any non-parole period fixed in accordance with Subdivision

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(1) of Division 2 of Part 3 of the Sentencing
Act 1991.

(7) Despite section 231, the Youth Parole Board must not release a person on parole if—

(a)	the person has been sentenced to a term of imprisonment of 12 months or more; and
(b)	a non-parole period has not been fixed in accordance with Subdivision (1) of Division 2 of Part 3 of the Sentencing Act 1991.

(8) In determining whether to release a person

on parole, the Youth Parole Board may take
into account the periods which that person
has spent in prison.".

10. Insertion of new sections 244A and 244B

After section 244 of the Principal Act insert—

"244A. Person in prison may be transferred to

youth residential centre

(1) If the Adult Parole Board considers it

appropriate in the interests of a child under
the age of 17 years imprisoned in a prison to
transfer the child to a youth residential
centre, the Adult Parole Board may direct
that the child be transferred to a youth

residential centre.

(2) The Adult Parole Board may only make a

direction under sub-section (1) if, after considering a report from the Director- General, the Board is satisfied that—

(a) the child is suitable for detention in a youth residential centre; and

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(b) a place is available in a youth residential centre.

(3) The Director-General of Corrections must

cause the physical removal of a child from a
prison to a youth residential centre on the
direction of the Adult Parole Board under

sub-section (1).

(4) A child directed to be transferred under sub-

prison to a youth residential centre, is
deemed to be in the legal custody of the
officer having the custody of the child and
acting under the direction of the Adult Parole

section (1), while being removed from a into the custody of the officer in charge of the youth residential centre.

(5) A member of the police force may, if

requested to do so by the Director-General of sub-section (4) in the discharge of his or her duties under that sub-section and, in that case, the child being transferred is deemed to be in the legal custody of the member of the police force.

(6) A child transferred from a prison to a youth

residential centre under sub-section (1)
becomes, on transfer, subject to the
jurisdiction of the Youth Residential Board
for the unexpired portion of the term of his
or her sentence and that sentence is to be
treated for all purposes as a sentence of
detention in a youth residential centre.

(7) Despite section 227, the Youth Residential Board must not release a person who—

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(a)	has been sentenced to a term of imprisonment; and
(b)	has been transferred from prison and is currently detained in a youth residential centre—

on parole before the expiry of any non-parole period fixed in accordance with Subdivision (1) of Division 2 of Part 3 of the Sentencing Act 1991.

(8) Despite section 227, the Youth Residential Board must not release a person on parole if—

(a)	the person has been sentenced to a term of imprisonment of 12 months or more; and
(b)	a non-parole period has not been fixed in accordance with Subdivision (1) of Division 2 of Part 3 of the Sentencing Act 1991.

(9) In determining whether to release a person

on parole, the Youth Residential Board may
take into account the periods which that
person has spent in prison.

244B. Person transferred from prison to YTC or YRC may be transferred back to prison

(1) The Youth Parole Board may direct that a

person aged 16 years or more who has been

transferred to—

(a)	a youth training centre under section 244(1); or
(b)	a youth residential centre under section 244A(1)—

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and is currently detained in a youth training centre, be transferred to a prison to serve the unexpired portion of the period of his or her sentence.

(2) The Youth Parole Board may only make a

direction under sub-section (1) in respect of a
person if the Board considers the direction

appropriate, having regard to—

(a)	the antecedents and behaviour of the person; and
(b)	the length of the unexpired portion of the person's sentence; and

(c) the age and maturity of the person; and

(d) a report from the Director-General.

(3) The Director-General must cause the

physical removal of a person from a youth
training centre to a prison on the direction of
the Youth Parole Board under this section.

(4) A person directed to be transferred under this

section, while being removed from a youth
training centre to a prison, is deemed to be in
the legal custody of the officer having the
custody of that person and acting under the
direction of the Youth Parole Board and that
officer must deliver that person into the
custody of the officer in charge of the prison.

(5) A member of the police force may, if

requested to do so by the Director-General,
assist the officer referred to in sub-section
(4) in the discharge of his or her duties under
that sub-section and, in that case, the person
being transferred is deemed to be in the legal
custody of the member of the police force.

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(6) A person transferred to a prison under this section becomes, on transfer, subject to the jurisdiction of the Adult Parole Board for the

unexpired portion of the term of his or her
sentence and that sentence is to be treated for
all purposes as a sentence of imprisonment.

(7) In determining whether to release a person on parole, the Adult Parole Board may take into account the periods which the person

has spent in a youth training centre and a

youth residential centre.".

11. Amendment of the Corrections Act 1986

In section 69(1) of the Corrections Act 1986, for
"the Community Services Act 1970 and the
regulations under that Act" substitute "Division
10 of Part 4 of the Children and Young Persons
Act 1989 and the regulations made under that

Division".

