Wednesday, 19 June 2024

Bills

Youth Justice Bill 2024

Statement of compatibility

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (11:21): In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility for the Youth Justice Bill 2024:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Youth Justice Bill 2024.

In my opinion, the Youth Justice Bill 2024 (Bill), as introduced to the Legislative Assembly, is compatible with human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The Bill creates a standalone legislative framework for youth justice in Victoria. The nature and subject matter of youth justice necessarily raises a number of human rights issues, including both giving effect to and promoting human rights under the Charter, and limiting rights where reasonably justified.

Human Rights in the Bill

In light of the considerable scope of the Bill and the issues raised, this Statement of Compatibility commences with an outline of all rights engaged by the Bill, with a particular focus on children’s rights under the Charter. It then discusses the compatibility of relevant Chapters of the Bill with those rights.

Children’s rights

Children are entitled to all rights under the Charter, except where the scope or exercise of the right is legitimately restricted on the basis of age, such as the right to vote. The Charter also grants additional rights only to children, which are contained in sections 17(2), 23 and 25(3) of the Charter. In this Statement of Compatibility, the rights in sections 17(2), 23 and 25(3) of the Charter are referred to collectively as ‘children’s rights’. These rights recognise the special vulnerability of children, and require measures to be adopted to protect children and to foster their development and education.

Protection in a child’s best interests

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. This provision is modelled on article 24(1) of the International Covenant on Civil and Political Rights and its scope is informed by the Convention on the Rights of the Child and other relevant United Nations materials. The right protects important values, including bodily integrity, mental health, dignity and self-worth.

What is in a child’s best interests will depend on the specific circumstances of the child or group of children and the particular decision being made or action being taken. The level of protection required will ordinarily differ depending on the age of the child, in recognition of the progressively developing capacities of the children. Matters that may be relevant to a child’s best interests include the child’s views, the child’s identity, preservation of the family environment and relationships, protection and safety of the child, situation of vulnerability, and the child’s rights to health and education.

The scope of section 17(2) in the youth justice context may be informed by the United Nations Standard Minimum Rules for the Administration of Justice (‘Beijing Rules’), which require youth justice systems to emphasise children’s wellbeing and ensure that responses to children and young persons within the youth justice system are proportionate. The Supreme Court has indicated that the right requires the State to ensure the survival and development of the child to the maximum extent possible. In the context of a youth justice custodial centre, this involves:

• protecting the right of every child to maintain contact with their family;

• providing a physical environment that is separate from adult facilities, has a rehabilitative focus and that gives due regard to a child’s need for:

• privacy;

• sensory stimuli;

• opportunities to associate with peers and to participate in sports; and

• recreation and leisure activities;

• providing children with suitable education and vocational training;

• providing adequate medical care;

• facilitating frequent contact with the wider community;

• ensuring that any disciplinary measures are consistent with upholding the inherent dignity of the child; and

• promoting the positive development of the child, including their capacity to understand the impact of their actions, engage in pro-social behaviours and make better decisions in the future.

Providing access to religious and cultural services, and mechanisms to lodge complaints, is consistent with protecting a child’s best interests in a youth justice setting.

Rights of children in the criminal process

Sections 23 and 25(3) of the Charter protect the rights of children in the criminal process. In this Statement of Compatibility, the rights in sections 23 and 25(3) are referred to collectively as ‘rights of children in the criminal process’.

Section 23(1) provides that an accused child who is detained, or a child detained without charge, must be segregated from all detained adults. This provision is modelled on article 10(2)(b) of the International Covenant on Civil and Political Rights and applies to children remanded in custody. The right does not apply to children serving custodial sentences. While the segregation of children from convicted adults is, as a general principle, a fundamental human right, Victoria’s ‘dual track’ system, which allows young persons aged 18 to 20 to serve custodial sentences in youth detention instead of adult prison in certain circumstances in order to prevent vulnerable young persons from entering the adult prison system at an early age, is considered to represent best practice in this area.

Under section 23(2), an accused child must be brought to trial as quickly as possible. This right has been interpreted as imposing an obligation to take positive steps to proceed as expeditiously as possible within what the circumstances will allow.

Section 23(3) provides that a child who has been convicted of an offence must be treated in a way that is appropriate for their age. Age-appropriate treatment may incorporate matters such as opportunities to continue education or vocational training while in detention, access to leisure activities, minimising stigma, preservation of family relationships, minimal security measures in detention facilities, and primacy given to rehabilitation when sentencing children.

Finally, section 25(3) provides that a child charged with a criminal offence has the right to a procedure that takes account of their age and the desirability of promoting their rehabilitation. This right is directed at ensuring that children can effectively participate in the legal process and are not discriminated against or excluded from criminal proceedings that concern them. It may require procedures that are targeted to child defendants (such as ensuring the provision of age-appropriate explanations) and that assist them to effectively participate in the proceeding. The right in section 25(3) may also require courts to take steps to ensure that the trial process does not expose a child defendant to avoidable intimidation, humiliation and distress, and may require alternative measures to criminal proceedings to be adopted where appropriate.

Other relevant human rights

In addition to the children’s rights contained in sections 17(2), 23 and 25(3), a number of other human rights protected by the Charter are relevant to the Bill.

Right to equality

Section 8(1) of the Charter protects the right of every person to recognition as a person before the law. Legal recognition is related to a person’s ability to access and enforce their human rights, and may be limited where a law makes justifiable provision for people who lack legal competence.

Section 8(3) of the Charter provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.

‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 (EO Act) on the basis of an attribute in section 6 of that Act, which relevantly includes age, race, gender identity, religious belief and disability. Direct discrimination occurs where a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Indirect discrimination occurs where a person imposes a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute, but only where that requirement, condition or practice is not reasonable.

Section 8(4) of the Charter confirms that measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

Right to protection from torture and cruel, inhuman or degrading treatment

Sections 10(a)–(b) of the Charter provide that a person must not be subjected to torture or treated or punished in a cruel, inhuman or degrading way. The right is concerned with the physical and mental integrity of individuals, and their inherent dignity as human beings.

Cruel or inhuman treatment or punishment includes acts which do not constitute torture, but which nevertheless possess a minimum level of severity. Degrading treatment or punishment involves acts of a less severe nature but which inflict a level of humiliation or debasement of the victim. Whether conduct meets the necessary threshold will depend upon all the circumstances, including the duration and manner of the treatment, its physical or mental effects on the affected person, and that person’s age, sex and state of health.

Right to freedom from forced medical treatment

Section 10(c) of the Charter provides, relevantly, that a person has the right not to be subjected to medical experimentation or treatment without their full, free and informed consent. In addition, section 13(a) of the Charter protects a person’s right not to have their privacy unlawfully or arbitrarily interfered with. This right extends to privacy in the sense of bodily integrity, which involves the right not to have our physical selves interfered with by others without our consent. The purpose of these rights is to protect a person’s personal autonomy and integrity. They recognise the freedom of humans to choose whether or not they receive medical treatment or participate in medical experiments.

Right to freedom of movement

Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria, to enter and leave Victoria, and to choose where to live in Victoria. The right extends, generally, to movement without impediment throughout the State, and a right of access to places and services used by members of the public, subject to compliance with regulations legitimately made in the public interest. The right is directed at restrictions that fall short of physical detention (restrictions amounting to physical detention fall within the right to liberty, protected under section 21 of the Charter).

Right to privacy and reputation

As mentioned already, section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. The right to privacy is broad in scope and encompasses rights to physical and psychological integrity, individual identity, and the right to establish and develop meaningful social relations.

Section 13(b) of the Charter relevantly provides that a person has the right not to have their reputation unlawfully attacked. An ‘attack’ on reputation will be lawful if it is permitted by a precise and appropriately circumscribed law.

Right to freedom of thought, conscience, religion and belief

Section 14(1) of the Charter provides that every person has the right to freedom of thought, conscience, religion and belief, including the freedom to have or adopt a religion or belief of one’s choice, and to demonstrate one’s religion or belief individually or as part of a community. The concept of ‘belief’ extends to non-religious beliefs, as long as they possess a certain level of cogency, seriousness, cohesion and importance. While the freedom to hold a belief is considered absolute, the freedom to manifest that belief may be subject to reasonable limitations.

Right to freedom of opinion

Section 15(1) of the Charter provides that every person has the right to hold an opinion without interference. The right is concerned with a person’s internal autonomy, and embraces not only the right to hold an opinion, but also the right not to hold any particular opinion.

Right to freedom of expression

Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. However, section 15(3) provides that special duties and responsibilities attach to this right, which may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.

Right to freedom of association

Section 16(2) of the Charter relevantly provides that every person has the right to freedom of association with others. Any provision which places limits on a person’s ability to develop relationships will engage this right.

Rights of families

Section 17(1) of the Charter provides that families are the fundamental group unit of society and are entitled to be protected by society and the State. The right is principally concerned with unity of family. ‘Family’ in this context has a broad meaning that encompasses the diversity of families living within Victoria, not only those recognised by formal marriage or cohabitation. The right in section 17(1) is related to section 13(a) of the Charter, which relevantly provides that every person has the right not to be subject to unlawful or arbitrary interferences with their family.

Cultural rights

Section 19(1) of the Charter provides that all persons with a particular cultural, religious, racial or linguistic background must not be denied the right, in community with other persons of that background, to enjoy their culture, declare and practise their religion, and use their language. Section 19(2) of the Charter further provides specific protection for Aboriginal persons, providing that they must not be denied the right, with other members of their community, to enjoy their identity and culture, maintain and use their language, maintain kinship ties, and maintain their distinct spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

The rights in section 19 are intended to protect and promote the cultural, religious, racial and linguistic diversity of Victorian society. The rights are concerned not only with the preservation of the cultural, religious and linguistic identity of particular cultural groups, but also with their continued development.

Right to property

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property, such as powers of seizure and/or disposal of property, are conferred by legislation or common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

Right to liberty and security of the person

Section 21 of the Charter provides that every person has the right to liberty and security, including the right not to be subject to arbitrary arrest or detention. This right is concerned with the physical detention of the individual, not mere restrictions on freedom of movement. A person’s liberty may legitimately be constrained only in circumstances where the relevant arrest or detention is lawful, in the sense that it is specifically authorised and sufficiently circumscribed by law, and not arbitrary, in that it must not be disproportionate to a legitimate purpose or unjust.

Right to humane treatment when deprived of liberty

Section 22(1) of the Charter provides that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person. The right recognises the particular vulnerability of persons in detention, and applies to persons detained both in the criminal justice system and non-punitive or protective forms of detention such as the compulsory detention of persons with a mental illness. The right reflects the principle that detained persons should not be subjected to hardship or constraint other than that which results from the deprivation of their liberty.

Further, special rights attach to accused persons who are detained and persons detained without charge. Such persons must be segregated from persons who have been convicted of offences, except where reasonably necessary (s 22(2)), and must be treated in a way that is appropriate for a person who has not been convicted (s 22(3)).

Right to a fair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided.

Right to be presumed innocent

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Right to be tried without unreasonable delay

Section 25(2)(a) of the Charter provides that a person charged with a criminal offence is entitled, without discrimination, to be tried without unreasonable delay. This right reflects the common law principle that justice delayed is justice denied. ‘Unreasonable’ in the context of this right means ‘excessive, inordinate or unacceptable’, and what is unreasonable in a particular case will depend on all the circumstances.

Right to adequate time and facilities

Section 25(2)(b) of the Charter provides that a person charged with a criminal offence is entitled, without discrimination, to have adequate time and facilities to prepare their defence and to communicate with a lawyer or advisor of their choice.

Right to be tried in person

Section 25(2)(d) of the Charter relevantly provides that a person charged with a criminal offence is entitled, without discrimination, to be tried in person. This right reflects the common law principle that the trial of an indictable offence must generally be conducted in the presence of the accused. However, the right may be reasonably limited, for example, where the accused abuses the right by conducting themselves in such a way as to obstruct the conduct of the hearing.

Right to legal assistance

Sections 25(2)(d)–(f) of the Charter provide that a person charged with a criminal offence is entitled, without discrimination, to defend themselves personally or through legal assistance of their choice. A person also has a right, if eligible under the Legal Aid Act 1978, to legal aid, and to be informed of that right.

Right to examine witnesses

Section 25(2)(g) and (h) of the Charter provide that a person charged with a criminal offence is entitled, without discrimination, to examine, or have examined, prosecution witnesses (unless the law provides otherwise), and to obtain the attendance and examination of witnesses on their own behalf under the same conditions as the prosecution. These rights are an aspect of the principle of equality of arms.

Right against self-incrimination

Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. This right is at least as broad as the common law privilege against self-incrimination. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained prior to or subsequent to the charge being laid.

Right not to be tried or punished more than once

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law. This right reflects the principle of double jeopardy. However, the principle only applies in respect of criminal offences ‍– it will not prevent civil proceedings being brought in respect of a person’s conduct which has previously been the subject of criminal proceedings, or vice versa. Punishment generally refers to sanctions imposed in furtherance of the purpose and principles of sentencing, but the right does not extend to prohibiting other consequences that may flow from a finding of guilt or criminal conviction.

Chapter 1: Preliminary

Part 1.1 – Introductory provisions

The Bill broadly promotes children’s rights under the Charter through its purposes to establish a scheme that provides an alternative process to court for children who are alleged to have committed certain offences, and to ensure oversight and accountability of the youth justice system to protect the rights of children involved, prevent and reduce offending by children and young persons, and support their rehabilitation and positive development.

Part 1.2 – Criminal responsibility of children

The Bill furthers the protection and promotion of children’s rights in the state of Victoria by providing that the minimum age of criminal responsibility in Victoria is 12 years old, an increase from the longstanding historical minimum age of 10 years old. It does so by providing that it is conclusively presumed that a child under 12 years of age cannot commit an offence (cl 10). Unlike the presumption of doli incapax (cl 11), the presumption in cl 10 cannot be rebutted and has the effect that children aged 10 and 11 years old can no longer be subject to criminal proceedings if they engage in criminal conduct.

Raising the minimum age is in line with evidence about children’s development and their inability to form criminal intent, which requires an understanding that some behaviour is seriously wrong in a moral sense. This recognises the unfairness and inappropriateness of responding to young children’s behaviour through the criminal justice system. Raising the age to 12 recognises that offending by children aged 10 and 11 years old is rare.

Establishing a minimum age below which children are not to be held criminally responsible promotes rights relating to children under section 17(2) and section 25(3) of the Charter. Accordingly, cl 10 promotes the right of every child to such protection that is needed by reason of being a child (s 17(2)) and a procedure that takes account of a child’s age and the desirability of promoting the child’s rehabilitation (s 25(3)).

The Bill codifies the common law presumption of doli incapax, whereby a child who is under 14 years old is presumed to be incapable of committing an offence, unless the prosecution proves beyond reasonable doubt that the child knew at the time of the alleged commission of the offence that the child’s conduct was seriously wrong in a moral sense (cl 11(1)–(3)). The Bill codifies this presumption in line with the case of RP v The Queen [2016] HCA 53, which is the most contemporary Australian authority on the presumption of doli incapax. The Bill makes it clear that any presumption arising by or under the common law in relation to the criminal responsibility of a child continues to apply and in the event of inconsistency between clause 11 and any common law presumption, clause 11 prevails to the extent of the inconsistency (cl 11(4)).

To support the effective operation of the presumption of doli incapax, the Bill introduces procedural reforms that require:

• a police officer to have regard to whether it appears there is admissible evidence to prove the child’s knowledge beyond reasonable doubt before deciding to commence proceedings for an offence allegedly committed by a child at 12 or 13 years of age (cl 12(1)), and to consider the matters set out in cl 12(2) as far as practicable when doing so. The Bill introduces a complementary requirement to document this consideration and the reasons in writing if the police officer decides to commence proceedings (cl 12(3)).

• the written reasons prepared in accordance with clause 12(3) to be filed in the court at the commencement of the proceedings (cl 12(4) and 812) and exchanged with the accused at an early time in the proceedings, either upon service of a summons or warrant (cl 813), at the first mention hearing (cl 816) or in relevant brief material (cls 814, 815, 818 and 819).

• police prosecutors to review charges against children who were 12 or 13 years of age at the time of the alleged commission of the offence, which must be an indictable offence tried summarily in the Children’s Court (cl 13(1)), as soon as possible after the commencement of the proceeding and, if practicable, not later than 21 working days after that date (cl 13(4)). The police prosecutor must consider the sufficiency of the available evidence in relation to the child’s knowledge and each element of the alleged offence, and the prospect of the child being found guilty (cl 13(3)). Prosecutors must take reasonable steps to notify the child or the child’s legal representative of the outcome of the review (cl 14) and, if the prosecutor is not satisfied of the matters in cl 13(3), they must consider whether it would be appropriate to withdraw the relevant charges against the child (cl 13(5)). Where the child is charged with multiple offences, the Bill makes it clear that the prosecutor is not required to review charges for the alleged commission of an offence when the child was 14 years of age or older and does not need to consider withdrawal of a charge against the child for the alleged commission of an offence at 12 or 13 years of age if the matters in cl ‍13(3)–‍(13(6) are satisfied.

Together, these new requirements are intended to foreground consideration of the presumption of doli incapax and, where appropriate, promote earlier resolution of this issue, so that 12- and 13-year-old children can be diverted away from the criminal justice system in circumstances where there are no genuine prospects of the presumption being rebutted.

Allowing for different options and consequences on the basis of a child’s age and stage of development promotes children’s rights. Specifically, the doli incapax reforms promote the right of a child to protection in their best interests under section 17(2) of the Charter, and the right to a procedure that takes account of the child’s age under section 25(3). The reforms promote these rights by ensuring the laws that apply to children under 14 adequately account for their special vulnerability compared to adults and recognise the particular developmental stage and capacity of children under 14 years of age. This includes prioritising prevention, diversion and minimum intervention in response to harmful conduct or offending by children, in order to address the causes of their behaviour at an early stage and divert the child away from initial or long-term contact with the criminal justice system.

By providing for different options and consequences on the basis of age, which is (as noted above) a protected attribute, the Bill engages the right to equality and non-discrimination in section 8(3) of the Charter. For the reasons outlined above, I am satisfied that any limits on the right to equality and non-discrimination are reasonably justified.

Part 1.3 – Guiding youth justice principles

Children’s rights are further protected and promoted through the guiding youth justice principles, set out in Part 1.3 of the Bill, which are intended to promote community safety, minimise and reduce offending by children and young persons, and support their rehabilitation and positive development. The Secretary of the Department of Justice and Community Safety (Secretary), the Commissioner for Youth Justice (Commissioner), any court or any other person should take into account each guiding youth justice principle to the fullest extent possible when exercising a power, performing a function, making a decision or taking any other action under the Act in respect of a child or young person (cl 17). The guiding youth justice principles promote children’s rights in sections 17(2), 23 and 25(3) of the Charter, as well as the rights of families in section 17(1) and the right to equality in section 8, by:

• Affirming that children and young persons are to be treated differently to adults, in a way that recognises that they are developmentally distinct from adults, dependent on others for opportunities to realise their full potential, and have a unique capacity for rehabilitation when properly supported.

• Requiring that children and young persons should be responded to as individuals, and in a way that promotes their human rights; acknowledges their particular needs and characteristics; provides opportunities for meaningful participation in relevant decision-making; minimises stigma; promotes engagement of family, persons of significance and the wider community; recognises the unique vulnerabilities and systemic issues that disproportionately impact upon particular cohorts of children and young persons (such as those with a disability or from a culturally or linguistically diverse background); and contributes to a timely and appropriate outcome.

• Prioritising prevention, diversion and minimum intervention in response to offending by children and young persons, in order to address the causes of offending behaviour at an early stage and divert the child or young person away from the criminal justice system.

• Emphasising the importance of parents, family and persons of significance in a child’s or young person’s life, and the role they play in caring for the child or young person and helping them positively develop and not offend.

• Acknowledging the shared responsibility of public bodies, police, non-government organisations and the community to support children and young persons to rehabilitate, and the importance of partnership, collaboration and cooperation to achieve this end.

The Bill also contains guiding youth justice principles specific to Aboriginal children and young persons (Division 3), as well as a statement of recognition that Aboriginal children and young persons are overrepresented in the youth justice system as a result of inequality and structural and institutional racism caused by colonisation and historical laws, policies and systems which explicitly excluded and harmed Aboriginal people and culture (cl 23). In seeking to recognise, respect and support the distinct cultural rights of Aboriginal people and their right to self-determination, the Bill promotes cultural rights, as well as family, equality and children’s rights under the Charter. In particular, the guiding youth justice principles specific to Aboriginal children and young persons require regard to be had to matters such as respect for cultural diversity and customary lore; valuing and centring of Aboriginal culture, knowledge and expertise; embedding cultural safety in policies, programs and services; ensuring equitable partnerships and transfer of decision making powers to Aboriginal communities with their free, prior and informed consent; and sustainable and flexible funding and resourcing for Aboriginal communities. These principles also affirm that Aboriginal children and young persons who have committed or are alleged to have committed offences should be dealt with in a way that upholds their cultural rights and sustains their ties to family, kin, community, country and Elders. This includes being provided with the opportunity to express their views and being supported to promote their participation in decision-making processes that affect them, as well as the participation of their family, kin and Elders (cl 21).

To ensure that the guiding youth justice principles specific to Aboriginal children and young persons are taken into account, the Secretary, court or other person must make enquiries to determine whether a child or young person in respect of whom a power is to be exercised, a function is to be performed, a decision is to be made or action is to be taken, is an Aboriginal person. This requirement engages the right to privacy under the Charter. The right is not limited, however, because such enquiries are provided for by law and are proportionate to the legitimate aim of enabling the decision maker to take into account relevant principles that protect and promote the cultural rights of the child or young person.

Parts 2.1 – 2.2 – The functions and powers of the Secretary and the Commissioner for Youth Justice

Part 2.1 of the Bill deals with the functions and powers of the Secretary, and includes the functions and powers conferred on the Secretary under the Act (cl 27), the power to enter into contracts for the provision of goods or services (cl 28), powers in relation to land (cls 29–31), and powers in relation to intellectual property (cl ‍32). The Secretary may delegate certain functions or powers under the Act or regulations (cl 33). The Bill also places an administrative requirement on the Secretary to publish on the Department’s website the total number of adverse events relating to children and young persons held in custody in a youth justice custodial centre, disclosed by the Secretary to the Commission for Children and Young People (CCYP) in the relevant quarter (cl 34). This publication requirement furthers the protection of children’s rights by ensuring there is a level of oversight of adverse events in youth justice custodial centres. The publication requirement further ensures the accountability of the Secretary who is responsible for the safety and wellbeing of children and young persons held in custody.

Part 2.2 of the Bill establishes the role of the Commissioner (cl 35) and outlines the functions and powers of the Commissioner. The Commissioner’s functions include: providing leadership and stewardship of the youth justice system; supporting the rehabilitation and positive development of children and young persons who are subject to youth justice supervision in the community and in custody; coordinating and delivering services and supports to children and young persons; ensuring the safe, stable and secure operation of youth justice custodial centres and the supervision of children and young persons in those centres; establishing and conducting high risk panels, and directing all youth justice custodial officers in the carrying out of their functions and duties (cl 36). The Commissioner is also required to perform any function that is delegated by the Secretary or that is conferred on the Commissioner under legislation (cl 36). The Commissioner also has, and may exercise, all the functions and powers of a youth justice custodial officer (cl 38). The Commissioner may delegate any function or power except for the power to order an unclothed search of a child or young person held in custody in a youth justice custodial centre or the power to authorise the use of reasonable force to carry out an unclothed search (cl 39). The Secretary has and may exercise all the functions and powers of the Commissioner (cl 37). The Bill also creates an offence for obstructing or hindering the Secretary, Commissioner or any person employed under Part 3 of the Public Administration Act 2004 in the Department in the carrying out of that person’s duties under this Act (cl 763). These provisions support the smooth functioning of the youth justice system and transparency of youth justice operations.

Part 2.3 – Aboriginal youth justice agencies

The Bill introduces provisions governing the registration of Aboriginal youth justice agencies (cls 40–46), with the intention that the principal officers of these Aboriginal youth justice agencies will be able to perform functions and exercise powers of the Secretary in relation to Aboriginal children or young persons (cl 59) once they are registered. The intention of these provisions is to allow the Aboriginal youth justice agency to act in relation to an Aboriginal child or young person, as if the principal officer were the Secretary (cl 61). The Bill additionally requires the Secretary to provide the principal officer of the Aboriginal youth justice agency with reasonable assistance and support (cl 61).

The central requirements for a body corporate to be registered as an Aboriginal youth justice agency are that the principal officer (other than an acting principal officer) must be an Aboriginal person, the board members are elected by the Aboriginal community and that the board operates consistently with principles of Aboriginal self-determination (cl 41). The body corporate must also have the necessary experience to support the rehabilitation and positive development of children and young persons, minimise and reduce reoffending by children and young persons, and be able to meet the applicable performance standards (cl 41). These requirements aim to tangibly support the distinct cultural rights of Aboriginal people and their right to self-determination by creating a pathway for Aboriginal children to have decisions made for them by suitably qualified people from the Aboriginal community.

To ensure the quality of services provided to Aboriginal children, the Bill additionally sets out performance standards for Aboriginal youth justice agencies (cls 47–50), and provisions governing the revocation of registration (cls 51–53) and process for review of the Secretary’s decisions (cls 54–55). The Bill requires the Secretary to provide information about the child or young person to the Aboriginal youth justice agency to assist it to make an informed decision as to whether it will accept an authorisation for the child (cl 60). While this may engage a child’s right to privacy under section 13 of the Charter, any interference will be lawful and not arbitrary, as the information shared is limited to the specific purposes, and subject to the limits, prescribed in cls 60 and 65. The sharing of personal information is also necessary to allow Aboriginal youth justice agencies to determine whether they are equipped to support the child or young person.

Similarly, I consider that clauses 53(2), 57(1)(c) and 62(2) of the Bill, which relate to documents or records in respect of an Aboriginal child or young person, would not constitute an unlawful or arbitrary interference with their right to privacy under section 13 of the Charter. In respect of clause 57(1)(c), the Secretary may only inspect documents or records that relate to an Aboriginal child or young person who is the subject of an authorisation and, pursuant to clause 57(3), such inspection must be conducted in accordance with the regulations. Clauses 53(2) and 62(2) promote the privacy and wellbeing of a child or young person by requiring records produced in respect of a child or young person to be handed over to the Secretary on any revocation of an Aboriginal youth justice agency’s registration, ensuring the protection of their personal information.

As a whole, these provisions in Part 2.3 of the Bill further the right to protection of families and children under section 17 of the Charter, the cultural rights of Aboriginal children and young persons under section 19 of the Charter, and support Aboriginal self-determination.

Chapter 3 – Police power to apprehend, detain and transport a child aged 10 or 11 years old

To support the raise in the minimum age of criminal responsibility to 12 years, Chapter 3 of the Bill provides police with new transport-based powers that can be used as a measure of last resort to protect young children and the community. These powers balance the need to minimise contact between police and children (to avoid any criminogenic effects of police contact) against the fact that police will often be first responders in dynamic and fast-moving situation that may warrant intervention to prevent serious harm to children and other members of the community. For example, it is simply unsafe for children to be left in situations where serious harm could result (to them or anyone else). Such a situation also does not align with community expectation about their safety and the safety of children. The transport-based power will be an additional tool for police to use alongside existing operational strategies (e.g. de-escalation techniques and community engagement) or existing common law and statutory powers that may be available depending on the circumstances (such as breach of the peace powers, child protection, mental health, control of weapons or drugs legislation).

Chapter 3 includes a robust monitoring and reporting framework that uses the specialist expertise of the CCYP in ensuring child safety and wellbeing is maintained. This framework builds on the existing oversight mechanisms that apply, including the role of the Independent Broad-based Anti-corruption Commission (IBAC) in relation to police.

For the reasons outlined below, my view is that Chapter 3 is compatible with the Charter.

Power to effect safe transportation of 10 and 11 year old children

The Bill enables a police officer to take a child aged 10 or 11 years old into care and control if the officer believes on reasonable grounds that there is a likely risk of serious harm to either the child or another person as a result of the behaviour by that child and it is necessary to transport the child to minimise the risk occurring (transport power) (cl 68). To promote use of the powers as a measure of last resort, the Bill requires a police officer to take reasonable steps in the circumstances to minimise the risk of serious harm occurring. Reasonable steps could include a warning to the child or asking the child to move on from the area and go home. To maintain the connection between the purpose of the powers to protect individuals from serious harm, the Bill enables a police officer to release a child from care and control before the child is transported, if the officer no longer believes on reasonable grounds that there is a risk of serious harm.

The Bill encourages the swift return of children to their families or placement with an appropriate agency who can take care of them to minimise time spent in the care and control of police. It provides that as soon as practicable after taking a child into care and control, police must either place the child into the care of a suitable person, or an appropriate health or welfare agency (cl 69). Police may also arrange for the child to be collected, rather than transporting the child in a police vehicle. If police are unable to locate a suitable person or appropriate health and welfare agency, they may as a last resort take the child to a police station (cl 69). If this occurs, a child must not be placed in a police gaol or police cell, and police must continue to make reasonable attempts to place the child in the care of a suitable person or appropriate health or welfare agency. A child can only be held at a police station if a police officer believes on reasonable grounds that there is a risk of serious harm as a result of the child’s behaviour if the child were released (cl 70).

Recognising the historical context of police interaction with Aboriginal and Torres Strait Islander peoples, if a child who is Aboriginal or Torres Strait Islander is taken into care and control by police, notification processes apply (cl 72). Police must seek assistance from an Aboriginal organisation to identify a suitable person or an appropriate health or welfare agency, unless it is not reasonably practicable in the circumstances. Further, if an Aboriginal or Torres Strait Islander child is taken to a police station, police must notify a parent and arrange for the child to be seen by or to contact a support person or support provider, including an Aboriginal organisation or a member of the child’s Aboriginal community as requested by the child.

In my view, the transport power engages but does not limit the right to equality and non-discrimination in section 8(3) of the Charter, the protection against being treated in a cruel, inhuman or degrading way in section ‍10(b), and the protection of a child’s best interests in section 17(2) of the Charter. This is because the transport power contains thresholds which are clear, high and proportionate to the context (e.g., for the power to be available there must be a risk of serious harm not a broad community safety concern or a generalised welfare concerns about the child). Further the serious harm must be connected to actual harm to the child or another individual, rather than a concern about harm to, for example, property. Further, the behaviour of the child and the risk this poses must involve a likelihood of serious harm occurring. Moreover, the Bill prioritises the safe return of children to a suitable person, who in many cases will likely be their parent or guardian, and enables a police officer to consider the child’s views in relation to the suitability of the person. In light of the protective and non-punitive purpose of the powers, their intended use as a measure of last resort and the special vulnerability of children who are 10 or 11 years old, I consider that the transport power does not limit the rights in sections 8(3), 10(b) or 17(2) of the Charter.

