Youth Justice (Transitional Provisions) Act 1999
An Act to provide for matters of a transitional and savings nature arising from the commencement of the Youth Justice Act 1997 and the Youth Justice (Consequential Amendments) Act 1999
[Royal Assent 27 October 1999]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
1Short titleThis Act may be cited as the Youth Justice (Transitional Provisions) Act 1999 . 2CommencementThis Act commences on the day on which the Youth Justice Act 1997 commences. 3Interpretation (1) In this Act – child has the same meaning as in the Principal Act; child welfare officer has the same meaning as in the Principal Act; commencement day means the day on which the Youth Justice Act 1997 commences; committed includes alleged to have been committed; detention centre has the same meaning as in the Youth Justice Act 1997 ; Director has the same meaning as in the Principal Act; institution has the same meaning as in the Principal Act; offence has the same meaning as in the Youth Justice Act 1997 ; Principal Act means the Child Welfare Act 1960 ; probation officer has the same meaning as in the Principal Act; Secretary has the same meaning as in the Youth Justice Act 1997 ; ward of the State has the same meaning as in the Principal Act; youth has the same meaning as in the Youth Justice Act 1997 ; youth justice worker has the same meaning as in the Youth Justice Act 1997 . (2) In this Act, a reference to a provision of the Principal Act is a reference to the Principal Act as in force immediately before the commencement day. 4Continuing documents (1) In this section, continuing document means any of the following documents if it is continued or has effect on or after the commencement day: (a) an application made under the Principal Act in proceedings relating to an offence committed by a youth; (b) an order made under the Principal Act in proceedings relating to an offence committed by a youth, other than an order making a youth a ward of the State; (c) a provision of the Principal Act that – (i) has been repealed or omitted by the Youth Justice (Consequential Amendments) Act 1999 ; or (ii) immediately before the commencement day applied in relation to an offence or proceedings for or in relation to an offence; (d) a complaint made in respect of an offence committed by a youth; (e) a summons issued under the Principal Act in proceedings relating to an offence committed by a youth; (f) a warrant issued under the Principal Act in proceedings relating to an offence committed by a youth; (g) a recognisance or surety entered into under an order made under the Principal Act in proceedings relating to an offence committed by a youth; (h) a report made or provided under the Principal Act in or for the purpose of proceedings relating to an offence committed by a youth; (i) a requirement made under the Principal Act in proceedings relating to an offence committed by a youth; (j) any other document made, issued or provided under the Principal Act for the purposes of or in relation to proceedings relating to an offence committed by a youth. (2) For the purpose of giving effect to a continuing document – (a) a reference in the document to the Director is taken to be a reference to the Secretary; and (b) a reference in the document to a child welfare officer or a probation officer is taken to be a reference to a youth justice worker; and (c) a reference in the document to an institution is taken to be a reference to a detention centre; and (d) a reference in the document to a children’s court is taken to be a reference to the Magistrates Court (Youth Justice Division); and (e) such modifications and adaptations to the document as are necessary to give effect to it and are appropriate in the circumstances are taken to have been made. 5Transfer of certain child welfare officersA person appointed as a child welfare officer under section 7 of the Principal Act is taken to have been appointed subject to and in accordance with the Tasmanian State Service Act 1984 for the purposes of the Youth Justice Act 1997 if that person has been notified to that effect by the Secretary. 6Publication of proceedingsOn and after the commencement day, section 31 of the Youth Justice Act 1997 applies in respect of any proceedings commenced under the Principal Act before that day whether or not those proceedings are finally determined before, on or after that day. 7Proceedings against and by under-age child (1) In this section – under-age child means a child who was under 10 years of age at the time of the offence which the child is alleged to have committed or of which the child has been found guilty; under-age proceedings means proceedings in respect of an offence alleged to have been committed by an under-age child. (2) If any under-age proceedings have been commenced in any court but not finally determined before the commencement day, those proceedings cannot be continued. (3) Despite subsection (2) , an appeal by an under-age child – (a) that, as a result of any under-age proceedings, has been commenced but not finally determined before the commencement day must be continued as if the Youth Justice (Consequential Amendments) Act 1999 had not commenced; or (b) that, as a result of any under-age proceedings, could be brought immediately before the commencement day may be brought, heard and determined as if the Youth Justice (Consequential Amendments) Act 1999 had not commenced. 