Queensland: Youth Justice Act 1992 (Qld)

Youth Justice Act 1992 An Act to provide comprehensively for the laws concerning children who commit, or who are alleged to have committed, offences and for related purposes Part 1 Preliminary 1 Short title This Act may be cited as the Youth Justice Act 1992. 2 Objectives of Act The principal objectives of this Act are— (a) to establish the basis for the administration of juvenile justice; and (b) to establish a code for dealing with children who have, or are alleged to have, committed offences; and (c) to provide for the jurisdiction and proceedings of courts dealing with children; and (d) to ensure that courts that deal with children who have committed offences deal with them according to principles established under this Act; and (e) to recognise the importance of families of children and communities, in particular Aboriginal and Torres Strait Islander communities, in the provision of services designed to— (i) rehabilitate children who commit offences; and (ii) reintegrate children who commit offences into the community. 3 Youth justice principles (1) Schedule 1 sets out a charter of youth justice principles. (2) The principles underlie the operation of this Act. 4 Definitions The dictionary in schedule 4 defines particular words used in this Act. 5 Note in text A note in the text of this Act is part of the Act. 6 Meaning of criminal history of a child (1) In this Act, criminal history, of a child, means— (a) each caution administered to the child for an offence; and (b) each finding of guilt against the child for an offence, other than a finding of guilt that is set aside or quashed; and (c) each restorative justice agreement made by the child for an offence; and (d) all decisions, findings and orders made, and actions taken, by a court, Childrens Court judge, Childrens Court magistrate or other judicial officer— (i) under section 245, 246 or 246A in relation to the child's contravention of a community based order; or (ii) under section 247 on an application made by the child or the chief executive in relation to a community based order made against the child; or (iii) under section 252D, 252E or 252F in relation to the child's contravention of a supervised release order. (2) If a child fails to comply with a restorative justice agreement that forms part of the child's criminal history, the child's criminal history also includes any action taken by a police officer under section 24(3). (3) This section applies despite the Criminal Law (Rehabilitation of Offenders) Act 1986. (4) In this section— action includes a decision to take no further action. child— (a) in relation to a child against whom a community based order has been made, see section 236; and (b) for a child on release from detention under a supervised release order, see section 252A. 7 Meaning of police officer starting a proceeding In this Act, mention of a police officer starting a proceeding against a child for an offence includes— (a) obtaining a warrant for the arrest of a child on a charge for an offence; and (b) arresting a child for an offence without a warrant. 8 Meaning of serious offence (1) Subject to subsection (2), in this Act serious offence means— (a) a life offence; or (b) an offence of a type that, if committed by an adult, would make the adult liable to imprisonment for 14 years or more. (2) An offence is not a serious offence if— (a) it is a relevant offence under the Criminal Code, section 552BA; or Editor's note— Criminal Code, section 552BA (Charges of indictable offences that must be heard and decided summarily) (b) it is an offence that is the subject of a charge to which the Criminal Code, section 552A or 552B applies; or Editor's note— Criminal Code, section 552A (Charges of indictable offences that must be heard and decided summarily on prosecution election) or 552B (Charges of indictable offences that must be heard and decided summarily unless defendant elects for jury trial) (c) under the Drugs Misuse Act 1986, section 13, proceedings for a charge for the offence may be taken summarily; or Editor's note— Drugs Misuse Act 1986, section 13 (Certain offences may be dealt with summarily) (d) under the Drugs Misuse Act 1986, section 14, proceedings for a charge for the offence may be taken summarily. Note— Proceedings for a charge for an offence may not be taken summarily under section 14 if the prosecution allegations include an allegation as to a commercial purpose. Editor's note— Drugs Misuse Act 1986, section 14 (Other offences that may be dealt with summarily if no commercial purpose alleged) (2A) If it is necessary for the purposes of subsection (2) to have reference to the table of excluded offences included in the Criminal Code, section 552BB, a reference in that table to the circumstance that the offender does not plead guilty to an offence is taken to be a reference to a child not admitting to committing the offence. (3) For the purpose of this section, the type of an offence includes the circumstances in which it is committed. 9 Meaning of court that made order (1) In this Act, mention of the court that made a particular order on sentence includes, if the order was made by— (a) the Supreme Court—any sittings of the Supreme Court in its criminal jurisdiction at any place in Queensland; or (b) the District Court—any sittings of the District Court in its criminal jurisdiction at any place in Queensland; or (c) a Childrens Court judge—any sittings of a Childrens Court judge at any place in Queensland; or (d) a Magistrates Court—any Magistrates Court sitting at any place in Queensland; or (e) a Childrens Court magistrate—any Childrens Court magistrate sitting at any place in Queensland. (2) Subsection (1) applies even though the court is not constituted by the same judicial officer who made the order originally. 9B [Repealed] 9C [Repealed] 9D [Repealed] 9E [Repealed] Part 1C [Repealed] Division 1 [Repealed] Division 2 [Repealed] Subdivision 1 [Repealed] Subdivision 2 [Repealed] Division 3 [Repealed] Division 4 [Repealed] Part 2 Special provisions about policing and children Division 1 Police officer must consider appropriate way to proceed 10 Division does not apply to 2 general ways of proceeding This division has no effect on— (a) the charging of a child under the Justices Act 1886, section 42(1A); or (b) a proceeding on an indictment. 