While the rights to freedom of movement and liberty in sections 12 and 21 of the Charter are limited by the transport power, these limitations are reasonable and demonstrably justifiable under section 7(2) of the Charter. Any limitation of a child’s rights to freedom of movement and liberty will be temporary. The Bill does not include a statutory limit on the length of time a child can be held in care and control recognising that some flexibility is required, for example to enable a suitable person to be contacted and then travel to the location where the child is being held. The time needed to transport a child may be affected by the location (e.g. greater time might be required to account for the distances and available welfare services in regional and rural areas) or the time of day. Requiring police to release a child within an arbitrary time limit even if a risk of serious harm continues to exist is inconsistent with the policy intent of the Bill. Instead, the Bill ensures that police will be able to release the child from care and control if the officer no longer holds a reasonable belief that there is a likely risk of serious harm occurring as a result of the behaviour of the child.

As noted above, the powers have been crafted to apply to risks of serious harm relating to individuals (not, for example, property) that are likely to arise from a 10 or 11-year old child’s behaviour. In this way, the provisions of the Bill safeguard against the risk of arbitrary use of the powers and are proportionate to the purpose of the powers, which is to protect children and the community from a risk of serious harm. As discussed above, the Bill requires police to take reasonable steps in the circumstances to minimise the risk of serious harm before taking a child into care and control, which means there are no other less restrictive means that could be applied in the context to achieve the purpose of the provisions. Further, the Chief Commissioner is required to keep a record of each use of these powers and this information will be provided to the CCYP on a quarterly basis, which will enable monitoring the use of the powers (cl 77). The CCYP will also be responsible for preparing an annual report that will be tabled in Parliament to promote public accountability and transparency about the use of the powers.

The Bill also requires a police officer to inform a child they are not under arrest or being charged with an offence as soon as practicable after taking them into care and control (cl 68(3)). Further, children will not be permitted to be held in police cells or police gaols if they are transported to a police station (cl 70(2) or questioned as a witness (cl 71). These requirements specifically support the humane treatment of a child by giving the child information about what is happening to them and mitigates against the risk that a child will perceive they are being subjected to a punitive action rather than a protective action.

Related powers to search and seize items

To ensure that children can safely be held in care and control and transported, police have powers to search a child and seize specified items without a warrant. A search can only occur in limited circumstances and police officers must comply with a range of safeguards set out in the Bill (cl 75). For example, only pat-down searches are permitted and no other forms of more invasive searches (e.g. unclothed searches). Before conducting a search, a police officer must inform the child about the proposed search and if safe to do so, must ask the child to handover any dangerous items. Where possible, a search must be conducted by a police officer of the sex or gender identity nominated by, or the same as, the child.

Police are permitted to seize items if the item could present a danger to the safety to the child, could be used by the child to avoid transportation, or if they are stolen or have been used in, or obtained as the result of the commission of an offence (cl 76). Any item that is seized must be returned to the child once the transport has occurred, unless there is a lawful reason for it to not be returned.

As noted above, clause 77 requires the Chief Commissioner of Police to keep a record of each use of the powers, which includes information about whether a child was searched and whether any items were seized. This will enable monitoring of the use of these powers.

The search and seizure powers engage the right of a child to such protection as is in their best interests and is needed by reason of being a child in section 17(2) of the Charter because they affect the welfare of a child while in the care and control of police. In my view, this right is not limited because of the overall purpose of the transport power which is protective, and the supporting role of the search and seizure provisions, which is to enable transport to safely occur. The powers operate within clear limits and many statutory safeguards apply to ensure the best interests of the child is a key factor underlying any exercise of the powers.

Search and seizure powers also engage rights to privacy (s 13) and humane treatment when deprived of liberty (s 22). Given the stringent requirements and safeguards in the Bill noted above, I consider that on the extent to which the Bill engages these rights is reasonable and proportionate to the aim of effecting the safe transport of a child to minimise a risk of serious harm occurring or the aim of monitoring the use of the powers. In addition, given the clearly prescribed limitations on the seizure and retention of property, I am satisfied that any limitation on the right to property in section 20 of the Charter is compatible with the Charter.

Related power to use reasonable force and restraint

Subject to extensive and rigorous safeguards, a police officer may use such force as is reasonably necessary when exercising the transport power, searching a child under clause 75, or seizing a thing under clause 76. This includes restraining a child by using handcuffs (including disposable handcuffs, flex cuffs or handcuff inserts). Before using force, a police officer must, to the extent reasonably practicable in the circumstances, use de-escalation techniques, give an oral warning, and if safe to do so, give a child reasonable time to comply with a warning.

In terms of safeguards, clause 73 of the Bill provides that any use of force must be proportionate and cease once no longer necessary. The Bill absolutely prohibits a range of physical techniques including those inhibiting respiratory or digestive functions and techniques for the purpose of inflicting pain to compel compliance. The Bill requires police officers using force to consider the characteristics and state of the child and to avoid causing pain, injury or fear in specified circumstances. Police are required to continually assess the need for and manner of the use of force, and modify the use of force as required. These safeguards are consistent with the basic principles developed in international human rights instruments and jurisprudence for assessing the human rights compatibility of legal frameworks regulating the use of force. The safeguards are also consistent with other parts of the Bills regulating the use of force in youth justice and police gaol settings (see below Parts 10.4 and 11.2).

As a further safeguard, the Chief Commissioner of Police is required to record whether force was used on a child during the exercise of the transport power (cl 77). This will enable the CCYP to monitor the use of force. The CCYP’s annual report prepared under clause 89 must include the number of times force was used on a child to support public accountability and transparency about the use of force.

I am satisfied that the use of force provisions do not limit the protection against cruel, inhuman and degrading treatment in section 10(b) or the right of every child to such protection as is in their best interests under section ‍17 of the Charter. Nor do they limit the right to humane treatment when deprived of liberty (s 22). I also consider that any limitations of the rights relating to protection of children (s 17) are reasonable and demonstrably justified. This is because the above provisions seek to ensure that any use of force:

• is proportionate to the purpose sought to be achieved through the use of the transport power (i.e. prevention of serious harm occurring through the safe transport of a child aged 10 or 11)

• is used for the shortest possible time and only as a measure of last resort after other techniques have been applied (where reasonably practicable)

• does not involve the infliction of any pain or suffering that could reach the minimum level of severity or intensity required to amount to cruel, inhuman or degrading treatment

• takes into account the particular characteristics of each child

• is subject to express and absolute prohibitions on the use of a range of physical techniques including those inhibiting respiratory or digestive functions and techniques for the purpose of inflicting pain to compel compliance

• is disclosed to parents via the notification requirements outlined below, and

• will be monitored to ensure appropriate use, transparency and accountability.

Clause 74 sets out a range of requirements that apply after police have used force. A police officer must notify a parent of the child if the transport power was exercised and force was used. Importantly, when force is used on a child, police must make all reasonable efforts to ensure that the child is examined by a health practitioner and receives the medical attention and mental health care the child requires while the child is in police care and control, if:

• the child is reasonably suspected of being injured, or

• a child or their parent requests.

If a child is examined, a parent or independent third party must be present unless the medical attention or mental health care is urgent, or it is not reasonably practicable for a parent or independent third party to be present. A health practitioner who carries out an examination must record any clinical observations made during the examination.

In limited circumstances, this provision may engage the prohibition against medical or scientific experimentation or treatment of a person without their full, free and informed consent in section 10(c) and the protection of families in section 17 of the Charter. While it remains an open question as to whether ‘treatment’ extends to a mere medical examination, I acknowledge that the meaning of the word ‘treatment’ is to be interpreted broadly. Under the Medical Treatment Planning and Decisions Act 2016 the medical treatment decision maker of a child is the child’s parent or guardian or other person with parental responsibility for the child who is reasonably available and willing and able to make the medical treatment decision (s 55(4)). In most instances, it is expected that a parent will be present during any medical examination and can provide full, free and informed consent to the conduct of the examination or any subsequent treatment. The Bill does, however, allow for scenarios where the child is not accompanied by an adult with decision making capacity or the child does not otherwise have decision-making capacity and urgent care is required. In these scenarios, the provisions do not oblige the child to participate or consent to any treatment, and any existing laws relating to the provision of urgent medical care will continue to apply. Consequently, my view is that the right in 10(c) is not limited.

Monitoring and reporting functions and powers for the CCYP

Chapter 3 of the Bill contains requirements for police to record certain information about the use of the transport power and provide it to the CCYP who will perform an active oversight role through a child safety and wellbeing lens.

The CCYP’s new functions are to monitor the exercise of the transport power, prepare annual reports for Parliament about the exercise of the transport power, and prepare own-motion reports about the exercise of the transport power (cl 80). The CCYP’s role will complement IBAC’s oversight of police misconduct and corruption.

To support the CCYP’s monitoring functions, the Bill requires the Chief Commissioner of Police to record certain information about each use of the transport power (including about certain aspects a child’s identity, if the information is known to police) and to make the information available for the CCYP’s inspection quarterly (cl 77). Further, the CCYP must be given access to documents and information kept by the Chief Commissioner of Police if requested by the CCYP (cl 81). The CCYP may also request relevant professionals to provide any information to assist the CCYP in its oversight functions (cl 83).

The CCYP may use the information it acquires within the clear constraints established by the Bill including:

• prohibiting an annual report from containing information that identifies a child in respect of whom the transport power was exercised (cl 89(2)(a)–(b)), and preventing an own-motion report that identifies a child from being tabled in Parliament (cl 87);

• extending prohibitions in Part 6 of the Commission for Children and Young People Act 2012 in relation to information use that apply to the CCYP and its staff so they also apply to information acquired under Chapter 3 of the Bill (cl 790); and

• requiring any person or entity that is the subject of an adverse comment or opinion in a CCYP report to be given an opportunity to respond to the comment or opinion (cls 85 and 89).

The CCYP will need to share information with other persons and entities. For example, the CCYP must notify IBAC of matters that it becomes aware of in exercising its powers and functions under Part 3 that it suspects on reasonable grounds involves police personnel misconduct (cl 90). The Bill also recognises that in some cases the CCYP’s functions may overlap with functions of other entities. To that end, it provides that the CCYP should liaise with other entities to coordinate and avoid unnecessary duplication of its own-motion reports with other investigations and inquiries (cl 91). The Bill also prioritises integrity and criminal investigations and proceedings, and permits the CCYP to consult with relevant agencies for that purpose (cl 91). Such consultations may involve disclosing information about a 10 or 11-year old in respect of whom the transport power was exercised, or another person.

Chapter 3 engages the Charter right to privacy (s 13) because:

• it creates new requirements to collect and record personal information (e.g. about a child and the suitable person into whose care the child has been placed).

• it provides for the transfer of information between persons and agencies (e.g. Victoria Police must provide access to the information at the request of the CCYP, and relevant professionals may provide the) and its subsequent use (e.g. in an own-motion report) without an individual’s consent.

• it is open to the CCYP to make comments or express opinions about a person in its own-motion reports and annual reports.

While the Bill engages the right to privacy, it does not limit the right because any interference is lawful and not arbitrary. The Bill is precise and circumscribed in the information required to be recorded. It only requires the collection of information that is reasonably needed to ensure the new transport-based powers and related powers can be monitored and any trends in their use identified. Or it enables sharing of information between agencies for the performance of their statutory functions and to facilitate coordination. Further, there are a range of constraints (such as those listed above) that limit or prohibit disclosure and publication of personal information, and the inclusion of adverse comments and opinions in reports. In addition, existing legislated obligations that apply to the collection, disclosure and use of sensitive information established by the Privacy and Data Protection Act 2014 will apply to the CCYP and to the Victorian public sector entities to whom an own-motion report is provided.

To the extent there could be any limitations on the right to privacy (s 13), I believe they are reasonable and demonstrably justified under section 7(2) of the Charter because of the important purpose for collecting and using the information, the rationale and proportionate connection between the limitation on information privacy and the public interest in monitoring the use of significant powers on very young children, and because there are no less restrictive means to achieve the purpose.

Chapter 4 – Diverting children from the justice system

Part 4.1 General

The Bill introduces additional diversionary mechanisms in appropriate cases as an alternative to the commencement of a criminal proceeding.

It provides a hierarchy of options for police to deal with a child who is alleged to have committed an offence, from taking no action to charging the child (cl 92). Police must apply the minimum intervention necessary, having regard to certain matters. More serious options can only be taken if the alternatives are ‘clearly inappropriate in the circumstances’ and reasons must be provided (cl 93). Implementing a hierarchy of minimum intervention actions promotes children’s rights under the Charter by prioritising the prevention of reoffending and early intervention, addressing the causes of the offending behaviour and diverting children from contact with the criminal justice system. It furthers the rights of children in the criminal process by providing a procedure that takes into account a child’s age, the desirability of promoting a child’s rehabilitation and the adoption of alternative measures to criminal proceedings where appropriate.

One of the factors a police officer must have regard to in deciding the minimum intervention necessary is whether the child has a history of offending (including the number and frequency of findings of guilt or convictions: cl 92). While this may be relevant to the right not to be tried or punished more than once under s ‍26 of the Charter in that the provision provides for further consequences to flow from an earlier criminal conviction and punishment, the hierarchy of options provided for by this provision (including the commencement of a criminal charge) do not constitute ‘punishment’ for the purpose of this right, and thus do not engage this right.

Parts 4.2, 4.3 and 4.6 – Youth warnings and youth cautions

The Bill provides for police officers to give a youth warning or a caution to a child for an alleged offence if there is sufficient evidence to charge the child (cls 95, 103).

Primarily, youth warnings and youth cautions protect and promote children’s rights by providing a course of action for the child’s offending that diverts children from the justice system. Warnings and cautions are not recorded on the child’s criminal record, nor is evidence of a warning or caution admissible in proceedings against the child, minimising stigma associated with offending (cls 101,139, 140). Procedural clauses require officers to explain youth warnings and youth cautions in a way in which is comprehensible to a child, which further promotes children’s rights (cls 99, 105).

To be distinguished from a youth warning, a youth caution is a slightly more formal response to offending, and can only be issued with the child’s consent. In addition to reasons outlined above, giving a youth caution may promote children’s rights by:

• Providing the youth caution to the child expeditiously (cl 107);

• Providing that an appropriate support person attends the giving of the youth caution, who is chosen by the child (cl 109); and

• Providing that the youth caution be given to a child in a place that promotes their safety (cl 112).

The Bill allows for a youth caution to be given by another person, including a respected member of a cultural or religious community with which the child identifies, which upholds and respects a child’s cultural rights (cl 108).

The Bill also promotes fair hearing rights by requiring the officer to explain to the child, in a way that the child is likely to understand, their right to seek legal advice with respect to a youth caution (cl 105(1)(c)).

In relation to limits on rights, youth warnings and cautions could be seen as a sanction of sorts, as they are measures designed to address alleged offending. While providing a child with a warning or caution may engage rights such as the presumption of innocence or privilege against self-incrimination (in that there may be an implication that, in issuing a warning or caution, the allegations the subject of the warning or caution are made out), I do not consider that they limit rights. The use of warnings and cautions cannot result in any finding of guilt, do not involve punishment, do not result in criminal records and offer an alternative pathway to the criminal justice system. The eligibility for a warning or caution is not affected by whether the child denies the offending (cls 96 and 104). Also, admitting to an offence will not constitute self-incrimination as evidence of warnings and cautions is inadmissible in proceedings (cl 92).

Part 4.4 Early diversion group conferences

As part of the hierarchy of options for responding to offending behaviour, the Bill provides for a police officer to refer a child to participate in an early diversion group conference (cl 117). The purpose of a group conference is to help facilitate a meeting between the child and other persons (including the victim, if they wish to participate, or their representative and members of the child’s family and other persons of significance to the child). Police must be satisfied that there is sufficient evidence to charge the child with an alleged offence and it is not appropriate to take no action or to give a youth warning or caution. Group conferences are a form of restorative justice that provide an avenue to resolve matters arising from the offending, with the aim of increasing the child’s understanding of the effect of their offending on the victim and the community, to reduce the likelihood of the child re-offending and to negotiate an outcome plan that is agreed to by the child.

The Bill ensures that the child can effectively participate in the conference by requiring that a child have a legal representative as well as a parent (or other adult of significance) attend alongside them (cl 127). The Bill requires the convenor of an early diversion group conference to ensure that the contributions of each participant are considered and addressed, and endeavour to finalise an outcome plan that is acceptable to all participants, which promotes the child’s criminal process rights to participation. In turn, this promotes the rights of the victims of the offending by allowing acknowledgement of the harm done by the child and the seriousness of the alleged offending.

The Bill provides that a police officer must not refer a child for an early diversion group conference if the child denies the alleged offending (cl 118). To do so may engage the right against self-incrimination as the provision could be characterised as enticing a child to confess guilt during the pre-charge process. Referring the child to an early diversion group conference despite a child denying the alleged offending may also engage the right to be presumed innocent, as the presumption also applies to pre-charge stages, and a child’s failure to acknowledge responsibility for their behaviour may lead to greater intervention. However, given the restorative justice purpose of the group conference and the level of active participation required to achieve its aims, I consider the group conference not to be an appropriate option for a child who denies their alleged offending as the aims of the group conference, which involve a child assuming a level of responsibility for their offending and behaviour, would likely be obstructed.

Further, the Bill provides for a series of safeguards to ensure these rights are not limited by a child’s participation. The Bill provides that certain things are inadmissible as evidence in any criminal or civil proceedings against the child, including evidence of the conduct of the early diversion group conference, evidence of the alleged offending and any statement made or information given by the child in relation to the alleged offending (cls 143 and 144). Further, the fact that a child participates in an early diversion group conference does not rebut the presumption that a child aged under 14 years old cannot commit an offence (cl 146).

Early diversion group conference proceedings are confidential. However, information on the outcome plan may be disclosed to a person who was entitled to participate in the conference or to a person who has a genuine and proper interest in supporting the child to complete the outcome plan (cls 134, 135). Also, information about the child is given to the group conference service, including name and details of the alleged offence. The sharing of personal information will engage the right to privacy and reputation and will engage the right to privacy under the Charter. However, any interference will be lawful and not arbitrary, as the information shared is limited to specific purposes. The sharing of personal information is also necessary to ensure that conference attendees can effectively participate together in the resolution of the matter.

Part 4.5 Aboriginal-led group conference model

The Bill inserts provisions to support the development of an Aboriginal-led group conference model (cl 136). It provides a timeframe within which the model should be developed. It requires the model to be co-designed by the Secretary of the Department of Justice and Community Safety, and representatives of the Aboriginal community on justice-related issues. The Bill defines the term ‘representatives of the Aboriginal community on justice-related issues’, allowing the Secretary to prescribe the representatives or organisations which should be consulted and collaborated with in the development of an Aboriginal-led group conference model. An Aboriginal-led group conference centres Aboriginal culture in the decision-making process, sustains the child’s ties to family, community, culture and Country, and thus promotes the Charter right to culture (s 19).

Chapter 5: Commencing a proceeding against a child

The Bill introduces special requirements that apply when commencing a criminal proceeding against a child, and when determining whether to bail or remand a child. The child-specific provisions in the Bill, which operate in conjunction with other legislation, are intended to improve the structure and usability for practitioners.

Part 5.1 – Commencing a proceeding

The Bill provides that a proceeding against a child for a summary offence must be commenced within 6 months after the date on which the offence is alleged to have been committed (cl 148(1)). This furthers the rights of children in the criminal process by ensuring that an accused child is brought to trial as quickly as possible. Additionally, where a child has given consent to extend the time for commencement of the proceeding beyond 6 months, the Court must be satisfied that the child obtained legal advice (cl 148(3)). This requirement protects children’s rights by ensuring that a child charged with a criminal offence will be treated age-appropriately and can effectively participate in the legal process.

The Bill does allow for an informant to apply to the Children’s Court for an extension of time to commence a proceeding against a child for a summary offence. This is necessary to avoid arbitrary outcomes and ensure that the proper administration of justice is not obstructed by circumstances beyond the control of informants. Any extension is limited to a 12-month period, and in determining the application the Court must have regard to various factors including the age of the child, the seriousness of the alleged offending, length of the delay in commencing proceedings and whether it was caused by factors outside the informant’s control (cls 150, 151). The child is entitled to appear at the hearing of the application and address the Court. While the Bill does provide for such applications to be determined in a child’s absence if they do not appear (cl 151(3)), which engages the right to fair hearing (s 24) and the criminal process right to be tried in person (s 25(2)(d)), a child is provided with the right to apply for rehearing, and the Court may set aside the order for an extension if it considers it appropriate to do so and rehear the application. In considering an application for a rehearing, the Court will need to give effect to the right to fair hearing in the Charter. Accordingly, I am satisfied the above provisions strike the appropriate balance and are compatible with the Charter.

Part 5.2 – Custody, bail and remand

This section of the Bill sets out child-specific provisions which apply when determining whether a child who is taken into custody should be bailed or remanded.

The Bill includes a presumption in favour of proceeding by summons against an accused child, with a warrant to arrest in the first instance to be issued only in ‘exceptional circumstances’ (cl 147). This provision promotes children’s rights by requiring that the minimum intervention necessary is used, as well providing a procedure that takes into account a child’s age and the desirability of promoting a child’s rehabilitation. The Bill also requires a child to be released unconditionally or brought before a court or bail justice no later than 24 hours after being taken into custody, promoting the children’s criminal process right by ensuring that a child’s case is heard as quickly as possible (cl 154(2)).

The Bill requires a child who is remanded in custody by a court or bail justice to be placed in a youth justice custodial centre, with limited exceptions (cl 155). Detaining a child in a youth justice custodial centre serves the important purpose of segregating children from adults so as to prevent criminal exposure to negative peer groups in police cells, which promotes the rights of children in the criminal process.

The exceptions include permitting a child to be temporarily held or detained in a police gaol for no more than two working days for the purposes of facilitating the transportation of the child to or from a court or a youth justice custodial centre, or remanding a child in a police gaol for no more than two working days if in a prescribed region of the State. These exceptions engage children’s rights, including that a detained child be segregated from all detained adults (s 23(1)) and treated in an age-appropriate way (s 23(3)). However, these exceptions are necessary and reflect the operational need to hold a child in a temporary location where direct transport to and from court and youth justice facilities is not immediately available or possible, including in regional areas of Victoria. The Bill provides a number of protections to ensure that a child is safe in this environment and to mitigate against risks that a child’s right may be limited. The Bill stipulates that the child has a right to be:

• kept in accommodation separate from adults and separated according to the child’s sex, unless the officer in charge of the police goal is reasonably satisfied that the child’s gender identity differs from the child’s sex and it is appropriate and safe for the child to be kept with children other than children of the same sex (cl 569)

• communicated with in a language and matter which the child can understand (cl 570)

• receive visits from parents and relatives, legal practitioners, and Aboriginal Elders in the case of an Aboriginal child (cl 570(b))

Having regard to these factors, and that the child can only be held or detained in a police gaol for the express purpose of facilitating transport, and must not be held or detained for any longer than two working days, it is my view that any limits on the child’s rights are reasonably justified.

Chapter 6: Conduct of a proceeding

Part 6.1 – Proceedings Generally

The Bill provides for indictable offences to be dealt with summarily with the consent of the child (cls 156, 157, 158). It also requires the Court to consider any exceptional circumstances, including the adequacy of sentencing options available to it, the seriousness of the conduct alleged including the impact on any victims of the conduct and the role of the accused in the conduct, and the age and maturity of the child (among other things), when considering suitability of uplift (cls 157–159). The Bill also provides for the transfer of proceedings from the Magistrates’ Court to the Children’s Court at any stage if the Magistrates’ Court is satisfied that the accused is a child or was a child when the proceeding commenced (cl 1160). The purpose of such procedures includes supporting the rehabilitation and positive development of the child and promoting community safety.

Children’s rights are also protected and promoted by:

• the Court’s power to order a child to participate in an early diversion group conference and the Court’s ability to consider the background and circumstances of the particular child when making such an order (cl 161).

• requirements that the Court take steps to ensure the proceeding is comprehensible to the child (cls 167(a)(i), 174).

The Bill also requires the Court to respect the cultural identity and needs of the child, the child’s parents and other members of the child’s family in any proceeding (cl 167). This provision affirms that children and young persons who have committed or are alleged to have committed offences should be dealt with in a way that promotes their cultural rights and sustains their ties to family, community, culture and Country as relevant.

The Bill also promotes fair hearing rights by providing for the legal representation of children (cl 170–172), access to interpreters (cl 173) and the translation of documents (cl 176).

There are a number of procedural clauses that may see criminal proceedings delayed, including adjourning proceedings to enable a child to participate in an early diversion group conference (cl 162(1)) or obtain legal representation (cl 170).

As the purposes of these adjournments are largely beneficial to the child concerned (i.e. to participate in early diversion group conferences, obtain legal representation, they would unlikely be considered to interfere with, or limit, the right of an accused to be brought to trial without unreasonable delay (ss 21(5)(a), 25(2)(c)). Further, the procedures the subject of these clauses include timeframes within which they must occur and the Children’s Court, pursuant to s 6(2)(b) of the Charter, will be obliged under the Charter to give effect to criminal process rights when exercising its discretion to adjourn proceedings.

The Bill also provides for all proceedings to be heard in open court (cl 169), and empowers the Children’s Court to order the whole or any part of a proceeding to be heard in closed court. This balances the right of an accused to a public hearing (s 24 of the Charter), and related rights of a person to receive information from open court (s 15(2)), with rights to privacy (s 13) and protection of a child’s best interests (s 17). The Bill grants any interested person standing to support or oppose an application to close a proceeding, and the Children’s Court will be obliged to give effect to the above Charter rights (and balance competing rights) when exercising its discretion under this clause.

Parts 6.2 and 6.3 – Court referrals and Diversion

The Bill provides for the Children’s Court to refer matters of protection applications and therapeutic treatment orders to the Secretary to the Department of Families, Fairness and Housing for investigation (cl 180, 181) and obliges the Secretary to prepare reports detailing the results of their inquiry into such matters, any resulting application and the progress and outcomes of any such applications (cl 183–186, 189).

If a therapeutic treatment order has been made, the Bill requires a criminal proceeding be adjourned for the duration of that order. While this adjournment may delay criminal proceedings, the delay is beneficial to the child as the child will be discharged from the criminal proceeding if the Children’s Court is satisfied that the child has attended and participated in the program under the order (cls 184–189).

The Bill also permits the Children’s Court to adjourn a proceeding to enable a child to participate in and complete a diversion program (cl 193). The purposes of diversion include to divert the child away from the criminal justice system where possible and appropriate and focus on rehabilitation; to reduce the stigma caused by being in contact with the criminal justice system, encouraging a child to accept responsibility for unlawful behaviour; to provide opportunities for the child to strengthen and preserve relationships with significant adults or others in the child’s life and to provide the child with ongoing pathways to connect with education, training and employment (cl 192).

These referral and diversion processes promote the rights of children in sections 17(2) and 25(3) of the Charter by supporting the rehabilitation and positive development of the child, prioritising prevention in response to offending by children, in order to address the causes of offending behaviour at an early stage and divert the child away from the criminal justice system.

A child’s participation in diversion may engage the right to self-incrimination and the right to be presumed innocent, due to the threshold for participation and due to the fact of participation in a diversion program being able to be treated as a finding of guilt for the purposes of certain orders, such as compensation or for the suspension or disqualification of a driver licence (cl 198). A child may participate in a diversion program so long as the child does not deny responsibility for the alleged offence (cl 194). This provision could possibly be characterised as enticing a child to admit guilt after court proceedings have been commenced against the child. To mitigate this, the Bill expressly provides that the fact that the child does not deny responsibility for the alleged offence is inadmissible as evidence in a proceeding for that offence and does not constitute a plea (cl 194). The same protection is provided to children who may have already entered a plea of guilty. The Children’s Court may refuse to accept a plea of guilty, or allow a child to withdraw a plea of guilty and adjourn the proceedings to allow the child to participate in diversion (cl 193). In such cases, the Bill provides that the withdrawal of a plea is inadmissible as evidence in a proceeding for that offence and does not constitute a plea (cl 193(8)). Given the purposes of diverting the child away from the criminal justice system, providing opportunities to meet the child’s needs and assisting with rehabilitation, the ability of the court to discharge the child if diversion is successfully completed, and the express protections against the admissibility of information, I do not consider that the requirement that the child does not deny the offence limits the right against self-incrimination.

Part 6.4 – Standard of proof

The Bill protects the rights of children in the criminal process by requiring the Children’s Court, on the summary hearing of a charge for an offence – whether indictable or summary – to be satisfied beyond reasonable doubt, by the relevant admissible evidence, that the child is guilty (cl 201(1)). If the Children’s Court is not satisfied of this, it must dismiss the charge against the child (cl 201(2)). This is the established standard of proof for criminal proceedings, enshrined in the Bill.

Chapter 7: Sentencing

Part 7.1 – Sentencing principles

The sentencing principles broadly promote cultural, family and children’s rights (ss 17, 19 and 25(3)), including by:

prioritising rehabilitation and positive development of a child, including by preserving and strengthening the child’s relationship with their parents, guardians, and significant adults in their life (cl 203);

tailoring sentences to the individual characteristics of the child, such as their Aboriginal, cultural, racial or other identity (cl 205);

making custodial sentences a last resort and for the minimum period appropriate, with a preference toward minimum intervention (cl 208); and

providing additional sentencing principles for Aboriginal children, including that sentences imposed should strengthen the child’s connection to family, kin, culture, Elders, community and Country and pay particular attention to the history, culture and circumstances of the child (cl 210).

Parts 7.2, 7.3, 7.4 and 7.5 – Reports, conferences and other factors to be considered on sentence

The Bill details the information the Children’s Court may take into account when considering the sentence to be imposed, including various types of pre-sentence, medical and specialist reports, submissions and victim impact statements (cl 211–221). Those who provide reports or statements to the Court may be called to give evidence and be cross-examined (cl 216–217).

Rights to privacy (s 13) and freedom of expression (s 15) are engaged by these provisions and related provisions in this Chapter that provide for participation in conferences and preparation of reports (e.g. pre-sentence group conferences (cls 231–234), youth justice planning meetings (cl 291), insofar as the conferences and reports will likely involve the collection and disclosure of personal information to the Court and related parties. However, any interference with the right to privacy will be lawful and not arbitrary. The purpose of these reports is to assist the court in determining a sentence that is appropriate and consistent with the sentencing principles. The proceedings of such conferences and meetings are subject to confidentiality provisions (cls 233 and 292) with specified exceptions permitting disclosure in limited circumstances. Related parties will be restricted in their use of information gained through involvement in these processes.