8Proceedings for offence (1) If any proceedings against a youth for an offence against any Act have been commenced before a children’s court or a court of petty sessions under any Act but not finally determined before the commencement day, those proceedings are taken to have been commenced under the Youth Justice Act 1997 before the Magistrates Court (Youth Justice Division) and must be continued under that Act before the Magistrates Court (Youth Justice Division). (2) If any proceedings against a youth for an offence against any Act have been commenced or continued in the Supreme Court under any Act but not finally determined before the commencement day and those proceedings could, on or after that day, have been commenced before the Magistrates Court (Youth Justice Division), those proceedings at the discretion of the Supreme Court may be – (a) continued in the Supreme Court; or (b) transferred to the Magistrates Court (Youth Justice Division) for hearing and determination. (3) If – (a) a youth is found guilty before the commencement day of an offence but not sentenced before that day; or (b) a youth is found guilty after the commencement day of an offence in proceedings commenced before that day – the Youth Justice Act 1997 applies in relation to the sentencing of the youth. 9Order discharging child on recognisance (1) An order under section 23(1)(a) of the Principal Act – (a) is taken to be an order under section 47(1)(c) of the Youth Justice Act 1997 dismissing the charge and requiring the child to enter into an undertaking to be of good behaviour; and (b) has effect until the first of the following occurs: (i) the term of the order expires; (ii) the period of 6 months commencing on the commencement day expires. (2) A recognisance entered into under an order made under section 23(1)(a) of the Principal Act is taken to be an undertaking to be of good behaviour entered into under an order made under section 47(1)(c) of the Youth Justice Act 1997 . 10Supervision order (1) A supervision order made under section 23(1)(b) or 28(1)(a) of the Principal Act has effect until the first of the following occurs: (a) the term of the order, or the order as varied, expires; (b) the period of 12 months commencing on the commencement day expires; (c) the person against whom the order was made reaches the age of 18 years. (2) For the purposes of giving effect to an order referred to in subsection (1) on and after the commencement day – (a) section 37 of the Principal Act continues to apply in respect of the order; and (b) a reference in section 37 of the Principal Act to such other order as could have been made at the time at which the supervision order was made is taken to be a reference to an order under section 47(1)(a) , (b) , (c) , (d) or (f) of the Youth Justice Act 1997 ; and (c) an application made under section 37 of the Principal Act in relation to an order referred to in subsection (1) is to be heard and determined by the Magistrates Court (Youth Justice Division). 11Order declaring child to be ward of State (1) An order declaring a child to be a ward of the State under section 23(1)(c) or 28(1)(b) of the Principal Act continues to have effect under that Act. (2) An order under section 23(1A) or 28 of the Principal Act continues to have effect under that Act and section 29A of that Act continues to apply in respect of that order. 12ImprisonmentA sentence of imprisonment imposed on a child by a children’s court and in force immediately before the commencement day is taken to be a sentence of detention imposed under the Youth Justice Act 1997 and has effect until the first of the following occurs: (a) the sentence is served; (b) the period of 2 years commencing on the commencement day expires. 13FineAn order of a children’s court imposing a fine on a child and in force immediately before the commencement day is taken to be an order made under section 47(1)(e) of the Youth Justice Act 1997 . 14Remand for observationIf immediately before the commencement day a child is being held on remand under an order under section 24(1) of the Principal Act, the order for remand is taken to be an order under section 104 of the Youth Justice Act 1997 , as read in accordance with section 27 of this Act, referring the matter to the Director and placing the child in the custody of the Director. 15Costs by child Section 26(3) of the Principal Act continues to apply in respect of proceedings commenced before a children’s court before the commencement day. 16Proceedings against parents (1) Any proceedings commenced against a parent of a child under section 25(1) of the Principal Act but not finally determined before the commencement day cannot, on or after that day, be continued. (2) Despite subsection (1) , an appeal by a person convicted of an offence under section 25(1) of the Principal Act – (a) that has been brought but not finally determined before the commencement day may be continued as if the Youth Justice (Consequential Amendments) Act 1999 had not commenced; or (b) that could be brought immediately before the commencement day may be brought and determined as if the Youth Justice (Consequential Amendments) Act 1999 had not commenced. 