Thursday,15 August 2024

Samantha RATNAM (Northern Metropolitan) (14:02): Just before I begin my formal contribution, I would like to circulate some further amendments on behalf of my colleague. These are in lieu of amendments 23 and 24 on sheet KC27C. I ask for them to be circulated now.

Sonja TERPSTRA (North-Eastern Metropolitan) (14:14): I rise to make a contribution on the Youth Justice Bill 2024. In so doing I want to talk about some of the important reforms that are in this bill. The legislation will establish a robust, end-to-end framework for Victoria’s youth justice system. Whilst we obviously as a government need to ensure that we can appropriately deal with youth offending, community safety is at the heart of these reforms. I will go into a bit more detail about that shortly. The bill contains nation-leading reforms. It builds on the very important work of the 2017 Armytage and Ogloff review, which was commissioned by the Honourable Jenny Mikakos, the then Minister for Families and Children. A central recommendation of that review was that there was a need to establish a dedicated youth justice act. It was a significant piece of work, a very critical and important piece of work. It has taken some time to bring that to the Parliament today, but here we are.

Moira DEEMING (Western Metropolitan) (14:29): This Youth Justice Bill 2024, I must admit, does some wonderful things. I think it is fair to say that no matter which party you are in, nobody wants to see children in jail. Nobody wants to see children and their entire futures, really no matter what they have done, thrown in the bin. That is not who any of us are. I think in many ways this bill is all about competing sides of the line – where you fall on certain issues, certain ideas. It is all about rights and responsibilities and different concepts. The biggest one that I noticed was doli incapax versus mature minor. I constantly take issue with the fact that this state does not even seem to know what a child is, depending on the department that you ask. On doli incapax we hear that you want this hard upper limit. You want to protect children from adult responsibility for their own decisions, and I agree with you. Children are a special class – they are. We make special exceptions for children because we love them, we care about them, we want them to have a future and we understand they lack wisdom and they make mistakes. Children should be deemed incapable of adult culpability in many situations. They should be protected from the consequences and the responsibilities of those things, I agree with you – and I say that as someone who was a victim as a minor of one of the very horrendous minor-on-minor assaults.

Tom McINTOSH (Eastern Victoria) (14:40): I rise to support the Youth Justice Bill 2024 as it will establish a robust end-to-end framework for Victoria’s youth justice system. It is all about improving our community’s safety. It is an important step in reforms to deliver what will be modern and effective responses to youth offending, and it is guided by evidence. These reforms aim to reduce offending and improve community safety while providing genuine opportunities for young people who come into contact with youth justice to turn their lives around. This is about doing more of what works to keep the community safe. This bill contains nation-leading reforms which build on Victoria’s success in driving down the numbers of young people engaged with youth justice. This is a result of a significant amount of work following the central recommendation of the 2017 Armytage and Ogloff review that Victoria establish a new, dedicated youth justice act.

Enver ERDOGAN (Northern Metropolitan – Minister for Corrections, Minister for Youth Justice, Minister for Victim Support) (14:55): Thank you to all members who have contributed this week on the Youth Justice Bill 2024. I would like to acknowledge the number of sincere contributions that have been made by members in this chamber and in the other place. We have had over 20 speakers in this chamber, along with the majority of the house having contributed to this debate earlier. I think the depth of debate here is a testament to the complexity of justice reform and to the care needed when dealing with children.

Jaclyn SYMES: Just at the outset, as people would appreciate, this is an extremely large bill predominantly in the remit of the Minister for Youth Justice. However, as there are Attorney-General policy responsibilities we are proposing to have a bit of a team approach today that will facilitate clearer answers and a more timely response to the committee stage.

David DAVIS: Can I just, first, join with the Attorney in thanking the clerks, the papers office and in particular Vivienne for the complex process and the assistance that has been involved in that. I do not know if it is the record, but it is some sort of record, and certainly a very complex and very methodical process has been required to deal with it, so thank you. If I can perhaps just start with some background questions on the purposes clause, clause 1. The Armytage–Ogloff report is a significant report referred to indeed in the second-reading speech and pointed to as significant in the rationale for the proposed reform. The report states:

Enver ERDOGAN: Obviously the report was published well before my time in Parliament. I understand that it was published in 2017, the Armytage–Ogloff report, so I expect that it would have been handed to our government around the time that it was published.

David DAVIS: It is a long time ago. When did consultation with stakeholders for these various reforms commence?

Enver ERDOGAN: I thank Mr Davis for a really important question, because from the outset it has been a significant journey for this bill’s introduction to the Parliament, and from the outset I want to acknowledge previous justice ministers that contributed to this bill’s development. But in terms of stakeholders, when they were consulted, obviously many of our stakeholders – and I will say partners, because many of them are partners – were involved in the Armytage–Ogloff review, but from that point on, when the department and the government set out to prepare the bill, there has been really ongoing engagement, so it has been a continuous process. The engagement really has never ceased since the Armytage–Ogloff report was handed to the government. We have worked closely – and the Attorney-General is next to me; she can confirm, she has worked very closely – with the Children’s Court of Victoria over this time for sections of the bill, the commissioner for children and young people and the Aboriginal Justice Caucus. In Victoria we have an Aboriginal justice agreement – over 20 years, a longstanding agreement – with our Aboriginal partners. And that engagement has been ongoing; it was not just after Armytage and Ogloff. It did not just start there – it was before that, it preceded that – but since then Armytage and Ogloff have been pivotal in ensuring there are improvements, and we have the bill before us. Obviously Victoria Legal Aid, the Victorian Aboriginal Legal Service, the Office of Public Prosecutions, Victoria Police, the Department of Families, Fairness and Housing (DFFH), the Sentencing Advisory Council and the victims of crime commissioner are just some examples of the people that have been very involved in the development of this bill. But it really has been a continual process. When I took on this role – there has been various iterations to get to this point, and we have the package and bill as it stands today, as it was introduced last month.

Katherine COPSEY: That is a good point for me to pick up on, because I also had a question around consultation on the bill. Many stakeholder organisations and their experts, as you say, have contributed significant time and resources to helping shape this bill. I believe for the most part many of those organisations would have done so on the understanding that the government had promised a two-stage process of raising the age to 12 in this bill and to 14 by 2027. I am wondering at what stage these stakeholders were informed that the government had reneged on its commitment to 14 by 2027.

Jaclyn SYMES: Thanks, Ms Copsey, for your question. As you have correctly identified, there have been a range of stakeholders in the development of this bill, whether it is from my responsibilities of raising the age right through to many of the operational amendments that are in the remit of Mr Erdogan. The decision for cabinet to confirm that our policy is to raise the age to 12 and no further was made at cabinet this Monday and was communicated directly after that. What I would say is that the previous position in the two-step approach was always raising the age to 14 subject to an alternative service model, with the exception of serious crime. You would be all too familiar with the fact that there are many stakeholders who did not support the commitment that was given at the time and always supported moving to 14 in this bill without exceptions and not in advance of an alternative service model. So I think that that is an important clarification when you are talking about the government’s previous commitment under the former Premier to raise the age to 14. It was not in line with the advocacy of many of our stakeholder groups – very valued stakeholder groups, I must say. They are really important to the work that I do as Attorney, and I have spoken to many of them in recent days and can confirm that they are all very supportive of the Youth Justice Bill, notwithstanding their disappointment at the change in government policy in relation to the age.

Katherine COPSEY: Thank you very much for that answer. On the alternative service model that you referred to just then, given the change in policy, that work is still obviously needed. Given the presumption for doli incapax in the bill for 12- and 13-year-olds, how do you foresee that that cohort is going to be served, and can you give some insight into the fate of the alternative service model – how that work will progress or otherwise – given the change in government policy?

Jaclyn SYMES: Ms Copsey, at the outset, I thank you for your question, but it is a matter for the Minister for Children, Minister Blandthorn. As you would appreciate, an alternative service model is all about not involving the justice system. It is about ensuring that other services of government are stepping in to ensure that children are not being unnecessarily caught up in the justice system. Some of the issues you raised are still to be determined, but I think I will go back to my previous comments made numerous times on the record: this is a very important investment, and this is a very important endeavour. If you get the alternative service model right, the age of a child becomes largely irrelevant because you indeed have the services required to ensure that you do not need the criminal justice system to pick up the slack.

Katherine COPSEY: I may have missed it. I have heard you refer to the alternative service model many times when I have asked about the pathway towards raising the age to 14, but that is the first time it has clicked for me that it is not actually with you, it is with the Minister for Children. I wanted to ask about the services in that model to help children. I take it from your answer that it is going to involve increased service provision from organisations, that it is going to be a material increase in services and support provided to children, and I wondered if there are discussions ongoing about the funding and resources required to support those services.

Enver ERDOGAN: Notwithstanding that it is envisaged that the alternative service model will be with the Minister for Children, what I can say is that we have a panel of experts that are working towards making recommendations for how an alternative service model should work. I do not want to pre-empt that work because as the Minister for Youth Justice I have not received that final expert panel report on how it should proceed. But I think you do raise important points about having those supports in place to support young children.

Katherine COPSEY: Will the implementation of this bill include a rollout of the alternative service model?

Jaclyn SYMES: The alternative service model work and the $5 million that was provided in the most recent budget support the development of the alternative service model for 10- and 11-year-olds, and we want that work to inform further work to support older age cohorts.

Katherine COPSEY: So the funded work only covers 10- and 11-year-olds, and the work for 12- and 13-year-olds is currently unfunded?

Jaclyn SYMES: Ms Copsey, there are a range of government services that would already link in to what could be deemed an alternative service model, whether it is crime prevention or indeed free TAFE and programs and such, so to say that there is no funding allocated to an alternative service model is not a true reflection. It has not got a line item for an alternative service model for children other than 10 and 11 because that is what we are starting with in this bill, but there is a panel that is being assembled, chaired by Patricia Faulkner, which is informing government on such matters. As you would appreciate, again that is outside the remit of this bill. Having said that, it is certainly government policy in relation to continued efforts to ensure that young people are given opportunities so that they move more into the responsibilities of ministers other than the Minister for Youth Justice and me.

David DAVIS: I have got some further questions on clause 1. I would ask the ministers – and they will take it in their tag team style no doubt – is it correct that when the bill discusses diversion this is only once a young person has committed a crime and is really a diversion from custody?