Any restriction on the freedom of expression through the associated confidentiality provisions will be necessary to respect the rights and reputation of other parties, and provides for disclosure with consent of the subject of the reports. These provisions promote the protection of the child’s best interests (s 17).

The Bill provides for pre-sentence group conferences with various participants (including the child and potentially their parents and the victim (cl 230)), the objects of which promote family and children’s rights (ss 17(2), 25(3)) by, for example:

• reducing further conduct with the criminal justice system and the likelihood of reoffending; and

• engaging parents, guardians and significant adults in the child’s life and providing processes that assist the child to repair harm, self-reflect and restore and strengthen relationships with family and community members (cl 228).

The Bill also provides that the Children’s Court must impose a less severe sentence than it would have otherwise imposed if:

• the child has undertaken to assist law enforcement authorities in the investigation or prosecution of an offence after sentence (cl 235), or where the child has already given or is giving assistance to law enforcement authorities at sentencing (cl 236);

• the child pleaded guilty (cl 237); and/or

• the child has participated in a pre-sentence group conference and agreed to the pre-sentence group conference outcome plan (cl 238).

Parts 7.6–7.12 – Sentencing generally

Hierarchy of options for sentencing

The Bill provides Courts with a hierarchy of options when sentencing a child as follows (cl 240), increasing in severity:

• unsupervised community-based orders (Part 7.7):

• dismissal of the charge without a formal warning, the objects of which include diversion (cl 243 – Part 7.7);

• dismissal of the charge with a formal warning, the objects of which are to warn the child about the potential consequences of further offending and diversion (cl 244, Part 7.7);

• with the consent of the child, imposition of a good behaviour order, the objects of which include diversion, providing clear consequences and encouraging good behaviour (cl ‍245, 246, Part 7.7);

• as an alternative sentence to a good behaviour order for children aged 15 or over (and which sits at the same level in the hierarchy), the imposition of a fine after consideration of the child’s financial circumstances, the objects of which include diversion, providing clear consequences and reparation (cl 249, 250, 251, Part 7.7);

• supervised community based orders (Part 7.8), which must be made without conviction for children under 15 years old, and may be made with or without conviction for those 15 years or over, all of which can only be made with the child’s consent:

• imposition of a community service order, the objects of which include supporting learning and development of skills and future opportunities to assist the child to move towards a prosocial life, as well as providing the opportunity to make positive and meaningful reparation (Part 7.8, Div 2);

• imposition of a probation order, the objects of which include providing clear consequences for offending behaviour, allowing participation in community and family life in a supervised and supported way and engagement with activities, programs or services to support rehabilitation and positive development (Part 7.8, Div 3);

• imposition of a youth supervision and support order, the objects of which include those of a probation order as well as to establish long-term support systems to reduce the likelihood of further offending (Part 7.8, Div 4);

• imposition of a youth control order as an alternative to detention. The objects of such an order build upon those of a youth supervision and support order by providing a clear consequence for offending behaviour and intensive, targeted supervision to help the child to develop an ability to abide by the law, engaging the child with activities or services to help address the underlying causes of the child’s behaviour, engaging the child in education, training or work, and giving the child an opportunity to demonstrate a desire to cease offending (cl 281) (Part 7.8, Div 5);

• sentences of detention (Part 7.13):

• imposition of a youth justice custodial order, which, in relation to a child under 14 years cannot be imposed except in certain circumstances (cl 324), and in relation to all children, cannot be made unless, among other things, the Court is satisfied that no other sentence is appropriate (cl 325(2)(c)). If the child is an Aboriginal child, the Court must provide reasons outlining how it has had regard to the sentencing principles in the Bill (cl 325(3)(e)). The objects of such an order are to provide a clear consequence for significant offending behaviour, protect the community from further significant offending, respond to the individual risks and needs and any underlying causes of the child’s offending behaviour and to support the child to positively develop and to transition back to the community to assume a positive role in society (cl 326).

A child may also be required to make restitution, pay compensation or pay costs (cl 240(3)).

This sentencing hierarchy promotes children’s rights in the Charter by creating a framework in which a court is empowered to impose the least restrictive order to match a child’s offending behaviour, which is connected to the provision of relevant supports to address the drivers of the child’s offending. Detention remains an option of last resort. This furthers the elements of children’s rights that emphasise minimal intervention and rehabilitation, diversion from the criminal justice system and the modification of the criminal process to promote the positive development of the child and protect their particular vulnerability. For example, the requirement that a supervised community-based order or a good behaviour order not be made without the consent of the child promotes children’s rights by requiring consideration of the views of the child.

Further, youth control orders, being the most severe of the supervised community-based orders and an alternative to detention, can only be ordered if a youth justice plan has been developed for the child. The aim of youth justice plans is to reduce the likelihood of re-offending and to provide opportunities to receive instruction, guidance, assistance and experiences that will assist develop the child’s ability to abide by the law (cl 288). A youth justice plan is developed following a youth justice planning meeting, which may be attended by members of the child’s family or other persons of significance in their community, which also promotes family and cultural rights (ss 17(1), 19) (cl 290, 291).

The Bill provides powers to impose a youth justice custodial order which will be relevant to a child’s right to liberty. A person’s liberty may legitimately be constrained in circumstances where the relevant arrest or detention is lawful, in that it is specifically authorised and sufficiently circumscribed by law, and not arbitrary, in that it must not be disproportionate or unjust. As discussed above, a youth justice custodial order can only be made when, among other things, the Court is satisfied that the circumstances and nature of the offence are sufficiently serious to warrant the making of the order and that no other sentence is appropriate (cl 325(2)(c)). Further, the sentencing principle promoting minimal intervention requires that custodial sentences only be imposed as a last resort and for the minimum period appropriate and necessary (cl 205). The objects of a youth justice custodial order referred to above, including the protection of the community from further significant offending, as well as supporting the child to positively develop and transition back into the community to assume a positive role in society, will help to guide the Court’s consideration of when such an order is appropriate. Accordingly, I consider the above framework will ensure that the imposition of such an order will not be arbitrary, disproportionate or unjust, and thus the right to liberty will not be limited by these provisions.

Core conditions of supervised community-based orders

The core conditions of a number of the supervised community-based orders may engage the child’s right to privacy (s 13) by, for example, requiring that the child notify the Secretary of any change in the child’s residence, school or employment (probation orders (cl 271(1)(f), youth supervision and support orders (cl ‍276(1)(f), youth control orders (cl 283(1)(g)). The right may also be engaged if the Court causes a copy of a community-based order to be given to the child’s parents (cl 322(1)(b)). Such a disclosure is not to occur if the Court considers it would pose an unacceptable risk to the safety, welfare or wellbeing of the child.

Any interference with privacy rights will be lawful and not arbitrary, as such information is necessary for the monitoring and enforcement of compliance with orders, and may only be used by the Secretary for limited, specific purposes provided for by law.

A number of the supervised community-based orders may engage the child’s right to freedom of movement (s ‍12), freedom of association (s 16(2)) and/or freedom of expression, particularly the freedom to seek, receive and impart information (s 15(2)).

For example, core conditions of these orders can require a child to perform community service activities at particular places (cl 265); report to the Secretary; not leave Victoria without written permission of the Secretary (cl 271(1), cl 276(1), 283(1)) and attend the Children’s Court as directed by the Court; and participate in education, training or work (cl 283(1), 294).

Any limitations on these rights will be justified, given the objects of the orders promote rehabilitation and positive development. Further, the hierarchy of sentencing options requires the Court to consider and prefer less severe options where they are appropriate and any restriction that may be imposed is to be for a certain purpose, such as reducing the likelihood of reoffending, providing a level of supervision less restrictive than detention and/or promoting public safety.

Special conditions of supervised community-based orders

Various special conditions may be imposed on certain community-based orders (Part 7.9), including:

• developmental conditions, such as those requiring health-related counselling or treatment, attendance at education or training programs, activities or support services or participation in community service activities that would support rehabilitation and positive development (cl 296);

• restrictive conditions, such as those imposing a curfew, requiring residence at a specified address or with specified persons and restricting access to certain places or areas (cl 296); and

• a restorative condition that requires a child to attend and participate in a group conference (in accordance with the group conference provisions discussed above) (cl 298).

These conditions engage a number of rights, including the rights to privacy, freedom of movement and freedom of expression. To the extent that rights are limited by these conditions, I am satisfied that any interference would be reasonably justified by reference to the Bill’s framework and criteria for imposing such conditions. When attaching any special condition to an order, the Court must have regard to, among other things, the sentencing principles, the objects of the order to which the condition would attach, the need to address the underlying causes of offending and the safety of any victim of the child’s offending. The Court must seek the child’s views on their ability to comply and be satisfied that the child is capable of complying with the special condition (cl 301). The Court must include a statement of reasons for attaching each special condition to an order. The Bill includes powers to vary conditions, including powers to make an order less restrictive if the Court considers a child has satisfactorily complied with the order, or if doing so is in the interests of assisting their future compliance with the order.

Recording of convictions

The Bill increases the Court’s powers to make orders without recording a conviction, which promotes the rehabilitative elements of children’s rights. Recording a conviction against a child can have significant implications for their prospects for finding employment, rehabilitation and prospects for not re-offending.

The Bill provides that no convictions are to be recorded for unsupervised community-based orders (cl 242). A supervised community-based order may be made with or without a conviction recorded if the child is 15 ‍years or older on the day of sentencing and must be made without a conviction recorded if the child is under 15 years of age on the day of sentence (cl 262(1)–(2)). Convictions must be recorded if a Court makes a youth justice custodial order (cl 325(3)(a)).

When determining whether to record a conviction, the Court must consider circumstances such as the child’s age at the time of offending and sentencing, the personal characteristics of the child, the impact the recording of a conviction may have of the child’s social wellbeing and prospects of finding or retaining employment and the child’s prospects of rehabilitation, with the latter consideration to be given more weight than any other individual matter to be considered (cl 262(3)).

Chapter 8 – Appeals

Chapter 8 provides for the framework of appeals under the Bill and raises the following human rights issues.

Right of appeal against conviction and sentence

The Bill provides for the right of appeal against conviction and/or sentence of a child convicted of an offence by the Children’s Court in a summary proceeding in the Criminal Division (cl 331) as well as a right to appeal against a sentence of detention imposed on appeal from Children’s Court (cl 375). This gives effect to the criminal process right in s 25(4) of the Charter that provides any person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with law. The Bill provides that no costs are to be allowed to a party, other than a child, on an appeal or new hearing (cl 399). This differs from the approach in the adult system and recognises the undesirability of awarding costs against children, who may not have the financial resources to pay costs. In turn, this ensures they are able to fairly participate in the criminal justice process by exercising any right to appeal without the concern of having costs ordered against them.

The Bill also promotes the capacity of children to participate in the criminal process by requiring a court hearing an appeal to explain the meaning and effect of any order it makes as plainly and simply as possible in a way which it considers the parties to the appeal will understand (cl 398(1)). The Bill also promotes the criminal process right to obtain legal representation, by requiring a court hearing an appeal, if a child is not legally represented, to adjourn the hearing and not resume unless the child is legally represented (unless satisfied the child had been granted reasonable opportunity to obtain legal representation and had failed to do so) (cl 396(2)).

Limits on the right to appeal

The Bill also imposes some limits on the right to appeal, specifically limiting the Supreme Court’s jurisdiction as well as precluding a party from appealing their matter further in certain circumstances (where they have appealed on a question of law (cl 374), or where the Children’s Court proceeding was constituted by the Chief Magistrate who holds a dual commission as a Supreme Court Judge (cls 375, 381 and 387)). The purpose of cl 374 is to prevent a proliferation of lengthy proceedings in relation to decisions of the Children’s Court, where it is clearly in the best interests of a child to have their matter dealt with expeditiously. The remaining clauses prevent scenarios arising where the Court of Appeal is required to essentially review its own decisions, which would be an unusual appellate process.

Element of double jeopardy not to be taken into account

The Bill provides for rights of the DPP to appeal a sentence imposed on a child:

• by the Children’s Court in a summary proceeding in the Criminal Division if satisfied that an appeal should be brought in the public interest, to be filed by notice within 28 days (cl 334). On hearing an appeal against sentence, the appellate court must set aside the sentence of the Children’s Court and impose any sentence the appellate court considers appropriate (which the Children’s Court could have imposed).

• in respect of an indictable offence, where the sentence had been discounted because of an undertaking by the child to assist law enforcement authorities, after sentencing, in the investigation or prosecution of an offence, and the DPP considers that the child has failed to fulfil that undertaking (cl 337). Such an appeal can be made at any time. On such an appeal, if the appellate court considers that the child failed to, wholly or partly, fulfil that undertaking, the court may set aside the previous sentence and impose the sentence that it considers appropriate, having regard to the failure of the child to fulfil the undertaking (cl 339).

The Bill expressly provides that, in imposing a sentence with regards to the above appeals, the appellate court must not take into account the element of double jeopardy in order to impose a less severe sentence than the court would otherwise consider appropriate (cl 340). While this clause expressly precludes the common law sentencing principle of double jeopardy, and such, engages the right not to be tried or punished more than once (s 26), in my view the right is not limited as the scope of this right relates to punishment involving a person who has been ‘finally convicted’. Proceedings for an appeal made within the statutory time period will not normally engage this right, and a person will only be considered ‘finally’ convicted or acquitted once the avenues for review and appeal are exhausted. Further, setting aside a sentence and imposing a new sentence in its place due to a failure to comply with the terms of a conditional discount applied to the original sentence would in my view not amount to double punishment to engage this right, even notwithstanding that there is no time limit within which such an appeal can be made.

Appeals in open court

The Bill also provides for all appeals to be heard in open court (cl 395), and empowers a court hearing an appeal to order the whole or any part of a proceeding to be heard in closed court. This balances the right of an accused to a public hearing (s 24 of the Charter), and related rights of a person to receive information from open court (s 15(2)), with rights to privacy (s 13) and the protection of a child’s best interests, specifically from adverse publicity that may prejudice their rehabilitation and/or development (s 17). The Bill grants any interested person standing to support or oppose an application to close a proceeding, and the Court will be obliged under s 6(2)(b) of the Charter to balance relevant Charter rights relevant to court proceedings when exercising its discretion under this clause. Accordingly, I consider this provision strikes a compatible balance between competing rights under the Charter, and any resulting limits will be reasonably justified in the circumstances.

Part 8.4 – Reports and conferences (appeals)

The Bill provides for an appellate court to order the filing of a pre-sentence report, group conference report or youth justice planning meeting report (cls 355, 364, 356, 357, 358 and 368). The author of a pre-sentence report may be required to attend, to give evidence and be cross-examined (cl 353) and is guilty of contempt if they fail to do so without sufficient excuse. While this may engage the rights to freedom of movement (s ‍12) and freedom expression (s 15), the author has voluntarily assumed to undertake special duties and obligations that attach to preparing such a report, which includes the obligation to attend court to give evidence on that report. Accordingly, I do not consider their rights to be limited in this context.

These provisions are also relevant to fair hearing rights in the Charter (s 24) in a number of respects.

Firstly, the Bill provides safeguards that protect the equality of arms principle inherent to the right to fair hearing (s 24) and the right to examine witnesses (s 25(2)(h)). If a child the subject of a report disputes any matter in the report, the appellate court must not take that matter into account unless satisfied of its truth beyond reasonable doubt. If a report is disputed and its author fails to attend, the appellate court must not take the report into account without consent (cl 354). This ensures that the appellate court does not give undue weight to disputed aspects of reports to avoid prejudice to a child’s case.

Secondly, the Bill provides a discretion to an author of a pre-sentence report to not send copies to of the report to the child the subject of the report if of the opinion the report’s content could prejudice that child’s physical or mental health (cl 362). This provision is relevant to fair hearing by potentially preventing a defendant in a criminal proceeding from accessing relevant information that will be taken into account by the appellate court in sentencing, while at the same time protecting the best interests of that child (s 17 of the Charter) from any undue psychological or developmental harm. I am satisfied that such a provision strikes the appropriate balance. If the author adopts this position, it must notify the relevant appellate court, who retains the power to order disclosure of the report to the child concerned. The appellate court will be obliged under s 6(2)(b) of the Charter to uphold fair hearing rights (s 24) in exercising its discretion under this provision. Finally, the author remains obliged to provide a copy of the report to the legal practitioner representing the child and cannot withhold it.

Thirdly, the Bill provides the appellate court with discretion to not order the preparation of a pre-sentence report in certain circumstances, and if so, may take into account previous pre-sentence reports in determining a sentence (cls 356(2), 357(2) and 358). This provision is intended to avoid delay incurred through the preparation of unnecessary reports and thus gives effect to criminal process and children’s rights to be tried without unreasonable delay (ss 25(2)(c) and 25(3)). It balances any prejudice resulting to an accused by requiring the consent of the child, or the appellate court to be satisfied that ordering a new pre-sentence report is either unnecessary or not in the interests of justice.

Confidentiality of reports

Reports provided to the court are likely to contain personal, sensitive or health information. In relation to the right to privacy (s 13), any interference will be lawful and not arbitrary for the following reasons. The collection and use of information are for the important purpose of assisting the appellate court to consider matters relevant to a child prior to sentencing, and are subject to various safeguards. The report author is obliged to inform the person being interviewed that any information they may give may be included in the report (cl 350). Any person who prepares or receives such reports is bound by a confidentiality provision and may not disclose the report to anyone not entitled to receive or access it without the consent of the subject of the report (cl 351). The Bill precisely sets out who is entitled to access pre-sentence reports (cl 362). The Bill specifies the information required to be addressed by each report (cl 359 and 360) and imposes requirements related to relevance of statements contained in the reports (cl 359(3)).

Any restriction on freedom of expression through the associated confidentiality provisions will be necessary to respect the rights and reputation of other parties, and the Bill provides for disclosure with consent of the subject of the reports. These provisions promote the protection of the child’s best interests (s 17).

Chapter 9: Assistance and reports to the Children’s Court

Part 9.1 – Assisting the Children’s Court

The Bill imposes duties on the Secretary and the DFFH Secretary to assist the Children’s Court in criminal proceedings involving children (cl 400–403). The Court may require the Secretary to give assistance or perform prescribed duties. If the Court makes such a request, the Secretary will have a duty to give the Court any assistance it requires (cl 402). The Secretary may also apply to the Court to be heard in a criminal proceeding involving a child, whether or not they are a party (cl 403).

The Court may also order the DFFH Secretary or the principal officer of an Aboriginal agency (if authorised under s 18 of the Children, Youth and Families Act 2005) to attend any criminal proceeding to give information or assistance to the Court, provide a report directly to the Court and parties, or to provide information to the Secretary (cl 401). This applies if the child is subject to a protection application or protection order.

These provisions provide the Court with express powers to direct the Secretary and DFFH Secretary to assist in criminal proceedings involving children (not just in relation to a child who has been found guilty of an offence, which is currently the case). Exercise of these powers may result in personal information relating to children being compulsorily disclosed to the Court, or shared between the DFFH Secretary and the Secretary (and their delegates), which would engage the right to privacy (s 13). However, any interference will be lawful and not arbitrary. The Court’s power to make orders is discretionary and information must only be disclosed when orders are made. This provision facilitates the provision of timely, quality and holistic advice to the Court by the Secretary and DFFH Secretary, to assist with the prompt assessment and resolution of criminal matters involving children. I note that disclosure of information to a court necessary for the conduct of its proceedings is generally a legitimate and reasonable ground for disclosure under comparative privacy principles.

Exercise of the Secretary’s power to apply to be heard in proceedings also provides another mechanism to assist the Court by providing timely advice. A child’s right to a fair trial is protected by the limit on the Secretary’s right to be heard which prevents them from providing information on whether the child is guilty of an offence (for which they have not yet pleaded or been found guilty) (cl 403).

Altogether, these measures will promote the right of children to be brought to trial and for matters to be heard and resolved as quickly as possible under s 23(2) of the Charter.

Part 9.2 – Reports to the Court

Part 9.2 provides for various specialist reports relating to a child in a proceeding to be provided to the Court. The author of a report may be required to attend to give evidence in a proceeding on the giving of a notice by the child the subject of the report, the Secretary, or the Court (cl 407) and is guilty of contempt if they fail to do so without sufficient excuse. As above, while this may engage the rights to freedom of movement (s 12) and freedom expression (s 15), the author has voluntarily assumed the special duties and obligations that attach to preparing such a report to the Court, which includes the obligation to attend court to give evidence on that report. Accordingly, I do not consider their rights to be limited in this context.

These provisions are also relevant to fair hearing rights in the Charter (s 24) in a number of respects.

As above, the Bill provides safeguards that protect the equality of arms principle inherent to the right to fair hearing (s 24) and the right to examine witnesses (s 25(2)(h)). If a child the subject of a report disputes any matter in the report, the Court must not take that matter into account unless satisfied of its truth beyond reasonable doubt. If a report is disputed and its author fails to attend, the Court must not take the report into account without consent (cl 408). This ensures that the Court does not give undue weight to disputed aspects of reports to avoid prejudice to a child’s case.

Secondly, the Court has powers to preclude parts of specialist assessment reports from being given to the child the subject of the report until a later time if the report’s content could prejudice that child’s mental health or development (cl 412). Additionally, the Bill provides a discretion to the Secretary to not give copies of a pre-sentence or supplementary pre-sentence report, or parts of that report, to the child the subject of the report if of the opinion the report’s content could prejudice that child’s physical or mental health (cl 420). These provisions are relevant to fair hearing and freedom of expression by potentially preventing a defendant in a criminal proceeding from accessing relevant information that will be taken into account by the Court in sentencing (and from giving proper instructions in relation to that material), while at the same time protecting the best interests of that child (s 17 of the Charter) from any undue psychological or developmental harm. I am satisfied that these provisions strike the appropriate balance. In relation to specialist reports, the Court can only make such an order after having regard to the views of the parties to the proceeding, and any statement by the author of the report that the information contained within it may be prejudicial to the physical or mental health of the subject of the report. In relation to pre-sentence reports, the Court retains discretion to order that the withheld report, or parts of the report, be provided to the relevant person. The Court will be obliged under s ‍6(2)(b) of the Charter to regard fair hearing rights (s 24) in exercising its discretion under these provisions. The legal practitioner representing the child is still entitled to receive all reports in full and there is no power to preclude the legal practitioner from accessing any of the reports.

Thirdly, the Bill provides the Court with discretion to not order the preparation of a pre-sentence report in certain circumstances, and if so, may take into account previous pre-sentence reports in determining a sentence (cl 414). This provision is intended to avoid delay incurred through preparation of unnecessary reports and thus gives effect to criminal process and children’s rights to be tried without unreasonable delay (ss ‍25(2)(c) and 25(3). It balances any prejudice resulting to an accused by requiring the consent of the child, or the Court to be satisfied that ordering a new pre-sentence report is either unnecessary or not in the interests of justice.

Confidentiality of reports

The Bill provides for the Court to order preparation of specified reports during the pre-sentence stage after a child is found guilty, to assist the Court with determining a sentence. This includes a requirement for the Court to order a pre-sentence report if the child has a relevant impairment, or if it appears to the Court that the child has a relevant impairment (cl 415), which may include assessment records and information about the child’s mental health and other health needs (cl 417). These provisions engage rights to privacy (s 13) and freedom of expression (s 15) insofar as the reports will involve the collection and disclosure of personal information to the Court and related parties and those parties will also be restricted in their use of that information by the confidentiality provisions that apply.

In relation to the right to privacy, any interference will be for the important purpose of assisting the Court to consider matters relevant to a child prior to their sentencing, and subject to various safeguards. The report author is obliged to inform the person being interviewed that any information they may give may be included in the report (cl 406). Any person who prepares or receives such a report is bound by a confidentiality provision and may not disclose the report to any one not entitled to receive or access it without the consent of the subject of the report (cl 409). The Bill precisely sets out who is entitled to receive each type of report (cls 412, 420, 427, 429, 431). The Bill specifies the information required to be addressed by each report and imposes requirements related to relevance of statements contained in the reports.

Any restriction on the freedom of expression through the associated confidentiality provisions will be necessary to respect the rights and reputation of other parties, and provides for disclosure with consent of the subject of the reports. These provisions promote the protection of the child’s best interests (s 17).

Chapter 10: Youth Justice custody

Chapter 10 of the Bill provides the legal framework for youth justice custody, including guiding custodial principles, rights and responsibilities, legal custody and management, prohibited actions and restricted practices, offence provisions related to youth justice custody, and restrictions on change of name and acknowledgement of sex applications.

Parts 10.1 and 10.2 – Guiding custodial principles and rights

The rights of children and young persons in youth custody are protected and promoted through the Bill’s inclusion of specific guiding custodial principles. Their purpose is to ensure that all acts and decisions made under the Bill are directed toward minimising and reducing offending involving children and young persons and that they are treated in a manner that supports their rehabilitation and positive development. The principles apply to the Secretary, the Commissioner, the Youth Parole Board, youth justice custodial officers and any other entity or person who exercises any power under this Bill, performs any function under this Bill, and engages with a child or young person detained or remanded in a youth justice custodial centre. They do not apply to any child or young person detained in a youth justice custodial centre, their parents, their legal representatives or any person engaging with the child or young person in a private or personal capacity (cl 437). The Bill provides that persons should take into account each guiding custodial principle to the fullest extent possible, to the extent each principle is relevant in the circumstances. The principles also set clear expectations for children and young persons.

Supporting the guiding custodial principles, the Bill enshrines a suite of custodial rights that a child or young person has while held in custody in a youth justice custodial centre (cl 445). These rights operate in addition to rights under other Acts, including the Charter, and the common law. They serve the important purpose of acknowledging that the placement of a child or young person in custody is a profound intervention in a child or young person’s life, furthering the need for their protection. The responsibility to act in a way that is compatible with and promotes custodial rights applies to any person who interacts with a child or young person held in custody in a youth justice custodial centre (in addition to the Secretary and the Commissioner), and must be fulfilled to the fullest extent possible.

Safety, stability and security

The Bill provides for the guiding custodial principle (cl 438) and corresponding right cl (448) to safety, stability and security. The principle in summary requires that children and young persons be provided with a safe, stable and secure place of accommodation where they are protected from harm, are accommodated in a manner that is the least restrictive necessary in the circumstances, and are afforded a safe, stable and secure living environment that is founded on strong, consistent and respectful relations between youth justice custodial staff and children or young persons and their families. The principle also includes a prohibition on any punishment (beyond the confinement that results from an imposition of a sentence of detention) and that remanded children and young persons be presumed innocent and treated accordingly.

The custodial right expands on this with a right to specific standards including accommodation that is clean and sanitary and upholds privacy and dignity, nutritional food and drink that is compatible with religious or dietary requirements, clean and appropriate clothing that accords with gender identity and cultural and religious customs/requirements, and access to outdoor social, recreation and exercise.

This promotes children’s rights in sections 17(2), 23 and 25(3) as well as the rights to privacy (s 15), freedom of religion (s 14), freedom of association (s 16), family (s 17(1)), humane treatment (s 22(1)) and cultural rights (s 19) by:

• prioritising that the child is detained in a safe environment that is stable and secure, where a child is accommodated in the least restrictive manner possible;

• protecting the right of the child to maintain contact with their family;

• providing minimum standards in relation to food, drink and clothing;

• requiring children’s clothing accords with the child’s cultural and religious customs, ensuring a child’s right to enjoy their culture, to declare and practice their religion;

• promoting the right to associate by providing for minimum guarantees to socialising and recreation outdoors; and

• ensuring appropriate treatment of remanded children and young persons to reflect their status as unconvicted persons.

Positive development

The Bill provides for the guiding custodial principle concerning the promotion of rehabilitation and positive development of children and young persons detained in a youth justice custodial centre (cl 439) and corresponding custodial right of a detained or remanded child or young person (cl 447) to an individualised program of meaningful structured activities and support. This includes, in summary, programs incorporating evidence-based interventions that address any underlying causes of offending behaviour (or alleged offending behaviour) and encourage the child or young person to build insight into and take responsibility for their actions, education, training and skills development, recreation, and personal skills, including independent living skills (if applicable) to support the reintegration of the child or young person into the community.

This promotes children’s rights in sections 17(2), 23 and 25(3) as well as cultural rights in section 19 by:

• ensuring that the primary focus of youth custody is on rehabilitation and development;

• recognising the particular vulnerability and individualised needs of children and requiring programs, structured activities and supports are in place to foster their education and skill development;

• providing children with suitable education and vocational training; and

• requiring programs to be tailored to the individual characteristics and needs of the child.

Individual responses

The Bill provides for a guiding custodial principle (cl 440) and corresponding right (cl 450) to individual responses. The principle in summary provides an entitlement for children and young persons to be cared for and supported in a manner that is appropriate for their age, maturity and stage of development, to have their individual risks and needs addressed, to have their abilities and strengths fostered, to be supported in a gender-responsive, inclusive and safe way, to be treated in a manner that values the unique cultural identities and faiths of diverse backgrounds, and to be acknowledge and supported in relation to their disability, health needs, mental illness or mental health needs (where applicable). The custodial right provides for related entitlements, including a right to receive a timely assessment and case plan (that is informed by information provided by other entities and service providers) that is appropriate for the age, maturity and stage of development of the child or young person, and fosters their ability and strengths. The custodial right also includes a right to gender responsive care and provision of sanitary products and maternity care.

These provisions promote the rights to equality (s 8), freedom of religion (s 14) cultural rights (s 19) and rights of children (ss 17 and 23) by:

• taking into account the child’s age and the desirability of promoting their rehabilitation;

• requiring female children in custody to be supported in a gender-responsive way and given equitable access to supports, services and facilities;

• ensuring children in custody are supported in an inclusive and safe way and given equitable access to supports, services and facilities that reflect their gender identity, sex characteristics and sexual orientation;

• ensuring all children with a particular cultural, religious, racial or linguistic background are treated in a way that values, acknowledges and supports their identity; and

• supporting children and young persons to overcome systemic barriers of discrimination.

The provisions also give effect to United Nations Standard Minimum Rules for the Administration of Juvenile Justice regarding young female detainees in juvenile justice, who are deemed to deserve special attention as to their personal needs and fair treatment. It also gives effect to broader Victorian Government commitments to support LGBTIQ+ young persons, including embedding LGBTIQ+ awareness and inclusive practice into the custodial operating philosophy and practice framework.

Finally, this aligns with the interim report of the Royal Commission into Victoria’s Mental Health System, which notes that people in contact with the justice system are disproportionately affected by poor mental health, that young persons recently in contact with the justice system are at greater risk of suicide, and that connections between service design and Youth Justice are required to ensure a person’s holistic recovery needs are met.

