Tasmania: Youth Justice Act 1997 (Tas)

Youth Justice Act 1997 An Act to provide for the treatment and sanctioning of young persons who have committed offences and for related purposes [Royal Assent 14 January 1998] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Youth Justice Act 1997 . 2. Commencement This Act commences on a day to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – Aboriginal youth means a youth who is an Aboriginal person within the meaning of the Aboriginal Lands Act 1995 ; Administrator means the Administrator appointed under section 16 of the Magistrates Court Act 1987 ; amend means one or more of the following: (a) omitting all or any matter; (b) inserting matter; (c) substituting matter; authorised police officer means a police officer who has been authorised by the Commissioner of Police to administer formal cautions against further offending; Chief Psychiatrist has the same meaning as in the Mental Health Act 2013 ; Chief Magistrate means the Chief Magistrate appointed under section 5 of the Magistrates Court Act 1987 ; Commissioner for Children and Young People means the Commissioner for Children and Young People appointed and holding office under the Commissioner for Children and Young People Act 2016 ; community conference means a community conference convened, or to be convened, under Division 3 of Part 2 or on the order of the Court; community service means attending, or undertaking, a community service activity; community service activity means an activity that is approved under section 6A ; community service order means an order made under section 47(1)(g) or 62(4)(b) requiring a youth to perform community service; compensation order means an order made under section 47(2)(c) requiring a youth to make compensation; complaint has the same meaning as in the Justices Act 1959 ; controlled substance has the same meaning as in the Misuse of Drugs Act 2001 ; Court means the Magistrates Court (Youth Justice Division) established by section 159 ; Custodial Inspector means the Custodial Inspector appointed under section 5 of the Custodial Inspector Act 2016 ; detainee means a person who is being lawfully detained in a detention centre; detention, in the case of a sentence of detention, means detention in a detention centre; detention centre means a detention centre established under section 123 ; detention centre manager means a person appointed under section 124A ; detention offence means an offence – (a) specified in section 139 ; and (b) specified in section 143 where the offender or alleged offender is a detainee; detention order means an order made under section 47(1)(h) requiring a youth to be detained in a detention centre; detention period means the period of detention specified in a detention order; Director, Monetary Penalties Enforcement Service has the same meaning as in the Monetary Penalties Enforcement Act 2005 ; district registrar means a district registrar appointed under section 16A of the Magistrates Court Act 1987 ; drug means – (a) a scheduled substance within the meaning of the Poisons Act 1971 ; or (b) a controlled substance within the meaning of the Misuse of Drugs Act 2001 ; earliest release date means the day immediately following the completion of 50% of the period of detention during which a youth is liable to be detained or 3 months, whichever is the longer; facilitator means a person holding an appointment as a facilitator under section 167 ; family violence offence means a family violence offence within the meaning of the Family Violence Act 2004 ; fine means a fine imposed under section 47(1)(e) ; formal caution means a caution administered under section 10 ; goods includes a motor vehicle; Government Agency has the same meaning as in the Children, Young Persons and Their Families Act 1997 ; guardian means – (a) a parent of a child; and (b) a person who is the legal guardian of a child; and (c) a person who has the legal custody of a child; and (d) any other person who generally acts in the place of a parent of a child and has done so for a significant length of time; indictable offence means an offence that may be prosecuted upon indictment even though it may, in some circumstances, be dealt with summarily; informal caution means an informal caution given under section 8 ; information-sharing entity has the same meaning as in the Children, Young Persons and Their Families Act 1997 ; legal practitioner means an Australian legal practitioner; legal representative means a legal practitioner who represents a youth or another person; next release date means the day specified by the Court under section 117(12) as the next release date when making an order cancelling a supervised release order; nominated adult, in relation to a youth, means an adult who – (a) has had a close association with the youth or has been counselling, advising or aiding the youth; and (b) has not been charged with the offence in respect of which the youth has been taken into custody or is not suspected, by a police officer on reasonable grounds, of being directly or indirectly involved in the commission of that offence; and (c) has been nominated by the youth; mental illness has the same meaning as in the Mental Health Act 2013 ; offence means any offence other than a prescribed offence; offence-affected property includes – (a) property in respect of which an offence was