10A [Repealed] 10B [Repealed] 10C [Repealed] 11 Police officer to consider alternatives to proceeding against child (1) Unless otherwise provided under this division, a police officer, before starting a proceeding against a child for an offence other than a serious offence, must first consider whether in all the circumstances it would be more appropriate to do 1 of the following— (a) to take no action; (b) to administer a caution to the child; (c) to refer the offence to the chief executive for a restorative justice process; (d) if the offence is a minor drugs offence and the child may be offered a drug diversion warning or the opportunity to participate in a drug diversion assessment program under the Police Powers and Responsibilities Act 2000, chapter 14, part 4, division 5—to offer the child the warning or opportunity in accordance with that division; (e) if the offence is a graffiti offence and the child may be offered an opportunity to attend a graffiti removal program under the Police Powers and Responsibilities Act 2000, section 379A—to offer the child that opportunity in accordance with that section. Note— Because of section 134, a police officer must consider offering the same opportunities for diversion from the court system as apply to a child to a person who committed an offence as a child but is now an adult. (2) The circumstances to which the police officer must have regard include— (a) the circumstances of the alleged offence; and (b) the child's criminal history and, if the child has been in any other way dealt with for an offence under any Act, the other dealings. (3) If necessary, the police officer must delay starting the proceeding in order to comply with a requirement under subsection (1) or (2). (4) If, on complying with subsections (1) and (2), the police officer considers it would be more appropriate to act as mentioned in subsection (1)(a), (b), (c), (d) or (e), then the police officer must do so. (5) If, on complying with subsections (1) and (2), the police officer considers it would not be more appropriate to act as mentioned in subsection (1)(a), (b), (c), (d) or (e), the police officer may start a proceeding against the child for the offence. (6) The police officer may take the action mentioned in subsection (1)(a), (b), (c) or (e) even though— (a) action of that kind has been taken in relation to the child on a previous occasion; or (b) a proceeding against the child for another offence has already been started or has ended. (7) Subsection (1) does not prevent a police officer from taking the action mentioned in subsection (1)(a) to (c) for a serious offence. (8) If the police officer decides to act as mentioned in subsection (1)(a) or (b) in relation to a minor drugs offence, the minor drugs matter the subject of the minor drugs offence is forfeited to the State. Note— The Police Powers and Responsibilities Act 2000, chapter 14, part 4, division 5 provides for forfeiting a minor drugs matter on agreeing to an offer under that division. (9) In this section— minor drugs matter see the Police Powers and Responsibilities Act 2000, schedule 6. minor drugs offence see the Police Powers and Responsibilities Act 2000, section 378B. 12 Preferred way for police officer to start proceedings A police officer starting a proceeding against a child for an offence, other than a serious offence, must start the proceeding by way of complaint and summons or notice to appear, unless otherwise provided under this Act. 13 Police officer's power of arrest preserved in particular general circumstances (1) A police officer may use the police officer's power of arrest under the Police Powers and Responsibilities Act 2000, section 365(3), without a warrant, to arrest a child for an offence without regard to sections 11 and 12 only if the police officer believes on reasonable grounds— (a) the arrest is necessary— (i) to prevent a continuation or a repetition of the offence or the commission of another offence; or (ii) to obtain or preserve, or prevent concealment, loss or destruction of, evidence relating to the offence; or (iii) to prevent the fabrication of evidence; or (iv) to ensure the child's appearance before a court; or (b) the child is an adult; or (c) the child is contravening section 278 or is unlawfully at large. (2) In deciding for subsection (1)(b) whether the police officer had reasonable grounds, a court may have regard to the child's apparent age and the circumstances of the arrest. (3) Also, a police officer may use the police officer's power of arrest under the Police Powers and Responsibilities Act 2000, section 365(2), without a warrant, to arrest a child without regard to sections 11 and 12. (4) Also, a police officer may use the police officer's power of arrest under a warrant issued under the Bail Act 1980 without regard to sections 11 and 12. (5) To remove any doubt, it is declared that this section does not affect a police officer's power under the Police Powers and Responsibilities Act 2000, section 365(3), to arrest a child without warrant for a serious offence. Division 2 Cautioning 14 Purpose of caution The purpose of this division is to set up a way of diverting a child who commits an offence from the courts' criminal justice system by allowing a police officer to administer a caution to the child instead of bringing the child before a court for the offence. 15 Police officer may administer a caution (1) A police officer instead of bringing a child before a court for an offence may administer a caution to the child. (2) The child is then not liable to be prosecuted for the offence. 16 Conditions for administration of police caution (1) A police officer may administer a caution to a child for an offence only if the child— (a) admits committing the offence to the police officer; and (b) consents to being cautioned. (2) A police officer who administers a caution, or who requests the administration of a caution under section 17, must, if practicable, arrange to be present at the administration of the caution— (a) an adult chosen by the child; or (b) a parent of the child or a person chosen by a parent of the child. (3) The commissioner of the police service may authorise a police officer who the commissioner considers has sufficient training or experience (authorised officer) to administer cautions. (4) If a police officer administering a caution is not an authorised officer, the caution must be administered in the presence of an authorised officer. 17 Caution administered by respected person of Aboriginal or Torres Strait Islander community (1) If a caution is to be administered to a child who is a member of an Aboriginal or Torres Strait Islander community, an authorised officer mentioned in section 16— (a) must consider whether there is a respected person of the community who is available and willing to administer the caution; and (b) if a respected person of the community is available and willing to administer the caution—must request the person to administer the caution. (2) In a proceeding, evidence that a person purported to administer a caution under subsection (1) as a respected person mentioned in the subsection is evidence that the person was a respected person. 18 Caution procedure must involve explanation (1) A police officer who administers, or requests the administration of, a caution to a child must take steps to ensure that the child and the person present under section 16(2) understand the purpose, nature and effect of the caution, including the effect on the child's criminal history. (2) The steps that can be taken include, for example— (a) personally explaining these matters to the child; and (b) having some person with training or experience in the cautioning of children give the explanation; and (c) having an interpreter or other person able to communicate effectively with the child give the explanation; and (d) supplying an explanatory note in English or another language. 