Aboriginal children and young persons

The Bill provides for an additional guiding custodial principle (cl 441) and corresponding right (cl 452) specific to Aboriginal children and young persons. These clauses provide, in addition to other guiding custodial principles and rights, Aboriginal-specific cultural support for Aboriginal children and young persons and provide guidance for those who have contact with Aboriginal children and young persons in youth justice custody. Their inclusion promotes children’s rights (sections 17(2), 23 and 25), cultural rights (s 19), family (s ‍17) and equality rights (s 8) under the Charter by:

• providing statutory recognition of the over-representation of Aboriginal children and young persons in the youth justice system, and the structural exclusion of, and discrimination against, Aboriginal people and culture;

• promoting and protecting the right to self-determination;

• requiring regard to be had to the manner with which Aboriginal children and young persons are treated in custody; specifically, respect and acknowledgement of their cultural identity;

• valuing and centring Aboriginal culture, connection to family and kinship ties;

• ensuring that an Aboriginal child’s or young person’s history, culture and circumstances is recognised by those engaging with an Aboriginal child or young person in a youth justice custodial setting; and

• supporting Aboriginal children and young persons in maintaining connection to family, community, Elders and culture and actively supporting and maintaining these connections, recognising that these foundations are needed for Aboriginal children and young persons to thrive.

Children’s and young persons’ voices

The Bill provides for a guiding custodial principle (cl 442) and corresponding right (cl 454) to children’s and young persons’ participation in matters relating to their detention. It obliges genuine and regular engagement with children and young persons in youth justice custody. This promotes the rights of the child by ensuring children and young persons are respected as individuals and empowered to participate in decisions relating to their rehabilitation. The right also gives effect to international minimum standards concerning the right of detained persons to make complaints about their treatment, and have such complaints responded to.

Family, community, cultural and religious connections

The Bill provides for a guiding custodial principle concerning engagement with parents, families, guardians, carers and significant others of a child or young person in custody (cl 443) and a corresponding right protecting, amongst other things, the use of language, practice of religion, participation in culture and maintaining family, cultural and social connections whilst in custody (cl 451).

These provisions promote equality under the Charter (s 8) by requiring children and young persons in custody from culturally and linguistically diverse backgrounds to be treated in a manner that values their unique cultural identities, beliefs, faiths and languages and supports them to express and practice them accordingly. This overlaps with the Charter cultural right (s 19) that all persons with a particular cultural, religious, racial or linguistic background must not be denied the right to enjoy their culture, to declare and practice their religion and to use their language.

These provisions also promote the best interests of the child and protection of the family (s 17) by requiring that families, guardians, carers, or persons of significance are to be supported in meaningfully participating in and contributing to matters relating to the child. It also requires the provision of regular access to the youth justice custodial centre at which the child is in custody. These measures are intended to maintain a child’s connection with their family and community, recognising their value to a child’s positive development and rehabilitation.

Collaboration

The final guiding custodial principle of ‘collaboration’ (cl 444) promotes partnership and mutual responsibility amongst all service systems, including Departments, public service bodies, Police and non-government organisations. A collaborative approach will encourage a targeted, whole-of-system effort to support young persons in custody and assist with their rehabilitation, furthering the rights of the child.

Further custodial rights

The Bill also provides for further specific custodial rights in addition to those above.

This includes a right that a child or young person in custody must be properly informed (cl 453). This includes being adequately advised of their custodial rights, human rights, complaints processes as well as having reasonable access to news and information. The right ensures children and young persons have adequate communication with the outside world, promoting the right to fair and humane treatment. The provision furthers a child’s or young person’s rehabilitation as they prepare for their return to the community, as well as empowering a child or young person to enforce the protection of their rights and entitlements.

The Bill provides a free-standing right to receive physical, disability and mental health support as required (cl 449), including access to a registered medical practitioner, dentist, nurse, psychologist or disability service provider. This gives effect to international human rights minimum standards regarding access to adequate medical care. It also recognises the structural issues that disproportionately affect children and young persons with a disability by ensuring access to disability service providers, promoting equal protection of the law without discrimination.

The Bill provides a right to receive confidential visits from the legal representative of the child or young person (cl 455) promoting the capacity of children and young persons to effectively participate in the legal process, furthering the criminal process right to communicate with a lawyer (s 25(2)(b)).

Finally, the Bill provides an express right to external support (cl 456), including, amongst other things, access to community engagement activities, education and training, work opportunities and transitional services upon leaving custody such as safe and stable housing and mental and physical healthcare. This promotes the rights of the child by:

• ensuring the child has access to health, education and work opportunities, acknowledging that children have a unique capacity for rehabilitation and positive development when properly supported; and

• acknowledging the particular vulnerabilities of children by requiring that the external support of Departments, public sector bodies, public sector entities and other service providers are in place to provide support both during custody and on transition into the community.

Division 2 – Responsibility of children and young persons in youth justice custodial centres

The Bill empowers the Commissioner to make custodial rules, to set out expectations and standards of behaviour that children must comply with in custody (cls 457, 458). While such rules may lead to limits on rights, the power to make rules must be exercised compatibly with the above guiding custodial principles and rights and a child or young person must be supported in complying with the custodial rules. Further the power to make rules is considered necessary to ensure the Commissioner is able to give effect to responsibilities to establish a safe, stable and secure custodial environment. As a safeguard, the Bill provides that a child will not be liable for an offence solely on the basis of breaching custodial rules (cl 459).

Part 10.3 – Legal custody and management and operation of youth justice custodial centres

Division 1 – Responsibility for youth justice custodial centres and legal custody

Division 1 provides a legal framework outlining the responsibility and management of children in youth custody. The Bill grants the Secretary legal custody and responsibility for the safety and wellbeing of children and young persons in custody (cl 460). The Bill also provides for legal custody of a child or young person when being transported to youth justice custody after the court has made an order to remand or detain the child or young person (cl 461). The Commissioner is vested responsibilities to determine the form of care, custody, accommodation, treatment and support of a child or young person in custody (cl 462(1)).

That the Bill provides the Commissioner with broad responsibilities to manage and determine the conditions of custody of the child is relevant to a child’s right to humane treatment when deprived of liberty (s 22). Section 22 requires, as a starting point, that persons deprived of liberty not be subjected to any additional hardship or constraint other than that which results from the deprivation of liberty. While the scope of these powers is broad and may include measures that limit rights, I consider such powers to be necessary to carry out the proper operation of a youth justice custodial centre and necessary to maintain the safety, stability and security of such a facility, which includes protecting the rights of others. Further, the Bill provides guidance on what should be considered when determining the child’s care and custody, requiring the Commissioner have regard to each child’s individual risks, needs and best interests to the extent practicable in the circumstances (cl 462(2)). The Commissioner will also be bound to act compatibly with the custody principles and custodial rights when exercising the powers of management, as well as the Commissioner’s obligation as a public authority under s 38 of the Charter to act compatibly with human rights and give proper consideration to human rights when making a decision.

Photographs and records of a child or young person

The Bill provides for the Commissioner to take photos of a child or young person upon their arrival into the youth justice custodial centre (cl 463), engaging the right to privacy (s 13) under the Charter. However, any interference will be lawful and not arbitrary, as such information is needed to identify and monitor the child or young person, as is required for proper management of the youth justice custodial centre. Further, that photos may only be used for these limited, specific purposes and will be subject to the general restrictions on use and disclosure of youth justice information.

Division 2 – Accommodation

The Bill aims to provide a strengthened framework for ensuring appropriate classification and placement of juveniles within the facility. The accommodation provisions are included for the purpose of assisting or advancing children in custody by requiring the Commissioner to separately accommodate children based on certain characteristics, taking into account their particular needs, status and special requirements. The Bill enshrines three presumptions upon which a child’s placement is based:

1. Age-based separation presumption: The Bill provides that children who are under 18 years of age are to be accommodated separately from children and young persons who are 18 years of age or over who are at the same youth justice custodial centre, unless the Commissioner is satisfied that it is appropriate and safe to accommodate children and young persons of different ages together taking into account specified factors, including the safety, security and stability of the youth justice custodial centre (cls 464(1)(a) and 465(1)). This age-based separation presumption promotes the Charter right of a child detained or convicted to be segregated from adults in custody (s 23(1) and (3)). The need for a different response for this age cohort reflects their inherent youth, stage of development, vulnerability and impressionability. Separate accommodation on the basis of age also promotes children’s rights by ensuring their protection from harmful influences and risk situations, as well as furthers the right to humane treatment by providing accommodation suited to the physical, mental and moral integrity and wellbeing of the child.

2. Status-based separation presumption: The Bill enshrines the presumption that children or young persons who are on remand are accommodated separately from those serving a custodial sentence (cl 464(b)). The presumption recognises that juveniles who are detained under arrest or awaiting trial are presumed innocent and shall be treated as such, promoting children’s rights and the right to humane treatment.

3. Sex-based separation presumption: The presumption that children and young persons are separated according to sex ensures that a child or young person is safe and limits risks that a child or young person’s rights will be limited (cl 464(c)). This facilitates a gender-responsive custodial system, reflected through a specific operating model for girls and young women and dedicated sub-precinct for this cohort, enabling equitable access to services and supports. This gives effect to a number of international standards, specifically, the United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) that require that adult women and men be physically separate in order to protect them against sexual harassment and abuse.

These separation presumptions are directly relevant to the following Charter rights:

• an accused person who is detained or a person who is detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary (section 22(2)).

• an accused child who is detained or a child detained without charge must be segregated from all detained adults (section 23(2)).

• a child who has been convicted of an offence must be treated in a way that is appropriate for his or her age (section 23(3)) – although not strictly a separation requirement, this right could support the principle that a child should be kept separate from other children due to their age.

Treatment of children and young persons based on certain cohorts

While the above presumptions that require the Commissioner to provide separate accommodation for certain cohorts broadly promote rights, they may also engage the right to equality and non-discrimination in section ‍8(3) of the Charter through differential treatment on the basis of protected attributes that may be unfavourable to a particular person’s circumstances. I consider any limits to be reasonably justified for the purpose of giving effect to the express separation rights in the Charter discussed above.

To protect against arbitrary outcomes, the Bill affords the Commissioner discretion (cl 465) to not apply the above presumptions if considered appropriate in specified circumstances, which require regard to the child or young person’s views, best interests, individual risks and needs, and the likely impact on the safety, security and stability of the youth justice custodial centre, and the health, safety and wellbeing of all persons who would be accommodated with that child or young person. This also includes a discretion not to apply the sex-based separation presumption in relation to a child or young person whose gender identity is not the same as their sex. This approach is consistent with the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules), which state that the principal criterion for separation of categories of children should be based on the type of care best suited to their particular needs and the protection of their physical, mental and moral integrity and wellbeing.

Division 3 – Powers relating to visitors

To ensure the requisite safety, security and stability within the youth justice custodial centre, the Bill provides the Commissioner with powers to approve entry and give orders to visitors entering the youth justice custodial centre (cls 466 and 467). Visitors entering the facility will be required to provide the Commissioner with certain personal information, engaging the right to privacy under the Charter (cl 468). However, any interference will be lawful and not arbitrary, as the information required by the provision is necessary to establish the identity of and credibility of the visitor, which is required to uphold the security and safety of the youth justice custodial centre.

Powers under this provision will allow the Commissioner to refuse or terminate a person from entering the youth justice custodial centre as a visitor (cl 469). That a child may be denied a visit from their parent, carer or other significant person will interfere with the child’s ability to maintain contact and preserve relationships with family, engaging children’s rights, right to humane treatment and family rights (ss 17 and 22). On balance, I consider any limitations on personal visits will be reasonable and demonstrably justified, having regard to the fact that the Commissioner’s powers to terminate a visit may only be used for the limited purpose of protecting the safety and security of children and other persons in the facility. Without the capacity to terminate or prevent visits, the Commissioner cannot effectively discharge their responsibility of providing a safe custodial environment. The power to refuse visits must be exercised compatibility with the guiding custodial principles and rights relating to visit entitlements, and human rights in the Charter. The interpretation of the relevant Charter rights will be informed by the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (Havana Rules), which provides that children are entitled to receive regular and frequent visits, which is in principle a minimum of one visit per week, but no less than one visit per month.

Division 4 – Temporary leave

The Bill provides temporary leave permits to be issued to persons in youth justice facilities, for educational, vocational or other important reasons (cl 470). Allowing the child to leave detention facilities for such purposes promotes children’s rights, cultural rights and the right to family by:

• supporting the child’s transition into the community, promoting rehabilitation and reintegration;

• providing the child access to education and training;

• ensuring the child maintains contact with their family;

• facilitating frequent contact with the wider community; and

• enabling leave for the purpose of building or maintaining connection to culture.

Temporary leave applications will be subject to any conditions, limitations, restrictions or cancellations that the Secretary considers fit to impose (cl 469(4), 471). Conditions may include returning and reporting to the youth justice custodial centre at the time specified on the temporary leave permit.

Similar to the discussion on parole order conditions, a temporary leave permit generally grants a detained person greater liberty and reduces the extent of limits on their human rights that result from their sentence. In this regard, this framework for temporary leave would generally not result in any additional limits being imposed on rights. To the extent that it does, I am satisfied that any limits are reasonably justified in the context of a supervised temporary release scheme where the person is still under sentence and is being granted leave for a specific purpose, and serve important objectives of protecting the community, deterring re-offending and promoting the rehabilitation of the child or young person and reintegration into the community.

Presumption of innocence in cases of contravention of temporary leave permit

The Bill provides for an offence of contravention of temporary leave permit (cl 472). The offence provisions provide that it is not an offence if the child or young person fails to return or report to a youth justice custodial centre due to circumstances beyond that person’s control (cl 472(2)).

The provision imposes an evidential onus on an accused when seeking to rely on the above exception. Case law has held that an evidential onus imposed on establishing an excuse or exception does not limit the Charter’s right to a presumption of innocence (s 25), as such an evidentiary onus falls short of imposing any burden of persuasion on an accused. The onus in these offence provisions require only that an accused point to evidence of the exception, upon which the burden falls on the prosecution to prove the absence of such an exception beyond a reasonable doubt. Accordingly, the right to presumption of innocence in the Charter is not limited by these offence provisions.

Part 10.4 – Prohibited actions and restricted practices

Division 1 – Prohibited actions

The Bill promotes a number of rights, including the right to equality (s 8), protection of children (s 17), the protection from cruel, inhuman or degrading treatment (s 10(b)), the right to humane treatment when deprived of liberty (s 22) and the rights of children in the criminal process (s 23) by expressly prohibiting the following actions from being performed on children or young persons detained under the Bill, including:

• use of physical force for the purpose of discipline;

• corporal punishment;

• any form of psychological pressure intended to intimidate or humiliate;

• the use of any form of physical or emotional abuse;

• adoption of any kind of discriminatory treatment; and

• use of isolation for the purposes of punishment, discipline or behaviour management (cl 474).

Divisions 2 and 5 – Use of force and restraint

The Bill prohibits use of force except in certain circumstances (cl 475, 479 and 498). The use of force in any context raises many human rights including the protection against cruel, inhuman or degrading treatment (s 10), the protection of children (s 17), the right to humane treatment when deprived of liberty (s 22) and the rights of children in the criminal process (s 23).

International human rights instruments and jurisprudence have developed basic principles for assessing the human rights compatibility of any legal framework regulating the use of force. This includes that any power to use force:

• be precisely prescribed and be aimed at achieving a legitimate objective;

• be necessary, in that the use of force must be necessary to achieve the legitimate objective (in lieu of alternative means which do not use force);

• be the minimum needed to be considered effective;

• must stop once the objective has been achieved or is no longer achievable;

• balance the benefits of the use of force against the possible consequences and harm caused by its use; and

• be accountable and subject to adequate training and governance.

In relation to use of force against children, the United Nations Rules for the Protections of Juveniles Deprived of their Liberty (Havana Rules) provides that instruments of restraint and force can only be used in exceptional cases, for the shortest possible period of time, where all other control methods have been exhausted and failed, and must not cause humiliation or degradation.

I am satisfied that the use of force provisions in this Bill are compatible with the above principles. Clause 475 sets out the primary purposes for which force may be used which is where an officer believes on reasonable grounds that force is necessary to prevent, or respond to an immediate threat of a child or young person harming themselves or any other person, damaging property, escaping or attempting to escape from custody, or engaging in conduct that would seriously threaten the safety, security or stability of the youth justice custodial centre. The provision expressly requires that all other reasonably practicable behavioural, relational or therapeutic measures have first been attempted. I note the provision also permits other use of force that is authorised under other law, such as common law self-defence. Reasonable force may also be used to place a child or young person in isolation (cl 485) and to conduct an unclothed search (cl 498), but only if authorised by the Commissioner as a last resort if it is necessary to prevent or prevent the continuation of a serious and immediate threat to the safety of the child or young person or any other person. The prohibited actions clause discussed above applies to the use of force meaning it cannot be used to punish, to discipline or intimidate.

This framework ensures that force is only used as a measure of last resort, and when used, is proportionate and necessary in the circumstances to achieve a safe and secure custodial environment for all children, young persons, staff and persons present in such environments. It employs preconditions with a high threshold requiring the identification of an ‘immediate threat’, and the belief on reasonable grounds that force is necessary to prevent or respond to that immediate threat. The Bill also limits the use of instruments of restraint to handcuffs, closeting chains and other instruments either permitted by law or prescribed, and prescribes the limited circumstances in which they can be used (cl 477).

In addition, the Bill includes further safeguards governing the use of force, including an absolute prohibition on the use of restraint techniques for the purpose of restricting or inhibiting a child or young person’s respiratory or digestive function, compelling compliance through the infliction of pain, hyperextension or pressure applied to joints and the use of any other technique to be prescribed by regulation (cl 476).

Division 5 provides further general requirements applying to the use of force by a youth justice custodial officer, including that:

• the use of force must be proportionate;

• the use of force must immediately cease once it is no longer necessary;

• force must be applied for the shortest possible time;

• the necessity and manner of force must be continually assessed;

• an officer must have regard to the child or young person’s stage of development, physical stature and individual characteristics and background (including factors specified in the Bill such as age, gender, cultural background, physical and mental health, disability and history of trauma); and

• an oral warning must be given before force is used, and reasonable time afforded for the child or young person to comply with the warning.

A youth justice custodial officer must not use force unless the youth justice custodial officer is appropriately trained in relation to the use of physical intervention techniques on children and young persons (cl 505).

The Bill also provides that a child or young person is entitled to examination, medical attention and mental health care after being subject to any use of force (cl 506), their parents are to be notified (cl 506(4)) and an Aboriginal child or young person is entitled to cultural support (cl 506(5)). A child or young person is entitled to additional support as soon as practicable after being subjected to any use of force. The Bill also provides for a right to complain about the use of force (cl 507). All use of force must be reported (cl 521) and recorded with specified details in a Use of Force Register, which is subject to the inspection by the CCYP (cl 526).

Similar to cl 74 discussed above in relation to Part 3.2 in limited circumstances, cl 506 may engage the prohibition against medical or scientific experimentation or treatment of a person without their full, free and informed consent in section 10(c) and the protection of families in section 17 of the Charter. For the reasons outlined in respect of cl 74, my view is that the right in 10(c) is not limited.

Accordingly, I am satisfied the above framework accords with best practice and international standards for regulating the use of force in youth justice, and thus is compatible with human rights in the Charter.

Division 3 – Isolation

The Bill provides for a legal framework relating to the use of isolation in limited circumstances. Use of isolation raises many human rights including the protection against cruel, inhuman or degrading treatment (s 10), the protection of children (s 17), the right to humane treatment when deprived of liberty (s 22), the rights of children in the criminal process (s 23) and the right to equality (s 8). As noted above, reasonable force may also be used to place a child or young person in isolation.

International standards strictly prohibit the isolation of a child or young person for 22 hours or more in a 24 hour period without meaningful human contact. Harmful impacts of solitary confinement that have been reported include physiological effects, psychological effects, and a greater rate of self-harm and suicide. The United Nations Special Rapporteur on Torture has stated that the solitary confinement of juveniles constitutes cruel, inhuman and degrading treatment.

The Bill aims to provide a contemporary and strengthened legislative framework for the use of isolation, informed by best practice, human rights and international and domestic standards. This includes giving effect to recommendation made by the Victorian Ombudsman (OPCAT in Victoria: A thematic investigation of practices related to solitary confinement of children and young people (2019)), the CCYP (The Same Four Walls: inquiry into the use of isolation, separation and lockdowns in the Victorian youth justice system (2017)) and the 2017 Youth Justice Review (Youth Justice Review and Strategy, Penny Armytage and Professor James Ogloff) to strengthen legislative safeguards, protections, accountability and reporting. The use of isolation is a valid behaviour management tool when used in appropriate circumstances to address violence or destructive behaviours that have continued despite all attempts to prevent them.

The Bill adopts a broad definition of isolation to ensure that a range of situations involving the separation of a child or young person will be regulated by these provisions (cl 478). The Bill includes an express prohibition against solitary confinement, meaning the physical isolation of a child or young person for 22 or more hours in a 24 hour period without meaningful human contact, consistent with international principles (cl 479). The Bill then provides that the use of isolation, being the placing of a child or young person (or a group or class of children or young persons) in a locked room or other separate contained area, separate from other children and young persons, and separate from normal routine, is also prohibited unless authorised by the Commissioner (cl 480).

The Bill establishes a framework for authorising the use of isolation, including the purposes for which isolation may be authorised. Isolation of a child or young person may be authorised when it is appropriate in the circumstances and necessary to prevent or respond to an immediate threat of harm or serious property damage, as part of a planned approach to support the stabilisation or moderation of the child’s or young person’s behaviour, to prevent, detect or mitigate serious risk to the health of a person in the youth justice custodial centre (in accordance with any relevant pandemic order under the Public Health and Wellbeing Act 2008 relating to infectious disease), or if the isolation is in the interests of the security or safe operation of a youth justice custodial centre. Isolation of a group or class of children may be authorised where it is necessary in the interests of the security or safe operation of a youth justice custodial centre. The Commissioner must not authorise the use of isolation unless satisfied that all other reasonably practicable alternative measures have first been attempted.

In deciding whether the isolation of a child or young person is appropriate, the Commissioner is obliged to have regard to the child’s or young person’s stage of development and individual characteristics and background (including specified matters such as age, gender, cultural background, physical and mental health, disability and history of trauma), which is intended to promote and protect the right to equality. The duration of isolation must be specified in the authorisation, and be only for the shortest time necessary in the circumstances (cl 483), having regard to the individual factors discussed above. The Bill provides that reasonable force may be used to place the child or young person in isolation (cl 485), which is also subject to the general requirements in Division 5, discussed above, relating to use of force. The Bill requires close monitoring, review and supervision of a child or young person in isolation at regular intervals, to be prescribed by regulation (cl 486), including a requirement to end the isolation if it is no longer appropriate or necessary.

The Bill provides for various rights of a child or young person placed in isolation, including to be informed of the reasons for being placed in isolation, to be examined by an appropriate health professional and receive appropriate care if suspected of requiring medical attention, to request notification of their parents (subject to an exception), to be seen by a support person, support provider, family member or Aboriginal cultural support worker (if applicable), and to be notified about their above mentioned rights and their right to lodge a complaint (cls 491 and 492). The Bill provides for the Secretary to prepare minimum requirements for meaningful human contact during isolation (cl 487), which are to be published and made publicly available. Additionally, the Bill provides rights to access open air and outdoors for a minimum of one hour each day and timely information about the expected duration of their isolation, subject to specified and limited exceptions (cl 493).

As above, any use of isolation must be reported and specified details recorded in the Isolations Register, for inspection by the CCYP (cls 522 and 524).

Accordingly, I am satisfied the above framework accords with best practice and international standards for regulating the use of isolation in youth justice, and thus is compatible with human rights in the Charter.

Division 4 – Searches

The Bill provides for a range of search powers to be exercised in relation to a youth justice custodial centre. The range of search powers provided in the Bill are relevant to a person’s right to privacy (s 13), as the powers involve an interference with a person’s bodily integrity, and in some respects in relation to detained persons, their home. It is arguable that, in the absence of a requirement to seek a warrant, these searches have the potential to arbitrarily intrude into the private spheres of persons, which, even in relation to detained persons, are protected under this right. The prohibition on arbitrariness requires that any interference with privacy must be reasonable or proportionate to a law’s legitimate purpose. I am of the view that the interferences with privacy provided by this power will be lawful and not arbitrary, for the reasons that will be outlined below.

Additionally, s 22 of the Charter relevantly provides that all persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person. Section 22 requires, as a starting point, that persons deprived of liberty not be subjected to any additional hardship or constraint other than that which results from the deprivation of liberty. The United Nations Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) require all searches to be conducted in a manner that is respectful of the inherent human dignity and privacy of the individual being searched, as well as the principles of proportionality, legality and necessity.

Pat-down and screening searches of child or young person detained in a youth justice custodial centre

The Bill provides youth justice custodial officers with powers to conduct screening and pat-down searches in relation to a child or young person detained in a youth justice custodial centre. This includes the power to:

• search the child or young person on entering or leaving a youth justice custodial centre (cl 494); and

• search any part of, or child or young person detained within, a youth justice custodial centre if necessary for the safety, security or stability of a youth justice custodial centre or the children and young persons detained within (cl 495).

Searches form a key part of procedural security processes which serve the important purpose of ensuring the safety, security and stability of a youth justice custodial centre, primarily by preventing the introduction and proliferation of contraband into a youth justice custodial centre. Exclusion of contraband assists in maintaining the safety and security of children and young persons, staff and visitors and promotes the rehabilitation of children and young persons in detention.

The preconditions on conducting a search conform with the principles of legality and necessity. While the power to search upon entering or leaving (cl 494) can be exercised at an officer’s discretion, this is necessary in order to maintain the security of a custodial facility. A person necessarily assumes a reduced expectation of privacy in relation to entering or leaving such a facility, and the type of search undertaken is similar to that which exists in relation to entering any public building where there are security concerns (being a screening or pat-down search). The clause prohibits unclothed or body cavity searches from being conducted under this power.

In relation to the general search power inside the centre (cl 495), this can only be exercised if considered necessary for the specified purposes outlined above, which are legitimate and pressing purposes necessary to discharge the statutory responsibilities to provide a secure and safe environment and uphold duties of care in relation to persons under legal custody. The clause expressly prohibits unclothed or body cavity searches from being conducted under this general power.

The Bill provides for a number of safeguards to ensure searches are conducted in a proportionate manner. The Bill provides safeguards governing the way a pat-down or screen search is conducted. The provisions expressly require that any search conducted must be the least intrusive kind of search that is necessary and reasonable in the circumstances (cl 499(2)). It stipulates that the officer must conduct the search expeditiously and sensitively, with regard to promoting the child or young person’s decency, dignity and privacy and if the person is a child or young person, having regard to their stage of development, individual characteristics and background (including cultural background, mental health, disability and history of trauma) (cl 499(3)). Regard must also be had to the need to minimise causing trauma, distress or other harm to the child or young person being searched.

The Bill also provides that officers conducting the search must be appropriately trained (cl 499(7)) and, in relation to a pat-down search, must be of the same sex as the person, unless exceptional circumstances apply (cl 500). Persons whose gender identity does not correspond to their sex designated at birth must be treated respectfully and be allowed to nominate the sex or gender identity of the officer where possible (cl 500(2)).

The Bill also includes a safeguard to mitigate interference with a detained child or young person’s bedroom (and by extension, their right to privacy of home), by requiring such searches to be conducted expeditiously, having regard to decency, dignity and privacy of the person whose rooms and belongings are being searched, and leaving such room and belongings as close as possible to the condition in which the room was found in (cl 496).

The Bill provides various rights of a person searched in a youth custody facility, including to be informed of the officer’s authority to conduct the search and the reasons for the search (cl 499(4)). Officers must provide a person with an opportunity to produce any prohibited item before being searched, if safe to do so (cl 499(5)). Detained children and young persons must be informed of their right to complain to the Secretary (cl 499(4)(b)) or an oversight entity (cl 499(4)(c)) about the conduct of the search and informed of the process of making a complaint.

The Commissioner is obliged to keep a searches register which records the details of all searches conducted of a detained child or young person, for inspection by the CCYP (cls 525 and 526).

Accordingly, I am satisfied the above framework is appropriately prescribed and compatible with rights.

Unclothed searches of a child or young person in a youth justice custodial centre

The Bill prohibits unclothed searches of a child or young person detained in a youth justice custodial centre, except in certain circumstances (cl 497). Unclothed searches are the most intrusive search that can be carried out in a youth justice custodial centre. Accordingly, conducting an unclothed search of a child raises many human rights, including the protection against cruel, inhuman or degrading treatment (s 10), the protection of children (s 17), the right not to have privacy unlawfully or arbitrarily interfered with (s 13), the right to humane treatment when deprived of liberty (s 22) and the rights of children in the criminal process (s 23). The Bill provides that reasonable force may also be used to conduct an unclothed search of a child or young person in detention in very limited circumstances (cl 498).

A number of reviews and inquiries across Australia and internationally have found the practice of unclothed searches to have the potential to re-traumatise children and young persons. The consensus is that routine unclothed searches are out of step with human rights and standards, and not the least intrusive types of search that could be conducted in the circumstances. Unclothed searches should only be conducted when reasonable, necessary and proportionate to a legitimate aim.

The United Nations Minimum Rules for the Treatment of Prisoners (Mandela Rules) further provide that intrusive searches, including strip and body cavity searches, should only be undertaken if absolutely necessary. The Bill explicitly prohibits searches of a person’s body cavities, and further provides that unclothed searches should only be conducted in private and by trained staff of the same gender as the prisoner (cls 499- 501).

In addition to the safeguards discussed above (Div 5), the Bill includes provisions offering specific protections for unclothed searches. Clause 497 sets a precondition that the unclothed search of a child may only be used where the Commissioner believes on reasonable grounds that the child has concealed something on their body and that an unclothed search is necessary for the security of the youth justice custodial centre or the health, safety or wellbeing of the child or others. The Bill ensures that the unclothed search is only used where all other search methods have first been considered and used if safe to do so, having regard to the individual characteristics and background of the child (cls 497(2) and 497(3)). This includes, for example, using technology to conduct the search before resorting to an unclothed search.

In addition to the above requirement, that an officer conducting a search must be of the same sex (or nominated sex or gender identity as necessary) (cl 500), unclothed searches must take place in the presence of another youth justice custodial officer (cl 501(2)). In instances where a search is carried out on a child or young person whose gender identity does not correspond to their sex designated at birth, the additional youth justice officer must be of a sex or gender identity nominated by the child or young person, where possible (cl ‍500(2)).

Further safeguarding provisions that apply, unless exceptional circumstances arise, include that a child must not be fully unclothed at any time during the search, that it is conducted in a private place with privacy for the child, and that the child or young person is allowed to re-dress in private (cl 501).