committed; or (b) property affected in the course of, or in connection with, the commission of an offence; police investigation means the questioning by police officers of a detainee, or the carrying out by police officers of an investigation in which a detainee participates, in order to determine the detainee's involvement, if any, in relation to an offence; prescribed offence means – (a) in respect of a youth who is less than 14 years old – (i) an offence under section 158 of the Criminal Code (murder); and (ii) an offence under section 159 of the Criminal Code (manslaughter); and (iii) an offence under section 299 of the Criminal Code in relation to an offence referred to in section 158 of the Criminal Code (attempted murder); and (iv) an offence which is prescribed by the regulations to be a prescribed offence for the purposes of this subparagraph; and (b) in respect of a youth who is 14, 15 or 16 years old – (i) an offence referred to in paragraph (a) ; and (ii) an offence under section 127A of the Criminal Code (aggravated sexual assault); and (iii) an offence under section 185 of the Criminal Code (rape); and (iiia) an offence under section 125A of the Criminal Code (persistent sexual abuse of a child [or young person]); and (iv) an offence under section 240(3) of the Criminal Code (armed robbery); and (v) an offence under section 240(4) of the Criminal Code (aggravated armed robbery); and (vi) an offence under section 248(a) of the Criminal Code (being found prepared for the commission of a crime under Chapter XXVII of the Criminal Code armed with a dangerous or offensive weapon or instrument); and (via) an offence under section 11A of the Police Powers (Vehicle Interception) Act 2000 ; and (vii) an offence which is prescribed by the regulations to be a prescribed offence for the purposes of this subparagraph; and (c) in respect of a youth who is 17 years old – (i) an offence referred to in paragraph (b) ; and (ia) an offence under section 37J of the Police Offences Act 1935 ; and (ii) an offence under the Marine Safety (Misuse of Alcohol) Act 2006 , the Road Safety (Alcohol and Drugs) Act 1970 , the Traffic Act 1925 or the Vehicle and Traffic Act 1999 except where proceedings for that offence are, or are to be, determined in conjunction with proceedings for an offence that is not a prescribed offence; and (iii) an offence which is prescribed by the regulations to be a prescribed offence for the purposes of this subparagraph; prescription medicine means a medicine the issue of which is prohibited except in accordance with the prescription of a medical practitioner; previous offending history includes – (a) any offence in respect of which a youth has received a formal caution; and (b) any offence in respect of which a youth has attended a community conference; and (c) any offence, and any prescribed offence, in respect of which a youth has been found guilty, whether or not the charge for the offence or prescribed offence has been dismissed or a conviction recorded; prison means a prison within the meaning of the Corrections Act 1997 ; probation order means an order made under section 47(1)(f) placing a youth on probation; provide includes cause to be provided; psychologist means a person registered under the Health Practitioner Regulation National Law (Tasmania) in the psychology profession; receiving State means the State to which a youth is transferred; recognised Aboriginal organisation has the same meaning as in the Children, Young Persons and Their Families Act 1997 ; regulations means the regulations made and in force under this Act; rehabilitation program means a structured treatment program designed to reduce the likelihood of a person who has committed a family violence offence re-offending; rehabilitation program order means an order to attend and participate in a rehabilitation program and in doing so comply with the reasonable directions of a person employed or engaged to conduct such a program; release and adjournment order means an order made under section 47(1)(d) ; responsible adult, in relation to a youth, means a person who – (a) is a nominated adult in relation to the youth; or (b) if there is no nominated adult in relation to the youth, a justice of the peace or a person, or a member of a class of persons, approved by the Secretary; restitution order means an order under section 47(2)(b) requiring a person to perform one or more of the actions specified in section 95(1) ; Secretary means the Secretary of the Department; secure mental health unit has the same meaning as in the Mental Health Act 2013 ; sending State means the State from which a youth is transferred; serve includes cause to be served; State includes a Territory; statutory authority means an incorporated or unincorporated body which is established, constituted or continued by or under an Act or under the royal prerogative, being a body which, or of which the governing authority, wholly or partly comprises a person or persons appointed by the Governor, a Minister of the Crown or another statutory authority; summons has the same meaning as in the Justices Act 1959 ; supervised release order means an order made by the Secretary under section 110 ; transfer agreement means an agreement between the Minister and a Minister of another State under section 148 ; transfer arrangement means an arrangement made under section 149 