18A [Repealed] 18B [Repealed] 18C [Repealed] 18D [Repealed] 18E [Repealed] 18F [Repealed] 18G [Repealed] 18H [Repealed] 18I [Repealed] 18J [Repealed] 18K [Repealed] 18L [Repealed] 18M [Repealed] 18N [Repealed] 18O [Repealed] 18P [Repealed] 19 Caution procedure may involve apology to victim (1) This section applies only after a police officer decides that a caution should be administered to a child for an offence. (2) The procedure of administering a caution to a child for an offence may involve the child apologising to a victim of the offence if— (a) the police officer administering, or requesting the administration of, the caution considers that an apology is an appropriate course of action in the particular circumstances of the case; and (b) the child is willing to apologise; and (c) the victim is willing to participate in the procedure. 20 Child must be given a notice of caution (1) If a caution is administered to a child for an offence, the police officer who— (a) administered the caution; or (b) under section 17, requested the administration of the caution; must give the child a notice in a form approved by the commissioner of the police service. (2) The notice must state— (a) that a caution was administered to the child; and (b) the time and date the caution was administered; and (c) the child's name; and (d) the substance of the offence; and (e) the police officer's name and rank; and (f) the place where the caution was issued; and (g) the names of all persons present when the caution was issued; and (h) the nature and effect of a caution, including the effect on the child's criminal history. (3) In a proceeding, a document purporting to be a notice or copy of a notice is evidence that the child was administered a caution for the offence in the circumstances stated in the notice. (4) A document mentioned in subsection (3) is not evidence that the child committed the offence. 21 Childrens Court may dismiss charge if caution should have been administered or no action taken (1) If a child pleads guilty before a Childrens Court to a charge made against the child by a police officer, the court may dismiss the charge instead of accepting the plea of guilty if— (a) application is made for the dismissal by or on behalf of the child; and (b) the court is satisfied that the child should have been cautioned instead of being charged or no action should have been taken against the child. (2) In deciding the application, the Childrens Court may have regard to— (a) any other cautions administered to the child for any offence; and (b) whether any previous conference agreements have been made by the child. (3) If the court dismisses a charge under subsection (1) because the child should have been cautioned, the court may— (a) administer a caution to the child; or (b) direct a police officer to administer a caution to the child as directed by the court. Division 3 Referral for restorative justice process 22 When police officer may refer offence for restorative justice process (1) This section applies if a child admits committing an offence to a police officer. (2) Instead of bringing the child before a court for the offence, the police officer may, by written notice given to the chief executive, refer the offence to the chief executive for a restorative justice process. (3) However, the police officer may make the referral only if— (a) the child indicates willingness to comply with the referral; and (b) having regard to the deciding factors, the officer considers— (i) a caution is inappropriate; and (ii) a proceeding for the offence would be appropriate if the referral were not made; and (iii) the referral is a more appropriate way of dealing with the offence than starting a proceeding. (4) The deciding factors for referring an offence to the chief executive for a restorative justice process are— (a) the nature of the offence; and (b) the harm suffered by anyone because of the offence; and (c) whether the interests of the community and the child would be served by having the offence dealt with under a restorative justice process. (5) The police officer must inform the child— (a) generally of the restorative justice process and potential consequences for the child of failing to properly participate in the process; and (b) that the making of a restorative justice agreement will form part of the child's criminal history. (6) If the referral is accepted by the chief executive, the chief executive must give written notice of the acceptance to the police officer and the child. 23 If restorative justice agreement is made as a consequence of referral for restorative justice process (1) This section applies if— (a) a police officer refers an offence committed by a child to the chief executive for a restorative justice process; and (b) a restorative justice agreement is made as a consequence of the referral. (2) The child is not liable to be prosecuted for the offence unless otherwise provided under this Act. 24 Powers of police officer if referral is unsuccessful or if child contravenes restorative justice agreement (1) This section applies if a police officer refers an offence committed by a child to the chief executive for a restorative justice process and— (a) the chief executive returns the referral to the officer under section 32(1); or (b) the child fails to comply with a restorative justice agreement made as a consequence of the referral. (2) In considering what further action is appropriate, the police officer must consider— (a) the matters mentioned in section 11(2); and (b) any participation by the child in the restorative justice process; and (c) if a restorative justice agreement was made as a consequence of the referral—anything done by the child under the agreement. (3) The police officer may— (a) take no action; or (b) administer a caution to the child; or (c) refer the offence to the chief executive for another restorative justice process; or (d) start a proceeding against the child for the offence. 24A Childrens Court may dismiss charge if offence should have been referred to restorative justice process (1) If a child pleads guilty before a Childrens Court to a charge made against the child by a police officer, the court may dismiss the charge instead of accepting the plea of guilty if— (a) application is made for the dismissal by or on behalf of the child; and (b) the court is satisfied the offence should have been referred to the chief executive for a restorative justice process under section 22, regardless of whether or not the child admitted committing the offence to the police officer. (1A) In deciding the application, the Childrens Court may have regard to— (a) any cautions administered to the child for any offence; and (b) whether any previous restorative justice agreements have been made by the child. (2) If the court dismisses the charge, the court may refer the offence to the chief executive for a restorative justice process. (3) However, the dismissal of the charge does not prevent a police officer restarting a proceeding against the child for the offence or a court sentencing the child for the offence if— (a) the chief executive returns the referral under section 32(1); or (b) the child fails to comply with a restorative justice agreement made as a consequence of the referral. (4) For part 3, the police officer is taken to be the referring authority for a referral made under subsection (2). (5) If the court decides to— (a) make an order of dismissal under the Justices Act 1886, section 149 and give the child a certificate of the dismissal; or (b) give the child a certificate of dismissal under the Criminal Code, section 700; the court must not give the child the certificate until the child discharges his or her obligations under a restorative