17Summons or warrant issued in respect of guardianOn and after the commencement day, a summons or warrant issued under section 16 of the Principal Act in proceedings in respect of an offence continues and is taken to be a summons or warrant issued under section 102 of the Youth Justice Act 1997 . 18Report of child welfare officerIf proceedings for an offence have been commenced before a children’s court but have not been finally determined before the commencement day – (a) a requirement by that court under section 15(2) of the Principal Act for the provision to that court of a report by a child welfare officer is taken to be a requirement made by the Magistrates Court (Youth Justice Division) under section 33 of the Youth Justice Act 1997 for the Secretary to provide a presentence report; and (b) a report of a child welfare officer provided to the children’s court under section 15(2) of the Principal Act is taken to be a presentence report provided to the Magistrates Court (Youth Justice Division) under section 33 of the Youth Justice Act 1997 . 19Delivery of order to DirectorIf an order is made before the commencement day, but a copy of the order is not delivered to the Director as required by section 44(1) of the Principal Act before that day, the clerk of petty sessions or the Registrar of the Supreme Court, as the case requires, is to provide a certified copy of the order to the Secretary. 20Leave from institution (1) Leave which is in force immediately before the commencement day granted under section 29A(4) of the Principal Act is taken to be leave of absence granted under section 130(1) of the Youth Justice Act 1997 . (2) If leave granted under section 29A(4) of the Principal Act is revoked under section 29A(5) of that Act but the person has not returned to the institution or detention centre from which he or she was granted the leave of absence, that person is taken to be absent from a detention centre without lawful authority for the purposes of the Youth Justice Act 1997 . 21Release from imprisonment (1) A licence granted under section 30(3) of the Principal Act in force immediately before the commencement day is taken to be a supervised release order made under section 110(1) of the Youth Justice Act 1997 . (2) If a licence has been granted under section 30(3) of the Principal Act and revoked before the commencement day and immediately before that day the person who had been granted that licence is subject to a sentence of a term of imprisonment, the licence is taken to be a supervised release order made under section 110(1) of the Youth Justice Act 1997 and cancelled under section 117(4) or 119 of the Youth Justice Act 1997 , as the circumstances require. 22References to provisions of Child Welfare Act 1960 (1) A reference in any Act, subordinate legislation or other document to a provision of the Principal Act that has been repealed, omitted or amended by the Youth Justice (Consequential Amendments) Act 1999 in a context that relates to a child who is charged with, or has been found guilty of, an offence is taken to be a reference to the provision of the Youth Justice Act 1997 corresponding in nature and effect. (2) If a reference in any Act, subordinate legislation or other document to the Principal Act is in a context that both relates to a child who is charged with, or has been found guilty of, an offence and indicates that a provision or other segment of the Principal Act (which has been repealed, omitted or amended by the Youth Justice (Consequential Amendments) Act 1999 ) is relevant to that reference, that reference is taken to be a reference to the Youth Justice Act 1997 . 23Actions by and in relation to Director (1) Where appropriate, an act done or omitted by or on behalf of the Director before the commencement day in respect of a child who is charged with, or has been found guilty of, an offence or in respect to proceedings relating to an offence committed by such a child is taken to have been done or omitted by or on behalf of the Secretary. (2) Where appropriate, an act done or omitted in relation to the Director before the commencement day in respect of a child who is charged with, or has been found guilty of, an offence or in respect to proceedings relating to an offence committed by such a child is taken to have been done or omitted in relation to the Secretary. (3) Without limiting what may constitute an act for the purposes of subsection (1) or (2) , an act may be constituted by any one or more of the following: (a) giving, making, filing, issuing, granting or providing an application, complaint, summons, warrant, licence, authorisation, approval, exemption, requirement, recommendation or report; (b) making a payment; (c) forming an opinion. 