for the transfer of a youth from Tasmania to another State or to Tasmania from another State; transfer order means an order made under section 153 ; Tribunal means the Tasmanian Civil and Administrative Tribunal; undertaking to be of good behaviour means an undertaking entered into, or to be entered into, by a youth under section 47(1)(c) ; victim, in the case of a victim that is a corporation, Government department, statutory authority or other organisation, includes a representative of that corporation, Government department, statutory authority or other organisation; watch-house means – (a) a building or part of a building at a police station used for the confinement of persons under arrest or otherwise lawfully detained in custody; and (b) a place approved by the Minister under subsection (2) ; working day means a Monday, Tuesday, Wednesday, Thursday or Friday except where that day is a statutory holiday as defined in the Statutory Holidays Act 2000 ; youth means a person who is 10 or more years old but less than 18 years old at the time when the offence the person has committed, or is suspected of having committed, occurred; youth justice worker – see section 166A . (2) The Minister, in writing, may approve a place as a watch-house. 4. Objectives of Act The main objectives of this Act are – (a) to provide for the administration of youth justice; and (b) to provide how a youth who has committed, or is alleged to have committed, an offence is to be dealt with; and (c) to specify the general principles of youth justice; and (d) to ensure that a youth who has committed an offence is made aware of his or her rights and obligations under the law and of the consequences of contravening the law; and (e) to ensure that a youth who has committed an offence is given appropriate treatment and rehabilitation and, if necessary, is appropriately sanctioned; and (f) to enhance and reinforce the roles of guardians, families and communities in – (i) minimising the incidence of youth crime; and (ii) sanctioning and managing youths who have committed offences; and (iii) rehabilitating youths who have committed offences and directing them towards the goal of becoming responsible citizens; and (g) to ensure that, whenever practicable, a youth who has committed, or is alleged to have committed, an offence is dealt with in a manner that is culturally appropriate and recognises and enhances his or her cultural identity; and (h) to ensure that, whenever practicable, a youth who has committed, or is alleged to have committed, an offence is dealt with in a manner that takes into account the youth's social and family background and that enhances the youth's capacity to accept personal responsibility for his or her behaviour; and (i) to ensure that, wherever practicable, a youth who has committed an offence is provided with appropriate opportunities to repair any harm caused by the commission of the offence to the victim of the offence and the community and to reintegrate himself or herself into the community. 5. General principles of youth justice (1) The powers conferred by this Act are to be directed towards the objectives mentioned in section 4 with proper regard to the following principles: (a) that the youth is to be dealt with, either formally or informally, in a way that encourages the youth to accept responsibility for his or her behaviour; (b) that the youth is not to be treated more severely than an adult would be; (c) that the community is to be protected from illegal behaviour; (d) that the victim of the offence is to be given the opportunity to participate in the process of dealing with the youth as allowed by this Act; (e) guardians are to be encouraged to fulfil their responsibility for the care and supervision of the youth and should be supported in their efforts to fulfil this responsibility; (f) guardians should be involved in determining the appropriate sanction as allowed by this Act; (g) detaining a youth in custody should only be used as a last resort and should only be for as short a time as is necessary; (h) any sanctioning of a youth is to be designed so as to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways; (i) any sanctioning of a youth is to be appropriate to the age, maturity and cultural identity of the youth; (j) any sanctioning of a youth is to be appropriate to the previous offending history of the youth. (2) Effect is to be given to the following principles so far as the circumstances of the individual case allow: (a) compensation and restitution should be provided, where appropriate, for victims of offences committed by youths; (b) family relationships between a youth, the youth's parents and other members of the youth's family should be preserved and strengthened; (c) a youth should not be withdrawn unnecessarily from his or her family environment; (d) there should be no unnecessary interruption of a youth's education or employment; (e) a youth's sense of racial, ethnic or cultural identity should not be impaired; (f) an Aboriginal youth should be dealt with in a manner that involves his or her cultural community. 5A. Inconsistency with Mental Health Act 2013 Where there is an inconsistency between this Act and the Mental Health Act 2013 , this Act prevails to the extent of that inconsistency. 