Untitled document
Children, Youth and Families (Consequential and Other Amendments) Act 2006
Act No. 48/2006
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY
1.Purposes
2.Commencement
PART 2—AMENDMENT OF THE CHILDREN, YOUTH AND FAMILIES ACT 2005
3.Definitions
4.Decision-making principles
5.Delegation
6.Referrals
7.Response to referrals
8.Consultation
9.Reporters and referrers protected
10.Definitions—out of home carers
11.Register of out of home carers
12.Child in need of protection
13.Confidentiality
14.Disclosure of information
15.Dispute resolution convenors
16.Temporary assessment order
17.Undertakings
18.Lapsing of guardianship to Secretary orders
19.Breach of interim protection order
20.Matters to be taken into account in sentencing
21.Instalment orders
22.Youth Residential Board
23.Youth Parole Board
24.New Division 4 inserted
Division 4—Change of Name Applications by Detainees
488H.Application
488I.Definitions
488J.Applications for change of name by or on behalf of a detainee
488K.Approval by Secretary
488L.Approval to be notified in writing
488M.Registration of name change
488N.Registrar may correct Register
25.Recall and cancellation of warrant
26.Publication
27.New section 581 substituted
581.CAYPINS procedure
28.Powers of Secretary in relation to medical services and operations
29.Schedule 3 substituted
SCHEDULE 3—Children and Young Persons Infringement Notice System
30.Schedule 4 substituted
SCHEDULE 4—Transitional and Saving Provisions
PART 3—AMENDMENT OF THE CHILDREN AND YOUNG PERSONS ACT 1989
31.Delegation
32.Instalment orders
33.New Division 12A of Part 4 inserted
Division 12A—Change of Name Applications by Detainees
260AA.Application
260AB.Definitions
260AC.Applications for change of name by or on behalf of a detainee
260AD.Approval by Secretary
260AE.Approval to be notified in writing
260AF.Registration of name change
260AG.Registrar may correct Register
34.Schedule 2A substituted
SCHEDULE 2A—Children and Young Persons Infringement Notice System
PART 4—AMENDMENT OF OTHER ACTS AND REPEAL
35.Amendment of Victorian Civil and Administrative Tribunal Act 1998
36.Amendment of Commonwealth Powers (Family Law—Children) Act 1986
37.Amendment of Terrorism (Community Protection) (Amendment) Act 2006
38.Amendment of Melbourne City Link Act 1995
39.Amendment of Road Safety Act 1986
40.Amendment of Infringements Act 2006
41.Repeal of Adoption (Amendment) Act 1991
42.Consequential amendments to other Acts
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SCHEDULE—Consequential Amendments
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ENDNOTES
Children, Youth and Families (Consequential and Other Amendments) Act 2006
[Assented to 15 August 2006]
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1.Purposes
The main purposes of this Act are—
(a)to amend the Children, Youth and Families Act 2005; and
(b)to amend the Children and Young Persons Act 1989; and
(c)to amend other Acts as a consequence of the enactment of the Children, Youth and Families Act 2005; and
(d)to repeal the Adoption (Amendment) Act 1991.
2.Commencement
(1)Subject to sub-section (2), this Part, Part 3 and sections 37, 38, 39, 40 and 41 come into operation on a day to be proclaimed.
(2)If a provision referred to in sub-section (1) does not come into operation before 1 September 2006, it comes into operation on that day.
(3)The remaining provisions of this Act come into operation on the day on which section 601 of the Children, Youth and Families Act 2005 comes into operation.
__________________
PART 2—AMENDMENT OF THE CHILDREN, YOUTH AND FAMILIES ACT 2005
3.Definitions
In section 3(1) of the Children, Youth and Families Act 2005—
(a)in the definition of "central register" for "established" substitute "maintained";
(b)in the definition of "Youth Parole Board" for "established by" substitute "referred to in";
(c)in the definition of "Youth Residential Board" for "established by section 431(1)" substitute "referred to in section 431".
4.Decision-making principles
(1)In section 12(b) of the Children, Youth and Families Act 2005—
(a)after "decision" insert "in relation to the placement of an Aboriginal child or other significant decision";
(b)after "agency" insert "or by an Aboriginal organisation approved by the Secretary".
(2)At the end of section 12 of the Children, Youth and Families Act 2005 insert—
'(2)The requirement under sub-section (1)(c) to consult with an Aboriginal agency does not apply to the making of a decision or the taking of an action under Part 3.5.
(3)In this section "Aboriginal organisation" means an organisation that is managed by Aboriginal persons and that carries on its activities for the benefit of Aboriginal persons.'.
(3)After section 13(2) of the Children, Youth and Families Act 2005 insert—
"(3)The requirements under sub-section (1)(a) to have regard to the advice of the relevant Aboriginal agency and under sub-section (2)(b) to consult with the relevant Aboriginal agency do not apply to the making of a decision or the taking of an action under Part 3.5.".