The Bill also provides that, as soon as reasonably practicable but not more than 12 hours after the completion of an unclothed search, a child or young person is entitled to request medical attention, medical examination and mental health care(cl 502(1)(a)) with examination records to be kept by the health practitioner (cl 502(2)). Parents are to be notified upon request (cl 502(1)(b)) and an Aboriginal child or young person is entitled to cultural support (cl 502(1)(c)). A child or young person must be offered the opportunity to contact and be seen by a support person, support provider or family member. The Bill also provides that the child must be informed of the above mentioned entitlements (cl 503(c)) and of the right to complain about the conduct of the unclothed search (cls 503(a) and 503(b)).

In my view, these provisions are compatible with international standards for regulating the use of unclothed searches in youth justice.

Use of reasonable force for unclothed searches

As discussed above, the use of force in any context raises many human rights including the protection against cruel, inhuman or degrading treatment (s 10), the protection of children (s 17), the right to humane treatment when deprived of liberty (s 22) and the rights of children in the criminal process (s 23).

The Bill recognises the compounding impact and potentially traumatic impact of both an unclothed search and the forcible removing of clothing on a child or young person. In addition to all other safeguards provided for under Division 5, clause 498 requires that the use of force by a custodial officer must first be authorised by the Commissioner. It sets out that the only purpose for which force may be used is where the Commissioner believes that it is necessary to prevent the continuation of a serious and immediate threat to the safety of the child or any other person. The provision ensures that force is only used as a measure of last resort, and when issued, is proportionate and necessary to conduct the unclothed search. As discussed above, the general requirements in Division 5 of Part 10.4 also apply to this type of use of force.

The Bill provides that all use of force for unclothed searches must be reported (cl 521) and recorded with specified details in a Use of Force Register, which is subject to the inspection by the CCYP (cl 526).

These powers serve important objectives, including protecting against a serious and immediate threat to the safety of the child or any other person. Accordingly, I am satisfied that any limits on these rights are reasonably justified.

Division 6 – Search of any other person in a youth justice custodial centre

The Bill also provides a search power in relation to non-detained persons entering or leaving a youth justice centre including custodial staff, visitors or any other person (with the exception of a judge or Magistrate) (cl 508). A further pat-down or screening search can be ordered by the Commissioner at any time in relation to a non-detained person in a youth justice custodial centre, if in the interests of the safety, security or stability of a youth justice custodial centre or the children and young persons detained within (cl 509). The clauses expressly prohibit unclothed or body cavity searches from being conducted under these powers.

As above, while the power to search upon entering or leaving can be exercised at an officer’s discretion, this is necessary in order to maintain the security of a custodial facility. A person necessarily assumes a reduced expectation of privacy in relation to entering or leaving such a facility, and the type of search undertaken is similar to that which exists in relation to entering any public building where there are security concerns (being a screening or pat-down search). The power to order a search at any time is subject to the precondition of being necessary in the interests of safety, security and stability.

The conduct of such searches is subject to similar safeguards as described above in relation to Division 4, in summary requiring all searches to be conducted in a manner that is the least intrusive in the circumstances, expeditious, pays regard to rights, interests and individual characteristics of the person being searched, minimises trauma and complies with gender identity requirements. Importantly, non-detained persons are provided with an additional protection, being a right to refuse a search and an entitlement to be informed of this right prior to a search occurring. If a person refuses to be searched, they may be ordered to leave the centre immediately (cl 512) and be liable to a penalty if they do not do so. Accordingly, any search carried out under these provisions can only be conducted with the consent of the person being searched (albeit consent must be given if the person wishes to enter or remain in the centre).

Division 7 – Seizure

The Bill provides that an officer, in carrying out a search in accordance with the above powers in Division 4, may seize any prohibited item that is found in the person’s possession (cl 514). Seizure of prohibited items under this provision is relevant to property rights (s 20), as it necessarily deprives a person of their personal property.

The types of items that can be seized are confined to ‘prohibited’ items, which are clearly defined in the Bill as things that are likely to jeopardise security of the youth justice custodial centre, such as weapons, money, alcohol and drugs or any other prescribed article or thing (cl 3). Given their inherent risk, providing officers with the power to seize such items is necessary to maintain physical security and safety and prevent the introduction of contraband or other prohibited items into the youth justice custodial centre. In this regard, it promotes the underlying purpose of the Bill, to provide a safe and stable environment that supports rehabilitation and positive development.

In addition, the Bill includes a number of clauses which clearly set out and properly circumscribe the manner in which seized property is to be dealt with, including:

• requiring seized money to be returned to the person from whom it was seized when leaving the youth justice custodial centre (cl 518);

• requiring seized items to be recorded on a register (cl 515);

• ensuring seized things that may be used in a legal proceeding are held securely until the end of the proceeding (cl 517).

The inclusion of the above provisions protects against any arbitrary deprivation of property, as well as creates accountability and transparency in how seizure powers are used. Accordingly, I am satisfied that these powers are appropriately circumscribed and do not limit rights.

Disposal of a seized article or item

Clause 520 engages property rights (s 20) by providing a process for disposing of items seized under the Bill. As explained above, items can only be seized if they are prohibited and likely to jeopardise the security of the youth justice custodial centre. Given that prohibited items include dangerous weapons and illegal contraband, the return of these items may not be appropriate in the circumstances and disposal may be necessary to maintain security and safety of the youth justice custodial centre. The Bill ensures that disposal of prohibited items is a proportionate action to take, by specifying that it can only occur in circumstances where it is deemed appropriate, having regard to the nature of the article.

In addition, the Bill includes safeguarding against misuse and ensuring accountability by requiring disposal to be carried out by two youth justice custodial officers, with details of the disposal to be recorded on the seizure register. Therefore, I consider that the above provisions do not limit rights.

Division 8 – Reporting and record keeping

Clauses 521 and 522 require a youth justice custodial officer who uses force against a child or young person or who places a child or young person in isolation, to report that action to the Commissioner as soon as possible after that action. These reporting requirements seek to further children’s rights to humane treatment when deprived of liberty, by seeking to ensure that children are not subject to arbitrary use of force or isolation, and that there is a level of oversight and accountability over these coercive actions.

The Bill requires the Commissioner to establish and keep a Use of Force Register, an Isolations Register, and a Searches Register (cls 523–525), which must be made available to the CCYP for inspection at specified times (cl 526). The registers must include information about:

• the characteristics of the child or young person in relation to whom the action was taken;

• the circumstances of the use of force, physical restraint, isolation, or search;

• whether the child or young person was examined by a health practitioner and received medical attention and mental health care; and

• any prescribed particulars.

The recording of personal information and the requirement to provide this information to the CCYP will engage the right to privacy under section 13(a) of the Charter. However, any interference will be lawful (being clearly set out in Division 8 of Part 10.4 of the Bill) and not arbitrary, as the information shared is limited to specific purposes and for the overarching purpose of ensuring that children and young persons in a youth justice custodial centre receive humane treatment when deprived of liberty.

Division 9 – Exemption from liability

Clause 508 of the Bill provides that a youth justice custodial officer is not personally liable for anything done or omitted to be done (including injury or damage) in good faith and in accordance with the provisions of the Bill that permit, in certain circumstances: the use of reasonable force (cl 475); the use of an instrument of restraint (cl 477); the use of reasonable force to place a child or young person in isolation (cl 485); and the use of authorised reasonable force for unclothed searches (cl 498). Any liability resulting from an act or omission that would attach to a youth justice custodial officer attaches instead to the State (cl 527(3)).

This provision may limit the ability of a person to bring legal proceedings against such officers in certain circumstances, which may constitute a limit on that person’s right to a fair hearing under section 24 of the Charter, by impeding their access to the courts of the State.

A legal right may also be considered to be property for the purposes of section 20 of the Charter, which has been interpreted as requiring that a person must not be deprived of property other than in accordance with clear, transparent and precise criteria. In this case the provisions meet this criteria, so any deprivation of property has occurred ‘in accordance’ with law.

However, to the extent that these immunities limit the right to fair hearing, I consider the limit to be reasonably justified under section 7(2) of the Charter. Cl 527 only removes personal liability of youth justice custodial officers, and any liability resulting from an act or omission of the youth justice custodial officer attaches instead to the State, and as such, in my view this does not result in the imposition of a bar to bringing a proceeding. Further, these immunities are designed to maintain the effectiveness of relevant officers under the Bill carrying out protective functions directed to ensuring a safe and secure environment for children, young persons, staff and visitors. It is essential that a relevant officer be able to use authorised reasonable force in good faith when necessary to exercise their lawful powers without fear of tort liability, which may be especially heightened when managing children and young persons with complex needs. Without at least some degree of protection from litigation, an officer may be reluctant to use reasonable force to conduct duties essential to the security and safety of the youth justice custodial centre, notwithstanding their statutory authorisation to do so. The immunities will ultimately facilitate the proper exercise of powers which are directed at upholding safety and security.

Further, these immunities only extend to cover use of reasonable force in accordance with the provisions specified in cl 527(2), and personal liability will still arise for any unreasonable or unnecessary use of force that has not been exercised in accordance with those provisions. Accordingly, officers will still remain accountable for any improper, unreasonable or unauthorised use of force.

Accordingly, I am satisfied that that the limitations of liability in these contexts are compatible with the Charter.

Part 10.5 – Offences relating to Youth justice custodial centres and Youth justice community service centres

Division 1 – Offences relating to operation or possession of remotely piloted aircraft or helicopter

The Bill provides for search and seizure powers outside a youth justice custodial centre in relation to the offence of operating of a remotely piloted aircraft or helicopter in a manner that threatens or is likely to threaten the good order or security of the youth justice custodial centre (cls 528 and 531). The Bill also provides for powers of a youth justice custodial officer to order a person to leave the public space adjoining a youth justice custodial centre if believed on reasonable grounds to be committing this offence (cl 529). These provisions engage the rights to privacy (s 13) and freedom of movement (s 12).

The public space adjoining a youth justice custodial centre is a regulated area and a person assumes a reduced expectation of their rights in relation to this area, which include having their freedom of movement limited by being asked to leave when believed to be committing the remote aircraft offence. I consider that the power to search a person reasonably believed of having committed an offence of this nature will not constitute an arbitrary or unlawful interference with privacy. The elements of the offence concern conduct that threatens or is likely to threaten the good order or security of a youth justice custodial centre. The search powers are directed at addressing this serious threat to the safe and secure custody of children and young persons and enforcing this offence provision. The limited circumstances in which a search may be conducted are clearly set out and are appropriately circumscribed. Before a search is conducted, an officer must inform the person of the officer’s authority to conduct the search, and inform the person that they may refuse the search. Any items seized must be dealt with in accordance with the seizure provisions described above.

Division 2 – Escaping from youth justice custodial centre or other custody

The Bill contains a number of offences in relation to youth justice custodial centres. As these offences prohibit certain forms of conduct, the provisions necessarily engage human rights in the Charter, such as rights to liberty (s 9), freedom of movement (s 12) and privacy (s 13).

The offence provisions relate to prohibiting conduct to ensure the secure and safe custody of children and young persons lawfully deprived of liberty.

Escaping offences

The Bill includes the offence of escaping or attempting to escape from a youth justice custodial centre, which is a prohibition on conduct that is already necessarily constrained and intrinsic to the lawful loss of liberty, and accordingly, does not impose any additional limits on rights (cl 533). The same applies to cl 534 which provides the authority to apprehend without warrant a person found escaping from a youth justice custodial centre or other custody.

The Bill also prohibits accessory conduct such as harbouring or concealing an escaped child or young person (cl 537), knowingly preventing a child or young person from returning to a youth justice custodial centre (cl 538) and counselling or inducing a child or young person to escape (cl 540). These offences are consistent with long-established common-law principles relating to accessorial liability.

Division 3 – Other offences relating to youth justice custodial centres and youth justice community service centres

Offences against security, stability and safe operation of a youth justice custodial centre

The Bill then prohibits a range of conduct that undermines or threatens the security, stability and safe operation of youth justice custodial centres or safe custody of children and young persons. This includes the offences entering a youth justice custodial centre without lawful authority or excuse or refusing or failing to leave when required to do so (cl 541 and cl 548), lurking or loitering about a youth justice custodial centre (cl ‍547) and related property offences of delivering certain prohibited articles or things to a child or young person in a youth justice custodial centre (cl 544), taking or receiving articles or things from a child or young person (cl 545) and delivering or leaving contraband articles or things for introducing into a youth justice custodial centre (cl 546).

Prohibiting such conduct is necessary to maintain the physical security and safety of a youth justice custodial centre. The provision of effective rehabilitation is contingent on a safe environment for children, young persons and staff. The prohibited conduct relates to actions or behaviour relating to the regulated area of a youth justice custodial centre and persons residing within lawfully deprived of their liberty. In this regard, a person would have a diminished expectation in relation to the scope of their rights when entering or interacting with such a secure facility.

Communication offences

The Bill also includes offence provisions relating to communicating with a child or young person in a youth justice custodial centre, attending a youth justice community service centre or who is on temporary leave from a youth justice custodial centre, in contravention of a clear instruction from the Commissioner not to do so (cls 542 and 543). These offence provisions raise additional rights of freedom of expression (s 15) and freedom of association (s 16), and may interfere with the right to protection of family (s 17).

There are a number of important purposes for which there may be a need to prohibit communication, including to further a child or young person’s rehabilitation, prevent contact with anti-social peers or criminal associates, to protect a vulnerable child or young person from inappropriate or concerning correspondence or to prevent undermining of the security or safe environment of a youth justice custodial centre.

The power to issue an instruction to prohibit communication must be used for a proper purpose consistent with the Commissioner’s statutory responsibilities (including the operational management, security, stability and safety of youth justice custodial centres), and compatibly with the custodial rights of children and young persons in youth justice custodial centres. This includes ensuring that a child or young persons’ custodial rights to family, community, cultural and religious connections are fulfilled to the greatest extent possible (cl ‍446). Any such instruction must be served in writing. In relation to the offence of communicating with a child or young person who is on temporary leave contrary to an instruction, a person cannot not be charged with this offence unless they were first warned that their communication was prohibited, and despite the warning, continue to communicate or attempt to communicate with the child or young person on temporary leave.

Accordingly, I am satisfied that the framework for this offence is appropriately prescribed and compatible with human rights.

Lawful authority or reasonable excuse

The offence provisions described above include a defence of lawful authority or reasonable excuse. Section ‍25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. This right is relevant where a provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that he or she is not guilty of an offence.

As these offences are summary offences, section 72 of the Criminal Procedure Act 2009 will apply to require an accused who wishes to rely on the ‘lawful authority or excuse’ defence to present or point to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the excuse. In other words, the provision imposes an evidential onus on an accused when seeking to rely on the defence. Case law has held that an evidential onus imposed on establishing an excuse or exception does not limit the Charter’s right to a presumption of innocence, as such an evidentiary onus falls short of imposing any burden of persuasion on an accused. The onus in these offence provisions requires only that an accused point to evidence of lawful authority or excuse, upon which the burden falls on the prosecution to prove the absence of such authority or excuse beyond a reasonable doubt. Accordingly, the right to presumption of innocence in the Charter is not limited by these offence provisions.

Part 10.6 – Change of name applications and acknowledgement of sex applications

The Bill includes restrictions on a child or young person serving a sentence of detention in a youth justice custodial centre from making an application with the Births Deaths and Marriages Register to change their name or acknowledgement of sex (cls 551 and 558). The provisions require a person seeking to make an application to obtain the written approval of the Secretary.

This will necessarily limit the rights to privacy of such a person (by way of interfering with the freedom of their personal and social sphere, their right to individual and sexual identity, and to psychological integrity and mental stability) and in some cases, their rights to equality and non-discrimination on the basis of a protected attribute (gender identity).

I am satisfied that any limits on these rights are reasonably justified. These restrictions serve important objectives, including protecting the interests of victims of crime and ensuring the sentencing purposes are upheld (such as responsibility for action and protection of the community), protecting against the risk that a proposed change of name can be used for unlawful or improper ends (including disguise or evasion) or may disrupt the routine or proper management, stability or security of a youth justice custodial centre.

To mitigate against arbitrary outcomes, the Secretary is provided discretion to approve an application if satisfied it is necessary or reasonable in all the circumstances (cls 553 and 560). This discretion must be exercised consistent with the custodial rights of children and young person to the greatest extent possible, including their rights to positive personal development, and to be supported in an inclusive and safe way that respects their gender identity (cls 447 and 450). The Secretary must not approve an application if satisfied that a change of name would be reasonably likely to threaten the security of a youth justice custodial centre, jeopardise the safe custody or welfare of any person in a youth justice custodial centre, be used to further an unlawful activity or purpose or be regarded as offensive by a victim of crime or an appreciable sector of the community.

Accordingly, I am satisfied this framework adopts an appropriate balance between a child or young person’s rights and the important countervailing considerations at play.

Part 10.7 – Other provisions relating to youth justice custodial centres

Clause 566 provides for the secrecy of security arrangements and restricts a person holding (or who has held) a specified position from recording, disclosing, communicating or using confidential information except to the extent that is reasonably necessary to perform their duties or functions or exercise a power under the Bill or any other Act. The provision includes various exceptions relating to giving evidence or producing documents in court proceedings, disclosure pursuant to Ministerial authority, disclosures to specified oversight bodies or law enforcement agencies or where specifically authorised by another Act. Confidential information is defined as information given to the Youth Parole Board, court or tribunal that is not disclosed in a decision of that body, information concerning emergency procedures, security measures or management of a youth justice custodial centre, information about an investigation into a detainee or officer for contravention of the law, commercial information that if disclosed may threaten the security, good order or safe operation of a youth justice custodial centre, or information concerning an operational and security debrief regarding a violence or critical incident.

While this provision will limit a person’s right to freedom of expression (including to receive or impart information), any limits will fall within the internal limitation in s 15(3) of the Charter, which is as a necessary protection of national security, public order and public health. Additionally, a person holding a position under the Bill will voluntarily assume the duties and obligations that attach to that position, including the requirement to only use and disclose confidential information as provided.

Chapter 11 – Children and young persons held in police gaols or in police custody under transfer authority

Chapter 11 provides for police powers in relation to children detained in police gaols or a child or young person in police custody under transfer authority.

Part 11.1 – Rights of children in police gaols

The Bill incorporates rights specifically related to children held in a police goal. As discussed above, while the Bill generally requires a child to be placed in a youth justice custodial centre when subject to detention, it is not always possible to do so and there are instances where a child must be detained in police custody pending being brought before the Court or to facilitate transport to and from a youth justice custodial centre.

Accordingly, the Bill provides for rights of children when detained in police gaols, to be given effect by the Chief Commissioner of Police (cl 568). This broadly promotes children’s rights and equality by providing for the greatest possible consistency between how children are treated and managed across all places of detention, aligning the thresholds and safeguards that apply across youth justice facilities and police gaols. As above, these rights are additional to those provided by the Charter, and other Acts and the common law (cl 567).

The Bill provides that a child who is remanded, held or detained in a police gaol has a right to be accommodated separately from adults and according to the child’s sex (unless the officer in charge of the police goal is satisfied that the child’s gender identity differs from the child’s sex and that it is appropriate and safe for the child to be kept with children other than children of the same sex) (cl 569). The purpose of these provisions is to provide protections to ensure that the environment is safe, that the child is protected and that the treatment of the child is age-appropriate, furthering the child’s criminal process right in the Charter (s 23).

The Bill enshrines a right to communication for children in custody in police gaol (cl 570), furthering children’s rights and the criminal process right by requiring that children must:

• have all reasonable efforts made to be communicated with in a language which the child can understand; and

• receive visits from parents, relatives, carers, legal practitioners, and Aboriginal elders in the case of an Aboriginal child.

The Bill provides for an individual needs and environment right in police gaol for reasonable effort to be made to meet the child’s specific needs, including cultural, mental health and disability support needs (cl 571). It also requires a safe and secure place where the child is protected from harm, a clean and sanitary environment with access to appropriate clothing and nutritious foods and beverages (appropriate to religious and dietary needs). These measures uphold the dignity of the child, as well as promoting children’s and cultural rights.

The Bill includes a right to make a confidential complaint about the standard of care and to receive support to make that complaint (cl 572). The opportunity for a child to provide their views on matters affecting them and to have their complaints adequately addressed is relevant to children’s rights, by ensuring children are responded to as vulnerable individuals by way of their age, supported in an inclusive and safe way and given equitable access to supports. It also gives effect to international minimum standards regarding accountability and oversight.

The Bill includes a right that the child be advised of their entitlements and rights while in custody (cl 573). Establishing procedures that inform children offer further protection in a child’s best interests.

Part 11.2 – Children and young persons detained in police gaols or in custody of transfer officer under transfer authority

Division 2 – Prohibited actions

As with the discussion in relation to Division 1 of Part 10.4, the Bill promotes a number of rights, including the right to equality (s 8), protection of children (s 17), the protection from cruel, inhuman or degrading treatment (s 10(b)), the right to humane treatment when deprived of liberty (s 22) and the rights of children in the criminal process (s 23) by expressly prohibiting the following actions from being performed on children detained in police gaols or children or young persons in the custody of a transfer officer under transfer authority under the Bill, including:

• use of physical force for the purpose of discipline;

• corporal punishment;

• any form of psychological pressure intended to intimidate or humiliate;

• the use of any form of physical or emotional abuse; and

• adoption of any kind of discriminatory treatment (cl 577).

Divisions 3 and 5 – Use of force and restraint

The Bill provides for similar powers for use of force in a police gaol or while in the custody of a transfer officer under transfer authority. Following the above discussion regarding use of force relating to Divisions 2 and 5 of Part 10.4, these provisions engage many human rights including the protection against cruel, inhuman or degrading treatment (s 10), the protection of children (s 17), the right to humane treatment when deprived of liberty (s 22) and the rights of children in the criminal process (s 23).

As above, I am satisfied the use of force provisions in these Divisions are compatible with the above rights. Clause 578 set out the primary purposes for which force may be used which is where the police or transfer officer believes on reasonable grounds that force is necessary to prevent, or respond to, an immediate threat of harm, damaging property, escaping or attempting to escape from custody, or engaging in conduct that would seriously threaten the security or good order of the police gaol. The provision expressly requires that all other reasonably practicable de-escalation measures have first been attempted. I note the provision also permits other use of force that is authorised under other law, such as common law self-defence. The prohibited actions clause discussed above applies to the use of force meaning it cannot be used to punish, to discipline or intimidate.

This framework ensures that force is only used as a measure of last resort, and when used, is proportionate and necessary in the circumstances to achieve a safe and secure custodial environment for all children, young persons, and persons present in such environments. It employs preconditions with a high threshold requiring the identification of an ‘immediate threat’, and the belief on reasonable grounds that force is necessary to prevent or respond to that immediate threat. The Bill also limits the use of instruments of restraint to handcuffs, closeting chains and other instruments either permitted by law or prescribed (cl 580).

In addition, the Bill includes further safeguards governing the use of force, including an absolute prohibition on the use of restraint techniques for the purpose of restricting or inhibiting a child or young person’s respiratory or digestive function, compelling compliance through the infliction of pain, hyperextension or pressure applied to joints and any other technique to be prescribed by regulation (cl 579).

Division 5 provides further general requirements applying to the use of force in a police gaol or while in the custody of a transfer officer under a transfer authority, including that:

• the use of force must be proportionate;

• the use of force must immediately cease once it is no longer necessary;

• force must be applied for the shortest possible time;

• a police or transfer officer must, to the extent known and reasonably practicable, have regard to the child or young person’s stage of development, physical stature and individual characteristics and background (including factors specified in the Bill such as age, gender, cultural background, physical and mental health, disability and history of trauma);

• an oral warning must be given before force is used, and reasonable time afforded for the child or young person to comply with the warning; and

• in the case of use of an instrument of restraint, the child or young person must be closely supervised while subject to restraint (cl 588).

A police or transfer officer must not use force unless the person is appropriately trained in relation to the use of physical intervention techniques (cl 588(2)).

The Bill provides for actions which must be taken after a child is subject to use of force (cls 589 and 590), including, if reasonably suspected of being injured or otherwise by request, examination by a health practitioner as soon as reasonably practicable, the provision of medical attention, mental health care or psychological support that the child requires, the notification of the child’s parents and entitlement of an Aboriginal child to cultural support. The child is also entitled to additional support as soon as practicable after being subjected to any use of force, including to contact and be seen by a support person, support provider or family member. The Bill also provides for a right to complain about the use of force (cl 591).

Similar to cl 74 discussed above in relation to Part 3.2, in limited circumstances, cls 589 and 590 may engage the prohibition against medical or scientific experimentation or treatment of a person without their full, free and informed consent in section 10(c) and the protection of families in section 17 of the Charter. For the reasons outlined in respect of cl 74, my view is that the right in 10(c) is not limited.

Accordingly, I am satisfied the above framework accords with best practice and international standards for regulating the use of force, and thus is compatible with human rights in the Charter.

Division 4 – Unclothed searches

Following on from the discussion above about unclothed searches in a youth justice custodial centre, the Bill provides for similar powers in relation to a child detained in a police gaol. As discussed above, unclothed searches engage many human rights, including the protection against cruel, inhuman or degrading treatment (s 10), the protection of children (s 17), the right not to have privacy unlawfully or arbitrarily interfered with (s 13), the right to humane treatment when deprived of liberty (s 22) and the rights of children in the criminal process (s 23).

Clause 581 prohibits unclothed searches from being carried out unless in accordance with the terms of the provision. The clause sets a precondition that the unclothed search of a child may only be used where the officer in charge believes on reasonable grounds that an unclothed search is necessary in the interests of the security of the police gaol or the health or safety or wellbeing of the child or any person in the police gaol. The Bill requires that the unclothed search is only used as a last resort, having regard to the individual characteristics and background of the child, and only once satisfied that less intrusive measures such as a screening search or pat down search have first been considered.

The use of reasonable force in carrying out an unclothed search must be authorised by the officer in charge, and only where the use of force is a last resort and necessary to prevent the continuation of a serious and immediate threat to the safety of the child or any other person in the police gaol. The officer may only use as much force as is reasonably necessary to conduct the unclothed search (cl 582).

The Bill also provides for requirements that must be complied with before conducting unclothed searches, including informing the child of the authority and reasons for conducting the search, their right to complain and the process for doing so, and providing the child an opportunity (if safe to do so) to produce any prohibited item before being searched (cl 583).

The Bill also provides for standards of conduct during the unclothed search, including an obligation to conduct the search expeditiously and sensitively with regard to promoting the child’s decency, dignity and privacy and, having regard to their level stage of development, individual characteristics and background (including cultural background, mental health, disability and history of trauma) (cl 584). Regard must also be had to the need to minimise causing trauma, distress or other harm to the child being searched. Officers conducting the search must be appropriately trained to conduct an unclothed search of a child. An officer conducting a search must be of the same sex (or nominated sex or gender identity as necessary), and unclothed searches must take place in the presence of another officer (cls 584 and 585). In instances where a search is carried out on a child whose gender identity does not correspond to their sex designated at birth, the additional officer must be of a sex or gender identity nominated by the child where safe and reasonably practicable (cl 585).

Further safeguarding provisions that apply, unless exceptional circumstances arise, include that a child must not be fully unclothed at any time during the search, that the search is conducted in a private place with privacy for the child, and that the child is allowed to re-dress in private (cl 584).

The Bill also provides that, as soon as reasonably practicable, a police gaol officer must make all reasonable efforts to ensure a child is provided access to medical attention, medical examination and mental health care (cl 586) with examination records to be kept by the health practitioner. Parents are to be notified upon request and an Aboriginal child or is entitled to cultural support. A child or must be offered the opportunity to contact and be seen by a support person, support provider or family member. The Bill also provides that, not more than 12 hours after the completion of an unclothed search, the child must be informed of the above mentioned entitlements and of the right to complain about the conduct of the unclothed search (cl 587).

In my view, these provisions are compatible with international standards for regulating the use of unclothed searches in youth justice.

Chapter 12 – Youth parole

Part 12.1 – The Youth Parole Board

Membership of the Youth Parole Board

The Bill promotes cultural rights (s 19(2)) and special measures for members of a group with a particular attribute (s 8(4)), being race and sex, through providing for the inclusion of women and Aboriginal persons on the Youth Parole Board and their presence at meetings considering female or Aboriginal children and young persons (cls 592(3), (4),(5), (6) and (7), 596(2) and (3), and 597(3)). Of the Chair positions, one must be a woman and one must be an Aboriginal person, and there are also requirements that community member positions are filled by women and at least one Aboriginal person.

Immunities and protections

The Bill contains provisions which affect the circumstances in which a person may bring legal proceedings in relation to particular matters or against certain people.

Clause 617 provides for various protections and immunities for Board members. The protection and immunity granted is akin to that which would be granted to a similar role in a proceeding before the Supreme Court.

Clause 603 provides that a member of the Board or the secretary of the Board is not personally liable for any action or suit in respect of any thing done or omitted to be done in good faith in relation to any function conferred on the Board or on any members or on the secretary of the Youth Parole Board by or under this Bill or any other Act.

Section 24(1) of the Charter provides that a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial court or tribunal. In other jurisdictions, it has been found that a broad statutory immunity from liability which imposes a bar to access to the courts for persons seeking redress against those who enjoy the immunity may breach the fair hearing right.

In relation to cl 603, I note that this provision only removes personal liability of members, and any liability resulting from an act or omission of a member of the Youth Parole Board attaches instead to the Crown, and as such, in my view this does not result in the imposition of a bar to bringing a proceeding.

While clause 617 may impose a bar on bringing legal action against participants at a Board meeting, the implied right of access to the courts is not an absolute right, and can be subject to reasonably justified limits under section 7(2) of the Charter. The relevant immunities and protections are appropriately granted in these circumstances, with regard to the Board’s important role in administering the parole and transfer schemes, the need for finality of decisions and the maintenance of the Board’s independence. The decisions of members in discharge of the Board’s functions will affect the rights of children and young persons, and it is essential that members may make decisions and conduct meetings without fear of legal retribution.

I note that the Board will be subject to judicial review (other than on the grounds of denial of natural justice) and will be required to comply with reporting obligations. Finally, the Youth Parole Board is to act compatibly with the guiding youth justice principles and guiding custodial principles to the fullest extent possible (cl 17 and 437) to the extent each principle is relevant in the circumstances.

Accordingly, I am satisfied that these provisions are compatible with the Charter.

Power to compel production of documents and attendance of witnesses

Division 2 of Part 12.1 of the Bill provides the Youth Parole Board with the power to, by written notice:

• compel the production of documents and/or information (cl 607);

• direct a person to attend a meeting of the Youth Parole Board at a specified time or place (cl 607), including immediately (cl 609); and

• require a person to give evidence or answer questions under oath or affirmation (cl 613).

The provisions are enforced by making it an offence to fail to comply with a notice without reasonable excuse, or fail to take oath, make affirmation or answer questions without reasonable excuse (cls 614 and 615).