Enver ERDOGAN: Mr Davis, I think the whole model and what we have tried to achieve in the principles underlying this bill is that it is not necessary to have committed the crime. Police have a lot of discretion in relation to their interactions with people in the community, in particular young people, and what we do is provide guidance in a sense to our law enforcement agencies to ensure that they can give formal warnings or in some instances cautions. That does not necessarily mean guilt of a commission of an offence per se –

David DAVIS: For example, a violent action may have occurred. Somebody may have been bashed or hurt. A younger person has been picked up and is perhaps about to be charged. Of course guilt at that point cannot be presumed. I accept your point on that. This is not happening in the abstract, this diversion, it is happening after a serious incident has occurred.

Enver ERDOGAN: I would not characterise every incident as serious. Many young people come into contact with the justice system, some of them for relatively low-level offending. I think police have the discretion whether they choose to charge, and they have discretionary decisions about giving –

David DAVIS: Does the minister believe that this will adequately address the Armytage–Ogloff review recommendation to address community concerns about youth crime? Does it adequately respond to the report?

Enver ERDOGAN: I think that the objective of this bill first and foremost is to ensure we have community safety and to do that informed by the report of Armytage and Ogloff and our consultation with stakeholders and partners. It is about understanding that you do need appropriate responses to children, depending on their development, and that is what this bill tries to incorporate, because we know if we can address their behavioural issues at a young age, then that will make us all safer in the long term.

David DAVIS: Why are there no carve-outs for serious offences, such as murder committed by those under 12?

Jaclyn SYMES: It is a policy decision of the government.

David DAVIS: I thank the Attorney for indicating it was a policy decision of the government. On what basis was that policy decision made? Why was that decision taken, and what was the information behind it?

Jaclyn SYMES: It was based on medical evidence of no capacity to form intent, in much the same way as what would currently apply to a 9-year-old now applies to 10- and 11-year-olds.

David DAVIS: I am noting that I have a large number of questions here, so I am just going to accept certain points even if they are very controversial and others might dispute them. I am just going to make that point.

Jaclyn SYMES: What you have touched on is what ended up being quite complicated in landing the policy and the legislative response to this reform. I will be up-front. When we originally looked at this my position was, ‘Why can’t we just go from 10 to 12 and that it just be that what’s been applying to under-10s now applies to this cohort?’ The cohort under 10 at the moment relies on common law, and police were of the view that they would seek further clarity. Upon consideration of those issues, it was determined that clarity for the community, clarity for the police through all of our consultations, having that down in legislation is what we think will facilitate the implementation of this change. It was very much informed by the police position that they needed it legislated and did not seek to have a situation where the common law would carry over to this cohort as it does for the very little kids now.

David DAVIS: Is what you are saying that the police currently do have powers to deal with young people under the current age of criminal responsibility?

Jaclyn SYMES: The reason that it became apparent that we should legislate in this space was that there are common-law powers that they can rely on but there was a lack of certainty around those. Common-law principles extended for the right to protect peace and property. There are also some general welfare-type provisions. But to apply to this cohort, the request was that we legislate police powers to put it beyond doubt for the protection of police and the ability for them to operate in a known environment.

David DAVIS: I thank the Attorney. Perhaps what would help the chamber is a list of those powers. Do you have a list of those powers that are currently in existence, I accept, through common law? Is there a list of those powers that is available? Somebody must have compiled them as part of this process.

Jaclyn SYMES: What was determined, Mr Davis, was that it was inadequate to be able to apply. I guess what turned out was that there are probably currently gaps in dealing with nine- and 10-year-olds. That was what we found. So rather than relying on the common law for the next cohort or to add the 10s and 11s effectively to anyone under that age, common law was not sufficient and lacked clarity. Police sought certainty, so that is what we have done through this legislation.

David DAVIS: Thank you, Attorney. I understand your point that you think that the powers are not adequate, but what I am asking for is a list of those powers. You must have that list. It must be available. You must have compiled it. You must have compiled it to form the view that they are inadequate.

Jaclyn SYMES: As I indicated before, Mr Davis, the broad principle across the case law is that the protection of life and property has enabled police to deal with under-10s. However – and a lot of this advice is subject to legal privilege – in determining whether that was adequate to cover situations that we started to think about, the advice was no. For any suggestion – and I think this is where you are coming from – that the common law is adequate to cover 10s and 11s, the firm answer is no. It would have been a lot easier if the common law was suitable and appropriate, because we would not have had the numerous backwards and forwards of trying to land an appropriate set of police powers. If I could have relied on the common law, that would have been an easier way home to raise the age. It was not appropriate. The police were concerned about it. That is why we are legislating police powers in this bill.

David DAVIS: I thank the Attorney, and I understand her point. I do not necessarily agree with it. She has formed a view, or the government in its policy sense has formed a view, that the common-law powers are not adequate. But you must have from that process – and this is not about secret legal things – a simple list of what those powers are as they are commonly exercised by police. I mean, this has happened every day of every week for 1000 years in common-law countries, so I just want to know what powers in your list are held currently and exercised currently in this circumstance.

Jaclyn SYMES: Mr Davis, what we are seeking to do is list the powers for 10s and 11s and maintain the flexibility for nine and under. It became apparent that the common-law principles of supporting or protecting life and property that police rely on in relation to their interactions for nine-year-olds and under were not sufficient to give police clear guidance on how to deal with concerning behaviour of 10- and 11-year-olds. In that instance, it is not an exhaustive list of what is present in the common law; it was more about what is not obvious in the common law.

David DAVIS: What would be helpful is that list. I just detect there is a certain resistance to providing that list. It would assist in debating many of these exact points. If you want to provide the commensurate list of where you think it is inadequate, I am happy to have that list too.

Jaclyn SYMES: Mr Davis, the obvious point of reference is what is in the bill. What is in the bill in provision of the powers was what was concerning – that if they did not exist, police would have a lack of certainty about what they could do if they came across a 10- or 11-year-old that was no longer criminally responsible. They wanted clarity about what they could do. I can assure you that this legislation, this guidance, that has been proposed in the laws is based exactly on the experience of police officers on the ground, police who utilise these powers every day. It is on rare occasions that it is kids under 12 that they are interacting with, but they are the ones that have informed us what they need to perform their duties on the ground. That is the basis of these reforms.

David DAVIS: I thank the Attorney, and I understand the point she has made. I am not going to labour the point, but I am just going to state that I would have preferred if the Attorney had provided that list, and the parallel list if she thought that was appropriate too. Let me just go a little bit further: how do these powers differ to the powers police have for dealing with children aged 10 and 11 if the new laws pass? How do they differ – the two?

Jaclyn SYMES: I am a little confused by the way you have phrased your question, Mr Davis. Because it is predominantly around transport powers – the limited ability to search and a limited ability to detain – it is based on when there is a serious risk to the child or the community. Let me put it this way: without these powers it is unclear whether a police officer who comes across an 11-year-old in a dangerous situation where they may be about to start a fire but have not yet started a fire – can they intervene and use their police powers in that regard? Without these police powers, would they have to just walk away and leave the child? That is what they were concerned about. They were concerned about not having legislative guidance and protection for acting when there was serious risk to the child or indeed to the community, whether it is stopping a kid from running across the road or jumping into a car and driving it. When they are 10 and 11, the police advice was they needed specified powers to ensure that their members could act in the protection of the child or the community.

David DAVIS: Thank you, Attorney. I thank you for your attempts on this. It seems to me that actually you have again provided where you think there are weaknesses rather than listing points where powers do exist. Certainly in my understanding of common law, and from the discussions that I have had with lawyers – a relatively small number of them, I accept – on some of these matters in recent weeks, they would believe that in fact there are significant common-law powers to prevent the commissioning of a crime or the commissioning –

Jaclyn SYMES: If you would like me to confirm that Victoria Police have given advice to the government that they absolutely need these powers, I will get you that before the end of the debate.

David DAVIS: A further question is: if a police officer exercised the power under the new regulations and it turns out that the child is under the age of 10, will the police officer be immune from court action initiated by the child’s parents or guardians?

Jaclyn SYMES: Yes. Police are expected to exercise reasonable judgement. Of course, we recognise that it is extremely difficult to determine the age of a child. I have a 12-year-old who looks 15. There is no way that kid has looked under 10 since he was seven. I am living that – fortunately, I do not think my kid is going to be caught up in the situation that I am trying to look after for other kids. It is incredibly difficult to determine the age of a child, whether they are nine, whether they are going to be criminally responsible or not. Reasonable judgement in police –

David DAVIS: What specific sections of this bill practically deliver on one of the purposes which is to promote community safety?

Enver ERDOGAN: I appreciate that question. I think it is a really important question because in terms of community safety we need to look at the whole youth justice system, not only for the young person and for the broader community, but also the dedicated staff that work in our system. One such example within the youth justice setting is the increase to the transfer powers that the bill provides. Where there is someone who is in a youth justice custodial setting and they display a dangerous behaviour and cause harm to people, whether it be other young people or to staff, increasing those transfer powers into the adult system is one example where we create greater safety within the youth justice system.

David DAVIS: In the world that you have described, it will all improve and the crime rate will come down. I wonder if you could give me some targets for that. How much will it come down over the next two, four, six years? Are there targets for that or is it more nebulous?

Enver ERDOGAN: I think you would appreciate that the reasons why people display offending behaviour, whether they be young people or adults – there are multiple factors in that. Some of it is not necessarily determined by the justice settings, because a lot of those behavioural issues happen long before. In many regards the justice system is at the end when something has gone wrong.

David DAVIS: I ask a different question. What specific sections of the bill practically deliver on the purpose to divert young people from the youth justice system and police system before they commit a crime?

Enver ERDOGAN: Chapter 4 is about diverting children from the justice system. I will point to that, and that has the graduated hierarchy of options able to divert young people away from the criminal justice system and in particular respond to alleged offending behaviour. Chapter 4 summarises some of those earlier options, such as group conferencing and warnings. I might add: it is the first time we are going to have a formal process for some of these. Some of these practices Victoria Police and other agencies already do, and I want to thank them for that work. But this will formalise that structure, and obviously the goal is to see better results.

David DAVIS: I ask a different question: are all elements of this bill costed and funded?

Enver ERDOGAN: There are different commencement dates for sections of this bill. Some of it is costed, some of it is going to be implemented within 24 months and some will be announcements in the upcoming budget. There are different timelines for different aspects of the bill, and understand that not all of it has a financial cost – some of them are just changes in practice that should be cost neutral.

David DAVIS: I get that some of it may come in a future budget –

Enver ERDOGAN: I think we need to pass the bill first. We have already made announcements on some of the costings where it is clear, such as the electronic monitoring. Through the budget process we announced $34 million has been allocated, for example, to that aspect. As I said, some aspects are cost neutral, but there will be a budget process if the bill is passed. I do not take that for granted.