justice agreement made as a consequence of the referral. Division 4 Identifying particulars 25 Application by police officer for permission to take child's identifying particulars (1) This section applies if a child has been charged, without being arrested, with an indictable offence or an offence against any of the following Acts that is an arrest offence— • Criminal Code • Drugs Misuse Act 1986 • Police Service Administration Act 1990 • Regulatory Offences Act 1985 • Summary Offences Act 2005 • Weapons Act 1990. (2) A police officer (the applicant) may apply to a Childrens Court magistrate (the court) to have all or any of the identifying particulars of the child taken. (3) The applicant must give notice of the application to— (a) the child; and (b) a parent of the child, unless a parent can not be found after reasonable inquiry; and (c) the chief executive. (4) The court may decide the application in the absence of a person mentioned in subsection (3), if the court is satisfied that subsection (3) has been complied with. (5) On the application— (a) the applicant and anyone mentioned in subsection (3) is entitled to be heard and to provide evidence; and (b) the court may act on statements of information and belief. (6) The court may order the identifying particulars to be taken if it is satisfied, on the balance of probabilities, of all the following facts— (a) someone has committed the charged offence; (b) there is evidence of identifying particulars of the offender that are of the same type as the identifying particulars the applicant seeks to have taken from the child; (c) the child is reasonably suspected of being the offender; (d) the order is necessary for the proper conduct of the investigation of the offence. (7) The order must state the investigation for which the order is made. (8) If the child will not be in custody when the particulars are taken, the order must require the child to report to a police officer at a stated police station between stated hours within 7 days to enable a police officer to take the identifying particulars. (9) A child must not contravene the order. Maximum penalty (subject to part 7)—10 penalty units. (10) If the child will be in custody when the particulars are taken, the order must require the particulars to be taken at the place the child is held in custody. (11) This section is subject to section 26. (12) In this section— charged offence means the offence with which the child is charged or an offence arising out of the same, or the same set of, circumstances. parent, of a child, includes someone who is apparently a parent of the child. 26 Support person must be present when identifying particulars are taken (1) In a proceeding for an offence, a court must not admit into evidence against a defendant identifying particulars taken from the defendant under section 25 unless the court is satisfied a support person chosen by the child was present when the identifying particulars were taken. (2) Subsection (1) does not apply if— (a) the prosecution satisfies the court there was proper and sufficient reason for the absence of a support person when the particulars were taken; and (b) the court considers that, in the particular circumstances, the particulars should be admitted into evidence. (3) This section does not require that a police officer permit or cause to be present when the identifying particulars are taken a person whom the police officer suspects on reasonable grounds— (a) is an accomplice of the child; or (b) is, or is likely to become, an accessory after the fact; for the offence or another offence under investigation. (4) Also, this section does not require that a police officer permit or cause to be present when the identifying particulars are taken a parent of the child whom the police officer suspects on reasonable grounds is a person against whom the offence under investigation is alleged to have been committed. (5) This section does not limit the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion. 27 Destruction of identifying particulars taken under court order (1) Identifying particulars taken from a child under an order under section 25 must be destroyed if the investigation for which the order was made does not result in a sentence order being made. (2) For subsection (1), the destruction must happen within 7 days of whichever of the following happens last— (a) if the investigation is for an offence for which a proceeding had started when the order was made and the proceeding ends without a sentence order being made—the end of the proceeding; (b) if the investigation is for an offence for which a proceeding is started within 28 days after the order is made and the proceeding ends without a sentence order being made—the end of the proceeding; (c) if the investigation is for an offence for which a proceeding is not started within 28 days of the order—the end of the period of 28 days. Note— See the extended meaning of charged offence in section 25. (3) An applicant who obtains an order to have identifying particulars taken from a child under section 25 must not fail to ensure the particulars are destroyed under this section, unless the applicant has a reasonable excuse for failing to do so. (4) A failure to comply with subsection (3) may be dealt with as a breach of discipline under the Police Service Administration Act 1990. 28 Division does not limit other provisions This division does not limit provisions of the Police Powers and Responsibilities Act 2000 authorising the taking of someone's identifying particulars to the extent to which those provisions apply to a child. Division 5 Statements 29 Support person must be present for statement to be admissible (1) In a proceeding for an indictable offence, a court must not admit into evidence against the defendant a statement made or given to a police officer by the defendant when a child, unless the court is satisfied a support person was present with the child at the time and place the statement was made or given. (2) Subsection (1) does not apply if— (a) the prosecution satisfies the court there was a proper and sufficient reason for the absence of a support person at the time the statement was made or given; and Examples— 1 There was a reasonable suspicion that allowing a support person to be present would result in an accomplice or accessory of the relevant person taking steps to avoid apprehension. 2 A support person was excluded under the Police Powers and Responsibilities Act 2000. (b) the court considers that, in the particular circumstances, the statement should be admitted into evidence. (3) This section does not require that a police officer permit or cause to be present when a child makes or gives the statement a person the police officer suspects on reasonable grounds— (a) is an accomplice of the child; or (b) is, or is likely to become, an accessory after the fact; in relation to the offence or another offence under investigation. (4) This section does not limit the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion. Part 3 Restorative justice processes Division 1 Preliminary 30 Object of part The object of this part is to provide for the use of a restorative justice process for a child who commits an offence. 