These provisions are relevant to a number of rights including the rights to freedom of movement (s 12), privacy (s 13), not to be compelled to testify against oneself or to confess guilt (s 25(2)(k), and the presumption of innocence (s 25(1)).

I am satisfied that the right to freedom of movement is not limited, and any interference with privacy will be lawful and not arbitrary, for the following reasons. A person can only be compelled to attend a meeting of the Board or produce documents subject to written notice. The notice must be served in accordance with specified procedural steps and must clearly outline how a person may object to the notice, including giving reasonable excuse for failing to comply. A person required to attend may request to appear by audio visual link (cl 611) instead of attending the place where the meeting is to be heard. A person has the right to claim that a document or other thing specified in the notice is not relevant to the subject matter of the meeting (cl 608). In relation to the Board’s discretion to direct a person to attend immediately, this can only be done by consent or in limited and emergency circumstances, where the Board considers on reasonable grounds that delay is likely to result in evidence being lost or destroyed, the commission or continuation of an offence, the person absconding or evading attending, or serious prejudice to the conduct of the meeting.

A person may make a claim to the Board that they have a reasonable excuse for failing to comply with the notice. A ‘reasonable excuse’ includes the information being subject to various privileges, including self-incrimination, parliamentary privilege, legal professional privilege, public interest immunity, closed court order or statutory prohibition. Accordingly, the protection against self-incrimination is not interfered with by these provisions.

Finally, in relation to any prosecution under these provisions, an accused who wishes to rely on the ‘reasonable excuse’ defence will, by way of application of section 72 of the Criminal Procedure Act 2009, be required to present or point to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the excuse. In other words, the provision imposes an evidential onus on an accused when seeking to rely on the defence. The Court of Appeal has held that an evidential onus imposed on establishing an excuse exception does not limit the Charter’s right to a presumption of innocence, as such an evidentiary onus falls short of imposing any burden of persuasion on an accused. The onus in these offence provisions require only that an accused point to evidence of their reasonable excuse (which will be within their knowledge and means to produce), upon which the burden falls on the prosecution to prove the absence of such excuse beyond a reasonable doubt. Accordingly, the right to presumption of innocence in the Charter is not limited by these offence provisions.

Exclusion of natural justice

I note that the Youth Parole Board, as a prescribed entity under the Charter of Human Rights and Responsibilities (Public Authorities) Regulations 2013, is not a public authority for the purposes of the Charter and thus not bound to act compatibly with human rights or give consideration to human rights when making a decision.

The Bill further provides that the Youth Parole Board is not bound by the rules of natural justice (cl 606). Notwithstanding that the Board is not subject to the public authority obligation in the Charter, this provision is still relevant to the fair hearing right in the Charter (s 24) as it abrogates the common law duty to afford a person procedural fairness when a decision is made that affects the person’s rights or interests.

As discussed above, section 24 of the Charter provides that a party to a civil proceeding has the right to have that proceeding determined by a competent, independent and impartial court or tribunal after a fair and public hearing. While the authorities have interpreted ‘civil proceeding’ in section 24(1) broadly, in my view it does not extend to the kind of administrative decision-making undertaken by the Board. Accordingly, I do not consider that the fair hearing right will be limited by the exclusion of natural justice in this context. However, the exclusion of natural justice may have implications for other rights protected by the Charter. A number of Charter rights include a protection against arbitrary treatment, and according natural justice is an effective way of avoiding arbitrariness.

However, any limitations that may result are in my view reasonably justified. The exclusion of natural justice serves the important aim of facilitating the Board to respond quickly and effectively when performing its functions, which relate to the management of children and young persons serving a sentence, many of whom may have dynamic and complex needs and pose associated risks. This includes facilitating the expeditious management of the Board’s case load to ensure that grants of parole are considered without delay and at the earliest opportunity. This also includes flexibility to make prompt decisions in response to a child or young person’s sudden change in circumstances or elevated level of risk (particularly in relation to cancellation of parole, variation of conditions or transfer decisions), without being required to provide an opportunity to be heard or consider submissions.

It is critical that the Board is able to make prompt decisions that have an immediate effect, as delay in determining certain matters may expose a person to a risk of harm (such as the cancellation of parole due to new terrorism risk information, or the transfer of a child to prison who cannot be safely accommodated in a youth justice custodial centre). It is also important that the Board is able to discharge its functions without being impaired or frustrated by challenges to its procedures.

The Board is still obliged to act compatibly with the guiding youth justice principles and guiding custodial principles to the fullest extent possible, which include principles intended to promote the engagement and participation of the child and young person in their rehabilitation, which would include, where appropriate and possible, permitting a child or young person to attend a Board meeting and providing them with an opportunity to comment on information to be considered by the Board. Additionally, as part of the Secretary’s obligation to notify the Board about specified threatening conduct or incidents in custody concerning a detained child or young person, the Board is obliged to give the child or young person an opportunity to comment on their involvement in an incident or conduct (cl 619). Accordingly, I am satisfied that any limit on fair hearings rights is reasonably justified in the circumstances.

Part 12.2 – Release on parole from youth justice custodial centre and cancelling parole

The Bill establishes a framework for release on parole from a youth justice custodial centre.

The Bill largely provides for a flexible discretionary parole system (cl 627). In addition to a general discretion to grant parole, the Bill outlines the following limited circumstances where the Youth Parole Board may not release a young person on parole:

• where a young person has been sentenced to a term of imprisonment of over 12 months or with a non-parole period by a higher court and has subsequently been transferred to a youth justice custodial centre (cl 677) and that non-parole period has not expired; or

• where a young person is subject to a mandatory minimum youth justice custodial order imposed by a higher court for an assault against an emergency or custodial worker (cl 628) and that minimum term has not expired.

In addition, special provisions apply in relation to a child or young person with a terrorism record, who has been charged with a terrorism or foreign incursion offence or the Youth Parole Board has determined that there is a risk that they will commit a terrorism or foreign incursion offence (cl 629). This raises additional and distinct human rights issues and will be discussed below in relation to ‘Part 15.2 – Sharing of terrorism risk information’.

The Youth Parole Board may cancel the parole of a child or young person at any time before the end of the parole period (cl 636(1)). If parole is cancelled, a warrant may be issued for the apprehension of the child or young person (cl 640).

The Bill also provides obligations for the Board to consider cancelling parole in relation to a child or young person in respect of charges for specified terrorism offences while on parole, gaining a terrorism record while on parole or if new terrorism risk information is provided, which, as above, raises distinct issues to be discussed below in Part 15.2 (cl 637, 638 and 639).

In relation to the substantive human rights implications of the above framework for granting and cancelling parole, I note that a person serving a sentence of detention has been lawfully deprived of liberty under the Charter for the duration of their head sentence. The Charter does not provide any right or entitlement to be released on parole, and the High Court has held that the power to order a detainee’s release on parole may be constrained by statute (or even abolished entirely). These provisions only affect the circumstances in which the Board may order release on parole during the currency of a person’s sentence, and does not alter the position that the child or young person has been deprived of liberty and lawfully detained for the duration of the head sentence. As such, any statutory constraints on the granting or cancelling of parole do not limit rights under the Charter, as any existing limits on rights, which are maintained by a person not being granted parole and remaining in detention, result from the imposition of the sentence.

That said, parole will be relevant to the procedural rights of children in the criminal process to a procedure that takes account of their age and the desirability of promoting their rehabilitation. The ‘appropriate treatment’ component of the children’s criminal process right (s 23) includes preserving opportunities where appropriate to facilitate a child’s rehabilitation, avoiding unnecessary stigma, strengthening their relationship with their family, and minimising disruptions to their education, training or employment – all of which may be furthered by granting a child parole. With regards to any limits on this right effected by the framework for denying or cancelling parole, I am satisfied that any limits are reasonably justified, for the following reasons.

While the Bill does not provide for express decision-making factors in the granting of parole (which could be said to give rise to a concern of arbitrariness or lack of certainty), this structure is designed to facilitate flexibility of parole decisions, and follows the A&Os of the Sentencing Advisory Council’s Review of the Adult Parole System (2012). Maintaining flexibility and enabling individualised responses are particularly important when dealing with children and young persons, especially in relation to those with mental illness or disability, and will enable the Youth Parole Board to adopt a broad, inquisitorial and multi-disciplinary approach. The Youth Parole Board must still have regard to the youth justice guiding custodial principles when exercising its powers under the Bill (Part 12.1), and will be required to publish in its annual report a statement of the purposes of parole and the general principles and factors the Board takes into account when making decisions in relation to youth parole (cl 604). The Bill also requires the Youth Parole Board to explain, in a way that accounts for the level of development of the child or young person, the purpose and effect of a youth parole order, the potential consequences of contravention and the criteria applied by the Board when determining whether to make an order (cl 621). Further, a decision to cancel parole does not preclude a child or young person from being granted parole again during the same term of detention (cl 643). Accordingly, I am satisfied that the framework for granting and cancelling parole is compatible with human rights in the Charter.

Parole conditions

A parole order may be subject to the standard parole conditions, any additional conditions and any special conditions (cl 631). Standard parole conditions include reporting to the Secretary, advising the Secretary of a change of address within two days after the change and not leaving Victoria without written permission of the Youth Parole Board (cl 632).

The Bill provides for additional parole conditions to be imposed in relation to a child or young person detained in respect of specified serious offences, including any condition considered necessary to protect a victim of a certain offence, restricting access to certain places or areas, restricting contact with specified persons or classes of persons, requiring the child or young person to undergo rehabilitation and treatment and/or requiring attendance at a day program (cl 633). The Bill requires the Board to impose any of these conditions considered appropriate, with regard to the circumstances of the offending. The Bill permits the Youth Parole Board to not impose standard or additional conditions if it considers that the child or young person had demonstrated a history of good behaviour and positive engagement with rehabilitation programs throughout the period of detention.

The Bill provides a further discretion to the Board to impose any special parole conditions it considers reasonable and appropriate in the circumstances. The Board must have regard to the youth justice principles and the statement of purpose of youth parole published in the annual report when exercising this discretion (cl 634).

These conditions engage a number of rights, including the rights to privacy, freedom of movement and freedom of expression. Being subject to a grant of parole, depending on the conditions, generally grants a detained person greater liberty and reduces the extent of limits on their human rights resulting from their sentence. In this regard, parole conditions generally would not result in any additional limits being imposed on rights. To the extent that it does, I am satisfied that any limits are reasonably justified in the context of a supervised release scheme such as parole where the person is still under sentence, and that they serve important objectives of protecting the community and promoting the rehabilitation of the child or young person through supported reintegration into the community. The standard conditions are those considered necessary to ensure that compliance with parole orders is able to be monitored and enforced. The imposition of additional and special conditions requires satisfaction of tests of reasonableness and appropriateness which ensure any resulting limits on rights are the least restrictive necessary in the circumstances. Finally, additional and special conditions may be amended and varied (cl 633(4) and 634(2)) to ensure they remain appropriate to the circumstances.

Part 12.3 – Parole stage group conference

The Bill provides for the availability of group conferences at the parole stage, to provide additional opportunities for restorative justice approaches to reduce reoffending and support reintegration.

The child or young person may be assessed to determine whether it is appropriate that they participate in a parole stage group conference and, if the conference proceeds, the convenor must prepare a report for the Youth Parole Board (cl 652). The conference may only proceed if the child or young person consents to participation (cl 647). If the assessment is that the conference is not appropriate or consent is not provided, this will not be relevant for determining eligibility for parole (cl 646). Attendees of the conference may include family members of the child or young person and a victim of the offence for which the sentence is being served (cl 649), all of whom will be subject to confidentiality obligations (cl 653).

The objects of a parole stage group conference support children’s and family rights (ss 17, 23(3), 25(3)) by seeking to support reintegration into the community and/or reduce further contact with the criminal justice system, provide a safe, supported and solution-focussed process to repair harm, self-reflect and restore and strengthen relationships between the child or young person and their family and/or community members (cl ‍650).

Rights to privacy (s 13) and freedom of expression (s 15) are engaged by this Part, insofar as participation in the conference and preparation of the report are likely to involve the collection and disclosure of personal information to the Youth Parole Board and related parties and those parties will also be restricted in their use of information gained through involvement in the conference. In relation to the right to privacy, any interference will be lawful and not arbitrary for the following reasons. The collection and use of personal information serve an important beneficial purpose of facilitating the transition of the child or young person from custody and their reintegration into the community, which ultimately promotes their rehabilitation. A parole stage group conference cannot proceed in respect of a child or young person without their consent (cl ‍647) and a refusal to participate is deemed not relevant to the purposes of making a determination about eligibility for parole. Information from a group conference is subject to a confidentiality offence provision and may only be disclosed for specific purposes, which includes the consent of the parties, for the purposes of preparing a report to the Board, or to the child or young person’s legal representatives (cl 653).

Any restriction on the freedom of expression through the confidentiality provision and limits on disclosure will be necessary to respect the rights and reputation of participating persons, including victims and their representatives, and provides for disclosure with consent of the parties to the group conference. These provisions promote the protection of privacy and in many cases, the child’s best interests (s 17).

Accordingly, I am satisfied that these provisions relating to parole group conferences, which are largely beneficial in nature, are compatible with the Charter.

Part 12.4 – Youth Justice Victims Register

The Youth Justice Victims Register will record the details of those entitled to:

• give the Youth Parole Board information that may be considered when the Board determines a child’s or young person’s conditions of parole (cls 654 and 664); and

• receive certain information, such as that the child or young person is to be considered for parole. They may also be informed of the date on which the child or young person is likely to be released from custody and certain conditions of their parole, if the Secretary considers the disclosure appropriate in all the circumstances (cl 654, 659).

A person may be included on the Youth Justice Victims Register in certain circumstances, such as if they are the victim of a criminal act of violence, a family member of a victim in certain circumstances or a person who can demonstrate a documented history of family violence being committed against them by the child or young person (cls 656 and 657). The applicant may also appoint a nominee to whom information is disclosed instead of the information being disclosed directly to the applicant (cl 658). The Secretary may refuse to include details of a nominee on the register in certain circumstances, including where it may endanger the safety or welfare of a person (cl 658).

Rights to privacy (s 13) and freedom of expression (s 15) are engaged by this Part, given that inclusion on the Youth Justice Victims Register involves disclosure of personal information of the child or young person to be considered for parole to persons included on the Register, coupled with the confidentiality provisions that protect the privacy of the child or young person about whom the information relates (cls 658(2)(d), 660 and 622).

In relation to the right to privacy, any interference will be lawful and not arbitrary for the following reasons. The disclosure of information to victims or their nominees promotes participation in the criminal justice system by victims, with safeguards that promote the protection of the child’s best interests (s 17) by seeking to minimise stigma against children involved in criminal proceedings. The scheme expressly limits the personal information that can be provided, being the date and circumstances in which a child or young person is likely to be released from custody and the details of any parole conditions relevant to the safety of the person on the Register and the offence committed by the child or young person. The Secretary must not disclose any information unless satisfied that disclosure is appropriate in all the circumstances, following consideration of any risk of harm that may result (cl 659). The Secretary may also refuse to register a nominee if in doing so it may endanger the security of a youth justice custodial centre or the safety of any person. Any information disclosed under this scheme is subject to confidentiality and a non-publication offence provision (cls 660 and 661).

Any restriction on the freedom of expression through the confidentiality and non-publication provisions will be necessary to respect the rights and reputation of other parties, including privacy and protection of children.

Chapter 13 – Transfers

The Bill provides for the transfers of children (aged 16 years and over) and young persons from youth justice custodial centres to prison. This necessarily interferes with, and limits, core components of children’s rights, including to be provided with a physical environment that is separate from adult facilities. I note that the rights of children in the criminal process in the Charter to segregation from detained adults expressly do not apply to children serving custodial sentences.

These provisions are consistent with the recommendation from the 2017 Youth Justice Review for the need for clear provisions to provide for the transfer of a young person to a prison, if the young person engages in behaviour that poses an unacceptable risk of serious harm to others or is repeatedly disruptive to the security or stability of the youth justice custodial centre. The underlying purpose of the transfer regime is to provide a safer, more stable custodial environment for children and young persons and staff, and recognises that children and young persons can mature and develop at different rates and pose different management needs. While a child generally attracts special protection at law and enjoys a lesser standard of culpability for criminal behaviour, depending upon their development, they may still be capable of exhibiting behaviours of, and posing similar custody management requirements of an adult prisoner, including the potential to commit violent acts that can cause serious harm to other children, young persons and staff in a youth justice custodial centre. This also recognises that, in order to provide a safe and stable place of accommodation that supports the rehabilitation and positive development of children and young persons, there are some behaviours that cannot be safely and appropriately accommodated or supported in a youth justice custodial centre without compromising the centre’s capability to deliver that positive rehabilitative environment.

Clauses 667 and 668 provide that the Secretary may apply to the Youth Parole Board for a direction that a child 16 years of age or over or young person who is serving a sentence of detention in a youth justice custodial centre be transferred to a prison to serve the unexpired portion of their sentence as imprisonment. In respect of a child under the age of 18 years, an application must be accompanied by a report setting out the steps that have been taken to avoid the need to transfer the child to prison. Further, the Secretary must provide the child or young person with an opportunity to obtain legal advice in respect of an application (cl 666).

The Youth Parole Board is empowered to make the direction provided the following preconditions are established:

• it has had regard to the antecedents and behaviour of the child or young person; and

• it has had regard to the age, maturity, and stage of development of the child or young person; and

• it is satisfied that the child or young person has engaged in conduct that either a) threatened the security or stability of the youth justice custodial centre, or b) caused serious harm to, or posed a risk of serious harm to, the health, wellbeing or safety of any other person in a youth justice custodial centre or when otherwise in the custody of the Secretary; and

• the child or young person cannot reasonably be safely and appropriately accommodated and supported in a youth justice custodial centre.

In the case of a child 18 years of age or over, or a young person, at the time of engaging in the conduct referred to above, the Youth Parole Board must consider and give primary weight to alleviating future risks of serious harm to, and risks to the health and safety of, all persons in a youth justice custodial centre, and promoting the security and stability of the youth justice custodial centre (cl 667).

The Bill also includes provision to transfer a child aged 16 years or over, or a young person, upon their own application, if the Youth Parole Board considers it appropriate (cl 669). In the case of a child aged 16 years or over, or a young person, who requests to be transferred to prison, the Youth Parole Board must, amongst other factors, consider the child or young person’s reasons for the request and the child or young person’s capacity to make the request and understand its implications prior to a transfer decision being made (cl ‍669(4)). This allows the Youth Parole Board to consider a comprehensive range of factors and make a decision in the child or young person’s best interest.

The Bill provides for other transfers, including requiring a child over the age of 16 years, or a young person, who is serving a sentence of detention in a youth justice custodial centre, and is subsequently sentenced to a term of imprisonment for any offence, to be transferred to prison unless the Board considers there are exceptional circumstances or the Secretary advises the Board that the Secretary does not oppose the child or young person serving the unexpired portion of the period of detention in youth justice custodial centre (cl ‍679). Clause 680 concerns the scenario where a child or young person is serving a sentence of imprisonment in prison and is sentenced to a period of detention in a youth justice custodial centre, and empowers the Youth Parole Board, upon application of the Secretary, to give a direction that the person serves the subsequent sentence of detention as imprisonment if appropriate to do so and having regard to the antecedents and behaviour of the child or young person.

Finally, the Bill provides for transfers from prison to a youth justice custodial centre for a child or young person who is under 21 years of age and serving a sentence of imprisonment in a prison. To give such a direction, the Adult Parole Board must be satisfied that such a transfer is appropriate in the interests of the child or young person, that the child or young person is suitable for detention in a youth justice custodial centre, that there is a place available and that the child and young person can reasonably be safely and appropriately accommodated in a youth justice custodial centre. The Board must consider a report from the Secretary regarding these matters before making such a direction (cl 674).

I am satisfied the above provisions strike an appropriate balance between protecting the best interests of children and young persons to be accommodated in a youth justice custodial centre to the greatest extent possible, while ensuring that those that engage in serious harmful behaviour, which creates an unstable or unsafe environment for other young persons and staff, are able to be transferred to a more appropriate custodial environment better equipped to managing their complex behaviour. The framework employs prescribed criteria which must be satisfied for a transfer to occur, which involves regard to the personal circumstances of an affected person. Accordingly, I am satisfied this Chapter is compatible with the Charter.

Chapter 14: Multi-agency panels and high risk panel

Chapter 14 provides for the establishment of multi-agency panels and a high risk panel to oversee and coordinate service delivery and targeted case management interventions for children and young persons at high risk of engaging in serious offending or causing serious harm. The purpose of such panels is to support the rehabilitation and positive development of the child or young person to reduce their risk of reoffending and to promote community safety.

The focus of such panels on identifying individual service needs, addressing gaps in service delivery and coordinating treatment promotes the right of children to such protection as is in their best interests and is needed by them by reason of being a child. Coordinated service plans will be tailored to the individual child or young person and may include access to education, training or work, as well as access to health, mental health, disability and housing services. Ensuring appropriate delivery of treatment and disengagement interventions delivered to children or young persons at very high risk of serious offending promotes children’s rights by attempting to reduce the likelihood of the child or young person returning to the youth justice system.

Panel meetings are confidential, however, members may discuss a meeting or information obtained during a meeting with any other panel member or person from that member’s organisation for the purposes of performing a function or exercising a power of the panel or, in the case of multi-agency panels, delivering services to a child or young person under a coordinated service plan (cls 692 and 699). The sharing of personal information between panel members will engage the right to privacy and reputation under the Charter. However, any interference will be lawful and not arbitrary, as information may only be shared between panel members for limited, specific purposes provided for by law. Accordingly, the right to privacy and reputation will not be limited by these provisions.

Chapter 15 – Sharing of confidential information

Part 15.1 – Sharing of confidential information

Chapter 15 provides a framework that enables the collection, use and disclosure of information that is necessary for the performance of youth justice related functions. It provides for the disclosure of confidential information (defined as any health information, personal information or sensitive information within the meanings of the Health Records Act 2001 and the Privacy and Data Protection Act 2014 respectively), between various bodies, including official persons as defined in the Bill, information holders as defined in the Bill, interstate and Commonwealth youth justice agencies and multi-agency panels. The information sharing authorised under this Chapter does not require the consent of the person to whom confidential information relates (cl 711) and provides protection against liability for disclosure made in good faith in accordance with the Bill (cl 710).

Sharing personal, health and sensitive information about a person without consent interferes with their right to privacy (s 15), however any interference will be lawful and not arbitrary for the following reasons. Effective information sharing is critical to supporting children and young persons to rehabilitate, develop positively and not re-offend, through assessing a young person’s level of risks and needs, planning and providing treatment, services and support, informing case management, supporting referral processes, and preventing harm to the young person and others. Information sharing is particularly important in the youth justice system, in which children and young persons often have multiple and complex needs and many are involved with child protection, other government service systems and non-government agencies. It also gives effect to the recommendations of the 2017 Youth Justice Review on the importance of information sharing and multi-agency service delivery, including providing for multi-agency care planning models to focus on the broader health and wellbeing needs of children and young persons, information-sharing between child protection and Youth Justice, and identifying and meeting the needs of young offenders relating to mental health and disability.

The framework provides clear and appropriately circumscribed criteria requiring that the use and disclosure of confidential information be reasonably necessary for the performance of various specified functions and duties (cls 704–709). This aims to ensure that any information shared under the Bill is necessary and appropriate, and proportionate to the objective of delivering effective services to children and young persons involved in the youth justice system. This includes official duties under the Bill, but also extends to third party service providers. The framework allows information sharing to occur both voluntarily and in response to a request (cls 704 and 705). This permits proactive sharing of information, provided it meets the threshold of being reasonably necessary for the performance of statutory functions, which is particularly important to supporting the proactive and ongoing case management of a child or young person between various service and care providers.

While the information authorised to be shared is broad, and potentially highly sensitive and private (being personal, health or sensitive information), these categories of information are critical to enable effective service provision in a youth justice context, including to promote rehabilitation and positive development, and community safety.

The Bill provides a number of safeguards to mitigate against arbitrary interferences with privacy, including providing offences for unauthorised use or disclosure of confidential information (cl 713 and 714). Further, individuals and entities sharing information under the Bill will be required to do so in a manner that is consistent with the youth justice principles, which include that entities should act in a way that minimises stigma to the child or young person, and that the youth justice system should provide children and young persons with opportunities to participate in decision-making processes that affect them, which would include seeking children and young persons’ views where it is appropriate and safe to discuss information sharing with them.

Accordingly, I am satisfied these provisions are compatible with the Charter.

Part 15.2 – Sharing of terrorism risk information

The Bill provides for a framework concerning the use and disclosure of terrorism risk information.

Terrorism risk information means:

• an assessment made by a specified entity, such as Victoria Police or the Australian Crime Commission, that there is a risk that the person will commit a terrorism or foreign incursion offence; and

• the information relied on in making that assessment (cl 716).

Terrorism risk information may be disclosed for the purpose of informing a decision relating to:

• parole of the child or young person;

• bail of the child or young person; or

• the care, control or management of the child or young person while they are remanded in custody or subject to a sentence (cl 715).

The Secretary or an employee of the Department may disclose terrorism risk information to a risk assessment entity or the Youth Parole Board (cls 716 and 626) and members of the Youth Parole Board or the Board’s secretariat may disclose terrorism risk information to the Secretary (cl 717).

The Bill provides for the sharing of ‘terrorism risk information’. It recognises that a person may pose a terrorism risk regardless of whether they have been convicted of terrorism offences. The risk information may include information regarding a person having expressed support for a terrorist organisation, for doing a terrorist act or for providing resources to a terrorist organisation. It may also include information regarding the person having, or having had, an association with a terrorist organisation or another person or group that has engaged in the above, or directly or indirectly engaged in the preparation, planning, assisting or fostering of a terrorist act.

The Bill gives the Secretary discretion to provide the Board with terrorism risk information in respect of a person (cls 716 and 629), which will preclude the Board from determining to release that person on parole until the Board has determined whether or not there is a risk the person will commit a terrorism or foreign incursion offence. Where a person has a terrorism record or the Board has determined that there is a risk the person will commit a terrorism or foreign incursion offence, the presumption against parole in cl 630 will apply. The Bill requires that the Board must not release such a person on parole unless the granting of parole is justified by exceptional circumstances (in the case of a person convicted of a terrorism or foreign incursion offence) or compelling reasons (in any other case). The Bill also provides similar obligations for the Board in relation to cancelling parole (cls 637, 638 and 639) and making transfer decisions (cl 665).

In addition to the discussion above about granting and cancelling parole and the interaction with the right to liberty, these provisions also engage the rights to privacy (s 13) expression (s 15) and freedom of association (s 16). The Bill employs a broad concept of ‘terrorism risk’ to include associating with terrorists or expressing support for terrorist offenders, organisations or, potentially, terrorist ideas. This means that a person’s associations and expressions of support may potentially form the grounds of an assessment that they pose a terrorism risk, and as a consequence, are presumed to be denied parole without ‘compelling reasons’ or ‘exceptional circumstances’ to justify parole, whichever is applicable. This may have a chilling effect on a person’s rights to freedom of expression and association, making a person less likely to associate with certain others or express certain ideas for fear that it will impact on their grant of parole or lead to a cancellation of an existing grant of parole.

In my view, any such limitations will be reasonably justified. The criteria of ‘terrorism risk’ is appropriately confined to expressions of support for terrorist acts or organisations (rather than support for mere persons, ideas or beliefs) or associations with persons who have expressed such support, engaged directly or indirectly in a terrorist act, or associated with a terrorist organisation (rather than a mere person of concern). Further, the Bill includes a safeguard to prevent inadvertent associations from being a relevant consideration, by requiring the Board to be satisfied that the child or young person in question knew that they were associating with a person or organisation who posed a ‘terrorism risk’. If the Board is not satisfied that the person had the requisite knowledge, the Board is precluded from having regard to that information about such associations when assessing risk or determining whether to grant or cancel parole. Finally, even if a person is found to have such associations and requisite knowledge, the Board must still determine that the person is at risk of committing a terrorism or foreign incursion offence for the presumption to apply. This ensures that persons who may have incidental associations with terrorist offenders or groups (such as a family member of a terrorist offender with no involvement in their offending) will not be captured by the presumption. Accordingly, I am satisfied that any limits on these rights are reasonably justified in this context.

In relation to the specific application of this scheme to children and the effect on children’s rights (s 17 and 23), I note these provisions implement a number of the recommendations of the Expert Panel on Terrorism and Violent Extremism Prevention and Response Powers, which observed that children are a particular target for radicalisation. While a child may have a lesser status or culpability at law, they may still pose the same level of risk to the community as an adult offender and the same potential to commit terrorist acts that cause serious and catastrophic harm. In order to ensure the community is adequately protected from the threat of terrorism, it is necessary and appropriate that a presumption against parole for those that pose a terrorist risk apply to children without modification, and that children be deterred and prevented from becoming a terrorist risk to the greatest extent possible.

Accordingly, I am satisfied that these provisions are compatible with human rights in the Charter.

Chapter 16 – System planning, performance, collaboration and accountability

The Bill creates an obligation on the Secretary to prepare a strategic plan for the youth justice system, which must include a performance management framework that sets out the outcomes against which the performance of the youth justice system in meeting its objectives and fulfilling its key actions can be measured (cl 718). The Secretary is required to publish on the Department’s website details about how it has achieved the outcomes specified in the performance management framework set out in the strategic plan (cl 719), and particularise the steps taken to improve outcomes for Aboriginal children and young persons, and whether those outcomes are being achieved (cl 721).

It also places obligations on services in the youth justice system to deliver services to the child that will support the child or young person to rehabilitate, develop positively, not commit further offending, and transition effectively from custody into the community, and work to identify and resolve any issues that impact the delivery of services to the child or young person (cl 720).

These requirements ensure that there is a level of accountability for the Secretary in managing Victoria’s youth justice system, and will promote the rights of children and young persons. Accordingly, I am satisfied the above framework is compatible with human rights in the Charter.

Chapter 17 – Children and Young Persons Infringement Notice System (CAYPINS)

The Bill provides for a process for resolving infringement notices issued in relation to children and young persons. This process takes into account the considerations around children being financially unable to personally pay an infringement penalty, and seeks to balance the need to enforce such penalties against the rights of the child to protection by way of their vulnerability as children. CAYPINS enforcement promotes the rehabilitation and diversionary elements of the criminal process rights of children by seeking to avoid a child or young person being drawn further into the justice system for relatively lower level infractions.