David DAVIS: I think the answer you are giving me there is no. You will not give me a list of those parts that are costed and funded. Is there an overall costing for the bill? How much is the bill intended to cost? You must have done that costing on the presumption that it passes, and you obviously may need to adjust it if it is different from the intended bill. But you must have done that costing, so what is the cost of the implementation of the bill?

Enver ERDOGAN: There will be the usual government funding process and a budget process with this bill. Some elements are clearly defined, like electronic monitoring for 50 children over the forward estimates. It is clear; it was in the budget – $34 million. Other aspects will go through the usual budget process.

David DAVIS: I think it is very legitimate for members of the committee to ask about the parallel costing and the parallel funding of the bill. There must be an overall estimated cost. Is that $80 million or is it $100 million over four years? Is it more than that? How much is it? You must know.

Enver ERDOGAN: Like I said, all the costs that are required to implement elements of this bill will go through the normal budget process that our government has. The electronic monitoring we know is $34 million. Some of our elements are cost neutral, but they will go through that budget process in the coming years.

David DAVIS: The government must know the costing of this bill. I would ask the minister again: what is the government’s estimated cost of implementing this bill? Please give us a figure. I understand it may not be the final number, because obviously the bill is subject to change. But you must have costed the implementation of this bill: to not do so would be extraordinary.

Enver ERDOGAN: I think, as I stated in my previous answers, Mr Davis, there will be a budget process for implementation of sections of the bill. Some sections have already been costed and announced, but others will go through a budget process.

David DAVIS: The minister is being resistant in answering the costs here. He must have those costs. I will ask him in a different way: is the government seeking to pass this bill without having costed the implementation of the bill?

Enver ERDOGAN: I think in the drafting of the bill what we would like to see is less young people coming into contact with the criminal justice system. There are cost elements, and some of the costs have been outlined, like the electronic monitoring. Other aspects will be cost neutral. There will be changes in practice, but through our budget process we will have an opportunity to make those announcements.

David DAVIS: I am listening closely to the minister here. I think what he said is that the implementation of the bill is cost neutral. Is that what you are saying, Minister?

Enver ERDOGAN: No. I think, Mr Davis, what I will say is this is transformative across the youth justice system, and some of it falls within my portfolio, some within the Attorney-General’s and some within police. There are many elements to our justice system, and there are different costs at different stages. Some of the parts of this bill will be implemented in 24 months and there will be a budget process to secure funding where needed. Not everything in this bill needs funding.

David DAVIS: I am deeply troubled by what I am hearing here. My simple question is: is the minister telling me that the cost of this bill has not been examined and budgeted? Is that what he is telling me?

Enver ERDOGAN: Mr Davis, I am telling you that there are many parts of this bill that are across government not just in the Department of Justice and Community Safety. There is some of it that is in DFFH and other departments of government and in VicPol. There are different parts that have different costs to them. I am not taking for granted that the bill will pass, but the elements that we are looking to implement straightaway, such as electronic monitoring, we have announced the cost of those.

David DAVIS: I am coming back the other way on this to ask the minister: is it then a fact that you do not know what the overall cost of this package is likely to be?

Jaclyn SYMES: I might just jump up. I am not going to pre-empt any budget processes, but –

David DAVIS: To whichever minister seeks to answer, it sounds to me like there is actually quite a bit of cost in the bill. I just put on record my concern that the government is not being honest and up-front about the fact that there is a cost here and we should see that. I am not going to labour the point, as I said; I am just making that point. Further, if I may ask the minister: what specific practical measures in this bill demonstrate a commitment to promoting community safety, minimising reoffending and supporting rehabilitation of young people?

Enver ERDOGAN: That is the main purpose of this bill. The practical examples are those pre-charge methods of engaging with young people – the warnings, the formal cautions, restorative justice practices, group conferencing. They are all focused on ensuring that young people address their behavioural issues. Our electronic monitoring proposal is about that. It is about making sure that those young people not only are monitored but that they also have intensive supervision and that they are complying, for example, with their bail conditions for engagement in employment and structured learning and, more importantly, getting the help that is required to ensure that they address their behaviour. At many levels there are practical examples of how the community will be made safer. We say that the best way is to make sure we address those behavioural issues when they come into custody. There are practical ways we do that. That is through obviously giving them structured learning within the youth justice facilities, but for those that continue to offend, transferring them to the adult system as well to keep our staff and the other young people in the youth justice system safe.

Rachel PAYNE: My question is in relation to electronic monitoring devices. Plans for electronic monitoring of youth parolees was first proposed by this government in 2018, but it was shelved amid significant criticism. Then as recently as January 2024 Deputy Premier Ben Carroll, on the government having given up on the tracking policy, also further said that the ‘youth justice system of today is not what it was five years ago’ and that ‘I firmly believe we have the settings right’. Yet this government is now set to introduce a $34.4 million two-year electronic monitoring trial for 14- to 18-year-olds charged with serious offences as part of their bail conditions. What has changed?

Jaclyn SYMES: I certainly understand the sentiment that you bring to your question. I really want to emphasise that my goal here, the government’s goal, in agreeing to try electronic monitoring for bail is to really help kids not reoffend whilst on bail. We are seeing a concerning pattern of behaviour from a cohort of young people who, once on bail, if they were complying with their bail conditions, would not put themselves in the situation where they hurt themselves or someone else. If you ignore bail, you are at risk of that harm – or not that harm but to a lesser degree putting yourself in a situation where the courts have no other option but to put you in custody. I really want to hope that EM can be used to keep kids on track for a short amount of time, to capture them, to keep them supervised, so that we know where they are and who they are hanging out with and that they are complying with their conditions.

Rachel PAYNE: $34.4 million – from my understanding that is to cover 50 young people as part of this trial. Does that figure also include the review process, and would it be possible for us to have a discussion on what that actually entails?

Enver ERDOGAN: Ms Payne, it is a really good question. I think it is important to say that, yes, in that $34 million a significant part is in fact to monitor the intensive bail conditions that will be required on those young people in making sure they get those wraparound services. The actual physical cost of the electronic monitors themselves is a small part of that $34 million. The majority is for those wraparound supports. At the end of the third budget cycle there is an amount for an evaluation to take place, but there will be a very strong and robust evaluation.

Rachel PAYNE: I thank the minister for his response. I would like to ask a question now just on review and reporting procedures. The reforms in this bill span the whole of Victoria’s youth justice system from prevention, diversion and early intervention through to sentencing, custodial facilities and transitioning children and young people from the system. Given the scale of these reforms and the sensitivities surrounding several measures, including new police powers and electronic monitoring, what does this bill do to ensure that there are adequate review and reporting procedures in place to assess the effectiveness of these reforms?

Jaclyn SYMES: We might do a tag team on the answer here. Obviously we have gone through the fact that electronic monitoring is a trial. I will put on record I am going to watch this very closely. I have already been out to the department of justice electronic monitoring centre just to understand the role of the workforce, what they are looking for, what they are capable of and the like. There is emerging technology all the time as well. Do not get me wrong, if we can find a smaller, less invasive type of device that becomes available then it is something I would be keen to look at. It is something that we will keep a really close eye on. Obviously the house amendments which we will get to later on in relation to bail, the reaffirming amendments that clarify some of our changes and the like, will slot into the current review of the Bail Act 1977 which is scheduled for two years after commencement. They will be ongoing, and I know that Minister Erdogan has already got some formal reviews in line for his. In relation to police powers we have got reporting mechanisms for notification to Aboriginal organisations, and there will be a range of measures available to the change of practices in terms of IBAC oversight and the like. The ability to make complaints about any type of police misconduct or concerns about the way they have dealt with young people, whether they are aged under 12 or not, still remains the remit of IBAC.

Rachel PAYNE: I thank the Attorney for her response. Just on community stakeholders, this bill embeds health and welfare agencies in several of its reforms. Recognising the need to have community stakeholders involved in this restorative justice is really important, but stakeholders in this space do not always receive the support they need. An example that I can give is, for instance, the Living Free project. They supported young people aged 10 to 30 who were at risk of involvement in or in early contact with the justice system, and this was an initiative that was born out of advocacy by the local Frankston police that saw a service gap and wanted that alternative provision. Unfortunately, a project like this no longer exists because there was no funding received in the last budget. I guess my question is: what has been done to ensure that these organisations are effectively resourced to take up the responsibilities they have been given in this bill?

Enver ERDOGAN: What I will say is that – part of our announcement, and probably a section that not everyone picked up – we are committed to doing an audit of the existing youth justice programs to make sure that the programs are properly tailored. We will see what works, and of course on the back of that make sure that all these programs are appropriately judged on their merits come budget time. I think that is the outcome we want to see. Thank you for sharing a local example of yours.

Katherine COPSEY: While we were close to the topic of the electronic monitoring trial, I had some questions in relation to that. Going back to the evaluation and the timeline and process for the evaluation of that trial, will there be independence in relation to that – an independent panel to conduct the evaluation? Who is going to be conducting the evaluation of the effectiveness of the electronic monitoring trial?

Jaclyn SYMES: Ms Copsey, both the minister and I were conferring, and no decision has been made exactly in relation to the remit or the individuals for a review. What I would be interested in and what would be a commitment from me is that we would want to hear from the experiences of people directly – in terms of anybody that has received an electronic monitoring order, for example, and the youth justice workers and the like – so that the real-life, lived experiences would form part of any such review. But it is still to be determined in relation to the evaluation scope that would be informed by our department.

Katherine COPSEY: Would it be desirable from the government’s perspective to have some independence and expertise in the persons conducting that evaluation – for example, researchers, sector representatives or a retired judge? Obviously the voices of lived experience are very important, but who is going to be assessing it against the objectives it has sought to achieve and best practice?

Jaclyn SYMES: Look, I appreciate your suggestions, Ms Copsey. That is yet to be determined, but of course we want to determine whether the policy is effective. I have been pretty up-front. I am aware of other electronic monitoring trials in other jurisdictions that have not achieved the outcomes that I want to achieve here in Victoria, so as I said, we will be exploring, hopefully, to see whether the trial meets the objectives I am on record as wanting to achieve. Therefore it will be a very thorough review, and lived experience would certainly be something that I would be prepared to commit to.

Katherine COPSEY: Do you plan to make the evaluation of the trial public, the report?

Jaclyn SYMES: As I said, Ms Copsey, it is yet to be determined, but it is not something that I would intend to shy away from being particularly transparent about, so it would be my intention to share absolutely as much as possible in relation to a review. I am not stubborn in this policy. I know it is an extreme measure we are taking. I want it to work, but if it does not, that is not something that I am going to hide.