31 The restorative justice process (1) This part applies if a police officer or a court (each a referring authority) refers an offence to the chief executive for a restorative justice process. (2) The restorative justice process is to be a conference. (3) However, the restorative justice process is to be an alternative diversion program if— (a) the referral is made by a police officer under section 22 or made by a court under section 24A or 164; and (b) a conference can not be convened for any reason other than— (i) the chief executive being unable to contact the child after reasonable inquiries; or (ii) the child being unwilling to participate in the conference. 32 Returning referrals (1) The chief executive may, by written notice given to the referring authority, return the referral if— (a) the chief executive is unable to contact the child after reasonable inquiries; or (b) the chief executive has made reasonable requirements of the child to attend an interview about the process and the child has failed to attend as required; or (c) the chief executive considers it necessary for a victim of the offence to participate and the victim does not wish to participate or can not be located after reasonable inquiries; or (d) during the restorative justice process the child denies committing the offence to the chief executive, a convenor or victim of the offence; or (e) the chief executive is satisfied that an appropriate restorative justice agreement is unlikely to be made within a time the chief executive considers appropriate; or (f) the chief executive considers that the referral is unsuitable for a restorative justice process; or (g) a conference is convened for the referral and the convenor ends the conference without an agreement being made. (2) The notice must state the reasons for returning the referral, and the reasons may be considered by a court in any later proceeding for sentencing the child for the offence. (3) The referring authority must make reasonable efforts to inform the child that the referral has been returned. Division 2 Conferences 33 Object of division This division provides for the use of a conference to allow a child, who commits an offence, and other concerned persons to consider or deal with the offence in a way that benefits all concerned. 34 Who may participate in conference (1) The following persons are entitled to participate in the conference— (a) the child; (b) the victim; (c) the convenor; (d) a representative of the commissioner of the police service; (e) a parent of the child; (f) if requested by the child, 1 or more of the following— (i) the child's legal representative; (ii) a member of the child's family; (iii) another adult; (g) if requested by the victim, 1 or more of the following— (i) the victim's legal representative; (ii) a member of the victim's family; (iii) another adult; (h) another person approved by the convenor. Examples for paragraph (h)— 1 a representative of the chief executive 2 a person present for the purpose of training, research or education 3 for an Aboriginal or Torres Strait Islander child who is from an Aboriginal or Torres Strait Islander community, a respected person of the community or a representative of a community justice group that may be in the community (2) To ensure that a victim of the offence is informed of his or her entitlement to participate in the conference, the referring authority must give the chief executive contact information for the victims of the offence. (3) For subsection (1)(h), if the child is an Aboriginal or Torres Strait Islander person from an Aboriginal or Torres Strait Islander community, the convenor must consider inviting to attend the conference either or both of the following— (a) a respected person of the community; (b) if there is a community justice group in the community—a representative of the community justice group. 35 Convening conference (1) The conference may be convened only if— (a) the child and the convenor attend the conference; and (b) there is a degree of victim participation in the conference through— (i) the attendance of the victim or a representative of the victim; or (ii) the use of pre-recorded communication recorded by the victim for use in the conference; or (iii) a representative of an organisation that advocates on behalf of victims of crime. (2) The convenor is responsible for convening the conference and must be independent of the circumstances of the offence. (3) The conference must be directed towards making a conference agreement. (4) If the child is not legally represented at the conference, the convenor must ensure the child— (a) is informed of the right to obtain legal advice; and (b) has reasonable information about how to obtain legal advice and a reasonable opportunity to do so. (5) The conference ends when a conference agreement is made or the convenor brings the conference to an end because— (a) the child fails to attend the conference as required; or (b) the child denies committing the offence at the conference; or (c) the convenor concludes a participant's conduct or failure will result in a conference agreement being unlikely to be made; or (d) the convenor concludes a conference agreement is unlikely to be made within a time the convenor considers appropriate. (6) If the conference ends without a conference agreement but the convenor considers it is worthwhile persisting with efforts to make a conference agreement, the convenor may convene another conference. 36 Conference agreement (1) A conference agreement is an agreement reached at the conference— (a) in which a child admits committing the offence; and (b) in which the child undertakes to address the harm caused by the child committing the offence. (2) The conference agreement must be in the approved form and be agreed to and signed by— (a) the child; and (b) the convenor; and (c) if a representative of the commissioner of the police service participates in the conference—the representative; and (d) if a victim of the offence participates in the conference—the victim. Note— If a court makes a presentence referral, the court must, amongst other things, have regard to the child's obligations, and anything done by the child, under the conference agreement in sentencing the child for the offence. See section 165(6). (3) The conference agreement may not provide for the child to be treated more severely for the offence than if the child were sentenced by a court or in a way that contravenes the sentencing principles in section 150. (4) A copy of the conference agreement must immediately be given to each person who signed the agreement. (5) To remove any doubt, it is declared that the conference agreement may contain a requirement that the child must comply with outside the State. Example— A conference agreement may require the child to perform voluntary work for a charity that is located outside the State. (6) However, the conference agreement is not evidence that the child committed the offence. 