Untitled document

Children and Young Persons (Koori Court) Act 2004

Act No. 89/2004

table of provisions

Section  Page

1.Purposes

2.Commencement

3.Principal Act

4.Definitions

5.Establishment of Koori Court (Criminal Division)

6.New sections 16A to 16D inserted

16A.Koori Court (Criminal Division)

16B.Jurisdiction of Koori Court (Criminal Division)

16C.Circumstances in which Koori Court (Criminal Division) may deal with certain offences

16D.Sentencing procedure in Koori Court (Criminal Division)

7.New section 27A inserted

27A.Appointment of Aboriginal elders or respected persons

8.New section 280BA inserted

280BA.Rules of court—Koori Court (Criminal Division)

9.Transitional provision

10.Repeal of Koori Court (Criminal Division) provisions

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Endnotes

Children and Young Persons (Koori Court) Act 2004

[Assented to 7 December 2004]

The Parliament of Victoria enacts as follows:

1.Purposes

The purposes of this Act are—

(a)to establish a Koori Court (Criminal Division) of the Children's Court; and

(b)to provide for the jurisdiction and procedure of that Division—

with the objective of ensuring greater participation of the Aboriginal community in the sentencing process of the Children's Court through the role to be played in that process by the Aboriginal elder or respected person and others so as to assist in achieving more culturally appropriate sentences for young Aboriginal people.

2.Commencement

(1)This Act (other than section 10) comes into operation on the day after the day on which it receives the Royal Assent.

(2)Subject to sub-section (3), section 10 comes into operation on a day to be proclaimed.

(3)If section 10 does not come into operation before 1 July 2007, 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.

4.Definitions

(1)In section 3(1) of the Principal Act insert the following definitions—

' "Aboriginal elder or respected person" means a person who holds office as an Aboriginal elder or respected person under section 27A;

"family member" of a child means—

(a)the spouse or domestic partner of the child; or

(b)a person who has or has had an intimate personal relationship with the child; or

(c)a parent of the child; or

(d)a person who is or has been a relative of the child; or

(e)another child who normally or regularly resides with the child; or

(f)a person who is or has been ordinarily a member of the household of the child;

"Children's Koori Court officer" means a person who—

(a)is employed under Part 3 of the Public Sector Management and Employment Act 1998; and

(b)exercises powers or performs functions in relation to the Koori Court (Criminal Division) of the Court;'.

(2)After section 3(5) of the Principal Act insert—

"(6)Unless the context otherwise requires, a reference in this Act to the Criminal Division includes a reference to the Koori Court (Criminal Division).".

5.Establishment of Koori Court (Criminal Division)

(1)For section 8(3)(b) of the Principal Act substitute—

"(b)the Criminal Division;

(c)the Koori Court (Criminal Division).".

(2)In section 8(5) of the Principal Act, for "both Divisions" substitute "more than one Division".

(3)In section 8(7) of the Principal Act, for "either" substitute "any".

(4)In section 24(2) of the Principal Act, for "both Divisions" substitute "any Division".

6.New sections 16A to 16D inserted

After section 16 of the Principal Act insert—

"16A.  Koori Court (Criminal Division)

(1)The Koori Court (Criminal Division) has all of the powers of the Court that are necessary to enable it to exercise its jurisdiction.

(2)Despite anything to the contrary in this Act, the Koori Court (Criminal Division) may only sit and act at a venue of the Court specified by the President, after consulting the Chief Magistrate, by notice published in the Government Gazette.

(3)The Koori Court (Criminal Division) must exercise its jurisdiction with as little formality and technicality, and with as much expedition, as the requirements of this Act and the proper consideration of the matters before the Court permit.

(4)The Koori Court (Criminal Division) must take steps to ensure that, so far as practicable, any proceeding before it is conducted in a way which it considers will make it comprehensible to—

(a)the child; and

(b)a family member of the child; and

(c)any member of the Aboriginal community who is present in court.

(5)Subject to this Act, the regulations and the rules, the Koori Court (Criminal Division) may regulate its own procedure.

(6)Nothing in this section limits Division 3.

16B.Jurisdiction of Koori Court (Criminal Division)

The Koori Court (Criminal Division) has—

(a)the jurisdiction to deal with a proceeding for an offence given to it by section 16C; and

(b)jurisdiction to deal with a breach of a sentencing order made by it (including any offence constituted by such a breach) or variation of such a sentencing order; and

(c)any other jurisdiction given to it by or under this or any other Act.