Katherine COPSEY: In evaluating the trial, you have both spoken about how you want that to commence soon, and it is obviously one of the headline elements of this bill. Before the trial commences are the evaluation criteria going to be built into the design of the project, which is best practice – I am sure you are aware – not only for conducting evaluations but for actually designing interventions? Is that going to happen so that you can know whether or not it has been successful?

Jaclyn SYMES: Yes, Ms Copsey, the evaluation scope and model is currently being prepared by the Department of Justice and Community Safety, so concurrently.

Katherine COPSEY: I understand that children with significant trauma are not going to be eligible for treatment under this trial. Could you please outline how trauma is going to be defined in relation to eligibility and, given the cohort that we are going to be talking about, how you think you are going to find the 50 participants?

Jaclyn SYMES: Again, probably a little bit of a double act between the minister and me. But you and I have had conversations about eligibility and the fact that it is not the government’s intention for electronic monitoring to cause trauma, particularly on children who have experienced trauma. The trial is confined to metropolitan Melbourne, and the eligibility criteria will be determined. But YJ, so Minister Erdogan’s area of the department, already do suitability assessments for a range of youth justice settings. Whilst trauma in and by itself is unlikely to be a standalone exclusion, it is certainly a matter that youth justice are very used to assessing. They will do that in their suitability report, and Minister Erdogan might want to supplement my deviation into his lane.

Enver ERDOGAN: That is right. As per the proposal in the bill, our youth justice department will make an assessment, and trauma in itself is not going to exclude people obviously. There are a range of factors they will look at before making recommendations to courts. There is a lot of discretion in that, and the Attorney-General has outlined that it is limited to metropolitan Melbourne and limited to 50. As with other similar trials, whether all 50 are utilised is yet to be seen.

Katherine COPSEY: I know that the Aboriginal Justice Caucus has been central to consultation in preparation for this bill. What did the Aboriginal Justice Caucus tell you about the electronic monitoring trial and their position on it?

Jaclyn SYMES: Ms Copsey, I have had direct conversations with members of the Aboriginal Justice Caucus, and I actually do not think it is appropriate for me to, without consent, detail the conversation that I have had. I just do not think that that is good practice.

Katherine COPSEY: I might be going fishing with my next question, which is: when you consulted the Aboriginal Justice Caucus on this bill, what was their position on raising the age? I am happy if you want to refer to public comments in relation to either.

Jaclyn SYMES: Where an organisation has made a public comment, then that is fair game. But with respect, it was only recently that the Greens political party quoted some Aboriginal organisations and they raised direct concerns with me about that having been done in this chamber. So I do not want to wear that wrath that you recently have.

Katherine COPSEY: I will say for the record that I am not personally aware of any of those issues, so if that has been the case, I would welcome stakeholders contacting me. It is certainly not my intent to misrepresent those views. If I could go now to the government’s house amendments in relation to bail, the government is yet again seeking to amend its own legislation with regard to bail at the last minute, having a bit of a repeat of what happened last year with the Bail Amendment Bill 2023, when the youth bail provisions were withdrawn very close to the time of debate. Can you please explain why you are coming back and amending bail laws again, given, as you have said, there is already a review scheduled of that act?

Jaclyn SYMES: I appreciate your question, Ms Copsey. As you would appreciate, this is the Youth Justice Bill. This is not the bail bill. It would be open to me to move the house amendments in a standalone bill. However, as per the commitment that I gave to the community through numerous media conferences, there were conversations going on with courts, police, justice department experts, the Minister for Police, the Minister for Youth Justice and Minister for Victim Support – same person – and me in relation to just doing a check in on bail, how it was operating and concerns from the community about how people on bail committing serious subsequent offences were being treated through bail decisions, whether that was police, bail justices or the courts. Those conversations were really productive. What they went to was a joined-up commitment to wanting to ensure that the justice system was best placed in responding to those concerns. Those concerns predominantly were around youth offenders committing multiple serious offences, particularly those committing serious offences whilst on bail. Those conversations, as I said, were productive and have produced a set of amendments that are largely around clarifying the existing practices, making sure that it is beyond doubt in relation to how serious crime is to be treated in the mind of a bail decision maker, and that is what the intention of these amendments is. Because those discussions very much centred around the actions of young offenders it was deemed appropriate and indeed convenient for speedy passage to use the Youth Justice Bill as the vehicle to bring in those further amendments that I circulated earlier in the week.

Katherine COPSEY: Can you explain the government’s objective in effectively reintroducing a new offence, section 30A of the Bail Act, that you only removed 12 months ago? Do you seriously think that this will have any effect on reducing offending while on bail, or is it purely about signalling that you are being tough on crime?

Jaclyn SYMES: At the outset your question contains an error in that we are not seeking to reintroduce an offence that was removed from the Bail Act. The offence that was removed from the Bail Act was committing an indictable offence whilst on bail. What we have done is introduce through house amendments a new standalone offence of committing a schedule 1 or 2 offence whilst on bail. It applies in a different context to the previous Bail Act in that we now no longer have uplift, which means that there is no platform for this offence to be used to have the same effect as previously in capturing nonviolent low-level offending that was not a major concern to community safety. This amendment will not do that. You are right, and I am on the record in how I explained why committing an indictable offence whilst on bail was not an offence that did particularly much. Will this offence do a lot? No, you are right. It is the substantive offence that should always be front and centre, but this does send a very strong message that we consider committing multiple offences, being a repeat offender, as something that we need to take seriously. It is something that the community is concerned about. It is a summary offence. It has a three-month maximum. It is more about ensuring that it is recognised that this behaviour is inappropriate. This behaviour deserves to be called out. That is why we have brought back the amendment, and it has the added benefit of ensuring that the Liberal Party’s nonsense that removing committing an indictable offence whilst on bail had any impact on weakening bail laws. Bringing back this offence negates that.

Katherine COPSEY: Good to hear. Has the government done the modelling therefore around this small number of people who will be affected by the likely impact of the reintroduction of proposed offence 30A? In this answer I am of course referring both to young people and to adults, which as I understand it the offence will also apply to.

Jaclyn SYMES: Ms Copsey, I might have misunderstood your question. Let me just get advice from the box.

Katherine COPSEY: I am going to ask with a little bit more specificity now because I think I may have misspoken. Have you done any modelling on the likely impact of the reintroduction of the proposed offence 30A and the changes to the unacceptable risk test on remand levels?

Jaclyn SYMES: Ms Copsey, I think I have answered the question in relation to the new offence, meaning schedule 1 or schedule 2. Where I would point you to in relation to your question around remand numbers and the unacceptable risk test – we do consider that there may be increases in remand as a result of this change. That is not to suggest that this is making a significant policy shift. This is reaffirming our commitment to the Victorian public that the government’s intention is to ensure that there is an appropriate response to serious crime, to crimes that cause serious harm and community concern – that they are dealt with appropriately – as opposed to low-level offending, which was being captured by the broader tests prior. The new offences that are outlined in the examples will draw attention to bail decision makers in relation to the fact that those are serious crimes that need to be held in high regard when you are considering unacceptable risk. I will draw your attention to comments from the police commissioner – it is his view that the changes will see increases in remand.

Evan MULHOLLAND: I have just got a couple of quick questions. Attorney, on 18 June – so around eight weeks ago – I asked whether there was any change in the timeline to raise the age of criminal responsibility by 2027, and you replied there was no change. It has been eight weeks. What has changed in the government’s response?

Jaclyn SYMES: Cabinet made a decision on Monday to change their position.

Evan MULHOLLAND: Interesting. I want to ask about the independent review panel that is chaired by Patricia Faulkner.

Enver ERDOGAN: Thank you, Mr Mulholland, for the question; it is really good question. As the Attorney earlier outlined, we have allocated $5 million for that panel to do their work. They are still going away and doing that work, and I want to thank everyone – Patricia Faulkner is the chair, but all the members of that panel are doing fantastic work there. In terms of that work, the whole purpose was to focus on this initial 10- and 11-year-old cohort and then based on the findings have a model in place that was scalable if we were to go to 14. So that work should continue as per normal.

Evan MULHOLLAND: I understand that, but was the original $5 million allocated to look at to 14, and will the full $5 million still be required for the panel’s work given the government is only raising the age to 12?

Enver ERDOGAN: Yes, the full allocation will be required by the panel to set up that model, even if it is just for the 10- and 11-year-olds.

Evan MULHOLLAND: In terms of the timeframe of the panel’s work, has that changed?

Enver ERDOGAN: No. Minister Blandthorn and I are awaiting a report later this year from that panel.

Evan MULHOLLAND: What communication has there been with the independent panel, given the government’s position and the initial task of the panel having significantly changed in the last week?

Enver ERDOGAN: Mr Mulholland, from my perspective the work of the panel is unchanged. They were initially planning a model that worked for 10- and 11-year-olds, and that would have been scalable if or as required. I recently met with the chair and Minister Blandthorn to discuss their work, and I am still awaiting their report later this year.

Evan MULHOLLAND: I appreciate your answers on this. Just in regard to the panel, the Minister for Children has previously advised that the service model that they will be looking at also relates to the cohort which is no longer captured by government policy. Again, have the panel been formally notified of this and advised that their work will be now limited to 10 to 12?

Enver ERDOGAN: Mr Mulholland, as I stated in my previous answer, the whole purpose was for them to design a system that would work for 10- and 11-year-olds and would be scalable if required or as required, because even in our initial commitment, as the Attorney-General outlined earlier, we were always saying it was subject to this alternative service model working for 10- and 11-year-olds, rolling that out. So on that proposal, that model that they will come forward with to the Minister for Children, I look forward to that, and I think we will be able to obviously take that to the 10- and 11-year-olds. In a future government – Mr Mulholland, you have had views on raising the age to 14 in the past, as have some other members in the opposition – you may wish to do so and you may wish to scale that model higher.

Richard WELCH: Ministers, I have got a range of questions around clauses 23, 24 and 25, and I will be guided by you as to whether you want to deal with those now or later in the process.

Jaclyn SYMES: Mr Welch, both Minister Erdogan and I are happy to take questions in clause 1 because we recognise that the run sheet is going to be best to facilitate amendments. So we are certainly happy to answer questions in clause 1 on any clause if they do not have amendments. Let us bat on.