37 Amendment of conference agreement by chief executive (1) This section applies if the chief executive considers that the conference agreement is or becomes unworkable, including, for example, because compliance with the agreement has become impossible or unsafe. (2) The chief executive may, if the child agrees, amend the conference agreement to the extent necessary to make the agreement workable. (3) In deciding how to amend the conference agreement, the chief executive must take reasonable steps to find out, and give effect to, the views of each participant who signed the agreement. (4) The amended conference agreement replaces the original agreement and takes effect from its amendment by the chief executive. (5) After amending the conference agreement, the chief executive must make reasonable efforts to give a copy of the amended agreement to each participant who signed the agreement. Division 3 Alternative diversion programs 38 Alternative diversion program (1) An alternative diversion program is a program, agreed to by the chief executive and the child, that involves the child participating in any of the following to address the child's behaviour— (a) remedial actions; (b) activities intended to strengthen the child's relationship with the child's family and community; (c) educational programs. (2) The program must be designed to— (a) help the child to understand the harm caused by his or her behaviour; and (b) allow the child an opportunity to take responsibility for the offence committed by the child. (3) The program may not provide for the child to be treated more severely for the offence than if the child were sentenced by a court or in a way that contravenes the sentencing principles in section 150. (4) The program must be in writing and be signed by the child. (5) The chief executive must give the referring authority a copy of the alternative diversion program. Division 4 General 39 Convenors (1) A convenor is responsible for convening a conference. (2) The chief executive may approve appropriately qualified persons as convenors. (3) A convenor has all the powers— (a) necessary to perform the responsibilities of a convenor; or (b) conferred on the convenor under this Act or another Act. 40 [Repealed] 41 Notice of successful completion of restorative justice agreement If a child discharges his or her obligations under a restorative justice agreement made as a consequence of a restorative justice process, the chief executive must notify the referring authority for the process accordingly. Part 4 Proceedings generally started by complaint and summons 42 Preferred way of starting proceedings (1) A proceeding against a child for an offence, other than a serious offence, must be started by way of complaint and summons. (2) This section does not apply to a police officer. Note— The requirement for a police officer to start a proceeding by complaint and summons or notice to appear is dealt with by section 12. (3) This section does not affect— (a) the charging of a child under the Justices Act 1886, section 42(1A); or (b) the arrest of a child for escaping from lawful custody or who is unlawfully at large; or (c) a proceeding against a child on an indictment. 43 Service of complaint and summons if offender a child (1) A complaint and summons requiring a child to appear before a court to answer a complaint of an offence must be served on the child a reasonable time before the child is required to appear before the court. (2) The complaint is also to be served on— (a) a parent of the child, unless a parent can not be found after reasonable inquiry; and (b) the chief executive. (3) A person serving a complaint and summons on a child must do so— (a) as discreetly as practicable; and (b) not at or in the vicinity of the child's place of employment or school, unless there is no other place where service may be reasonably effected. (4) Subject to the Police Powers and Responsibilities Act 2000, sections 382(3) and 388, this section does not apply to a notice to appear. (5) In this section— parent, of a child, includes someone who is apparently a parent of the child. 44 Proof of service of complaint and summons in compliance with this Act (1) A statement in a deposition made for the purposes of the Justices Act 1886, section 56(3)(b) that the complaint and summons was served as required by this Act is evidence of that fact. (2) The Justices Act 1886, section 56(5) applies to the deposition. 45 No costs against child for lodgement of complaint and summons In a proceeding started against a child by complaint and summons, a court must not order the child to pay the cost of lodging the complaint and summons with the clerk of the court. 46 Proceeding in relation to simple offence in absence of child (1) Subject to subsection (2), a Childrens Court magistrate may hear and determine a proceeding against a child in relation to a complaint and summons for a simple offence in the absence of the child in the way set out in the Justices Act 1886, part 6. (2) Under subsection (1), the only sentence order a Childrens Court magistrate may make against a child in the child's absence is an order imposing a fine, and then only if the child has indicated in writing to the court that the child has a capacity to pay a fine of a specified amount that is equal to or greater than the fine ordered to be paid. Part 5 Bail and custody of children 47Bail Act 1980 applies (1) Subject to this Act, the Bail Act 1980 applies in relation to a child charged with an offence. Note— Particular provisions of the Bail Act 1980 do not apply in relation to children. See, for example, sections 7, 11, 16 and 16A of that Act. (2) A review of a sentence order under part 6, division 9 is an appeal for the purposes of the Bail Act 1980. 48 Releasing children in custody in connection with a charge of an offence (1) This section applies if a court or police officer is deciding whether to release a child in custody in connection with a charge of an offence or keep the child in custody. (2) The court or police officer must decide to release the child unless required under this Act or another Act to keep the child in custody or exercising a discretion under this or another Act to keep the child in custody. Notes— 1 See, for example, sections 48AAA(2), 48AE, 48AF and 48A for when a child must not be released from custody. 2 See also the Bail Act 1980, section 13 for when only particular courts may grant a person bail. 48AAA Releasing children in custody—risk assessment (1) This section applies if a court or police officer is deciding whether to release a child in custody in connection with a charge of an offence or keep the child in custody. (2) The court or police officer must decide to keep the child in custody if satisfied— (a) if the child is released, there is an unacceptable risk that the child will commit an offence that endangers the safety of the community or the safety or welfare of a person; and (b) it is not practicable to adequately mitigate that risk by imposing particular conditions of release on bail. (3) Also, the court or police officer may decide to keep the child in custody if satisfied that, if the child is released, there is an unacceptable risk that— (a) the child will not surrender into custody in accordance with a condition imposed on the release or a grant of bail to the child; or (b) the child will commit an offence, other than an offence mentioned in subsection (2)(a); or (c) the child will interfere with a witness or otherwise obstruct the course of justice, whether for the child or another person. (4) Subsection (5) applies if— (a) the child is before a court; and (b) the court has information indicating there may be an unacceptable risk of a matter mentioned in subsection (2) or (3), but does not have enough information to properly consider the matter. (5) The court may remand the child in custody while further information about the matter is obtained. 