5.Delegation
(1)In section 17(1) of the Children, Youth and Families Act 2005—
(a)paragraph (c) is repealed;
(b)after paragraph (f) insert—
"(fa)the power to approve under section 488K a change of name application; and".
(2)Section 17(3) of the Children, Youth and Families Act 2005 is repealed.
6.Referrals
In section 22(b) of the Children, Youth and Families Act 2005, for "reports" substitute "referrals".
7.Response to referrals
(1)In section 33(1)(a) of the Children, Youth and Families Act 2005, for "report" substitute "referral".
(2)In section 33(1)(c) of the Children, Youth and Families Act 2005 before "a service agency" insert "another community-based child and family service or to".
(3)In section 33(3)(d) of the Children, Youth and Families Act 2005 before "a service agency" insert "another community-based child and family service or to".
8.Consultation
(1)In section 35(1) of the Children, Youth and Families Act 2005—
(a)for paragraph (a) substitute—
"(a)consult with a community service, a service agency or an information holder; and";
(b)in paragraph (b) for "or agency" substitute
", agency or information holder".
(2)For section 36(2)(b) of the Children, Youth and Families Act 2005 substitute—
"(b)a community service;".
(3)For section 36(3)(b) of the Children, Youth and Families Act 2005 substitute—
"(b)a community service;".
(4)In section 36(5) of the Children, Youth and Families Act 2005 after "service" insert "or other community service".
9.Reporters and referrers protected
(1)In the heading to section 40 of the Children, Youth and Families Act 2005, after "Reporters" insert "and referrers".
(2)In the heading to section 41 of the Children, Youth and Families Act 2005, after "reporter" insert "or referrer".
(3)For section 41(1) of the Children, Youth and Families Act 2005 substitute—
"(1)If a report is made to the Secretary under section 28 or 29, a person (other than the person who made it) must not disclose to any person other than the Secretary or a community-based child and family service to which the matter is referred under section 30—
(a)the name of the person who made the report; and
(b)any information that is likely to lead to the identification of the person who made the report.
Penalty:60 penalty units.
(1A)If a referral is made to a community-based child and family service under section 31 or 32, a person (other than the person who made it) must not disclose to any person other than the Secretary or that community-based child and family service—
(a)the name of the person who made the referral; and
(b)any information that is likely to lead to the identification of the person who made the referral.
Penalty:60 penalty units.".
10.Definitions—out of home carers
In section 74 of the Children, Youth and Families Act 2005 in the definition of "services to children" after "proximity to the children" insert "but does not include prescribed services".
11.Register of out of home carers
In the heading to section 80 of the Children, Youth and Families Act 2005 before "carers" insert "out of home".
12.Child in need of protection
In section 162(2) of the Children, Youth and Families Act 2005 omit "continuing".
13.Confidentiality
(1)In section 191(1) of the Children, Youth and Families Act 2005 after "protective intervener" insert "or a community-based child and family service in accordance with sub-section (4)".
(2)After section 191(3) of the Children, Youth and Families Act 2005 insert—
"(4)If a report is made to the Secretary under section 183 or 184, the information referred to in sub-section (1) may be disclosed to a community-based child and family service if—
(a)the Secretary has made a determination under section 187(1)(c) in respect of the report; and
(b)the matter is referred to the community-based child and family service under section 30.
(5)A community-based child and family service to which information referred to in sub-section (1) is disclosed must not disclose that information to any other person except in accordance with this Part.
Penalty:60 penalty units.".
14.Disclosure of information
(1)After section 196(2) of the Children, Youth and Families Act 2005 insert—
"(2A)An authorised officer giving a direction under this section must advise the information holder that the information provided to the authorised officer in relation to a child may be disclosed to the Secretary and used for the protection or development of the child.".
(2)After section 196(3) of the Children, Youth and Families Act 2005 insert—
"(3A)Subject to section 202, the Secretary may use and disclose the information or documents for a purpose relating to the protection or development of the child.".
15.Dispute resolution convenors
For sections 227(3) and 227(4) of the Children, Youth and Families Act 2005 substitute—
"(3)The Attorney-General must not recommend a person for appointment unless the Attorney-General is satisfied that the person is of good character and has appropriate qualifications and experience.
(4)The Governor in Council, on the recommendation of the Attorney-General, may remove a convenor from office at any time.".
16.Temporary assessment order
In section 232(1)(f) of the Children, Youth and Families Act 2005 omit "the provision of".
17.Undertakings
In section 272(1) of the Children, Youth and Families Act 2005 for "under this Part" substitute "on a protection application or on an irreconcilable difference application".
18.Lapsing of guardianship to Secretary orders
(1)After section 289(3) of the Children, Youth and Families Act 2005 insert—
"(4)Section 288 applies to a guardianship to Secretary order as if any reference to a custody to Secretary order were a reference to a guardianship to Secretary order.".
(2)For section 290(3)(b) of the Children, Youth and Families Act 2005 substitute—
"(b)to notify the Court, the child, the child's parent and such other persons as the Court directs before the end of that period if the Secretary considers that it is in the best interests of the child for the order to continue for a further period of 12 months.".