Richard WELCH: In 23(4), it says:

Enver ERDOGAN: I thank you for the really good question. It is important to understand that our reforms are about making sure we hold all young people to account and that they get back on the right track regardless of their background. That is the premise with which we have approached this bill. I have talked about in this chamber many times the over-representation of Aboriginal young people in our youth justice system. Aboriginal people, although I feel in Victoria we are on the right path, still remain overwhelmingly over-represented, and they are one of the largest over-represented cohorts in not only the youth system but also the adult system. The bill does take a flexible approach and does not close off future opportunities, but I might seek some clarification for that last point in your question.

Richard WELCH: In the same clause, in that last phrase ‘their right to self-determination’, what does ‘self-determination’ mean?

Enver ERDOGAN: I think it is a very good question. We have talked about a longstanding commitment to self-determination. In many regards it was a bipartisan commitment to self-determination. It is a question that is probably best answered by the Aboriginal community, but what I will say is it is about empowering Aboriginal people to have a say in better outcomes for their communities, especially in this context, in the justice space. That is the way I would view it – in that prism. In the bill, in clause 24, you will see a more comprehensive list of the self-determination principles more broadly.

Richard WELCH: In clause 24(1)(b)(ii) is:

Enver ERDOGAN: No.

Richard WELCH: Further, in clause 24(1)(b)(v) and clause 24(3)(c) there are a number of provisions that are generally around the same principles, probably best represented by clause 24(3)(c):

Enver ERDOGAN: I think that is an important premise, and I think I know where your question is headed. It is not about creating two different youth justice systems. The laws, broadly in our state, are meant to apply equally. This is about getting positive outcomes for Aboriginal children and young people to reduce the over-representation.

Richard WELCH: That does not really answer the question in the sense that they must be considered. Therefore they will be considered alongside Victorian law and public expectations. Are they considered on an equal footing? You could just do the comparison of state to federal law – one prevails. Is there a sense that one prevails?

Enver ERDOGAN: Some of these questions I think the Attorney-General will have a good response to. What we will say is: the laws are the same for everybody. Already in our existing legal system, in making decisions or in sentencing, there are principles at play where other factors are considered, in terms of disadvantage. Like we consider people who are suffering from – it is probably not a good example, but where someone may have a disability or someone –

Richard WELCH: Division 3, page 52, clause 23(2) says:

Enver ERDOGAN: I had the privilege of appearing before the Yoorrook commission, and I think what we mean when we say ‘institutionally racist’ is that Melbourne, where we stand, was built on the land of the Wurundjeri people. When we say ‘institutional racism’, it plays out through outcomes. When you look at the outcomes for employment and for education, Aboriginal people continue to be disadvantaged. Those outcomes are there because of the historical injustices that Aboriginal people have faced and, some would say, that are even ongoing in regard to the discretionary biases at play. They do play out across our system.

Richard WELCH: Just to clarify that, are you saying there are Victorian institutions that are institutionally racist?

Enver ERDOGAN: We are trying to combat those biases – or racism, to put it frankly. But it still exists, and I think in many regards it might be conscious or subconscious.

Richard WELCH: Which public servants or officers of the youth justice system are currently perpetuating racism?

Jaclyn SYMES: Mr Welch, you would appreciate that the questions you are asking are not about specific clauses of the bill. What I would refer you to is testimony at the Yoorrook Justice Commission. All ministers that have appeared before that commission have addressed and acknowledged the years of systemic racism present in Victoria and perpetuated through the public service. I would also commend the public servants that have appeared before the Yoorrook commission in terms of acknowledging past practices and current practices and committing to work with Aboriginal communities and Aboriginal advocates to ensure that we do our very best to undo past wrongs and walk together towards treaty. That is what the truth and justice commission is a good basis for – acknowledging past wrongs, acknowledging that there is still systemic racism and moving forward. What you are specifically asking about is if there are instances of individual inappropriate behaviour in a racist sense now, and there are individual actions for that. As a system, as departments and as a government we have acknowledged that we can do better, and we are committed to doing that. I hope that answers your question, but it is straying outside the specifics of the bill.

Richard WELCH: Final question: clause 25 makes reference to an Aboriginal-controlled justice system. What is an Aboriginal-controlled justice system, and what are its limits?

Enver ERDOGAN: I think an Aboriginal-controlled justice system is where Aboriginal people get an opportunity to take control of their own affairs, because we know that we see better outcomes when Aboriginal people have a say. But let us be clear: this bill does not pre-empt the outcomes. It is about embedding self-determination. But it does foresee a future where there may be a treaty between the First Peoples’ Assembly and this Parliament, with Aboriginal people. As part of that, there is a potential for Aboriginal people to control their outcomes, even in justice settings.

Richard WELCH: That is a confusing answer given your previous answers. Are you saying that an Aboriginal-controlled justice system would have its own laws or not? Would they be determining their own affairs, creating their own laws and having separate outcomes? It is confusing.

Enver ERDOGAN: It is a good question. I will say for clarity: the principles we are embedding in the bill are principles of self-determination. There is a treaty process going on in this state at the moment. If the treaty process was to decide to go down that path, then yes, that would be an option for the Aboriginal community. Right now it is not. This bill leaves that future open, but that is up to this government or future governments to decide.

Katherine COPSEY: If I could go to some of the provisions around isolation in the bill, I want to get some clarity on the circumstances in which isolation will be permitted under the provisions of the bill. I have had lengthy discussions with both of your offices, so thank you very much for engaging on this topic. There was a lot of discussion around the safeguards already in the bill and in regulation that will protect children in the youth justice system from isolation unless absolutely necessary. Could you give an outline at a summary level of what those protections are?

Enver ERDOGAN: In relation to the use of isolation, as it is now – and this bill enshrines it – isolation is never used as a form of punishment. When a young person is put into isolation it is important that they are supported and they get an opportunity to have regular contact, making sure that they have their educational needs or health needs as required met, and there is of course recording of that isolation. In relation to Aboriginal young people in particular, there is an Aboriginal liaison officer as well that would be present.

Katherine COPSEY: This bill will allow isolation to routinely continue in youth justice settings. Is that correct?

Enver ERDOGAN: I would not say ‘routinely’, but yes, it will continue the practice as required in the legislation.

Katherine COPSEY: Minister, under the provisions of this bill, can you rule out the use of isolation to manage a youth justice centre, for example, when there is a staff training session?

Enver ERDOGAN: In terms of the use of isolation, it is important to understand that it is used for the safety of everyone in the custodial setting, not only staff but also the other young people. If the safety and security of the facility requires isolation, then it will continue to be used.

Katherine COPSEY: Minister, in the youth justice system as it is currently staffed, what is the rostering system used and does it have leeway to account for staff shortages? I just want to make a comparison perhaps with, for example, other public facilities that have a rostered staffing situation, such as public hospitals. If their staff get sick or have a group training session, they have ways of managing that so that they can continue to provide care for patients. Why is it not possible to rule out the use of isolation to cover for staff training sessions in the youth justice system?

Enver ERDOGAN: We do have rosters, and every effort is made to make sure that we have got a full base of staff available at all times. Obviously there are unforeseen circumstances as well, like any other workforce, where you might have illnesses et cetera. But let me be clear: the use of isolation for safety and security reasons can happen in a variety of ways. If there is a behavioural issue that risks the safety of other young people, it may be required. But they are not decisions that are made lightly, and the welfare of children is always a paramount consideration.

David LIMBRICK: I only have a few questions, and I will acquit them all in clause 1, even though they relate to many clauses, if that suits the ministers. My first question is relating to clause 70. This is regarding children being held at a police station. Is there any time limit that a child can be held at a police station for under clause 70?

Jaclyn SYMES: I thank Mr Limbrick for his question. I can assure you this was a topic that involved a lot of consultation, on whether it would be appropriate to bring in a time limit or not, and we determined on balance that, no, it would not be appropriate to bring in any legislative time limit, bearing in mind that it is very much embedded in the legislation that police’s role is not front and centre in dealing with 10- and 11-year-olds. They may obviously be the first responder. They are required to seek to transfer that child or have someone collect that child as soon as possible, preferably at the site of the incident. In the instances where a child would have to be taken to a station, that is literally because they have not been able to locate a parent or family member or an appropriate place to take that child. It is envisaged that it would be minimal time, as short as possible, but we did not want to legislate a situation that could be quite dynamic depending on where in the state and the availability. But rest assured that it is in police’s interest to ensure that they keep kids in their care for the shortest possible time and get them to the appropriate people under the changes.

David LIMBRICK: With that explanation in mind and with regard to reporting requirements, will the police be required to report on how long a child is kept under care and control at a police station and provide reasons for why they were required to be held for that period of time?

Jaclyn SYMES: Mr Limbrick, there are reporting obligations under the bill, and I was just seeking to locate them for you. But they are the types of questions that stakeholders have certainly raised with us in relation to wanting to be confident that children aged 10 and 11 would spend minimal time in a police station. Obviously there are provisions to prevent any use of cells and the like, and it is a requirement of the bill to report these types of things.

David LIMBRICK: In clause 69(5), regarding transport powers for an Aboriginal child, the police are required to contact the child’s parent, is my understanding. But there are other provisions in the bill that say that they must not notify a parent if doing so would pose an unacceptable risk of harm to the safety or wellbeing of the child. If the police believe that there are grounds that contacting a parent under this section would pose an unacceptable risk of harm to the safety or wellbeing of the child, are they still required to contact them as per clause 69(5)?

Jaclyn SYMES: Sorry, Mr Limbrick, the first part of your question referred to instances of where it would be a concern for the notification of parents when the child’s welfare or safety is a concern, and that would be potentially in instances of family violence and the like. I am sorry, I did not hear the second part of your question.

David LIMBRICK: The police are required to contact a child’s parent, if they are an Aboriginal child, under clause 72(3)(a) but other provisions in the bill say that a parent must not be contacted if there are concerns about safety. Are they still required to contact them, as per clause 72(3)(a) if they believe that there may be a concern about contacting them?

Jaclyn SYMES: Not if it exists that it can cause harm, so it is a caveat and a reason that you would not have to comply with the notification.

David LIMBRICK: Why are police not required to contact a parent when using the transport powers in situations where the child is not Aboriginal?

Jaclyn SYMES: The obligation is to, as soon as practical after taking the child into care and control, indeed find an appropriate person for that child to be placed in the care of, which includes a parent – so that would include notification of a parent. In practice that would be the first port of call for officers on the ground.

David LIMBRICK: Regarding the search functions under clause 75(4), can I get some guidance on how the police would actually determine the gender identity of a child when performing these functions?

Jaclyn SYMES: A reasonable belief.