48AA Matters to be considered in making particular decisions about release and bail (1) This section applies if a court or police officer is making any of the following decisions in relation to a child in custody in connection with a charge of an offence (the alleged offence)— (a) whether there is an unacceptable risk of a matter mentioned in section 48AAA(2); (b) whether there is an unacceptable risk of a matter mentioned in section 48AAA(3); (c) whether to release the child despite being satisfied there is an unacceptable risk of a matter mentioned in section 48AAA(3); (d) whether to release the child without bail or grant bail to the child; (e) whether the child has shown cause under section 48AF(2) why the child's detention in custody is not justified. (2) The court or police officer must have regard to the following matters of which the court or police officer is aware— (a) any promotion by the child of terrorism; (b) any association the child has or has had with a terrorist organisation, or with a person who has promoted terrorism, that the court or police officer is satisfied was entered into by the child for the purpose of supporting the organisation or person— (i) in the carrying out of a terrorist act; or (ii) in promoting terrorism. Note— See also section 48AB. (3) Also, if the decision is being made by a court, the court must have regard to the sentence order or other order likely to be made for the child if found guilty. (4) In making a decision mentioned in subsection (1)— (a) the court or police officer may have regard to any of the following matters of which the court or police officer is aware— (i) the nature and seriousness of the alleged offence; (ii) the child's criminal history and other relevant history, associations, home environment, employment and background; (iii) the history of a previous grant of bail to the child; (iv) the strength of the evidence against the child relating to the alleged offence; (v) the child's age, maturity level, cognitive ability and developmental needs; (vi) whether a parent of the child, or another person, has indicated a willingness to the court or police officer that the parent or other person will do any of the following things— (A) support the child to comply with the conditions imposed on a grant of bail; (B) notify the chief executive or a police officer of a change in the child's personal circumstances that may affect the child's ability to comply with the conditions imposed on a grant of bail; (C) notify the chief executive or a police officer of a breach of the conditions imposed on a grant of bail; (vii) if the child is an Aboriginal person or Torres Strait Islander—a submission made by a representative of the community justice group in the child's community, including, for example, a submission about— (A) the child's connection with the child's community, family or kin; or (B) cultural considerations; or (C) considerations relating to programs and services established for offenders in which the community justice group participates; Note— See also section 48AC. (viii) any other relevant matter; and (b) for a decision mentioned in subsection (1)(d)—the court or police officer may have regard to any of the following— (ii) the desirability of strengthening and preserving the relationship between the child and the child's parents and family; (iii) the desirability of not interrupting or disturbing the child's living arrangements, education, training or employment; (iv) the desirability of minimising adverse effects on the child's reputation that may arise from being kept in custody; (v) the child's exposure to, experience of and reaction to trauma; (vi) the child's health, including the child's need for medical assessment or medical treatment; (vii) for a child with a disability—the disability and the child's need for services and supports in relation to the disability; (viii) if the child is an Aboriginal person or Torres Strait Islander—the desirability of maintaining the child's connection with the child's community, family and kin; (ix) if the child is under 14 years—the particular desirability of releasing children under 14 years from custody due to their vulnerability and community expectations that children under 14 years are entitled to special care and protection; (x) the likely effect that refusal to release the child would have on— (A) a person with whom the child is in a family relationship and for whom the child is the primary caregiver; or (B) a person with whom the child is in an informal care relationship; or (C) if the child is pregnant—the child of the pregnancy. (5) In deciding whether there is an unacceptable risk of a matter mentioned in section 48AAA(3), the court or police officer may— (a) consider whether a condition could, under section 52A, be imposed on a grant of bail to the child; and (b) have regard to the effect on the risk of imposing the condition. (6) The court or police officer must not decide there is an unacceptable risk of a matter mentioned in section 48AAA(2) or (3), or to refuse to release a child from custody, solely because 1 or both of the following apply— (a) the child has no apparent family support; (b) the child will not have accommodation, or adequate accommodation, on release from custody. (7) In this section— terrorist organisation see the Criminal Code (Cwlth), section 102.1(1). 48AB Promotion of terrorism and references to terrorist acts (1) For section 48AA(2), a person or organisation promotes terrorism if the person or organisation— (a) carries out an activity to support the carrying out of a terrorist act; or (b) makes a statement in support of the carrying out of a terrorist act; or (c) carries out an activity, or makes a statement, to advocate the carrying out of a terrorist act or support for the carrying out of a terrorist act. (2) To remove any doubt, it is declared that a reference in section 48AA(2) or subsection (1) to a terrorist act— (a) includes a terrorist act that has not happened; and (b) is not limited to a specific terrorist act. 48AC Representatives of community justice groups must advise of particular matters (1) This section applies if a representative of a community justice group in a child's community makes a submission to a court or police officer for section 48AA(4)(a)(vii). (2) The representative must, if requested by the court or police officer, advise the court or police officer whether— (a) a member of the community justice group is related to the child or the victim of the offence with which the child has been charged; or (b) there are circumstances that give rise to a conflict of interest between a member of the community justice group and the child or victim of the offence. 48AD [Repealed] 48AE Releasing children whose safety is endangered because of offence (1) This section applies in relation to a child in custody in connection with a charge of an offence. (2) A court or police officer must not release the child from custody if satisfied— (a) the child's safety would be endangered if the child were released; and (b) the factors endangering the child's safety arise from the circumstances of the offence; and (c) in the circumstances, there is no reasonably practicable way of ensuring the child's safety other than by keeping the child in custody. (3) A court or police officer must not decide it is satisfied of the matters mentioned in subsection (2) only because— (a) the child has no apparent family support; or (b) the child will not have accommodation, or adequate accommodation, on release from custody. 