The Bill provides a presumption that all infringements will proceed via CAYPINS unless the enforcement agency considers that in the interests of the administration of justice or the interests of the child, it is more appropriate to have the matter heard by the Children’s Court. The Children’s Court is also provided with the power to refer summary proceedings for infringement offences to CAYPINS, unless it is in the interests of justice or the child for the matter to be heard by the Children’s Court or the child objects (cls 722 and 724). This is intended to limit the number of child infringements taken to court to only those that are appropriate.

The Bill also requires that, when an infringement penalty is lodged with the registrar, the registrar must confirm whether there are other infringement penalties registered in CAYPINS in respect of that child, and have those CAYPINS matters heard together to the extent reasonably practicable (cls 726 and 727), ensuring that multiple infringement penalties do not exceed the maximum fine that may be imposed by the Children’s Court. This facilitates efficient resolution of CAYPINS matters, minimises circumstances where a child is facing concurrent infringement processes in court and in CAYPINS and minimises the number of times a child is required to attend a hearing. This is consistent with the Bill’s overall focus on diverting children from court attendances where possible and appropriate.

The Bill provides that the registrar must notify the child of a date by which the child must request a hearing (cl 730) and set out their options regarding responding to the infringement. In the absence of a request for a hearing, the registrar will make their decision on the papers (including any written materials provided by the child, which includes a right to provide information relating to a child’s employment, school attendance, personal and financial circumstances and special circumstances). This is intended to minimise the attendance of children at court, limit their exposure to the criminal justice system and reduce the impact on court resources where a CAYPINS hearing is scheduled but the child does not attend.

In a similar way to the operation of the sentencing hierarchy, and consistent with the sentencing principle of minimum intervention, CAYPINS orders must be imposed at the lowest appropriate amount (cl 733). This is intended to ensure consistency of approach between the court and CAYPINS in considering the suitability of imposing a fine.

As referred to above, the Bill allows for a child to provide information prior to the registrar making their decision (whether in writing or at the hearing, in the event that the child requests a hearing) concerning the existence of any special circumstances as defined in the Infringements Act 2006. The registrar will be required to have regard to any information provided. This is intended to ensure that a child with special circumstances is not disadvantaged by having the matter proceed via CAYPINS rather than through Fines Victoria.

Finally, the youth justice principles also apply to CAYPINS, and registrars will be required to have regard to the youth justice principles in making any decisions under CAYPINS.

Accordingly, I am satisfied the above framework is compatible with human rights in the Charter.

Chapter 18 – Additional safeguards

Part 18.1 – Additional safeguards

The Bill provides that statements made by a child or young person participating in treatment, rehabilitation or restorative justice programs are not admissible in criminal proceedings unless the child or young person consents to its use or disclosure (cls 745 and 747). Similarly, any risk rating derived from an assessment of a child’s risk of re-offending is not admissible prior to the child being found guilty of the offence (cl 746).

These safeguards promote rights such as the presumption of innocence (s 25) or privilege against self-incrimination (s 25(2)(k)). The provisions also indirectly promote the rehabilitative elements of the children’s rights by allowing a child to participate in treatment, rehabilitation or restorative justice programs during the criminal process without fear of adverse consequences for any pending charges. They also facilitate more frank and candid disclosures during participation in risk assessments, which determine suitability for intervention and diversion programs, without such information prejudicing any findings of guilt. The safeguards implement the recommendations of both the 2017 Youth Justice Review and the Harper Lay Review to strengthen the efficacy of pre-trial interventions that will promote rehabilitation, reduce offending and promote community safety.

Part 18.2 – Powers in relation to medical services

Powers to order medical examination

The Bill provides the Secretary powers to order a child or young person in legal custody to be examined to determine their medical, physical, intellectual or mental condition and obliges the Secretary to order an examination to determine if the child or young person has an impairment where it appears to the Secretary that they have one and such an examination would assist in supporting their positive development and rehabilitation. The Bill also empowers the Minister to make arrangements for the provision of necessary treatment (including the admission to hospital) of any child or young person in the Secretary’s legal custody (cl 748).

These powers are relevant to the right to privacy (s 13) through the collection of health information, and the protection against medical treatment without consent (s 10(c)). While it remains an open question as to whether ‘treatment’ extends to a mere medical examination, I acknowledge that the meaning of the word ‘treatment’ is to be interpreted broadly. Nevertheless, I consider any interferences with privacy to be lawful and not arbitrary, and any interference with the protection against medical treatment without consent to be reasonably justified. These provisions are necessary for the Secretary to be able to effectively discharge their duty of care over a child or young person in legal custody. In order to provide for the safe accommodation of a child or young person, it is necessary to understand the special needs and vulnerabilities of that person. Additionally, the collection of such information facilitates giving effect to the guiding custodial principles and rights by assisting the youth justice system to support that child or young person, regulate their behaviours in custody and facilitate them to better engage with their rehabilitation and schooling. These provisions only authorise the examination and provision of treatment, and do not oblige the child or young person to participate or consent to any treatment. Accordingly, I am satisfied that these powers are compatible with the Charter.

Substituted consent to treatment

The Bill empowers specified persons to consent to the provision of medical treatment or hospital admission in relation to a child in the legal custody of the Secretary (even if the child’s parent refuses to give consent) if a registered medical practitioner advises that such conduct is necessary (cl 748(4)).

This provision is relevant to the protection of families (s 17), in that it empowers a specified person to overrule a child’s parent who has refused to give consent to medical treatment. However, I am satisfied that this provision is compatible on the grounds that it concerns a child who is in the legal custody of the Secretary and can only be enlivened in circumstances where a registered medical practitioner advises that such treatment is necessary, which is a high threshold.

Importantly, the provision does not allow consent to be substituted if the child is 18 years of age or over, or in the case of a young person.

Part 18.3 – Cultural support plans for Aboriginal children and young persons

The Bill introduces a requirement that the Secretary must offer each Aboriginal child or young person who is subject to a custodial sentence or supervised community-based sentence an individualised cultural support plan (cl 750), and, if requested, provide assistance to develop one. This promotes cultural rights of Aboriginal people by facilitating connections with family, kin, community, culture, Country and Elders and providing that Aboriginal children and young persons who commit offences should be dealt with in a way that upholds their cultural rights and sustains such ties.

The Bill also provides privacy safeguards by requiring the consent of the child or young person in order to use or share a cultural support plan, and specifies the limited purposes to which such a plan may be used (cl ‍753).

Accordingly, I am satisfied these provisions are compatible with the Charter.

Chapter 19 – Transitional provisions and consequential amendments relating to minimum age of criminal responsibility

Part 19.1 – Transitional provisions

To give effect to the new minimum age of criminal responsibility of 12 years of age, the Bill sets out how a child will be treated in circumstances where the child has engaged in conduct that may constitute a criminal offence prior to the commencement of this Chapter. The Bill provides that irrespective of whether the conduct is alleged to have occurred, or the offence is alleged to have been committed, before, on or after the commencement day:

• a child cannot be held criminally responsible for conduct alleged to have occurred when the child was 10 or 11 years of age (cl 769(2));

• a police officer must not charge a child for an offence allegedly committed when a child was 10 or 11 years of age (cl 769(3)); and

• a criminal proceeding must not be commenced for an offence allegedly committed when a child was 10 or 11 years of age (cl 769(4)).

The Bill also sets out what will happen to existing court orders and ongoing criminal proceedings on commencement of this Chapter, including that:

• where a criminal proceeding is on foot for an offence allegedly committed by a child at 10 or 11 ‍years of age immediately before the commencement day, the child is taken to be not guilty of the alleged offence (cl 771(1)(a)); and

• where a sentencing order is in force immediately before the commencement day, any conviction or finding of guilt imposed on a child for an offence committed at 10 or 11 years of age is taken to be set aside, with the effect that a child is released from any obligations under a sentence (cl 773).

To give effect to these settings for children who may be in custody on the commencement of this Chapter, the Bill provides for the immediate release of any children in police custody, on remand or in custody (cls ‍770, 771(1)(b) and 773(1)(c)).

Similar to cl 769, cl 774 provides that, irrespective of whether the conduct is alleged to have occurred, or the offence is alleged to have been committed, before, on or after the commencement day:

• the presumption of doli incapax applies to a child in relation to any conduct alleged to have occurred when the child was 12 or 13 years of age (cl 774(1));

• a police officer must have regard to whether it appears there is admissible evidence to prove the child’s knowledge beyond reasonable doubt before commencing proceedings for an offence allegedly committed when a child was 12 or 13 years of age when commencing proceedings on or after the commencement day (cl 774(2)); and

• police prosecutors must review charges for any indictable offence tried summarily in the Children’s Court against children who were 12 or 13 years of age at the time of the alleged commission of the offence, when commencing proceedings on or after the commencement day (cl 774(3)).

These provisions seek to minimise any potential interference with the sentencing jurisdiction of a court and to avoid the exercise of a judicial power by the legislature, whilst ensuring the new minimum age applies beneficially to as many children as possible. If any difficulty arises because of the operation of these provisions, the Bill enables a court to make any appropriate order to resolve the difficulty and to give effect to the transitional arrangements (cl 775).

These transitional provisions support children aged 10 or 11 years who may already be in the criminal justice system on commencement of this Chapter to benefit from the raise in minimum age, recognising that children aged 10 and 11 lack the capacity to be held criminally responsible for their actions. These provisions promote the right of children to such protection as is in their best interests (s 17(2)) and the right of children charged with a criminal offence to a procedure that takes account of their age (s 25(3)), in a manner consistent with the purposes of the Bill.

Further, the Bill provides that the fact that a proceeding has been discontinued under clause 1702 does not of itself entitle the child to be awarded costs (cl 777). The Bill also provides that a person released from custody, taken to be not guilty, or whose conviction or finding of guilt has been set aside is not entitled to compensation as a result of any past lawful criminal justice or law enforcement process (cl 778), as well as providing an immunity for any person who exercised a power or performed a duty in good faith (cl 778(2)). The provisions will otherwise preserve a child’s capacity to make a claim in respect of any improper or unlawful conduct that the child may have experienced while being subject to any past legal processes (cl 778(3)).

Clauses 777 and 778 engage property rights in section 20 of the Charter and the fair hearing right in section ‍24. As noted above, a legal right (including a legal action for compensation) may be considered property for the purposes of section 20. Section 20 does not itself provide a right to compensation. As clauses 777 and 778 are clear and certain, will be publicly accessible and are unlikely to operate arbitrarily, any deprivation of property effected by them will likely be done in accordance with law, as required by section 20. Accordingly, I do not consider that section 20 of the Charter will be limited.

Clause 778 may abolish or limit a person’s right to bring legal proceedings which may constitute a limit on that person’s right to a fair hearing under section 24 of the Charter. The right includes the common law right to unimpeded access to the courts. In my view, any resulting limits would be reasonably justified in this context as the application of these amendments is limited to conduct or processes that occurred under lawful authority pursuant to the superseded legislation, or in relation to persons who were exercising powers or performing duties that at that time were pursuant to lawful authority. The amendments are appropriately tailored in that they do not extend to bar proceedings in relation to unlawful or improper acts, or conduct done without good faith. Raising the age of criminal responsibility reflects developments in medical and scientific evidence, as well as international norms, since the longstanding historical minimum of 10 years was established. Accordingly, I consider it is an appropriate balance that prior actions or legal outcomes which occurred lawfully do not attract liability, noting that the transitional provisions of the Bill ensure that the any child aged 10 or 11 years who may already be in the criminal justice system on commencement of these provisions, will receive the benefit of these amendments.

Part 19.3 – Amendment of Children, Youth and Families Act 2005

This Part makes consequential amendments to the Children, Youth and Families Act 2005 to account for the changes to the minimum age of criminal responsibility. Changes include repealing the previous minimum age of criminal responsibility section in the Act (cl 782) and amending provisions to reflect the new minimum age, such as ensuring that the court can only make youth residential centre orders for children 12 years of age or over (cl 786). In doing so, this Part broadly promotes children’s rights under the Charter in line with the policy intent of the minimum age reforms.

Part 19.5 – Amendment of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

Part 19.5 sets out transitional provisions for children who are subject to supervision orders under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 in respect of conduct that occurred when they were 10 or 11 years of age. Upon commencement of Part 1.2 of this Bill, a declaration that a child is liable to supervision has no effect and is taken to be set aside (cl 795). Consistent with the approach to sentences imposed following a finding of guilt in Part 19.1, the practical effect of these measures is that a child is to be released from any obligation to comply with the conditions of an order, and if the child is in custody, the child must be released. As with Parts 19.1 and 19.3, this Part also broadly promotes children’s rights under the Charter by enacting consequential amendments giving effect to the new minimum age of criminal responsibility.

Part 19.6 – Amendment of Crimes Act 1958

The Bill makes amendments to ensure that existing conspiracy, incitement, recruitment and complicity offences will apply to those who seek to exploit children who do not have criminal capacity, either because they are under the new raised minimum age of criminal responsibility or are subject to the presumption of doli incapax (cls 797–799, 803). This includes lowering the age threshold of the recruitment offence in section ‍321LB of the Crimes Act 1958 from 21 to 18 years old to avoid any unintended gaps (cls 799–800). The purpose of these provisions is to ensure that adults do not take advantage of children who are incapable of forming criminal intent in order to commit crimes and those adults are able to be held accountable for their actions if they do so.

The Bill promotes the right to privacy (s 13(a)) and right to protection in a child’s best interests (s 17(2)) by prohibiting police officers from obtaining fingerprints from and conducting forensic procedures on children who are under the minimum age of criminal responsibility (cls 805 and 807). The Bill also orders the destruction of fingerprints and of samples and other identifying information for children under 12 years of age previously obtained in relation to an offence allegedly committed when a child was under the new minimum age and makes it an offence for a person to use or caused to be used, or fail to destroy, fingerprints or forensic samples that are required to be destroyed (cl 810). These provisions align with the reform to raise the minimum age as they limit a child’s exposure to further criminal investigation and recognise neurobiological evidence that children under the age of 12 should be regarded as incapable of forming the intent necessary to commit a crime.

Part 19.7 – Amendment of Criminal Procedure Act 2009

The Bill introduces provisions to allow the issue of whether the presumption of doli incapax is rebutted to be determined pre-trial by a judge alone in the County Court or Supreme Court (cl 823). As with the reforms in Part 1.2 of the Bill, the purpose of these provisions is to expedite consideration of whether a child aged 12 or 13 has the capacity to be held criminally responsible to reduce any unnecessary ongoing and harmful exposure to the criminal justice system.

As provided for in the new Division 5 of Part 5.5 of the Criminal Procedure Act 2009 (as inserted by cl 823), at a pre-trial hearing, there are two possible outcomes. First, the judge may determine the presumption is not rebutted and direct that a not guilty finding be recorded (new s 206E(1)(a)), which has the effect that the child cannot be held criminally responsible. Or, second, the court may determine that the presumption has been rebutted beyond reasonable doubt and order that the matter proceed to trial or to the determination of other pre-trial issues (as the case requires), which has the effect that the child has the requisite capacity to be held criminally responsible at trial (new s 206E(1)(b)). This will be an interlocutory decision (see the definition in cl 811(2)). This decision can be appealed (see cl 825). Subject to an appeal, the matter will proceed to trial by a jury on the elements of the offence, with doli incapax treated as finally determined.

A pre-trial determination made by a judge alone serves legitimate objectives of avoiding the costs associated with having a jury present to understand complex medico-legal evidence, and reducing hearing time and resources required for court proceedings. Ultimately, a pre-trial determination can only proceed if the court is satisfied that it is in the interests of justice to make such an order (new s 206A(1)(d)). Safeguards are in place, including that a child must apply to have the issue of their criminal responsibility determined by a judge alone (new s 206A(2)) and the court must be satisfied the child has obtained legal advice on the effect of the issue being determined by a judge alone, without a jury, before the trial (new s 206A(1)(c)). This recognises that an accused child has a fundamental criminal procedural right to have their criminal proceeding determined by a jury, and therefore only the accused child should be able to waive that right. Further, any reasons for judgment or decision by a judge alone must provide the principles of law applied by the court and the facts on which the court relied (new s 206G), promoting transparency in the criminal process. I am satisfied that these safeguards are sufficient to ensure there are no resulting limits on the fair hearing right in section 24 of the Charter or the rights in criminal proceedings in section 25.

The pre-trial framework also considers the needs of children by permitting a child to be absent from the pre-trial hearing if the court considers it is in the interests of justice, which recognises that the evidence led to rebut the presumption often concerns a child’s intellectual and moral capacity which may be harmful for a child to witness (new s 206C(2)). Although a child may apply to not attend the hearing, because cl 823 does not amend a child’s entitlement under section 25(2)(d) to be tried in person, I do not consider that right to be limited.

The Bill also allows a court to make a suppression order to prevent certain material used in a pre-trial determination from being published if the court is satisfied it is in the public interest to do so (new s 206H). This is intended to prevent the release of information that could prejudice any subsequent trial of an accused child or impact a child’s rehabilitation. Although there is capacity for a suppression order to be granted, as noted above, any reasons for judgment or decision by a judge alone must nevertheless provide the principles of law applied by the court and the facts on which the court relied upon (new s 206G), promoting fairness and transparency in the criminal process.

Though the making of a suppression order, depending on its terms and scope, may limit an accused’s right to a public hearing (s 24) and/or the rights of others to seek and receive information (s 15(2)), the court is required to be satisfied that it is in the public interest to do so. Further, such an order protects a child’s right to privacy (s 13(a)), given that information that might enable an accused to be identified may be prevented from being published.

Having regard to these factors, in my view, these limitations are reasonably justified given the safeguards and benefits.

Part 19.8 – Amendment of Family Violence Protection Act 2008

The Bill ensures that the existing approach to age-settings and family violence intervention orders will continue once the minimum age is raised to 12. This means that children under the minimum age may still be subject to family violence intervention orders, however, they will not be subject to any criminal consequences for breaching such an order. This recognises that intervention orders can be a useful tool in appropriate cases to manage family violence risk, and maintains existing practice in that historically, there has been no minimum age for respondents in family violence proceedings that restricts the application of family violence intervention orders to children.

The Bill also makes minor amendments to clarify in sections relating to contraventions of orders that a child under the age of 12 cannot commit an offence (cls 827–829), and to implement gender-neutral language in the amended provisions (cl 828).

These provisions broadly promote children’s rights (ss 17(2) and 25(3)) under the Charter in a manner that is consistent with the policy intent of the overall Bill and raising the minimum age of criminal responsibility.

Part 19.14 – Amendment of Personal Safety Intervention Orders Act 2010

In contrast to family violence intervention orders in Part 19.8, the Bill makes amendments to raise the minimum age for respondents to personal safety intervention orders from 10 years to 12 years, in line with the raised minimum age of criminal responsibility (cl 837). The differentiated approach is appropriate as the age settings for personal safety intervention orders are currently tied to the minimum age of criminal responsibility, unlike family violence intervention orders which currently have no minimum age requirements.

Upon commencement of Part 1.2 of the Bill:

• an application for a personal safety intervention order cannot be made against a child under the age of 12 (cl 837);

• a personal safety intervention order that is in force against a respondent who at the time of application was 10 or 11 years of age is taken to be set aside (cl 839; new s 200(1));

• where an application is set aside, the respondent is released from any obligation to comply with the order (cl 839; new s 200(2));

• an application to make, vary, revoke or extend a personal safety intervention order against a child who was 10 or 11 years at the time of application must be dismissed by the court (cl 839; new s 201); and

• if any difficulty arises because of the operation of these provisions in relation to the dismissal of an application or the setting aside of a personal safety intervention order, the court may make any order it considers appropriate to resolve the difficulty (cl 839; new s 202).

As with family violence intervention orders, these settings broadly promote children’s rights (ss 17(2) and 25(3)) under the Charter.

Part 19.16 – Amendment of Spent Convictions Act 2021

To support raising the minimum age of criminal responsibility from 10 to 12 years, the Bill introduces an information management scheme for convictions imposed when a child was under 12 years of age. The minimum age of criminal responsibility reforms recognise that a child under 12 years of age should never have been convicted of a criminal offence because they were incapable of forming criminal intent. Therefore, people who received criminal convictions when they were aged 10 or 11 should not be subject to longer-term adverse consequences.

Currently, the Spent Convictions Act 2021 has the effect that a conviction that was received at age 10 or 11 is immediately spent after the sentence is completed.

Once a conviction is spent, it no longer forms part of a person’s criminal record, and a person is not required to, and cannot be, requested to disclose the existence of the spent conviction or related information. However, the Spent Convictions Act 2021 contains an information management framework that authorises a range of entities to collect, access, disclose, and use spent conviction information.

The proposed amendments to the Spent Convictions Act 2021 will:

• introduce safeguard provisions that prevent spent conviction information relating to criminal convictions received by a person when aged 10 or 11 (‘spent childhood conviction’) from being used for a law enforcement function, by a court or tribunal to make adverse character assessments in legal proceedings, or to refuse, revoke or terminate the registration, accreditation, licence or employment, or appointment, status or privilege of a person (cl 844; new ss 24B, 24C and 24D);

• require persons or bodies that disclose spent convictions to take reasonable steps to determine whether a conviction is a spent childhood conviction and to notify the recipient that a conviction being disclosed is a spent childhood conviction, with limitations on its use (cl 844; new ss 24A); and

• introduce a new offence for a person to use a spent childhood conviction contrary to the safeguards prohibiting their use for a law enforcement function, or to refuse, revoke or terminate the registration, accreditation, licence or employment, or appointment, status or privilege of a person, to encourage compliance (cl 844; new s 24E).

The amendments to the information management framework contained in the Spent Convictions Act 2021 will not affect the existing purposes for which spent convictions may be collected, accessed or disclosed under Division 2 of Part 3 of the Spent Convictions Act 2021. The intent of the amendments is to limit the lawful use of a spent childhood conviction through the introduced measures.

The safeguards will not apply to the use of a spent childhood conviction for the purpose of child protection matters, the Family Violence Information Sharing Scheme (FVISS) or Child Information Sharing Scheme (CISS), the Therapeutic Treatment Order (TTO) scheme, court administration or research purposes and data analysis (see, e.g., sections 22A–22E Spent Convictions Act 2021, cl 844; new ss 24B(2), 24C(2) and 24D(2)).

The use of spent childhood conviction information for child protection matters and the FVISS, CISS and TTO schemes serve legitimate purposes that are not intended to have an adverse criminal consequence for the child. For example, use of this information may provide relevant context for case management purposes (e.g. in a child protection matter) or provide critical information that serves a rehabilitation purpose and supports the child’s participation in a therapeutic program (e.g. for the purposes of a TTO). Enabling relevant information to be shared through the FVISS and CISS, with a targeted focus on the use of the information for safety, health and wellbeing purposes, is critical for the effective operation of these schemes.

Permitting the use of a spent childhood conviction for the purposes of court administration will ensure that the courts and court administrators are not inhibited from using this information as required to perform the administrative functions required by the courts, which will not have a detrimental impact on the person about whom the information relates. Similarly, allowing the use of a spent childhood conviction for research and data analysis purposes ensures that such information can continue to be used to inform important research and policy development. Consistent with the right to privacy (s 13(a)), existing data handling practices and procedures for these purposes, such as the de-identification of statistics, mitigate the risk of disclosures that could have a detrimental consequence for a person about whom the information relates.

Restricting the use of information related to spent childhood convictions recognises the desirability of promoting the rehabilitation of a child who was previously convicted of an offence at an age when it is now recognised the child did not have the capacity to form criminal intent. In doing so, the provisions promote the protection of children generally (s 17(2)) and the rights of children in the criminal process to be treated in a way that is appropriate for their age (s 25(3)) by accounting for the special vulnerability of children.

By restricting the sharing and use of spent conviction information relating to convictions received by a person aged 10 or 11, the Bill also engages the right to equality and non-discrimination in section 8(3) of the Charter because, as noted above, age is a protected attribute. For the reasons outlined above, I am satisfied that any limits on the right to equality and non-discrimination are reasonably justified. To the extent that these provisions engage the right to privacy (s 13(a)) under the Charter by continuing to provide for the disclosure and use of spent childhood convictions, I am satisfied that any interference with a child’s privacy is neither unlawful nor arbitrary. The Spent Convictions Act 2021 clearly sets out the circumstances in which a spent childhood conviction may be disclosed and the use of that information is targeted towards appropriate aims, as outlined above.

Part 19.17 – Amendment of Victims’ Charter Act 2006

The Bill makes amendments to the definitions of ‘person adversely affected by crime’ and ‘victim’ to ensure that victims’ rights under the Victims’ Charter Act 2006 extend to cases where a victim is affected by the conduct of a child who is under the minimum age of criminal responsibility or a child to whom the doli incapax presumption applies (cls 846–848).

Despite these reforms, once the minimum age of criminal responsibility is raised, children under 12 will no longer be charged and prosecuted for alleged offences, meaning any victims’ rights that relate to criminal processes will no longer apply, which is consistent with a child under the minimum age of criminal responsibility’s right to privacy and reputation (s 13).

This approach is intended to safeguard victims’ rights and entitlements as far as possible, whilst balancing the need to protect and promote children’s rights (s 17(2)) under the Charter in accordance with neurobiological evidence that children under the age of 12 should be regarded as incapable of forming the intent necessary to commit a crime.

Chapter 20 – Additional amendments to the Children, Youth and Families Act2005

Chapter 20 makes amendments to the Children, Youth and Families Act 2005 in advance of the commencement of those parts of the Youth Justice Bill not covered by clause 2(2). Equivalent clauses are contained in Part 10.7 and Part 18.1 of the Bill and covered in the analysis in respect of those parts.

Chapter 21 – Transitional Provisions

Part 21.6 provides that an order made under the Children, Youth and Families Act 2005 (CYF Act) will continue to operate on foot in accordance with the provisions of the CYF Act, and any orders made after the operative commencement of this Bill will be made under this Bill.

However, to promote the rehabilitation and positive development of children and young persons, the Bill provides for various sentencing elements implemented by this Bill, which are beneficial to children and young persons, to be able to be applied to those on existing orders under the CYF Act. This is the same approach that is applied to existing parole orders. This includes requiring that, in summary, upon the operative commencement of the Bill:

• in relation to imposing a fine for breach of an undertaking, the Court must be satisfied that a child has the means and capacity to pay a fine, and cannot impose a fine for breach of an accountable undertaking by a child aged 10 to 14 years of age (cl 875);

• where a person breaches a good behaviour bond, if the Court proceeds with further hearing and determination of the charge the Court must impose an order from the sentencing hierarchy under this Bill (cl 876);

• that a person is taken not to have breached a probation order or youth supervision order by committing an offence unless the offence is one punishable by imprisonment (cls 877 and 880);

• in relation to revoking a probation order for a breach, the court cannot impose a more severe sentence in the sentencing hierarchy unless the person commits an offence punishable on first conviction with imprisonment of five years or more; or the conditions of the contravened order, or the support or assistance offered to the person during the remaining of the order, cannot be varied in a way that would make the order suitable for that person (cl 878);

• when varying, adding or substituting specified special conditions of probation orders, youth supervision orders, youth attendance orders and youth control orders, the Court must instead impose analogous specified conditions provided by this Bill, must not impose certain specified restrictive conditions under the CYF Act, must consider imposing additional special conditions that will support the rehabilitation and positive development of the person, and must take into account factors provided by the Bill in relation to specified determinations (cls 879, 881, 883 and 884);

• when hearing an application to vary a youth supervision order on contravention, the Court be empowered to impose judicial monitoring (cl 882); and

• where a person breaches a youth control order, the Court may vary or revoke the youth control order in accordance with the framework for variation or revocation of a community-based order for contravention under this Bill, and the presumptions of revocation under s 409Q and of detention on revocation under s 409R of the CYF Act do not apply (cl 885).

These provisions promote the children’s right (s 17) by supporting their rehabilitation and positive development and ensuring that a broader cohort of children currently subject to youth justice orders are able to benefit from the reforms provided by this Bill.

Chapter 22 – Trial of electronic monitoring of children on bail in certain circumstances

The Bill amends the Bail Act 1977 (Bail Act) to provide for a two-year trial of electronically monitored bail for children. Under the trial, specified venues of the Children’s Court and the Supreme Court will be empowered to order that a child’s compliance with a curfew or geographic exclusion zone condition be electronically monitored. These amendments are intended to promote a child’s compliance with their bail conditions and provide an additional tool for bail decision makers to mitigate the risks that a child may pose if released on bail.

Electronic monitoring will require a GPS-enabled device to be fitted to an accused child’s body (usually the ankle) that will enable Youth Justice to monitor remotely the child’s location. An accused child will not be actively monitored in real-time, but the electronic monitoring system will generate an alert if the wearer is not complying with a curfew or geographic exclusion zone conduct condition. Electronic monitoring alerts will show whether the accused is not at their residence when their bail conditions require it, or whether they are at a prohibited location such as the alleged victim’s suburb.

The provisions include safeguards to ensure that electronic monitoring is only imposed where it is appropriate to monitor compliance with a curfew or geographic exclusion zone, and where electronic monitoring is appropriate and no more onerous than required to address a specified risk.

Provisions underpinning the trial of electronic monitoring promote children’s rights by increasing opportunities for some young people to be released on bail. The provisions balance the community’s right to security with the promotion of familial relationships, education and employment, and connection to ongoing social supports for children by allowing children to be released on bail in a more rigorous supervised and monitored fashion than present mechanisms allow.

Part 22.1 – Amendment of Bail Act1977

Clause 903 of the Bill inserts a new Part 2A into the Bail Act, which sets out the trial of electronic monitoring of children on bail. Clauses 899 to 902 make necessary amendments to the Bail Act to support the trial of electronic monitoring provided for in Part 2A.

When electronic monitoring conditions can be imposed

The Bill empowers the Supreme Court and prescribed Children’s Court venues to impose electronic monitoring conditions when granting or varying bail for an accused child and provides specific criteria to limit the circumstances in which such conditions can be imposed. The electronic monitoring conditions are listed at new section 17E. They require the accused to wear an electronic monitoring device for 24 hours each day, to not tamper with or remove that device, and to comply with any necessary direction of the Secretary of the Department of Justice and Community Safety (the Secretary) to ensure that the accused is electronically monitored.

The Bill limits the circumstances in which electronic monitoring conditions can be imposed on an accused child. New sections 17D and 17G provide that electronic monitoring can only be imposed if:

• the accused is 14 to 18 years of age, but was under 18 years of age at the time of alleged offending;

• the bail decision maker is either a prescribed venue of the Children’s Court or the Supreme Court;

• the child is to be bailed to reside at an address in a prescribed region of the State;

• the Court is considering imposing a curfew and/or a geographic exclusion zone as conduct conditions, and believes it is appropriate to impose the electronic monitoring conditions to monitor compliance with these conduct conditions;

• the Court has received a suitability report prepared by Youth Justice and is of the opinion that the child is suitable to be electronically monitored and that there are adequate resources and equipment available.