Rachel PAYNE: My question is in relation to the Youth Parole Board. This bill continues the exemption of the Youth Parole Board from the rules of natural justice. This includes things like unbiased adjudication, knowledge of the case against a person, the provision of reasons for an adverse decision and the right to a review of a decision. This exemption risks decisions being unfair and inconsistent. According to the explanatory memorandum and the conversations that we have had with government, this exclusion in part exists to allow the board to make timely and efficient decisions, but this contradicts what we have heard from former board members and is something that could be easily overcome with additional support and funding. So my question is: what then justifies the continued exclusion of the Youth Parole Board from the rules of natural justice?

Enver ERDOGAN: I think it is a really good question, because as a lawyer myself I think the natural justice principles are very obviously a fundamental right, broadly speaking. But there are always exceptions to that broad rule. I think this is a situation where applying the natural justice rules would add procedural requirements which could have a negative impact on the board’s flexible and responsive decision-making. So you are right – the timely decision-making. But also we know that the current legal system, the structured legal system, would make the whole process more adversarial, especially in a youth parole setting. It really is not an adversarial process. The way it has been explained to me is that there is a more therapeutic, collaborative approach taken. So introducing those kinds of natural justice principles would make it adversarial, and it would increase the complexity of parole meetings, delaying these decisions. Reflecting the strength of the current parole system, I think, is the fact that Armytage and Ogloff did not make any recommendations. They reviewed the whole system, and they did not recommend introducing those natural justice principles to the Youth Parole Board.

Katherine COPSEY: I wanted to ask some questions around protections for kids subject to the transport power and the new police powers relating to 10- and 11-year-olds, particularly around the use of body-worn cameras, which is a topic that I have an amendment relating to and have had discussions with your officers regarding. Attorney or Minister, your staff have spoken around the current use of body-worn cameras by police. Would I be correct in understanding that in all interactions with children it would be standard for a police officer to activate their body-worn camera under existing legislation?

Jaclyn SYMES: Ms Copsey, yes. I do want to start by being clear that in practice body-worn cameras are already required to be turned on when police exercise legislative or common-law powers – for example, when exercising any arrest or detention powers and when exercising family violence holding powers. This means that once the bill passes, body-worn cameras will be activated when police use transport powers.

Katherine COPSEY: I would just say, by way of comment, that I would hope, given the extensive instructions and guidance provided by this bill, that police will be very conscious when they are exercising powers under the chapter and when they are exercising the transport power. Therefore in my view it would be a pretty simple matter for them to determine that it was appropriate to turn on their camera. So I hope that that continues to be the practice. Thank you, Attorney, for a very comprehensive answer. I want to understand if some of the guidance that you were reading from before was from the documentation around the requirements for the use of body-worn cameras in the police manual.

Jaclyn SYMES: Ms Copsey, I can assure you that I pre-empted your question, and it was informed by consultation with the police minister’s office. Whether it is word for word is probably unlikely, but that is the advice that was given after consultation with VicPol directly as well. So that answer came through the police minister’s office. Like you, when you first proposed it, I said, ‘That sounds good,’ but for the reasons explained in terms of an operational sense I accept their position that it would not be appropriate to legislate. That is not disagreeing with anyone disagreeing with the principle of using body-worn cameras for interactions in this cohort.

Katherine COPSEY: If I may, what are the consequences if a police officer fails to activate a camera as required in the manual and in the Surveillance Devices Act?

Jaclyn SYMES: Ms Copsey, there is no legislative penalty, but I understand disciplinary action can be taken for such matters.

Katherine COPSEY: I am getting to the end of my questions, just as a heads-up to everyone. If others have some more, we may extend clause 1 a little further. I want to go to another topic in relation to isolation, and that is around meaningful human contact for children in youth justice settings. It is probably best for you, Minister. How do you ensure that children in custody do have human contact, particularly if they are subject to isolation and lockdown, that is more than fleeting, that is empathetic and that is face to face?

Enver ERDOGAN: That is a really important question. The bill does require the secretary to prepare and publish some minimum requirements for meaningful human contact with children and young people placed in isolation. Of course, in regard to best practice, it would be to understand the psychology of adolescent development and also promote transparency by making the minimum requirements easily accessible to the public. There is no universal definition. I do understand there is some work in relation to this. Children in custody are subject to structured days which support their rehabilitation. But it is intended to capture genuine human contact, and that is a point made by you and many others to me as minister – that face-to-face, direct, close physical proximity, such as by having one of our youth justice workers immediately outside their room providing empathetic and supportive interpersonal communication. It cannot be seen as just incidental contact; I think that is the key that we need to get across. But the department secretary will publish that and make it public.

Katherine COPSEY: Sorry, Minister. I just missed the last sentence. I think you may have answered my next one, which was: are those requirements currently contained within regulations, or are the regulations to be developed?

Enver ERDOGAN: The regulations are to be developed, but they will be made public.

David DAVIS: Can I just take the opportunity, Deputy President, to circulate a further tranche of amendments, DD144C, which is responsive to the government’s matters and replacing in part amendment 59 on the earlier sheet DD141C. It is then at least available to others.

Katherine COPSEY: I have an amendment that relates to the isolation register. In discussion with the minister’s officers, we have discussed that the isolation register will be in part governed by regulation. That is my understanding. I want to take the opportunity, if I can, to ask Minister Erdogan if he can commit to consultation on the development of the regulations governing isolation.

Enver ERDOGAN: There are current laws about how this operates, and practices, but we are committed to consulting. Our youth justice team is committed to consulting in the development of those.

David DAVIS: I am going to ask questions. I will let clause 1, per se, be exhausted, which is I think now. Clause 15, the interaction of guiding youth justice principles with this act, notes the principles should apply when exercising any requirement of the act unless the context requires otherwise. What are examples of where the context of a situation means the principles should not be applied?

Enver ERDOGAN: It is always a challenge to answer hypotheticals. What we have tried to do with the principles is insert what we believe is the best way to respond to the young person and work from there. Of course with the way the system operates there are always challenging circumstances, but those principles are the principles that will guide the way the youth justice system responds. It allows that flexibility that these are principles and that is the way that we expect people to work with young people, but that may not necessarily always be practical.

David DAVIS: I understand what the minister has said, but I was looking for some examples that might move beyond a theoretical framework and some actual examples of where that might apply.

Enver ERDOGAN: I think this is more about doing what we know works in an evidence-based process, but there are times when there are security measures that need to be taken for the safety of the community or of those people in our youth justice system. There is always a balance there. And where safety will take precedence over what might not necessarily be ultimately the best outcome for that individual young person, we will balance it out with what is best for the other young people and the whole system. Isolation is probably the easiest example.

David DAVIS: I thank the minister for providing an example. In clause 20(a), ‘Guiding youth justice principle – rights of victims’, the subclause talks about the rights of victims to restoration. What elements of the bill are practically demonstrating and upholding these principles?

Enver ERDOGAN: I think group conferencing is the best example, where victims will get an opportunity to have a say and be involved in the process. But obviously this bill goes beyond just group conferencing and introduces a victims register and a voice for victims within the parole process also.

David DAVIS: To clause 25, and there is some overlap with these, 25 and 26 – which I will ask some questions on as well – with what Mr Welch asked. It is not quite the same but it is similar. In clause 25, the obligation on the secretary to develop strategic partnerships, it says:

Enver ERDOGAN: I think the development of this clause was in close collaboration with the Aboriginal Justice Caucus – I know, another hypothetical, Mr Davis.

David DAVIS: Is this section dependent on treaty being agreed?

Enver ERDOGAN: I think it is designed with treaty in mind. If treaty were not to proceed, the principles there would still apply, but it is envisaged to allow for a treaty to take place.

David DAVIS: If it is intended that treaty be there, why is it in the bill before the treaty has been agreed?

Enver ERDOGAN: I think it is about futureproofing the youth justice system so that if treaty proceeds then we will not need to make subsequent amendments. In the youth justice context those powers will already be there.

David DAVIS: Subclause (d) denotes the progressive transfer of authority – Mr Welch referred to this – from the secretary to Aboriginal organisations. I wonder what specific powers that refers to.

Enver ERDOGAN: The goal of this was about self-determination principles. It is not intended to pre-empt the treaty process but to complement it, noting that that process to commence the transfer of functions will only occur if the Aboriginal organisation chooses to be registered as an Aboriginal youth justice agency. The secretary will work with them, and it might be a transfer of functions. But I do not want to pre-empt that process.

David DAVIS: Would they appoint judges?

Enver ERDOGAN: We already have a Koori Court in place, so some of these systems are already in place. But that is right, it gives the flexibility. It does not pre-empt it, it gives the flexibility down the track, if government wants to proceed down that path, that they would have that option.

Jaclyn SYMES: I just might present an example that comes to my mind. As the clause outlines, it is to enable progressive transfer of authority, resources and responsibilities to an Aboriginal-controlled justice system in consultation with representatives of the Aboriginal community on justice-related issues in Aboriginal communities. There are a lot of examples of where Aboriginal young people get better outcomes when programs are designed specifically for them, whether it is a bail program that involves going back to being on country, whether it is a parole supervision or whether it is another supportive program that is run by an Aboriginal-controlled organisation for Aboriginal kids. We are recognising that in culturally safe, culturally informed programs you get better outcomes because kids are going to respond better in many instances to people who understand their background, their challenges and their cultural sensitivities. I think there are a range of examples where we are already supporting Aboriginal organisations to run programs for Aboriginal people, and this is just building on the evidence base that we know is how you get good outcomes in the justice system.

David DAVIS: I understand the description that you have now painted, and I note that clause (e) talks about accountability mechanisms. How will such transfer powers be accountable to the community? How will such transfer powers be measured? Will there be KPIs, for example?

Enver ERDOGAN: Those accountability measures will be obviously worked on, and I do not want to pre-empt that work between the department, represented by the secretary, and Aboriginal community controlled organisations that undertake that work. I can think of some –

David DAVIS: This is progressive transfer that we are talking about?

Enver ERDOGAN: Yes. And, I mean, in terms of transferring those powers, we need to understand the Aboriginal community will have a say if it really will determine what they see as their goal and what they want to see. You talk about KPIs, but that is what the Aboriginal community will say they want for their young people.

David DAVIS: What say will victims have in this? Will they –

Enver ERDOGAN: As I said, I do not want to pre-empt the treaty process, but this bill does foresee a future where a treaty process may take place, and that will all be discussed as part of those potential transfers of power.

David DAVIS: I am just curious as to how those powers will be measured, and I have not heard anything that makes me comfortable that victims’ rights will be heard, will be adhered to, and that the system will be responsive to their rights.

Jaclyn SYMES: What excludes them?