48AF Releasing children charged with prescribed indictable offence committed while on release (1) This section applies in relation to a child in custody in connection with a charge of a prescribed indictable offence if the offence is alleged to have been committed— (a) while the child was released into the custody of a parent, or at large with or without bail, between the day of the child's apprehension and the day of the child's committal for trial for another indictable offence; or (b) while the child was awaiting trial, or sentencing, for another indictable offence. (2) A court or police officer must refuse to release the child from custody unless the child shows cause why the child's detention in custody is not justified. (3) If a court releases the child, the order releasing the child must state the reasons for the decision. (4) If a police officer releases the child, the police officer must make a record of the reasons for the decision. 48A Releasing children found guilty of terrorism offences or subject to Commonwealth control orders (1) This section applies in relation to a child in custody in connection with a charge of an offence if the child— (a) has previously been found guilty of a terrorism offence; or (b) is or has been the subject of a Commonwealth control order. (2) Despite any other provision of this Act or the Bail Act 1980, a court must not release the child from custody unless the court is satisfied exceptional circumstances exist to justify releasing the child. (3) In considering whether exceptional circumstances exist to justify releasing the child, the court may have regard to any relevant matter. (4) If the court releases the child, the order releasing the child must state the reasons for the decision. (5) This section does not affect the operation of section 48AAA(2) or (3) or 48AE. 48B Reasons for decisions to keep or remand children in custody (1) If a court makes an order keeping or remanding a child in custody in connection with a charge of an offence, the order must state the reasons for the decision. (2) If a police officer decides to keep a child in custody in connection with a charge of an offence, the police officer must make a record of the reasons for the decision. (3) The keeping or remanding of a child in custody is not unlawful merely because a court or police officer does not comply with subsection (1) or (2). (4) Subsection (1) is subject to the Bail Act 1980, section 12. 49 When arrested children must be brought before Childrens Court (1) This section applies if a child is arrested on a charge of an offence and is in custody in connection with the charge. (2) The child must be brought before the Childrens Court to be dealt with according to law— (a) as soon as practicable and within 24 hours after the arrest; or (b) if it is not practicable to constitute the court within 24 hours after the arrest—as soon as practicable on the next day the court can practicably be constituted. (2A) However, if the child is being detained under the Police Powers and Responsibilities Act 2000, chapter 15, part 2, the child must be brought before the Childrens Court to be dealt with according to law— (a) as soon as practicable and within 24 hours after the child's detention under that part ends; or (b) if it is not practicable to constitute the court within 24 hours after the child's detention under that part ends—as soon as practicable on the next day the court can practicably be constituted. (3) This section does not apply if the child is being dealt with in a way mentioned in the Police Powers and Responsibilities Act 2000, section 393(2)(c) or (d) or (3)(b). 50 Dealing with children not brought before Childrens Court in accordance with s 49 (1) This section applies if— (a) a child is arrested in connection with a charge of an offence and delivered into the custody of a police officer at a place that is a police station, police establishment or watch-house; and (b) the child is not being detained under the Police Powers and Responsibilities Act 2000, chapter 15, part 2; and (c) section 49 applies in relation to the child, but the child has not been brought before the Childrens Court in accordance with that section. (2) The police officer for the time being in charge of the place or, if the place is a watch-house, a prescribed police officer within the meaning of the Bail Act 1980, section 7, must— (a) give the child a release notice or a notice to appear and release the child from custody under section 51; or (b) grant bail to the child and release the child from custody under section 52; or (c) keep the child in custody. (3) However, if the child is released under the Police Powers and Responsibilities Act 2000, section 378 or 379— (a) subsection (2) does not apply; and (b) any proceeding against the child for the offence is discontinued even though the child may have been charged with having committed the offence. (4) Also— (a) subsection (2) applies subject to sections 48, 48AAA and 48AE; and (b) a police officer may not, under subsection (2)(a), release the child if the child— (i) has previously been found guilty of a terrorism offence; or (ii) is or has been the subject of a Commonwealth control order; and (c) subsection (2)(b) applies subject to the Bail Act 1980, section 13. 51 Release of child without bail (1) This section applies if, under section 50, a police officer decides to release a child without bail. (2) The officer may release the child into the custody of the child's parents or release the child to go at large. (3) Before releasing the child, if the officer does not issue and give to the child a notice to appear, the officer must give the child a notice in the approved form (a release notice). (4) The release notice must set out— (a) the child's name; and (b) the offence or the nature of the warrant on which the child was held in custody; and (c) the name of the police officer who started the proceeding, or justice who issued the warrant, on which the child was held in custody; and (d) the court into whose custody the child is required to surrender under the conditions of release; and (e) the time and place the child is required to surrender into the court's custody; and (f) a warning that a warrant will be issued for the child's arrest if the child fails to surrender into the court's custody. 52 Conditions of release on bail—generally (1) This section applies if a court or police officer decides to grant bail to a child who is being held in custody in connection with a charge of an offence. (2) The court or officer must release the child on the child's own undertaking, without sureties and without deposit of money or other security, unless the court or officer is satisfied it would be inappropriate in all the circumstances. (3) If the court or officer does not release the child under subsection (2), the court or officer must consider the conditions for the release of the child on bail in the following sequence— (a) the release of the child on the child's own undertaking with a deposit of money or other secur