(3)After section 290(4) of the Children, Youth and Families Act 2005 insert—
"(5)Section 288 applies to a long-term guardianship to Secretary order as if any reference to a custody to Secretary order were a reference to a long-term guardianship to Secretary order.".
19.Breach of interim protection order
In section 318(1)(a) of the Children, Youth and Families Act 2005 after "order" insert "and, in the case of an interim protection order, that an interim accommodation order is not required".
20.Matters to be taken into account in sentencing
In section 362(4) of the Children, Youth and Families Act 2005 for "had the child not so failed to participate in the group conference" substitute "had sentencing not been so deferred".
21.Instalment orders
In sections 378 and 379 of the Children, Youth and Families Act 2005, for "child" (wherever occurring) substitute "person".
22.Youth Residential Board
In section 431(1) of the Children, Youth and Families Act 2005 for "is established" substitute "continues to be".
23.Youth Parole Board
In section 442(1) of the Children, Youth and Families Act 2005 for "is established" substitute "continues to be".
24.New Division 4 inserted
After Division 3 of Part 5.8 of the Children, Youth and Families Act 2005 insert—
'Division 4—Change of Name Applications by Detainees
488H.Application
This Division applies despite anything to the contrary in the Births, Deaths and Marriages Registration Act 1996.
488I.Definitions
In this Division—
"change of name application" means an application by or on behalf of a detainee for registration of—
(a)a change of the detainee's name; or
(b)a change of the name of a child of the detainee;
"detainee" means a person who is undergoing a sentence of detention in a youth residential centre or youth justice centre;
"Victorian Registrar" means Registrar of Births, Deaths and Marriages under the Births, Deaths and Marriages Registration Act 1996.
488J.Applications for change of name by or on behalf of a detainee
(1)A detainee must not make a change of name application to a Registrar without having first obtained the written approval of the Secretary.
Penalty:For a detainee under the age of 15 years, 1 penalty unit;
In any other case, 5 penalty units.
(2)A person must not make a change of name application to a Registrar on behalf of a detainee unless the written approval of the Secretary is first obtained.
Penalty:For a person under the age of 15 years, 1 penalty unit;
In any other case, 5 penalty units.
(3)In this section, "Registrar" means—
(a)the Victorian Registrar; or
(b)an authority responsible under a law of another State or a Territory for the registration of births, deaths and marriages.
488K.Approval by Secretary
(1)Subject to sub-section (2), the Secretary may only approve a change of name application if he or she is satisfied that the change of name is in all the circumstances necessary or reasonable.
(2)The Secretary must not approve a change of name application if he or she is satisfied that the change of name would, if registered, be reasonably likely—
(a)to be a threat to the security of a youth residential centre or youth justice centre; or
(b)to jeopardise the safe custody or welfare of any detainee; or
(c)to be used to further an unlawful activity or purpose; or
(d)to be regarded as offensive by a victim of crime or an appreciable sector of the community.
488L.Approval to be notified in writing
If the Secretary approves a change of name application, the Secretary must—
(a)as soon as practicable, give written notice of the approval to the person who made the application; and
(b)if the detainee consents, give a copy of the written notice of approval to the Victorian Registrar.
488M.Registration of name change
The Victorian Registrar must not register a change of name under the Births, Deaths and Marriages Registration Act 1996 if—
(a)the Victorian Registrar knows that—
(i)the application for the change of name is made by or on behalf of a detainee; and
(ii)the change of name relates to the name of the detainee or a child of the detainee; and
(b)the Victorian Registrar has not received a copy of the notice of approval of the Secretary to the application under section 488L.
488N.Registrar may correct Register
Without limiting section 43 of the Births, Deaths and Marriages Registration Act 1996, the Victorian Registrar may correct the Register under that section if—
(a)the name of a detainee or a child of a detainee on the Register was changed because of a change of name application; and
(b)the Secretary had not approved that change of name application under section 488K.'.
25.Recall and cancellation of warrant
For section 529(1)(b)(ii) of the Children, Youth and Families Act 2005 substitute—
"(ii)a warrant to seize property issued in respect of an order under Schedule 3;".
26.Publication
In section 534(5) of the Children, Youth and Families Act 2005, after "apply" insert "to".
27.New section 581 substituted
For section 581 of the Children, Youth and Families Act 2005 substitute—
"581.CAYPINS procedure
(1)The procedure set out in Schedule 3 may be used instead of commencing a proceeding against a child for an offence for which an infringement notice within the meaning of Schedule 3 could be issued.
(2)If a child may be prosecuted for an offence in respect of which an infringement notice may be issued, a reference in an Act to enforcement under the Infringements Act 2006 includes a reference to enforcement under Schedule 3 to the Children, Youth and Families Act 2005.".
28.Powers of Secretary in relation to medical services and operations
(1)In section 597(1)(c) of the Children, Youth and Families Act 2005, after "service" insert ", declared hospital or declared parent and baby unit".