David DAVIS: Yes, and that is precisely why I want to hear these points about the role of victims and that their concerns are heard in this clause. It is not mentioned here anywhere.

Enver ERDOGAN: In everything in this bill there is a lens for victims of crime. This bill has been informed from their perspectives; that is why we are setting up the first ever victims register. This clause that you are referring to is not about limiting victims’ rights; it is about giving Aboriginal communities greater involvement and control over outcomes for young people. Of course it does allow a future potential transfer of power, and in part of those treaty negotiations they will be matters that will be discussed. But the bill as it stands does not do anything to limit victims’ voices. In fact it strengthens victims’ voices throughout the process in youth justice.

David DAVIS: All right. I have said enough. My view clearly is that this transfer is intended to occur on this clause but that there are no clear accountability mechanisms and there is also no specific way –

Enver ERDOGAN: It is developing. It has not occurred yet.

David DAVIS: In clause 26, the minister or secretary will consult with representatives. What is the prescribed manner in which this consultation work is to take place?

Enver ERDOGAN: I think this work already takes place. In Victoria we have an Aboriginal justice agreement. The department works with Aboriginal partners to get the best possible outcomes across the justice department. So this work is already taking place, and the department does it. We do it, obviously, as ministers as well directly. Most recently I was at the Aboriginal Justice Forum, where I heard from a number of Aboriginal partners about the work that they are doing in justice-related issues that the Aboriginal community faces. But I think the department has direct dialogue and partnership with organisations, and the Aboriginal Justice Caucus is the main organisation that we work with. I know the Attorney-General might have a bit to add on this one as well if she wishes to do so.

David DAVIS: What is the prescribed matter?

Enver ERDOGAN: I think the matter is a partnership.

Jaclyn SYMES: Mr Davis, consultation with representatives of the Aboriginal community on justice-related issues is something that the Allan Labor government is very committed to. We actively participate in the Aboriginal Justice Forum, which is underpinned by members of the Aboriginal Justice Caucus, which has representatives from the regional Aboriginal justice advisory committees (RAJACs) and representatives from other Aboriginal organisations that have connections to or representation with the justice system, such as the Victorian Aboriginal Legal Service as a community legal centre, for example. This clause is merely indicating that when you are developing further justice matters that impact on Aboriginal people, we want to make it explicit in legislation that you do not do that in the absence of consulting with Aboriginal people and Aboriginal leaders.

David DAVIS: Will non-prescribed members of the Aboriginal community be consulted?

Enver ERDOGAN: I think the Aboriginal community have quite considerable institutions that represent them, such as the First Peoples’ Assembly –

David DAVIS: If we move to clause 34, ‘Report by Secretary’, what are examples of adverse events the secretary would have to report under this section?

Enver ERDOGAN: Mr Davis, examples would be category 1 type matters where there is significant harm. By way of example, it would be a staff assault which results in hospitalisation.

David DAVIS: Moving to clause 35 and subclause (3), ‘Commissioner for Youth Justice’, what are the specific qualifications referred to in subclause (3) that are required to be possessed by the Commissioner for Youth Justice?

Enver ERDOGAN: I think it is a well-written section. It says:

David DAVIS: On clause 36, ‘Functions and powers of Commissioner for Youth Justice’, subclause (1) lists the things the youth justice commissioner is responsible for. Which paragraph of subclause (1) covers safety and welfare of staff and ensuring they have a safe workplace, and how is this practically catered for in the bill?

Enver ERDOGAN: I think clause 36 paragraph (d) specifically writes of the responsibility to ensure:

David DAVIS: Can we move to clause 59, ‘Secretary may authorise principal officer of registered Aboriginal youth justice agency to perform functions or exercise powers’. What are the specified prescribed functions of the secretary that the secretary may delegate to an Aboriginal youth justice agency to perform?

Enver ERDOGAN: Mr Davis, the secretary would have discretion to give those specified functions and exercise the powers as they see fit to tailor the response for the young person. That may be a community supervision order. That might be the work of Aboriginal liaison officers within custody. It is what the secretary believes is an appropriate response for the young Aboriginal child.

David DAVIS: Further on that, the secretary may authorise a principal officer or registered Aboriginal youth justice agency to perform functions or exercise powers. Will a relevant organisation perform the role of the court?

Enver ERDOGAN: No.

David DAVIS: Will a relevant organisation perform the role of the parole board?

Enver ERDOGAN: No.

David DAVIS: Moving to clause 96, ‘Eligibility of child for youth warning’, how many youth warnings can a child receive before they are ineligible for further cautions?

Enver ERDOGAN: There is no limit.

David DAVIS: No limit at all is the answer?

Enver ERDOGAN: Yes. No limit at all.

David DAVIS: Now, moving to clause 101(2)(a), ‘Record of youth warning’, what is the form approved by the Chief Commissioner of Police of the youth warning?

Enver ERDOGAN: It is a form that the chief commissioner decides. It is intended to ensure that there can be appropriate oversight of decision-making by police officers. But the commissioner will decide that form in line with that principle.

David DAVIS: Has work commenced on that? Is there an existing mock-up?

Enver ERDOGAN: Mr Davis, I am advised that there are existing systems, but of course with this graduated approach and hierarchy we are creating it is envisaged for some of this to be further developed, because we are formalising a process that currently is relatively informal.

David DAVIS: What is the prescribed information required to be recorded? Do we know what will be required?

Enver ERDOGAN: Mr Davis, my understanding is that it will have the characteristics of the caution – so who was there, how the young person presented, the type of offending. Those are the broad principles.

David DAVIS: Will a copy of the youth warning be required to be given to the child, and if not, why not?

Enver ERDOGAN: It will not be required to be provided to the young person, because it is relatively informal. The caution will need to be provided, but a warning, being the first level, will not be required. It can be verbal.

David DAVIS: Asking further on clause 102, ‘Youth cautions’, what has changed here in part 4.3 compared to the current operation? Can we get a sense of what is there now and what will be the comparison?

Enver ERDOGAN: It is important to understand when we are talking about youth warnings or cautions that the intention is for police to have discretion about the appropriate action taken and if there is sufficient evidence to charge a child with an offence. In exercising those powers police will obviously consider a number of factors, including the nature and seriousness of the alleged offending, obviously any findings or conduct and the seriousness of the harm caused to any victim. That is the best practice approach. Currently it is relatively informal, so it is not necessarily a legislated process, and now there will be a hierarchy that they can follow, so it creates better guidance to police.

David DAVIS: There is nothing that they could not have done now though, it seems to me. Clause 104, ‘Eligibility of child for youth caution’, how many youth cautions can a child receive before they become ineligible for further cautions?

Enver ERDOGAN: Victoria Police will have discretion whether to warn or caution someone or refer someone to some sort of diversionary practice. If you are asking about a limit – similar to warnings – there will be no limit on the amount of cautions. I am sure with cautions being one tier above a warning police will take into consideration previous cautions they have given a young person, but there is no set limit.

David DAVIS: So there is not a three strikes and you are out for more cautions? Or 20 strikes or 100 strikes?

Enver ERDOGAN: No, Mr Davis, but caution being higher than a warning, I am sure that police will take into consideration the past behaviour of the young person and the level of harm caused to the community or to individuals in our community.

David DAVIS: Clause 108, ‘Persons who may give a youth caution other than a cautioning police officer’, do the provisions of subclause (1) mean a police officer does not have to offer the option to a child to have someone else – from the child’s cultural or religious community – give the caution?

Enver ERDOGAN: It may. An example could be an Aboriginal elder may have that responsibility, for example, or those powers, so it may.

David DAVIS: Why are Aboriginal children given the choice to have someone of their own choosing give the caution and non-Aboriginal children are not being given the same flexibility?

Enver ERDOGAN: In terms of Aboriginal children, I think it is taking into consideration intergenerational disadvantage and practices towards Aboriginal people’s interactions with the justice system. And in our Victorian Aboriginal community there are established organisations that can take on that responsibility and provide that support, whereas maybe for other groups in our community we do not have such established groupings or frameworks.

David DAVIS: Further to that, the government obviously considers the needs of Aboriginal children here are somehow more sensitive I think than a young Muslim or a young Hindu or a young Sikh. There is a difference, isn’t there?

Enver ERDOGAN: I give the example of the Aboriginal community because I think their structures in Victoria are more well established, but this bill does also allow similar for culturally and linguistically diverse backgrounds if there are respected leaders. If organisations are ready for that and if the young person agrees, there is a framework to allow that to occur. Obviously, as I said, for the Aboriginal community those organisations already exist.

David DAVIS: Minister, on clause 118, ‘Eligibility of child for early diversion group conference’, how many service providers are there currently, and will there be more coming on board?

Enver ERDOGAN: Mr Davis, currently the main provider is Jesuit Social Services. There would need to be more work to build up that capacity with the rollout of group conferencing for others to be able to do that work.

David DAVIS: My question to the minister, then, is: how will the service providers be assessed, if there are new service providers?

Enver ERDOGAN: Mr Davis, that would be developed. Obviously we have an example that works at Jesuits, but we will need to develop that work as new providers come on board.

David DAVIS: Just moving to clause 121, the ‘Form of referral by police officer’, what is the ‘prescribed form’ for referrals referenced in subclause (1)(b)?

Enver ERDOGAN: Mr Davis, it states what must be contained in that referral, such as the child’s name, the child’s date of birth and residential address, the name of the referring police officer, the contact details of the referring officer and details of the alleged offence of course.

David DAVIS: Moving to clause 125, ‘Convener may refer matter back’, I ask: if the matter is referred back and the convener says it is not appropriate to conduct a group conference, how does the matter proceed? Does it have to progress to the next option under the hierarchy?

Enver ERDOGAN: Police can take whatever action they see fit in those circumstances, so they could escalate it if they believe that is appropriate.

David DAVIS: Clause 127, ‘Persons to attend early diversion group conference’, subclause (3): who decides if a person listed at subclause (3) of clause 127 can attend the group conference?

Enver ERDOGAN: The objectives of the early diversion group are to assist the child to take responsibility and make amends for their actions, support the child’s positive development, but also reduce the likelihood of the child having further contact with the criminal justice system. They will make a plan. I think the convener would have a strong say in who attends those conferences.

David DAVIS: I jumped over clause 126 – I am sorry about that:

Enver ERDOGAN: Yes.

David DAVIS: In that circumstance, who will fund the legal representatives?

Enver ERDOGAN: Mr Davis, you would appreciate that there are a range of options for legal support for young people. It is not a common issue, but for some young people it may be Legal Aid, for others it might be community legal centres (CLCs) or Victorian Aboriginal Legal Service. There are a range of organisations that already do this work.