16C.Circumstances in which Koori Court (Criminal Division) may deal with certain offences

(1)The Koori Court (Criminal Division) only has jurisdiction to deal with a proceeding for an offence (other than an offence constituted by a breach of a sentencing order made by it) if—

(a)the child is Aboriginal; and

(b)the offence is within the jurisdiction of the Criminal Division, other than a sexual offence as defined in section 6B(1) of the Sentencing Act 1991; and

(c)the child—

(i)intends to plead guilty to the offence; or

(ii)pleads guilty to the offence; or

(iii)has been found guilty of the offence by the Criminal Division; and

(d)the child consents to the proceeding being dealt with by the Koori Court (Criminal Division).

(2)Subject to and in accordance with the rules—

(a)a proceeding may be transferred to the Koori Court (Criminal Division), whether sitting at the same or a different venue; and

(b)the Koori Court (Criminal Division) may transfer a proceeding (including a proceeding transferred to it under paragraph (a)) to the Criminal Division, whether sitting at the same or a different venue.

(3)Despite anything to the contrary in this Act, if a proceeding is transferred from one venue of the Court to another, the transferee venue is the proper venue of the Court for the purposes of this Act.

16D.Sentencing procedure in Koori Court (Criminal Division)

(1)This section applies to the Koori Court (Criminal Division) when it is considering which sentencing order to make in respect of a child.

(2)The Koori Court (Criminal Division) may consider any oral statement made to it by an Aboriginal elder or respected person.

(3)The Koori Court (Criminal Division) may inform itself in any way it thinks fit, including by considering a report prepared by, or a statement or submission prepared or made to it by, or evidence given to it by—

(a)a Children's Koori Court officer; or

(b)a juvenile justice worker employed under Part 3 of the Public Sector Management and Employment Act 1998; or

(c)a health service provider; or

(d)a victim of the offence; or

(e)a family member of the child; or

(f)anyone else whom the Koori Court (Criminal Division) considers appropriate.

(4)Nothing in this section affects the requirement to observe the rules of natural justice.

(5)This section does not limit—

(a)any other power conferred on the Court by or under this or any other Act; or

(b)any other specific provision made by or under this or any other Act for the making of any report, statement or submission, or the giving of any evidence, to the Court for the purpose of assisting it in determining sentence.

(6)Nothing in section 136 operates to limit this section.".

7.New section 27A inserted

After section 27 of the Principal Act insert—

"27A.Appointment of Aboriginal elders or respected persons

(1)The Secretary to the Department of Justice may appoint a person who is a member of the Aboriginal community as an Aboriginal elder or respected person for the purpose of performing functions in relation to the Koori Court (Criminal Division) as set out in this Act.

(2)An Aboriginal elder or respected person holds office for the period, and on the terms and conditions, determined by that Secretary and specified in the instrument of appointment.

(3)An Aboriginal elder or respected person may resign from office by writing signed by him or her and delivered to that Secretary.".

8.New section 280BA inserted

After section 280B of the Principal Act insert—

"280BA.  Rules of court—Koori Court (Criminal Division)

The President together with 2 or more magistrates for the Court may jointly make rules of court for or with respect to—

(a)any matter relating to the practice and procedure of the Koori Court (Criminal Division); and

(b)the transfer of proceedings to and from the Koori Court (Criminal Division).".

9.Transitional provision

In Schedule 3 to the Principal Act, at the end of the Schedule insert—

"27.The amendments of this Act made by section 6 of the Children and Young Persons (Koori Court) Act 2004 apply with respect to a proceeding for an offence, irrespective of when the offence was committed or the proceeding commenced.".

10.Repeal of Koori Court (Criminal Division) provisions

(1)In section 3(1) of the Principal Act, the definitions of "Aboriginal elder or respected person", "family member" and "Children's Koori Court officer" are repealed.

(2)Section 3(6) of the Principal Act is repealed.

(3)For section 8(3)(b) of the Principal Act substitute—

"(b)the Criminal Division.".

(4)In section 8(5) of the Principal Act, for "more than one Division" substitute "both Divisions".

(5)In section 8(7) of the Principal Act, for "any" (where first occurring) substitute "either".

(6)Sections 16A, 16B, 16C and 16D of the Principal Act are repealed.

(7)In section 24(2) of the Principal Act, for "any Division" substitute "both Divisions".

(8)Sections 27A and 280BA of the Principal Act are repealed.

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EndnoteS

Minister's second reading speech—

Legislative Assembly: 3 November 2004

Legislative Council: 30 November 2004

The long title for the Bill for this Act was "to amend the Children and Young Persons Act 1989 to establish a Koori Court (Criminal Division) of the Children's Court, to provide for the jurisdiction and procedure of that Division and for other purposes."