The electronic monitoring trial will operate within the existing legal framework for making bail determinations. For example, in all bail determinations, section 4E of the Bail Act requires an accused to be refused bail where the bail decision maker determines that the accused on bail would endanger the safety and welfare of the community (including through further offending), interfere with a witness or obstruct the course of justice, or fail to surrender into custody. The availability of electronic monitoring conditions provide an additional tool for bail decision makers that can, along with a suite of other conduct conditions, be used to mitigate these risks to an acceptable level, enabling an accused child to be released into the community on bail.

Clause 902 of the Bill provides that section 5AAA(2) of the Bail Act applies in relation to electronic monitoring conditions in the same way that it applies to other bail conditions. This ensures that electronic monitoring conditions, both as individual conditions and in combination with the child’s other conduct conditions, are no more onerous than required to reduce an identified risk; and are reasonable, having regard to the nature of the allegations and the child’s circumstances.

The limitations ensure that if a child’s risk in the community can be effectively addressed through less onerous means, such as engaging with bail support services or other less-restrictive bail conditions, electronic monitoring conditions should not be imposed. The Bill therefore confines the electronic monitoring trial’s scope so that it is aimed at those accused of serious or prolific youth offending who may have demonstrated previous non-compliance with their bail conditions.

Right to privacy

Electronic monitoring conditions require that an accused child continuously wear an electronic monitoring device, which will allow for remote surveillance of that child’s location (new section 17E). The electronic monitoring conditions also require a child to comply with any direction given by the Secretary to ensure that the accused is electronically monitored, which may involve Youth Justice visiting the child’s residence to install or maintain electronic monitoring equipment (such as chargers). As such, the electronic monitoring trial engages section 13(a) of the Charter, the right not to have a person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with.

Sections 17D and 17G of the Bill introduce strict criteria to ensure that the interference with a child’s privacy and home is neither unlawful nor arbitrary. Electronic monitoring conditions can only be imposed by the Children’s Court and the Supreme Court in limited circumstances, which means that bail decision makers such as police officers and bail justices cannot order that a child be electronically monitored. Limiting the power to impose electronic monitoring to the courts will ensure that these decisions are transparent, and that alternatives such as bail support programs or less restrictive bail conditions are thoroughly explored. Further, electronic monitoring conditions can only be imposed by a court after it has considered the information received in a suitability report prepared by Youth Justice, which will include information about the child’s personal circumstances and home environment.

The Bill also inserts new section 17N into the Bail Act, making it an offence to use or disclose personal or confidential information derived from electronic monitoring for any unauthorised purposes. By legislating limits on the use of information gathered through electronic monitoring to bail applications, law enforcement and legal proceedings, the Bill ensures that a child’s privacy is not interfered in a way that is unlawful or arbitrary. That is, any use of the information acquired through electronic monitoring is proportionate to a legitimate aim of the Bill (being increased opportunities for some young people to be released on bail and community safety). For these reasons, it is my opinion the Bill does not unreasonably limit the right to privacy.

Freedom of movement

As electronic monitoring devices allow for remote monitoring of a child’s location and are used to monitor a child’s compliance with a curfew or exclusion zone condition, the Bill potentially engages section 12 of the Charter, a person’s right to move freely within Victoria. If the Bill’s interferes with this right, such interference is minimal. That is, while electronic monitoring allows a child’s compliance with these conditions to be more easily monitored, it does not restrict the child’s movement – that is provided by the bail conditions that are imposed under existing legislation. The curfew or geographic exclusion zone will continue to be the condition that restricts the accused’s freedom of movement, while electronic monitoring will provide a mechanism to detect non-compliance. In my opinion, any limitation of the right to freedom of movement is justified considering the purpose of the limitation is to promote a child’s compliance with their bail conditions while in the community and the benefits to community safety that this facilitates. It also promotes rights by allowing more children to be considered appropriate for release on bail.

Suitability reports

Section 17G of the Bill requires the bail decision maker to receive and consider a suitability report before imposing the electronic monitoring conditions. Sections 17F and 17H(2) require the Secretary to cause the preparation and distribution of the suitability report, and in practice, this will be done by Youth Justice staff. Having had regard to the suitability report, the bail decision maker must be of the opinion that the child is suitable to be electronically monitored and that adequate resources and equipment are available to enable the child to be electronically monitored on bail.

New section 17F(1) provides that a suitability report must include the report author’s opinion on:

• whether the child is suitable to be electronically monitored on bail, and

• whether there are adequate resources and equipment to electronically monitor the child.

The suitability report must also explain the basis for the report author’s opinions, including by identifying and describing the information that informed those opinions.

Right to have a charge or proceeding decided by an independent and impartial court

Since a suitability report is a mandatory step before electronic monitoring can be imposed, the Bill involves the executive branch of government in a bail determination. This may engage section 24(1) of the Charter, specifically the right to have a charge or proceeding decided by an independent and impartial court. However, while a suitability report enables the court to obtain detailed and logistical information that will assist its determination, the discretion to impose electronic monitoring ultimately rests with the judiciary alone, regardless of Youth Justice’s opinion.

The suitability report may include a detailed assessment of a child’s attitudes towards electronic monitoring, their family or guardians’ willingness to assist, as well as resourcing and implementation considerations. This is also important logistically, as there are limited electronic monitoring resources that are available for the trial, and therefore a limited number of children can be monitored at one time.

The information contained in a suitability report will ultimately assist the Court in ensuring a child is able and willing to comply before electronic monitoring conditions are imposed, and that there are sufficient resources available to enable this. Youth Justice is an appropriate body for providing this advice as it will be responsible for overseeing the electronic monitoring (if it is ordered). Youth Justice is also already responsible for the statutory supervision of young people in the Victorian criminal justice system and plays a complementary role in bail proceedings by providing impartial advice to the courts regarding a child’s suitability for supervised bail services. As the provision of a suitability report does not fetter the court’s ultimate discretion in whether or not to grant bail, it is my opinion that the Bill does not limit the right in section 24 of the Charter.

Right to liberty and to not be arbitrarily arrested or detained

Due to the detail required in the suitability report, it is not expected that a suitability report will be completed the same day it is ordered by a court. Therefore, the Bill makes provision for the court to adjourn the bail hearing to a later date and allows remand of the child in custody until that time (new section 17H(2)).

This provision may engage section 21 of the Charter, particularly a person’s right to liberty and not to be subject to arbitrary arrest or detention. While the Bill does allow the Court to remand a child while awaiting a suitability report, this is not an unreasonable or arbitrary decision. In ordering a suitability report, the court would have necessarily received evidence and heard submissions demonstrating the risk the child presents on bail. Before ordering a suitability report, and adjourning the bail hearing, the court must first be of the opinion that it is appropriate to impose electronic monitoring conditions in order to monitor bail compliance (new section 17H(1)(c)). This will ensure that courts properly consider whether the electronic monitoring conditions are appropriate at an early stage in the bail hearing and will limit the circumstances in which bail hearings are adjourned for the preparation of suitability reports.

A suitability report ensures that tailored consideration is given to such high-risk children and promotes children’s rights by potentially enabling them to be released into the community sooner, with electronic monitoring conditions in place to promote bail compliance. By requiring the provision of details about the accused child be included in suitability reports (new section 17F), the Bill balances both the rights of the community and the rights of the child by ensuring that electronic monitoring is not imposed where unlikely to be effective, or in situations where electronic monitoring conditions are impractical or unnecessary given the child’s circumstances.

Removal of electronic monitoring devices and equipment

In situations where electronic monitoring ceases (for example, where the child’s charges have been finally determined or the electronic monitoring conditions are revoked) section 17L(5) of the Bill allows authorised officers to enter the child’s residence and use reasonable force to remove the electronic monitoring device or equipment if the child does not consent to removal. Similarly, section 17M of the Bill allows a police officer or police custody officer to use reasonable force to remove a child’s electronic monitoring device where the child is arrested and does not consent to its removal. These provisions engage section 13 of the Charter, the right not to have a person’s home unlawfully or arbitrarily interfered with; section 21(1), a person’s right to liberty and security; and section 17(2), a child’s right to such protection as is in their best interests.

The powers allowing entry and use of reasonable force are required to ensure that electronic monitoring devices and equipment can be retrieved. Removal of the device and equipment will remove a burden on the child, rather than impose an additional one. New sections 17L(4) and 17M(2) of the Bill require that, if practicable, the authorised officer must first inform the accused that the removal is to occur, that the accused may consent to the removal, and if consent is not given, then reasonable force may be used. Therefore, the power would only be exercised where reasonably required. Therefore, in my view, any limitation is reasonably justified.

Electronic monitoring is only available to certain children

The trial of electronic monitoring is limited to accused persons aged 14 to 18 who were under 18 at the time of the alleged offending. There is no equivalent scheme in the Bail Act for the electronic monitoring of adults. As such, the Bill engages section 8 of the Charter, the right to equality before the law.

The Bill provides an additional tool for bail decision makers to promote a child’s bail compliance and mitigate the risk they may pose to an acceptable level. During the trial of electronic monitoring, this additional tool will not be available to adults who apply for bail, even if electronic monitoring may be a useful risk-mitigation tool. In my view, providing this additional tool that may assist a child to access bail is appropriate as it recognises the vulnerability of children and the detrimental impact of remand for children.

By imposing strict limitations on when electronic monitoring conditions can be imposed and requiring suitability reports to be prepared, the Bill also ensures that special consideration is given to a child’s circumstances. In this way, the Bill recognises the unique vulnerabilities of children in custody, balancing the right of equality before the law with the rights of children. Section 25(3) of the Charter relevantly provides for the right to procedures accounting for a child’s age, the desirability of promoting their rehabilitation, and the right to protection as is in their best interests by reason of being a child.

The Bill also sets an age minimum for electronic monitoring of 14 years (new section 17D(3)(a)). This broadly accounts for children’s rights by recognising a child’s age is relevant to an electronic monitoring decision. Given other considerations in this Bill and the Bail Act that recognise that children under 14 have reduced criminal capacity, this provision reinforces that it is appropriate to treat children under 14 years old differently. Bail determinations for this group may be more appropriately subject to less restrictive bail conditions or services. Any limitation of the right to equality is reasonably justified in all the circumstances.

The Bill only empowers the Supreme Court and Children’s Court venues prescribed in regulations to impose electronic monitoring conditions (new section 17D(2)), and requires that the child must be bailed to reside at an address in a prescribed region (new section 17G(c)). This means that some children may not have access to the electronic monitoring because of where they reside or where their alleged offending occurred. This also engages the right to equality before the law.

It is expected that the venues prescribed in regulations will largely be metropolitan Children’s Court venues, which means that some accused children applying for bail at regional courts may not be considered for electronic monitoring conditions. The Bill introduces electronically monitored bail as a trial, with limited electronic monitoring resources available for Youth Justice. There are also practical limits on the number of Youth Justice employees who will be available to monitor and support those on bail and practically implement the scheme.

In order to ensure that implementation is manageable, the Bill confines electronic monitoring to the Supreme Court and specified Children’s Court venues where resources and support services are more readily available and where bail decision makers hear a higher number of bail applications for children. The effectiveness of the trial will be used as an evidence base when determining whether to continue electronically monitored bail and adapt it to other cohorts such as children applying for bail at any Victorian court. For this reason, it is my opinion that the Bill does not unreasonably limit the right to equality before the law.

Chapter 23 – Amendment of other Acts

Chapter 23 of the Bill makes amendments to various pieces of legislation consequential on the enactment of the Youth Justice Bill. While the majority of the clauses in Chapter 23 make technical amendments to ensure consistency of terminology across the Victorian statute book, the provisions identified below are of a substantive policy nature.

The Bill amends the Bail Act 1977, Criminal Procedure Act 2009 and Sentencing Act 1991 in relation to persons who are 18 years of age or over, to require a bail decision maker or court to consider their behaviour, the offence they have been charged with and their operational suitability for youth justice custody (cls 911, 912, 1048 and 1128). This seeks to ensure that the youth justice system is able to prioritise the safety and rehabilitation of children and operate as a genuinely low-security environment. On this basis I consider that these provisions promote the rights of children in the criminal process (s 23).

Clauses 1025, 1026, 1028, 1030, 1033 and 1034 amend the Crimes Act 1958 to provide protections for children who participate in the new diversionary responses introduced by the Youth Justice Bill, being youth warnings, youth cautions and early diversion group conferences. These clauses require the Chief Commissioner of Police to destroy any fingerprints, records, DNA samples and identifying information within a specified timeframe, if these are taken from children in connection with an offence for which a child is given a youth warning, youth caution or if the child successfully participates in an early diversion group conference (i.e. the child has an early diversion outcome plan finalised, or the child is discharged following participation in an early diversion group conference), or they have not been charged with a relevant offence within a certain time period or, if they have been charged, they have not been found guilty. These provisions provide legal protections for a child who receives the above-mentioned diversionary responses, by ensuring that identifying material is destroyed and cannot be used against the child for any subsequent investigations. For this reason, I consider that these provisions promote the child’s right to privacy (s 13(a)).

The Hon. Anthony Carbines MP

Minister for Police

Minister for Crime Prevention

Minister for Racing

Second reading

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (11:22): I move:

That this bill be now read a second time.

I ask that my second-reading speech, except for the section 85 statement, be incorporated into Hansard.

Incorporated speech as follows, except for statement under section 85(5) of the Constitution Act ‍1975:

Continuing the transformation of Youth Justice in Victoria

Victoria needs clear and strong governing legislation to increase the effectiveness of its Youth Justice system to keep the community safe. The current youth justice legislative framework has not been systematically reviewed since 1989, nor has it moved with the times.

The Bill creates a new standalone Youth Justice Act, a modern framework which responds to the evolving landscape of youth offending in Victoria. It enhances the best aspects of the current system while providing a broader and more effective range of responses to both ends of the offending spectrum.

Victoria gets a lot of things right when it comes to addressing youth offending.

We have undertaken significant reform since 2017, guided by the landmark Youth Justice Review and Strategy, conducted by Penny Armytage Professor James Ogloff AM, the Youth Justice Youth Justice Strategic Plan 2020–2030, the Youth Diversion Statement and Wirkara Kulpa, Victoria’s first Aboriginal Youth Justice Strategy.

As reported by the Australian Institute of Health and Welfare, in 2022–23:

• Victoria had the lowest rate of young people aged 10 to 17 under youth justice supervision on an average day (4.7 per 10,000) – almost three times lower than the national rate (13.3 per 10,000)

• Victoria also had the lowest rate of young people aged 10 to 17 under community supervision (3.7 per 10,000) and in custody (1.1 per 10,000)

• Victoria had the lowest rate of Aboriginal young people aged 10 to 17 under supervision on an average day (41.5 per 10,000) – more than three times lower than the national rate (131.9 per 10,000). 

The evidence shows that the vast majority of Victorian children and young people do not offend, and the rate of offending has trended downwards over the last 15 years, despite some recent increases. Efforts to reduce the over-representation of Aboriginal young people under youth justice supervision has seen that cohort more than halved since 2016–17, exceeding a key milestone in the Aboriginal Justice Agreement 4. Youth justice custodial facilities have stabilised too – for example, over the past four financial years, from 2018–19 to 2022–‍23, category one assault incidents have declined 54 per cent.

Most children and young people who offend respond well to diversion and rehabilitation services, grow out of their offending, and turn their lives around. However, recent trends have shown there remains a small but high-impact cohort of children and young people who offend more seriously, and re-offend more often. For example, in 2023, only a small proportion of children and young people (5.6 per cent) were high volume recidivist offenders recorded with 10 or more alleged incidents.

This Bill is built on a sound evidence base to respond to youth offending across the continuum and the evidence is clear. We know that disproportionate criminal justice interventions actually increase rather than decrease the risk of offending for children and young people. Community safety is best served through prioritising diversion wherever possible and appropriate, and targeting intensive interventions to children and young people who are most likely to offend seriously and repeatedly. Lasting results are only achieved by addressing the underlying causes of offending and tailoring interventions based on risks and needs.

Of course, the Youth Justice system must also support all children and young people to take responsibility for their behaviour and the harm they have caused to victims. But this must be done in an age-appropriate way to be truly effective. Children and young people are at a unique point in their maturation and development. They have a greater capacity for rehabilitation and change, as long as they receive the proper support.

The Bill provides a robust framework for all this to occur – because at its heart, this Bill is about making the community safer.

The Bill will raise the minimum age of criminal responsibility from 10 to 12 years old

With this Bill, Victoria will become the first Australian state to raise the minimum age of criminal responsibility to 12 without exceptions.

The current minimum age of criminal responsibility in Victoria is too low. It has been forty years since the minimum age was set at 10 in Victoria, and we have learned so much about child and adolescent brain development and what works to stop youth offending since then. It is clear that 10- and 11-year-olds belong in school, not in prison. It is time for the law to change.

For any individual to be found guilty of a crime, they must be able to form criminal intent. This is a foundational pillar of our justice system. Accepted medical evidence clearly shows that very young children lack the cognitive maturity to form criminal intent. The data tells the same story – in recent years, only around 2 per cent of children aged 10 or 11 charged with an offence have had their criminal intent proven in court. In 2022–23, there were no 10- and 11-year-olds under youth justice supervision (either community or custody) and none remanded into custody.

By raising the minimum age of criminal responsibility, we are making sure that these children receive the supports they need to turn their lives around without relying on formal contact with the criminal justice system, which fails to deliver meaningful outcomes for this cohort.

A new transport-based police power will be introduced for 10- and 11-year-old children

Rest assured, however, that raising the minimum age of criminal responsibility does not mean we leave the community unprotected from harmful behaviours.

Children in this age group only make up a very small proportion of alleged offenders and are rarely engaged in serious offending. But when needed, police will continue to be able to rely on a range of existing legal and operational tools to help them respond to dynamic situations involving harmful or unsafe behaviour by children.

This includes common law powers and statutory powers under mental health or child protection frameworks. Police will also be able to take proactive, practical steps to engage with children aged 10 or 11 on an informal basis, including discussing the consequences of their actions, and take practical steps such as directing a child to return home where it is safe to do so.

The Bill also introduces new powers for police to safely transport a 10- or 11-year-old child to a suitable person or appropriate health or welfare agency. This power will be available where police have concerns that a child’s behaviour poses a risk of serious harm to themselves or another person.

Protective safeguards are in place to ensure that these new transport powers are only used as a measure of last resort. These include stringent preconditions to exercising the transport power, as well as restrictions on the circumstances and ways in which force may be used and searches conducted.

Measures will be taken to prevent criminals from exploiting 10- and 11-year-old children

We know that there are criminals who use children to do their dirty work. Amendments will be made to the Crimes Act to close off loopholes that might otherwise allow such people to exploit children precisely because they lack the capacity for criminal intent. These people will continue to be prosecuted for offences like recruitment, incitement, conspiracy and offending that involves complicity.

Victims of harmful conduct by children who cannot be held criminally responsible will still be able to exercise rights under the Victims’ Charter Act

Raising the minimum age is in no way intended to downplay the real and harmful impacts the antisocial behaviour of children can have on victims. A child may not understand the consequences of their actions, but the victim lives with those consequences either way.

This is why the Bill expands the scope of the Victims’ Charter Act to ensure it applies to victims impacted by harmful behaviour by children who cannot be held criminally responsible. This means that victims will continue to have access to relevant information, supports and financial assistance like any other victim of crime.

Use of past convictions when a person was 10 or 11 years old will be limited

At the same time as we revisit our laws around criminal responsibility to bring them into the twenty-first century, it is appropriate that we revisit past convictions. People previously convicted of crimes committed when they were 10 or 11 years old prior to these reforms should not be left with the enduring stigma and consequences.

For this reason, the Bill introduces new safeguards to prevent the use of spent childhood convictions for law enforcement, character assessments in civil or criminal proceedings or registrations, accreditations and other credentials or opportunities.

The operation of the doli incapax presumption will be strengthened for 12- and 13-year-olds

Children above the new minimum age of criminal responsibility are not automatically capable of forming criminal intent. As any parent will know, a child does not start high school and suddenly become a fully-formed person with the maturity to understand the consequences of all their actions.

This is why we have the doli incapax presumption – a longstanding and vital safeguard in our criminal justice system – which operates at common law but is not currently codified in legislation. The presumption ensures that a child under 14 cannot be criminally responsible unless the prosecution proves beyond reasonable doubt that the child has the requisite mental capacity.

The Bill does not fundamentally alter the presumption or give children a free pass to commit offences. The legislation provides a clear statement of the presumption so that all justice system actors understand it and apply it more consistently at different points including when police decide to charge or prosecute a 12 or 13 year old child.

Making the presumption front of mind should also reduce the number of lengthy prosecutions that come to nothing because the child lacks the necessary understanding of their actions. Such prosecutions waste court and police time, and subject victims to frustration when the charges are dropped or the prosecution is discontinued. The focus should instead be on how to support the child to understand the consequences of their actions, and avoid them becoming entrenched in the criminal justice system.

The Bill will amend the Bail Act 1977 (Vic) to support young people to comply with their bail conditions and improve community safety

While overall rates of offending are low, there is a small cohort of young people responsible for repeat offending, including while on bail. Trends over the past decade show that this subset of young people has become increasingly persistent in their offending behaviour, with higher rates of disengagement from education and community-based support services.

This is why we are introducing a trial of electronically monitored bail for children aged 14 and over, where a prescribed court considers it appropriate. Electronic monitoring is an additional option to help young people comply with their bail conditions. It is not intended to be used as another form of punishment or to further disadvantage already vulnerable children. However, compliance with bail conditions is not optional and should be taken extremely seriously.

The Bill allows Youth Justice to electronically monitor a child’s compliance with specific conduct conditions ‍– thereby mitigating risk and promoting compliance with those conditions. When a young person does not comply with their electronic monitoring condition, it will be detected more quickly, and Youth Justice can respond appropriately. This can include referring the breach to police, who may seek to have bail revoked or varied.

The trial of electronic monitoring of bail will be implemented alongside more intensive bail supervision by Youth Justice to help keep young people engaged in education, employment programs and other initiatives that address the underlying causes of alleged offending. By providing this intensive supervision to the small cohort of young people on bail for alleged persistent and serious offending, we can ensure they are receiving the tailored support they need while improving community safety.

Electronic monitoring will only be available to children aged 14 years or older at the time of the bail application, and it can only be imposed by prescribed venues of the Children’s Court and the Supreme Court. Other bail decision makers such as Victoria Police and Bail Justices will not be able to order electronic monitoring as part of a bail undertaking.

A court can only impose an electronic monitoring condition where it is appropriate having regard to all the conditions that could be imposed and the need for conditions to be no more onerous than necessary. This targets the reform at children who are charged with serious offending, and who require additional support and supervision to comply with their bail conditions. Before imposing an electronic monitoring condition, a court must consider a suitability report prepared by Youth Justice.

The trial will run in locations in metropolitan Melbourne for two years and will be evaluated. The findings will inform decisions about the scheme and whether it should be expanded or refined. Government has allocated funding to support the trial and is establishing an Enhanced Youth Justice Bail Supervision Service to further support young people on bail.

A modern, fit-for-purpose legislative framework for Victoria’s youth justice system

The existing legislative framework for youth justice is set out in the Children, Youth and Families Act 2005 (CYFA), and does not sufficiently prioritise the need to reduce youth offending. The 2017 Armytage & Ogloff Review found that the CYFA does not adequately deal with the ‘justice’ part of Youth Justice.

The Bill before Parliament addresses the shortcomings of the existing legislation. It enshrines a genuinely distinct child and adolescent focused youth justice framework squarely targeted at making the community safer. The Bill achieves this by holding all children and young people accountable for their actions in ways that are evidence-based, developmentally appropriate and proportionate to their level of risks and needs. Fundamentally, the Bill prioritises community safety by preventing crime and diverting children from the justice system. For those children who do have contact with the justice system, the Bill targets the drivers of their offending behaviours and responds to their individual risks and needs.

A more balanced range of responses across the spectrum

The Bill recognises and responds to the evidence of what works to address youth offending. We know that community safety is best served by focusing on diversion and prevention, and by genuinely addressing the reasons why children and young people offend through a clear focus on providing quality treatment and rehabilitation.

Most children only engage in low-level antisocial behaviour that they naturally grow out of as they mature, making diversion the most effective pathway for these kids. This is why the Bill increases the range of genuine ‘pre charge’ diversionary options. Most notably, it establishes a tiered diversionary framework of youth warnings, youth cautions and Early Diversion Group Conferences (EDGCs). Even at this lower end of the spectrum, the Bill maximises opportunities to build on a child’s empathy for victims and accountability. For example, youth cautions may include an apology to the victim, while all young people who participate in an EDGC will have an outcome plan developed.

At the same time, the Bill provides a better graduated and purposeful sentencing hierarchy, and more robust responses to the small minority of young people who cause the most harm in our community. Existing mechanisms to deal with high harm offending will continue to operate including retention of the serious offence categorisation scheme that will attract tougher sentencing consequences. Emergency worker protections such as the presumption of longer sentences for those who assault Youth Justice staff will also be preserved. In addition, Youth Control Orders will continue to be available as the most intensive supervised community-based order but adjusted to improve its operation, including a new requirement for victim safety to be considered when the court is attaching conditions.

A range of new accountability mechanisms will also be introduced to enhance the effectiveness of criminogenic interventions. Critical changes in the Bill mean that young people on supervised bail and remand will be permitted to participate in offence-specific rehabilitation programs to ensure no opportunities to rehabilitation are wasted. Other accountability measures embedded throughout the Bill include making judicial monitoring of a young person available earlier in the sentencing hierarchy, enabling group conferencing to take place at the parole stage as part of a young person’s transition back to community and embedding Multi-Agency Panels and the High Risk Panel in the legislation. These Panels provide a robust and enduring legal model to deliver intensive oversight of high risk offenders, foster agency collaboration and ensure services are joined up to target the underlying causes of offending behaviour.

A more robust custodial framework to keep our Youth Justice workforce safe and support stable custodial environments

Safe and stable custodial environments with a safe and stable workforce are pre-requisites for children and young people to rehabilitate and turn their lives around.

To this end, the Bill makes several improvements to the gateway into and out of Youth Justice custody, particularly for young people aged 18 or over who engage in seriously disruptive behaviour. For young adults being considered for a youth detention sentence via Victoria’s ‘dual track’ system, the Bill will introduce additional operational suitability criteria that the court must consider, which will ensure only appropriate young adults can serve their custodial sentence in youth justice.

The Bill will also strengthen the YPB’s power to make transfer determinations where a young person’s harmful or disruptive behaviour has adversely affected the safety and stability of a Youth Justice custodial facility or caused serious harm to the health, wellbeing and safety of any other person including staff. Further, the Bill introduces new mechanisms that limit the ability of young people aged 18 or over who have engaged in serious violence in youth detention to ‘bounce back’ (for example, once a transfer to adult prison determination has been made).

Together, these changes establish a new custodial framework that promotes a more stable and effective Youth Justice custodial environment that supports rehabilitation and will better enable our Youth Justice staff to do their jobs safely.

Better recognition of impacts of youth offending on victims

The Bill recognises the importance of building a child or young person’s empathy for victims when supporting them to take responsibility for harm they cause. Existing youth justice legislation contains very few measures that recognise the impact of youth offending on victims. For example, there are no victim-specific principles and only limited legislated opportunities for victim participation in the justice process.

The Bill adopts a more victim-inclusive approach by establishing victim-focussed guiding principles and specific mechanisms for victim participation across all stages of the youth justice continuum. Victims will have opportunities to participate in pre-charge diversion mechanisms, as well as during the sentencing process and at the parole stage through restorative justice conferences. The Bill also diversifies YPB membership to allow for the appointment of community representatives who have relevant experience, knowledge or skills, such as a victim of youth offending, and establishes a Victims Register so victims can provide information to the Board to inform decisions around parole conditions.

Addressing over-representation and progressing towards a self-determined, Aboriginal-controlled youth justice system

The Aboriginal Justice Caucus has worked closely with the Victorian Government on the Bill and has been instrumental in shaping key aspects designed to improve outcomes for Aboriginal children and young people. The Bill has a dedicated focus on supporting Aboriginal self-determination and reducing Aboriginal over-representation in youth justice.

This commitment is not merely aspirational. The Bill takes concrete practical steps towards self-determination. For example, the Bill not only enshrines Aboriginal-specific guiding youth justice principles, the Bill also introduces a positive obligation on the Secretary of the Department of Justice and Community Safety to develop strategic partnerships with Aboriginal communities. Importantly, the Bill provides the building blocks for establishing an Aboriginal-controlled youth justice system in the future by allowing for the progressive transfer of the Secretary’s youth justice functions and responsibilities. To ensure that these measures do not pre-empt the work of Treaty, the Bill takes an enabling and flexible approach that does not close off future possibilities. We will continue to work with the Aboriginal Justice Caucus as the reforms are implemented.

Section 85(5) of the Constitution Act 1975

Anthony CARBINES: Finally, I make the following statement under section 85 of the Constitution Act 1975 of the reasons for altering or varying that section in this bill.

Clause 765 of the bill provides that it is the intention of clauses 374, 375(2), 381(2) and 387(2) of the bill to alter or vary section 85 of the Constitution Act.

Clause 374 provides that if a person appeals to the Supreme Court on a question of law the person abandons any right under the act or any other act to appeal to the Supreme Court. This clause largely re-enacts section 430Q the Children, Youth and Families Act 2005. The reason for limiting the jurisdiction of the Supreme Court under clause 374 is to prevent a proliferation of lengthy proceedings in relation to decisions of the Children’s Court under the act. The act provides for a clear process for appeals and it is clearly to the benefit of a child to have matters relating to them dealt with expeditiously.

Clause 375(2) of the bill provides that a person sentenced to a term of detention by an appellate court under clauses 333, 336 or 339 will not be able to appeal under clause 374 if, in the proceeding that is the subject of the appeal, the Children’s Court was constituted by the Chief Magistrate who holds a Supreme Court dual commission.

Clause 381(2) of the bill provides that questions of law arising on the hearing of an appeal from a decision of the Chief Magistrate who is a dual commission holder are not able to be reserved for determination by the Court of Appeal.

Clause 387(2) of the bill provides that the DPP cannot refer a point of law that has arisen on appeal from a decision of the Chief Magistrate who is a Supreme Court dual commission holder, to the Court of Appeal. These clauses mirror sections 430R(3), 430VA(2) and 430W(1A) of the Children, Youth and Families Act 2005, which are provisions that were inserted by the Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022 for which a statement pursuant to section ‍85 of the Constitution Act was also given.

The reason for limiting the jurisdiction of the Supreme Court under clauses 375(2), 381(2) and 387(2) is to prevent a scenario arising where the Court of Appeal has to review its own decisions, or consider a question of law in a proceeding it is already hearing on appeal, which would be an unusual appellate process.

James NEWBURY (Brighton) (11:25): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 3 July.