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PART 3—CHILDREN'S COURT

12. Chief Magistrate to appoint when Court is to be held

No. 56/1989.

(1) In section 9(1) of the Principal Act, for paragraph

Reprinted to

No. 109/1994.

(b) substitute—

"(b) on such days and at such times as the Chief

Magistrate from time to time appoints by
notice published in the Government
Gazette.".

(2) In section 9 of the Principal Act, after sub-section

(1) insert—

"(1A) The Chief Magistrate may from time to time by notice published in the Government for the holding of the Court at any place.".

13.  Chief Magistrate may arrange for attendance of an acting magistrate

In section 10 of the Principal Act, after "a magistrate" insert "or an acting magistrate".

14. Assignment of acting magistrates

(1) In section 11(1) of the Principal Act, after

"Magistrates' Court Act 1989" insert "or as an

acting magistrate under section 9 of that Act".

(2) In section 11(2) of the Principal Act—

(a)	after "a magistrate" (where first occurring) insert "or acting magistrate"; and
(b)	after "the magistrate" insert "or acting magistrate".

(3) In section 11(3) of the Principal Act, after "a magistrate" insert "or acting magistrate".

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(4) In section 11(4) of the Principal Act, after

"magistrate" (where first and fourthly occurring)

insert "or acting magistrate".

(5) In section 11(5) of the Principal Act, after

"magistrate" (where first occurring) insert "or

acting magistrate".

15. Acting magistrate must carry out assigned duties

In section 13 of the Principal Act, after "A magistrate" insert "for the Court".

16. Protection and immunity of acting magistrate

In section 14 of the Principal Act, after
"magistrate" (where first occurring) insert "or

acting magistrate".

17. Supreme Court—limitation of jurisdiction

(1) In section 279A of the Principal Act, before "It"

insert "(1)".

(2) At the end of section 279A of the Principal Act

insert—

"(2) It is the intention of section 14, as amended

by section 16 of the Children and Young
Persons (Miscellaneous Amendments) Act
1996, to alter or vary section 85 of the
Constitution Act 1975.".

18. New Division 5A inserted in Part 5

In Part 5 of the Principal Act, after Division 5 insert—

"Division 5A—Rules

280A. Rules

(1) The Chief Magistrate and the Children's

Court Senior Magistrate may jointly make
Rules for or with respect to the prescription

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of forms for the purposes of the Family
Division of the Court.

(2) A rule under sub-section (1) must not be inconsistent with a provision made by or under this or any other Act, whether the provision was made before or after the

making of the rule.".

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PART 4—MISCELLANEOUS

19. Repeal

The Youth Affairs Act 1986 is repealed.

20. Consequential amendments

(1) In section 15AA(1) of the Education Act 1958

for "the Youth Affairs Act 1986" substitute "for the purposes of programs the primary purpose of which is to assist or involve, or provide resources or facilities to, young people".

(2) In section 6(2) of the Liquor Control Act 1987,

omit paragraph (g).

21. Statute law revision

(1) In sections 37(1), 39, 50(b), 53(b) and 136(a) of

the Principal Act, for "Chief General Manager of the Department of Health" substitute "Secretary to the Department of Justice".

(2) In section 265(1)(aa) of the Principal Act, for "25(2)" substitute "25(1A)".

22. Savings

(1) The repeal of the Youth Affairs Act 1986 does

not affect the operation, continuity or effect of any
agreement made under that Act and in force
immediately before that repeal and that Act
continues to apply in respect of any such

agreement as if that Act had not been repealed.

(2) Without limiting sub-section (1), the repeal of the

Youth Affairs Act 1986 does not affect—

(a) any liability to repay any amount required to be repaid under an agreement under that Act and in force immediately before that repeal; or

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(b) any obligation, right or power of any person under an agreement under that Act and in force immediately before that repeal—

and any such liability, obligation, right or power continues and may be enforced or exercised as if that Act had not been repealed.

23. Transitional

(1) The Principal Act as amended by Part 2 of this

Act applies to a person, whether the person—

(a)	was sentenced to a period of imprisonment; or
(b)	was transferred under Division 10 of Part 4 of the Principal Act—

before or after the commencement of this Act.

(2) The amendments to the Principal Act made by Part 2 of this Act do not affect the release of a person on parole under Division 10 of Part 4 of

the Principal Act before the commencement of

this Act.

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Children and Young Persons (Miscellaneous Amendments) Act

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Notes

Act No. 44/1996

NOTES

†

Minister's second reading speech—

Legislative Assembly: 10 October 1996

Legislative Council: 30 October 1996

The long title for the Bill for this Act was "to amend the Children and Young Persons Act 1989 and the Corrections Act 1986, to repeal the Youth Affairs Act 1986 and for other purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 10 October 1996

Legislative Council: 30 October 1996

Absolute majorities:

Legislative Assembly: 29 October 1996

Legislative Council: 12 November 1996