(2)In section 597(4)(a) of the Children, Youth and Families Act 2005, after "service" insert ", declared hospital or declared parent and baby unit".
29.Schedule 3 substituted
For Schedule 3 to the Children, Youth and Families Act 2005 substitute—
'SCHEDULE 3
Sections 529, 581, 582, 592, 600
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.
(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.
2.Definitions
In this Schedule—
"appropriate officer", in relation to an infringement 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 3(1)(b);
"child" means a person who at the time of the alleged commission of an infringement offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when an application for registration is made in respect of the person under clause 3;
"enforcement agency", in relation to an infringement 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 8(3)(c), 8(3)(d), 8(3)(e), 8(3)(f) or 10(5);
"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 any Act of another State or Territory or any subordinate instrument under such an Act 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 reminder notice" has the same meaning as it has in the Infringements Act 2006;
"prescribed costs" in relation to an infringement penalty, means costs prescribed under the Infringements Act 2006 in relation to the penalty reminder notice for that infringement penalty;
"registered amount" means the amount registered by the registrar pursuant to clause 4 or if that amount is reduced by an enforcement order, that reduced amount;
"registrar" means principal registrar, registrar or deputy registrar of the Court.
PART 2—ENFORCEMENT OF INFRINGEMENT NOTICES
3.Application for registration of infringement penalty
(1)An enforcement agency may apply 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 agreed to pay an infringement penalty by a payment plan under the Infringements Act 2006, but who has subsequently defaulted on payment of that plan; or
(iii)who has made a part payment of an infringement penalty otherwise than under a payment plan under the Infringements Act 2006, and has subsequently defaulted in making any further payment; and
(b)a certificate in the prescribed form signed by an appropriate officer and certifying that in respect of each 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 penalty reminder notice 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 penalty reminder notice was served; and
(d)the infringement penalty and any prescribed costs had not been paid, whether in full or in part, before the certificate was issued; and
(e)if a payment plan under the Infringements Act 2006 applies to the child in relation to the infringement penalty, the child has defaulted in making a payment under the payment plan and a specified amount still remains to be paid under that payment plan; and
(f)if a part payment of the infringement penalty and prescribed costs has been made (otherwise than under a payment plan under the Infringements Act 2006) but no further payment has been made and a specified amount still remains to be paid; and
(g)the child has not, under Part 2 of the Infringements Act 2006 elected to have the matter of the infringement offence heard and determined in the Court; and
(h)a charge in relation to the offence has not been filed; and
(i)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
(j)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), 86(3)(aab) or 86(3)(ab) of that Act; and
(k)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), 66(3)(aab) or 66(3)(ab) of that Act; and
(l)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), 87(3)(aab) or 87(3)(ab) of that Act; and
(m)if the infringement notice was issued in respect of an offence under section 204 of the EastLink 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.
4.Registration of infringement penalty
(1)If it appears to the registrar from the certificate provided under clause 3(1)(b) that the requirements listed in clause 3(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.
(2)The amount registered by the registrar pursuant to sub-clause (1) in respect of a child must not exceed the amount of a fine that the Court may impose under section 373.
(3)Despite sub-clause (1), 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.
5.Enforcement agency may request cancellation of registration
(1)The enforcement agency may, by notice in the prescribed form filed with the registrar at any time before the registrar makes an order under clause 8 in respect of an infringement penalty or part of an infringement penalty, request the registrar to cancel the registration of the infringement penalty or part.
(2)A registrar must comply with a request made in accordance with sub-clause (1).
6.Child's options
(1)On registering an amount in relation to a child under clause 4, the registrar must cause to be sent by post to the child at the address contained in the document provided under clause 3(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 registered amount on or before the date specified in the notice; or
(b)make an application referred to in clause 7; or
(c)apply for an order under clause 8 that payment of the registered amount not be enforced; or
(d)appear before the registrar on the date specified in the notice; or
(e)request that consideration of the matter be deferred to another date so that the child may appear before the registrar; or
(f)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
(g)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)(c), the child must make the application to the registrar in the prescribed form.
(5)If a child wishes to exercise the option referred to in sub-clause (2)(f)—
(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.
(6)Nothing in this Schedule 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 (5)(b).
7.Applications concerning time to pay registered amount
(1)A child in respect of whom an amount has been registered under clause 4 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 registered amount is to be paid be extended; or
(b)an order that the registered amount be paid by instalments; or
(c)an order for the variation of an instalment order.
(2)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 registered amount or the balance of the registered amount;
(b)direct payment of the registered amount to be made by instalments;
(c)direct payment of the registered amount or instalments to be made at the time or times specified by the registrar;
(d)vary the amount of instalments.
8.Enforcement order
(1)Subject to sub-clause (2), if an infringement penalty or part of an infringement penalty has been registered in respect of a child under clause 4, the registrar must consider the matter on the day specified in the notice under clause 6 if—
(a)the child has not paid the infringement penalty or the part of the infringement penalty; and
(b)the child has not declined to be dealt with by the registrar; and
(c)an order has not been made under clause 7 in respect of the infringement penalty.