David DAVIS: That is pretty much as I understood it. It seems to me there will be a very significant increase in the requirement for legal support, legal representation, in that circumstance. Has the government costed that – how much that is going to be? And there is a workforce question as well, which you might want to address.

Enver ERDOGAN: The CLCs do great work, and there are a range of organisations that contribute. I suspect this may increase demand. I guess as a government, once the system is in place, we are going to take time to have this group conferencing in place. Then depending on the demand, like any other service provision, there will be a budget process to support those additional services if required. I do not have a crystal ball now to tell me what the demand will be, say, in 24 months time, but there may be additional legal resources needed.

David DAVIS: I would suggest to you that you are creating a whole new range of legal work, and that may be justified – that will be for the chamber to decide – but it will not be free. These lawyers do not come cheap. I am asking here: how many of these lawyers does the government expect to employ, and what will the cost be? Is this another 50 lawyers, 20 lawyers or 100 lawyers? Or is it a million dollars a year? I am genuinely asking. You must have some understanding.

Enver ERDOGAN: Obviously we do not have the early diversion group conferencing system, as envisaged in this bill, in place, so it is always difficult to predict demand in these situations. There are organisations that do this work and are funded by our government. I suspect that the police will have criteria for the range of matters they seek to take to these forums as they see appropriate. It is very difficult to assess the level of demand before the system has been implemented.

David DAVIS: Can anyone veto the attendance at a group conference of any person linked to subclause (3)? And if so, who?

Enver ERDOGAN: I think in the drafting of the legislation you will note that it says ‘may’. So it may be that the convener of the group conferencing may feel that is not appropriate. Lawyers for the young person may make representations also on behalf of their client about who should or should not participate. Because obviously the goal of these conferences is to get the best outcome and see the young person address their behavioural issues, but I think the convener who runs the conference will have a large say.

David DAVIS: Minister, is the convener then thereby, just responding to your point there, the sole decision-maker about who at subclause (3) can attend?

Enver ERDOGAN: There is obviously legislative guidance as to who could attend. In light of that, the convener would have a say in who participates in the conference. Ultimately, they are responsible for holding the conference.

David DAVIS: I should ask the minister, thereby, if someone listed at subclause (3) is denied permission to attend, can they appeal that decision, and if so, to whom do they appeal?

Enver ERDOGAN: Mr Davis, we have not obviously legislated any appeal rights, so there will be no appeal rights to that decision that the convener makes.

David DAVIS: Is there a section 85 that denies an appeal to the Supreme Court or something on that? To VCAT? An administrative law seems to me to cover these sorts of decisions.

Enver ERDOGAN: Mr Davis, we have not shut it off, so theoretically you could potentially go to the Supreme Court. So, yes, we have not shut it off.

David DAVIS: Further on clause 127, if a victim attends the group conference, will they be able to read out a written impact statement?

Enver ERDOGAN: I probably should have stated that earlier. That is what is envisaged with these conferences – to give victims a voice and an opportunity to read a statement. Obviously the convener will have to – and that is why it says ‘may’ – make sure that that statement is productive and assists the process.

David DAVIS: To clause 141, ‘Leave of court required’, in what circumstances could a proceeding start before a conversion to warning, caution or diversion? I am just trying to understand that.

Enver ERDOGAN: As would happen in many other matters, if the police were to decide that another course of action would be better, they would have that option and could seek that leave.

David DAVIS: On clause 230, page 209 of the second volume, concerning pre-sentence group conferences, what if the child refuses to attend the conference? The legislation says the child must participate but does not say what will happen if they do not.

Enver ERDOGAN: Mr Davis, it is my understanding that it would be a consideration for the court in sentencing. The young people that participate in good faith in these pre-sentence group conferences are eligible for a discount with consideration that the judge can make, and now I guess they will miss out on that opportunity. So in any regard it would be to their detriment if they did not participate.

David DAVIS: And if they attend the conferences without sincere engagement, what is the consequence of that?

Enver ERDOGAN: I think participation is not defined in the legislation. Obviously when I say ‘participation’, I envisage that is people taking part in the process.

David DAVIS: Clause 231, ‘Pre-sentence outcome plan’ – does the child have to agree to the plan for it to be valid? What happens if they do not agree?

Enver ERDOGAN: Mr Davis, yes, they would need to agree to the plan. If they did not agree to the plan, then they would not be eligible for the sentence discount.

David DAVIS: On clause 233, ‘Confidentiality’ and group conferences – does this prevent the victim from telling their story? Does this in effect gag the victim – dare I say, a non-disclosure agreement?

Enver ERDOGAN: There will be victim impact statements that obviously can be shared and are free for the victim to share, but what takes place in the conference must be confidential for all parties.

David DAVIS: Even if the victim is treated disrespectfully in the conference?

Enver ERDOGAN: The purpose of these conferences is so the parties can come together, but to get the participation of all participants we must ensure that what is said in the conference is confidential. Those are the provisions in the act. So you could not refer to what happened in the conference – that would not be allowed for anybody – or share it publicly.

David DAVIS: Again, I am conscious of time. I will just make a point that I am concerned that victims may have their rights curtailed in this way. They may make a statement to that group conference, and in fact they could be treated quite harshly at such a conference.

Enver ERDOGAN: Mr Davis, that person would end up back before the court. It would be a matter for the court to consider.

David DAVIS: In this circumstance, what is the definition of ‘participation’? How is that defined? Do they have to engage or just sit there and not say or agree to anything at all? How will that operate?

Enver ERDOGAN: ‘Participation’ is not defined in the Youth Justice Bill. The fact is to get an outcome the young person must participate to have the outcome plan. It is not defined, what we would say participation is, but from the way it is constructed, without the young person’s or child’s participation you cannot have an outcome plan. We have not defined it. I guess a bit of a commonsense approach would be that they involve themselves to agree to a plan.

David DAVIS: Moving to clause 240, ‘Hierarchy of options for sentencing’, there are a series of questions that come from this. One is: what is the impetus for this exact change? Previously it was a menu of options. Now it is a sharp batting order. Why are we trying to direct the courts on what they must do and bind the courts in some strict hierarchy?

Enver ERDOGAN: I think this is not about binding courts, it is about understanding that the best outcome for young people is when we minimise their interaction with the criminal justice system. That is not just me saying it; there is a lot of evidence to support that proposition. By creating this hierarchy it makes it more straightforward in fact to create consistency of –

David DAVIS: Will courts then be sharply bound? Will they be able to choose? How does this operate? If they have not done X, will they be able to do Y? Let me just illustrate the sharpness of this for the community and the chamber.

Enver ERDOGAN: I think it is important to understand that these principles are intended to enhance the court’s ability to tailor the sentence to each child’s risks and needs. That is why in the drafting it says – as the Attorney would agree – at clause 240(1):

David DAVIS: I will move to clause 242, ‘Conviction not to be recorded when making an unsupervised order’. Why is a conviction not to be recorded when there is a finding of guilt and the penalty is an order imposing a fine or good behaviour bond?

Enver ERDOGAN: I think especially for young children, the purpose is so that the young person does not experience stigma, because we know that if there is a conviction, that follows this young person. It may limit their rehabilitation prospects. We want to make the community safer, and that is why we are not recording the conviction in these circumstances as may be appropriate. Of course in a custodial setting a conviction probably will be recorded appropriately, understanding the seriousness of those offences.

David DAVIS: I should thereby ask what those offences would be for a conviction not to be recorded, making an unsupervised order.

Enver ERDOGAN: These would be matters that the court would have discretion in determining. Obviously it is envisaged that you would expect lower level offending such as shoplifting of a sort for young people; that does not necessarily have to have a conviction attached to it, but high-level offending would be something –

David DAVIS: Could a knife crime apply in this circumstance?

Enver ERDOGAN: Like I said, there are different types of crime and different types of violent crime. But the decision would be up to the courts because we are not prescribing it here, we are giving some guidance. The courts may choose what they think is appropriate in the circumstances. Like a lot of this sentencing, you would see that they do take into consideration a number of factors. Obviously the young person and their prospects for rehabilitation but also the level of harm caused to victims are considerations in court matters. We have a victims charter that enshrines that in Victoria.

David DAVIS: Would they get a fine in the case of rape or would clause 242 be exercised?

Enver ERDOGAN: Mr Davis, I think offences of that level, what we call category 1 or schedule 1 offences, the courts take very seriously, and you would expect someone to get a conviction.

David DAVIS: In part 7.7, why are divisions 1 to 4 and most of 5 under ‘unsupervised community-based orders’ when they do not relate to community orders?

Enver ERDOGAN: In terms of the differences with the supervised orders, our youth justice team proactively engage and supervise the young person, but in some instances the court may let a young person out, say, on a good behaviour bond and there may be no additional supervision as part of that decision. In those cases, those young people will be on a good behaviour bond. I guess if they reoffend, that will be taken into consideration by the courts.

David DAVIS: On clause 355, ‘Court may order pre-sentence report’, my question is: how does this compare with part 5.4, subdivision 1, of the Children, Youth and Families Act 2005, which is the equivalent section? It appears to be a substantial change.

Enver ERDOGAN: In terms of key differences in sentencing considerations, I guess compared to the Children, Youth and Families Act this bill articulates a more comprehensive range of sentencing principles that must be taken into account when determining which sentence to impose on a child. A key difference is, for example, a new community safety principle that recognises rehabilitation as the most effective way to reduce reoffending. The bill broadens the notion of community safety in consideration of all cases and incorporates a longer term view that is a bit different from the Children, Youth and Families Act, which requires only that the courts consider the need to protect the community in cases of serious offending, which arguably applies to a narrower, shorter term focus. Obviously there are new victim-focused principles as well that recognise the impact of children’s offending. An express principle that prioritises rehabilitation and positive development codifies the common-law position and aligns with the courts currently sentencing children.

David DAVIS: In a similar vein, how does clause 364 about pre-sentence group conferences compare with part 5.4, subdivision 2, of the same act?

Enver ERDOGAN: The bill mirrors the current approach that exists in the Children, Youth and Families Act – namely, if during the period of sentence deferral a child has participated in a group conference and agreed to an outcome plan, then the court must impose a less severe sentence than would otherwise be imposed, so it is consistent with the current practice and act.

David DAVIS: On clause 469, which says ‘Commissioner for Youth Justice may refuse or terminate visits for security reasons’, my question is: is a staff shortage on the permissible list of reasons that may cause the commissioner to pause visits to inmates in youth detention?