6. Determining age (1) In determining the age of a person, a court or police officer – (a) must act on the best evidence or information that is reasonably available; but (b) in the absence of any such evidence or information, may estimate the age of the person and act on that estimate. (2) For the purposes of subsection (1) , a statement in a complaint that a person is of a particular age is evidence that the person is that age. (3) If, in any proceedings before a court, it becomes apparent to that court that the person who is the subject of those proceedings should, by reason of age, be dealt with in some other court, the court may remand that person to appear in the appropriate court. 6A. Activities that may be performed as community service (1) The Secretary is to approve the types of activity that may be undertaken in the performance of community service, other than community service for the purposes of section 10 . (2) The Commissioner of Police is to approve the types of activity that may be undertaken in the performance of community service for the purposes of section 10 . (3) Without limiting the generality of subsections (1) and (2) , the activities that may be approved under those subsections include attendance at – (a) programs that constitute education or training; or (b) programs run for the purpose of assisting youths who have committed offences to reintegrate into the community; or (c) health and personal development programs. (4) The Secretary, or the Commissioner of Police, may not approve a type of activity under subsection (1) or (2) unless – (a) he or she is of the opinion that the type of activity is suitable for the performance of community service by youths; and (b) the type of activity is able to be provided to youths; and (c) youths undertaking the activity will not be paid for doing so. PART 2 - Diverting youths from court system Division 1 - Preliminary 7. Purpose of Part 2 The purpose of this Part is to divert, in an appropriate case, a youth who admits committing an offence from the courts' criminal justice system. Division 2 - Diversionary procedure by police 8. Informal caution (1) If a youth admits the commission of an offence and a police officer is of the opinion that the matter does not warrant any formal action under this Act, the officer may informally caution the youth against further offending and proceed no further against the youth. (2) If a youth is informally cautioned under this section, no further proceedings may be taken against the youth for the offence in relation to which the youth was cautioned. 9. More formal proceedings (1) If a youth admits the commission of an offence and a police officer is of the opinion that the matter warrants a more formal action under this Act than an informal caution, the officer may deal with the matter as follows: (a) the officer may require that the youth be formally cautioned against further offending; (b) the officer may require the Secretary to convene a community conference to deal with the matter; (c) the officer may file a complaint for the offence before the Court. (2) Before a police officer requires that a youth be formally cautioned against further offending or requires the Secretary to convene a community conference – (a) the officer must explain to the youth – (i) the nature of the offence and of the circumstances out of which it is alleged to arise; and (ii) that the youth is entitled to obtain legal advice; and (iii) that the youth is entitled (whether or not he or she exercises the right to obtain legal advice) to require that the matter be dealt with by the Court; and (b) if the youth does not require the matter to be dealt with by the Court, the officer must record the admission of the commission of the offence in written form and request the youth to sign the admission; and (c) the youth must agree to being formally cautioned or to the convening of a community conference. (3) Before a police officer requires that a youth be formally cautioned against further offending, if the police officer considers it appropriate in all the circumstances, the police officer must – (a) ask the victim of the offence whether he or she wishes to be present at the administration of the formal caution; and (b) where the victim wishes to be present, allow the victim the opportunity to attend the administration of the formal caution; and (c) where the victim does not wish to be present, ask the victim whether he or she wishes to be informed of the identity of the offender and how the offence has been dealt with. (4) Before a police officer can require the Secretary to convene a community conference, the youth must sign an undertaking to attend the conference. (5) The following proceedings are to take place, if practicable, in the presence of a guardian or, if a guardian is not available, a responsible adult: (a) the explanation given to the youth under subsection (2) ; (b) the signing of an admission by the youth under subsection (2) ; (c) the agreement of the youth under subsection (2) to being formally cautioned or to the convening of a community conference; (d) the signing of an undertaking by the youth under subsection (4) . (6) A complaint may only be filed under subsection (1)(c) – (a) if the youth requires that the matter be dealt with by the Court; or (b) if the police officer is of the opinion that a formal caution should be administered to the youth but the youth does not – (i) agree to being formally cautioned; or (ii) sign the formal caution; or (iii) enter into an undertaking if required to do so under section 10(2) ; or (c) if the police officer is of the opinion that a community conference should be convened to deal with the youth but the youth does not – (i) agree to the convening of a community conference; or (ii) enter into an undertaking to attend the community conference; or (d) if, in the opinion of the police officer, the matter cannot be adequately dealt with by the administration of a formal caution or by a community conference in view of the seriousness or the nature of the offence. 