(2)Subject to any application made by the child, the registrar may adjourn or abridge the time for considering the matter.
(3)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)cancel the registration of the infringement penalty or the part of the infringement penalty and remit the infringement notice to the enforcement agency if—
(i)the child contests the matter of the alleged offence in respect of which the infringement notice was issued; or
(ii)the child declines to be dealt with by the registrar; or
(iii)the registrar is otherwise satisfied that it is appropriate to do so; 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 or part and order that the child pay to the Court the registered amount; or
(d)make an order reducing the registered amount and order that the child pay to the Court the registered amount as so reduced; or
(e)if the registrar is satisfied that the child has paid the registered amount, make an order confirming the infringement penalty or part; or
(f)if the registrar is satisfied on an application under clause 6(4) or otherwise, that it is appropriate to do so, order that payment of the registered amount that remains unpaid not be enforced.
(4)In exercising his or her discretion under sub-clause (3), the registrar must have regard to—
(a)the child's employment or school attendance; and
(b)the child's personal and financial circumstances.
(5)An order made under sub-clause (3) must not require payment of an amount exceeding the amount of a fine that the Court may impose under section 373.
(6)An enforcement order is deemed to be an order of the Court—
(a)in the case of an order made under sub-clause (3)(c) or (3)(d), on the expiry of 28 days after the making of the order unless an application is made under clause 10 within that period;
(b)in the case of an order made under sub-clause (3)(e), on the day that it is made;
(c)in the case of an order made under sub-clause (3)(f), on the expiry of 14 days after the making of the order unless an application is made under clause 10 within that period.
(7)A child in relation to whom an enforcement order is made may apply for an order under clause 7.
9.Notice of enforcement order
(1)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 3(1)(a) or any other address given by the child.
(2)If the registrar orders that payment of a registered amount that remains 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.
10.Court review of enforcement order
(1)If the registrar makes an order under clause 8(3)(c) or 8(3)(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 8(3)(f), 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 of a fine that the Court may impose under section 373; or
(c)that payment of the registered amount that remains unpaid not be enforced.
11.Enforcement hearing
(1)If—
(a)an order is made under clause 7, 8(3)(c), 8(3)(d) or 10(5) in respect of a person; and
(b)for a period of more than one month the person 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 person, require the person 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 378.
12.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.
13.Expiry of enforcement order
(1)An enforcement order expires—
(a)if an order is made under clause 7 in relation to the enforcement order—
(i)on the payment in full of the registered amount; or
(ii)if one or more payments are made under the order but the registered amount 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;
(b)if a warrant to seize property has been issued in respect of the order, on that warrant becoming void under section 529;
(c)if an order is made under clause 8(3)(f), 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 registered amount still outstanding in respect of which the order 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 registered amount 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.
14.Service of documents
(1)All documents required or permitted by this Schedule to be given or served, may be served personally or by post or in any other prescribed manner.
(2)Any 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 3(1)(a).
PART 3—CANCELLATION OF INFRINGEMENT NOTICE
15.Cancellation of infringement notice if person not aware
(1)A child or a person on that child's behalf may apply to a registrar to have an infringement notice cancelled if—
(a)the service of the infringement notice was not by personal service on the child; and
(b)the child was not in fact aware that an infringement notice had been served on the child.
(2)An application under sub-clause (1) must—
(a)be made within 14 days of the child becoming aware of the infringement notice; and
(b)be accompanied by a written statement setting out the grounds on which the cancellation is sought.
(3)If an application is made under sub-clause (1), a registrar must—
(a)stay the operation of the infringement notice; and
(b)refer the application to the Court for hearing and determination.
(4)On the referral to the Court under sub-clause (3), the Court must cause a notice of the time and place of the hearing of the application to be given or sent to the enforcement agency and to the applicant.
16.Powers of Court to cancel
(1)On the referral of an application under clause 15 to the Court, any of the procedures set out in this Schedule that are being used for the enforcement of the infringement penalty are, by force of this sub-clause, suspended pending the determination of the application.
(2)The Court may only cancel an infringement notice if it is satisfied that, more than 14 days before making an application under sub-clause (1), the person was not in fact aware that the infringement notice had been served.
(3)If the Court cancels an infringement notice under this clause—
(a)any infringement penalty and prescribed costs that have been paid in relation to the notice must be refunded and the Consolidated Fund or any other fund specified by the relevant Act or other instrument into which the penalty and costs have been paid is, to the necessary extent, appropriated accordingly; and
(b)any of the procedures set out in this Schedule that are being used for the enforcement of any infringement penalty and prescribed costs (if any) in relation to the notice must be discontinued; and
(c)any enforcement order in relation to the infringement penalty and prescribed costs (if any) is revoked; and
(d)any warrant issued in relation to the infringement penalty and prescribed costs is cancelled.
(4)The cancellation of an infringement notice under this clause does not prevent the service of a new infringement notice in respect of the offence for which the cancelled infringement notice was served.