24Documents held by DirectorDocuments relating to a child who is charged with, or has been found guilty of, an offence that are in the possession of, or under the control of, the Director immediately before the commencement day are taken to be in the possession of, or under the control of, the Secretary. 25Service (1) Where appropriate, a document relating to a child who is charged with, or has been found guilty of, an offence that has been served on, given to or otherwise provided to the Director before the commencement day is taken to have been served on, given to or otherwise provided to the Secretary. (2) Where appropriate, a document relating to a child who is charged with, or has been found guilty of, an offence that has been served, given or otherwise provided by the Director before the commencement day is taken to have been served, given or otherwise provided by the Secretary. (3) Where appropriate, a document relating to a child who is charged with, or has been found guilty of, an offence that has been filed with or otherwise provided to a children’s court before the commencement day is taken to have been filed with or otherwise provided to the Magistrates Court (Youth Justice Division). (4) Where appropriate, a document relating to a child who is charged with, or has been found guilty of, an offence that has been served, given or otherwise provided by or as required by a children’s court before the commencement day is taken to have been served, given or otherwise provided by the Magistrates Court (Youth Justice Division). (5) A document relating to a child who is charged with, or has been found guilty of, an offence that is addressed to the Director may be served on or provided to the Secretary. 26Reference to Director (1) A reference in any Act or subordinate legislation to the Director in a context relating to a child who is charged with, or has been found guilty of, an offence or relating to proceedings in respect of an offence committed by such a child is taken to be a reference to the Secretary or the Secretary and the Director, as the case requires. (2) A reference in any document, other than an Act or subordinate legislation, to the Director in a context relating to a child who is charged with, or has been found guilty of, an offence or relating to proceedings in respect of an offence committed by such a child is taken to be a reference to – (a) the Secretary; or (b) the Director; or (c) the Secretary and the Director. 27Application of section 104 of the Youth Justice Act 1997 (1) Until the Children, Young Persons and Their Families Act 1997 commences, section 104 of the Youth Justice Act 1997 is to be read as if subsections (1) and (2) of that section were not in force and the following subsection were subsection (1) of that section instead: (1) If at any time during proceedings under this Part it appears to the Court that it would be in the best interests of the youth for an investigation or proceedings to be taken under the Child Welfare Act 1960 or the Child Protection Act 1974 , the Court may adjourn the proceedings and make one or more of the following orders: |
(a) an order referring the matter to the Director, within the meaning of the Child Welfare Act 1960 , or to the Child Protection Board; |
(b) an order remanding the youth to be placed in some suitable place for the period or until the time specified in the order. |
(2) Until the Children, Young Persons and Their Families Act 1997 commences, section 104 of the Youth Justice Act 1997 is to be read as if – (a) the reference in subsection (3) of that section to subsection (2) were a reference to subsection (1); and (b) the reference in subsection (4) of that section to the Children, Young Persons and Their Families Act 1997 were a reference to the Child Welfare Act 1960 or the Child Protection Act 1974 , as the case requires. 28Regulations (1) The Governor may make regulations of a savings or transitional nature consequent on the commencement of the Youth Justice Act 1997 , the Youth Justice (Consequential Amendments) Act 1999 and this Act. (2) Regulations made under this section may take effect on the commencement day or a later day as specified in the regulations, whether the day so specified is before, on or after the day on which the regulations are made. (3) Regulations made under this section may be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the regulations. (4) Regulations made under this section may authorise any matter to be from time to time determined, applied or regulated by a court, a district registrar or the Secretary. 29Administration of ActUntil provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 – (a) the administration of this Act is assigned to the Minister for Health and Human Services; and (b) the department responsible to the Minister for Health and Human Services in relation to the administration of this Act is the Department of Health and Human Services. [Second reading presentation speech made in:
House of Assembly on 1 JULY 1999
Legislative Council on 23 SEPTEMBER 1999]