__________________'.
30.Schedule 4 substituted
For Schedule 4 to the Children, Youth and Families Act 2005 substitute—
'SCHEDULE 4
Section 606
TRANSITIONAL AND SAVING PROVISIONS
PART 1—INTRODUCTION
1.Definitions
In this Schedule—
"commencement day" means the day on which section 601 of the new Act comes into operation;
"old Act" means Children and Young Persons Act 1989;
"new Act" means Children, Youth and Families Act 2005.
2.General transitional provisions
(1)This Schedule does not affect or take away from the Interpretation of Legislation Act 1984.
(2)Without limiting sub-clause (1), in declaring that certain provisions of the new Act are to be treated as re-enacting with modifications certain provisions of the old Act or the Community Services Act 1970, this Schedule must not be taken to—
(a)limit the operation of any provision of the Interpretation of Legislation Act 1984 relating to the re-enactment; or
(b)be an exhaustive list of the provisions of the old Act or the Community Services Act 1970 re-enacted by the new Act.
(3)This Schedule applies despite anything to the contrary in any other provision of the new Act.
3.Saving of references
If a provision of an Act that is repealed by the new Act required a reference in an Act, subordinate instrument or other instrument or document to a person or body to be construed as a reference to another person or body, the repeal of that provision does not affect the construction of that reference in that Act, instrument or document, unless the contrary intention appears.
PART 2—CHILDREN AND YOUNG PERSONS ACT 1989
Division 1—General
4.Superseded reference
On and from the commencement day unless the context otherwise requires, in any Act (other than the new Act), or in any instrument made under any Act or in any other document of any kind, a reference to the old Act must be read as a reference to the new Act.
5.Re-enacted provisions
A provision or provisions of the old Act specified in Column 1 of the Table are deemed to be re-enacted (with modifications) by the provision or provisions of the new Act appearing opposite in Column 2 of the Table.
Old Provision New Provision Division 1 of Part 2 Part 7.1 Division 2 of Part 2 Part 7.2 Division 3 of Part 2 Part 7.3 Division 4 of Part 2 Part 7.4 Division 5 of Part 2 Part 7.5 Division 6 of Part 2 Part 7.6 Division 7 of Part 2 Part 7.7 Division 8 of Part 2 Part 7.8 Section 62 Part 3.6 Sections 63 and 63A Part 4.1 Section 64 Division 2 of Part 4.4 Sections 65(2), 66 and 67 Division 1 of Part 4.6 Sections 68, 69 and 70 Division 2 of Part 4.8 Division 3 of Part 3 Division 4 of Part 4.8 Division 4 of Part 3 Division 5 of Part 4.8 Sections 81, 82 and 83 Division 1 of Part 4.7 Division 6 of Part 3 Part 4.9 Division 7 of Part 3 Part 4.10 Division 7A of Part 3 Section 533 Division 8 of Part 3 Division 1 of Part 4.11 Sections 121 and 122 Division 2 of Part 4.11 Sections 123 and 124 Sections 172, 173 and 174 Section 126 Division 1 of Part 4.12 Old Provision New Provision Division 10 of Part 3 Division 2 of Part 4.12 Division 1 of Part 4 Part 5.1 Division 2 of Part 4 Division 1 of Part 5.2 Division 3 of Part 4 Division 2 of Part 5.2 Division 4 of Part 4 Division 3 of Part 5.2 Division 5 of Part 4 Division 4 of Part 5.2 Division 6 of Part 4 Division 5 of Part 5.2 Division 7 of Part 4 Part 5.3 Division 7A of Part 4 Section 533 Division 8 of Part 4 Part 5.4 Division 9 of Part 4 Part 5.5 Division 10 of Part 4 Part 5.6 Division 11 of Part 4 Part 5.7 Division 12 of Part 4 Part 5.8 Division 13 of Part 4 Part 7.9 Division 1 of Part 5 (except section 265) Part 6.1 Section 265 Part 8.3 Division 2 of Part 5 Part 6.2 Section 271 Part 8.2 Section 272 Section 503 Sections 273, 274, 275, 276 and 279 Part 7.10 Section 277 Section 593 Section 278 Section 595 Division 5 of Part 5 Part 8.5 Old Provision New Provision Division 5A of Part 5 Part 7.11 Schedule 1 Schedule 2 Schedule 2 Schedule 1 Schedule 2A Schedule 3
Division 2—The Children's Court of Victoria
6.The Children's Court of Victoria
The Children's Court of Victoria continued by the new Act is deemed to be the same court as The Children's Court of Victoria existing immediately before the commencement day.
7.President and Acting President
(1)The person who holds office as President of The Children's Court of Victoria immediately before the commencement day holds office as President under and subject to the new Act without further appointment.
(2)Any person who holds office as Acting President of The Children's Court of Victoria immediately before the commencement day holds office as Acting President under and subject to the new Act for the duration of his or her appointment as Acting President without further appointment.
8.Magistrates and acting magistrates
(1)Any person who holds office as magistrate for the Court immediately before the commencement day holds office as magistrate for the Court under and subject to the new Act without further appointment.
(2)Any person who holds office as acting magistrate for the Court immediately before the commencement day holds office as magistrate for the Court under and subject to the new Act for the duration of his or her appointment as acting magistrate without further appointment.
9.Aboriginal elders or respected persons
Any person who holds office as an Aboriginal elder or respected person under section 27A of the old Act immediately before the commencement day holds office as an Aboriginal elder or respected person under section 536 of, and subject to, the new Act for the duration of his or her appointment as an Aboriginal elder or respected person without further appointment.
10.Principal registrar, registrars and deputy registrars
Any person who holds office as principal registrar, registrar or deputy registrar under the old Act immediately before the commencement day holds office as principal registrar, registrar or deputy registrar under and subject to the new Act.
11.Probation officer and honorary probation officers
(1)Any person who holds office as a probation officer under the old Act immediately before the commencement day holds office as a youth justice officer under and subject to the new Act.
(2)Any person who holds office as an honorary probation officer under the old Act immediately before the commencement day holds office as an honorary youth justice officer under and subject to the new Act.
12.Court liaison officers
Any person who holds office as a court liaison officer under the old Act immediately before the commencement day holds office as a court liaison officer under and subject to the new Act.
13.The Children's Court Clinic
The Children's Court Clinic continued by the new Act is deemed to be the same clinic as the Children's Court Clinic existing under the old Act immediately before the commencement day.
Division 3—Protection of Children
14.Approved community services
(1)A body that was an approved community service under section 58 of the old Act immediately before the commencement day and was in receipt of funding from the Secretary for the provision of out of home care services is deemed on the commencement day to be a registered out of home care service under the new Act.
(2)A body that was an approved community service under section 58 of the old Act immediately before the commencement day and was in receipt of funding from the Secretary for the provision of family services other than out of home care services is deemed on the commencement day to be a registered community-based child and family service under the new Act.
(3)A body that was an approved community service under section 58 of the old Act immediately before the commencement day and was in receipt of funding from the Secretary for the provision of out of home care services and other family services is deemed on the commencement day to be a registered out of home care service and a registered community-based child and family service under the new Act.
(4)Despite section 49 of the new Act, a body referred to in sub-clause (1), (2) or (3) is deemed to be registered for 12 months from the commencement day.
(5)The Secretary, by notice in writing given to a body referred to in sub-clause (1), (2) or (3) within 12 months after the commencement day, may extend the period of deemed registration of the body to a period not exceeding 3 years from the commencement day.
(6)Nothing in this clause prevents a body referred to in sub-clause (1), (2) or (3) from applying for a renewal of registration under section 50 of the new Act.
15.Departmental community services and secure welfare services
(1)A community service established under section 57 of the old Act is deemed to be a community service established under section 44 of the new Act.
(2)A secure welfare service established under section 57 of the old Act is deemed to be a secure welfare service established under section 44 of the new Act.
16.Notifications
On the commencement day—
(a)a notification made under section 64(1) of the old Act is deemed—
(i)to be a report under section 183 of the new Act; and
(ii)to have been determined under section 187 of the new Act to be a protective intervention report for the purposes of the new Act;
(b)a notification made under section 64(1A) of the old Act is deemed—
(i)to be a report under section 184 of the new Act; and
(ii)to have been determined under section 187 of the new Act to be a protective intervention report for the purposes of the new Act.
17.Central register
The central register established and maintained under section 65(1)(b) of the old Act is deemed to be the central register referred to in section 165 of the new Act.
18.Pre-hearing conferences
(1)Despite the repeal of the old Act, sections 37A, 82A, 82B and 87(2) of the old Act continue in force until the date of commencement of Division 2 of Part 4.7 of the new Act as if the words and expressions in those sections had the same meanings as they have in the new Act.
(2)On and from the commencement of Division 2 of Part 4.7 of the new Act, a reference in section 224 to a report of the convenor or convenors of a dispute resolution conference is deemed to include a reference to the convenor's report on a pre-hearing conference held under section 82A of the old Act.
19.Case plan
A case plan prepared under section 120 of the old Act in respect of a child is deemed to be a case plan prepared under section 166 of the new Act in respect of the child.
20.State Guardianship Fund
The State Guardianship Fund established under section 177 of the new Act is deemed to be the same fund as the State Guardianship Fund established under section 125 of the old Act.
Division 4—Children and the Criminal Law
21.Youth Residential Board
Any person who holds office as a member of the Youth Residential Board under the old Act immediately before the commencement day holds office as a member of that Board under and subject to the new Act for the duration of his or her appointment without further appointment.
22.Youth Parole Board
Any person who holds office as a member of the Youth Parole Board under the old Act immediately before the commencement day holds office as a member of that Board under and subject to the new Act for the duration of his or her appointment without further appointment.
23.Corrective services
A corrective service established under section 249 of the old Act and specified in Column 1 of the Table and existing immediately before the commencement day is deemed to be established under section 478 of the new Act as a corrective service specified opposite it in Column 2 of the Table.
Column 1 Column 2 Remand centre Remand centre Youth residential centre Youth residential centre Youth training centre Youth justice centre Youth supervision unit Youth justice unit 24.Superseded references
On and from the commencement day unless the context otherwise requires, in any Act (other than the new Act), or in any instrument made under any Act or in any other document of any kind—
(a)a reference to a probation officer, responsible officer or supervisor within the meaning of the old Act must be read as a reference to a youth justice officer; and
(b)a reference to a youth supervision unit must be read as a reference to a youth justice unit; and
(c)a reference to a youth training centre must be read as a reference to a youth justice centre; and
(d)a reference to a youth training centre order must be read as a reference to a youth justice centre order.
PART 3—CHILDREN, YOUTH AND FAMILIES ACT 2005
25.Registration of existing out of home carers
(1)An out of home care service must notify the Secretary in writing within one month after the commencement day of each person who on the commencement day—
(a)is approved by the out of home care service to act as a foster carer; or
(b)is employed or engaged by the out of home care service—
(i)as a carer for children; or
(ii)as a provider of services to children (within the meaning of section 74 of the new Act) at an out of home care residence managed by the service.
(2)A notice under this clause must include the prescribed information (if any).
(3)The Secretary must record in the register of out of home carers the required information in respect of each person of whom notice is given under this clause as if the notice was given under Division 2 of Part 3.4 of the new Act.
26.Review of child care agreements
(1)Despite anything to the contrary in section 139 of the new Act, that section applies in respect of a short-term child care agreement existing on the commencement day as if a reference in section 139(1)(a) to the end of the first 6 months of the agreement were a reference to the end of 12 months after the commencement day.
(2)Despite anything to the contrary in section 152 of the new Act, that section applies in respect of a long-term child care agreement existing on the commencement day as if a reference in section 152(1)(b) to the end of the first 6 months of the agreement were a reference to the end of 12 months after the commencement day.
27.Reporting of child-care agreements
(1)Despite section 159(a) of the new Act, a service provider existing on the commencement day in their first report under that section is required only to report on the number of child care agreements that the service provider has been a party to in the period since the commencement day.
(2)The Secretary must first publish the details required under section 160 of the new Act by the end of 12 months after the commencement day.
28.Stability plans
For the purposes of section 170 of the new Act, any period that a child is in out of home care before the commencement day is to be disregarded in calculating the required time for the preparation of a stability plan for that child.
29.Permanent care orders
If a child is in out of home care on the commencement day, section 319 of the new Act applies as if for sub-section (1)(a) there were substituted—
"(a)the child's parent or, if the child's parent has died, the child's surviving parent had not had the care of the child for—
(i)a period of at least 2 years commencing before the commencement day; or
(ii)for periods that total at least 2 of the last 3 years commencing before the commencement day; or
(iii)a period of at least 6 months commencing on the commencement day—
whichever period or total period ends first; and".
PART 4—COMMUNITY SERVICES ACT 1970
30.Child care agreements
(1)A child care agreement entered into under Division 1A of Part III of the Community Services Act 1970 and existing immediately before the commencement day is deemed to be a short-term child care agreement within the meaning of Part 3.5 of the new Act.
(2)A child care agreement entered into under Division 1B of Part III of the Community Services Act 1970 and existing immediately before the commencement day is deemed to be a long-term child care agreement within the meaning of Part 3.5 of the new Act.
(3)Part 3.5 of the new Act re-enacts with modifications Divisions 1A, 1B and 1C of Part III of the Community Services Act 1970.
31.Authorisations and agreements
(1)An authorisation given under section 200A(1) of the Community Services Act 1970 and existing immediately before the commencement day is deemed to be an authorisation given under section 25(1) of the new Act.
In section 3(1), in the definition of "guardian", for "Children and Young Persons Act 1989" substitute "Children, Youth and Families Act 2005".
38.Whistleblowers Protection Act 2001
In section 3(1), for the definition of "prison" substitute—
' "prison" has the same meaning as in the Corrections Act 1986 but includes a youth justice centre established under section 478 of the Children, Youth and Families Act 2005;'.
39.Working with Children Act 2005
39.1In section 3(1), in the definition of "parent", for "Children and Young Persons Act 1989" substitute "Children, Youth and Families Act 2005".
39.2In section 9(3)(e) for "youth training centres, within the meaning of the Children and Young Persons Act 1989" substitute "youth justice centres, within the meaning of the Children, Youth and Families Act 2005".
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ENDNOTES
Minister's second reading speech—
Legislative Assembly: 8 June 2006
Legislative Council: 20 July 2006
The long title for the Bill for this Act was "to amend the Children, Youth and Families Act 2005 and the Children and Young Persons Act 1989, to amend other Acts as a consequence of the enactment of the Children, Youth and Families Act 2005, to repeal the Adoption (Amendment) Act 1991 and for other purposes."
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