10. Formal caution (1) A formal caution against further offending is to be administered to the youth by an authorised police officer. (2) If an authorised police officer administers a formal caution against further offending, the officer may also require the youth to enter into one or more of the following undertakings: (a) an undertaking to pay compensation, in the manner specified in the undertaking, for – (i) loss of or damage to offence-affected property; and (ii) injury suffered, expenses incurred or other loss suffered by the victim of the offence; and (iii) injury suffered, expenses incurred or other loss suffered by any other person by reason of the offence; (b) an undertaking to make restitution of offence-affected property; (c) if the youth is 13 or more years old when required to enter into the undertaking, an undertaking to perform a specified period (of not more than 35 hours) of community service consisting of a community service activity which is for the benefit of the victim of the offence or a purpose specified in section 6A(3) ; (ca) if the youth is less than 13 years old when required to enter into the undertaking, an undertaking to perform a specified period (of not more than 35 hours) of community service consisting of a community service activity which is for a purpose specified in section 6A(3)(a) or (c) ; (d) an undertaking to apologise to the victim of the offence; (e) an undertaking to do anything else that may be appropriate in the circumstances of the case. (2A) An undertaking must not be required under subsection (2)(c) or (ca) if the effect would be to require the youth to undertake a number of hours of community service that would, when combined with the number of hours of community service the youth still has to perform under all community service orders, or all undertakings previously entered into under one of those subsections or section 16(1)(e) , total – (a) more than 70 hours, if the youth is less than 16 years old when required to enter into the undertaking; or (b) more than 210 hours, if the youth is 16 or more years old when required to enter into the undertaking. (2B) An undertaking under subsection (2)(c) or (ca) operates cumulatively to every other such undertaking under that subsection or section 16(1)(e) . (3) If a formal caution is to be administered in respect of an offence, the authorised police officer must explain to the youth – (a) the nature of the caution; and (b) that the administering of the caution may be treated as evidence of commission of the offence by a police officer, community conference or court if the youth has to be dealt with for a subsequent offence. (4) A formal caution must – (a) if practicable, be administered in the presence of – (i) a guardian; or (ii) if a guardian is not available, a responsible adult; and (b) be put in writing; and (c) contain – (i) details of the offence; and (ii) the youth's name; and (iii) the authorised police officer's name and rank; and (iv) the name of the place where, and the time when, the caution was administered; and (v) the names of all other persons present when the caution was administered; and (vi) details of the nature and effect of the caution; and (vii) details of all undertakings entered into by the youth under this section; and (d) be signed by the youth, the authorised police officer and, if reasonably practicable, by the guardian or responsible adult. (5) Before requiring a youth to enter an undertaking under this section, the authorised police officer must give the youth, and any guardian or responsible adult present, an opportunity to make representations with respect to the matter. (6) If a youth enters into an undertaking under this section to apologise to the victim of the offence, the apology must be made in the presence of an adult approved by an authorised police officer. (7) An undertaking will have a maximum duration of 3 months. (8) A youth who signs a formal caution is not liable to be prosecuted for an offence if the youth enters into and substantially fulfils all undertakings the authorised police officer requires under this section. (8A) For the purposes of subsection (8) , a youth who has failed to substantially fulfil an undertaking is to be taken to have substantially fulfilled the undertaking if the youth has a reasonable excuse for the failure. (9) After administering a formal caution, the authorised police officer must – (a) ask the victim of the offence whether he or she wishes to be informed of the identity of the offender and how the offence has been dealt with if the victim was not present and has not been asked those questions previously by a police officer; and (b) give the victim that information if the victim has indicated to the authorised police officer or previously to another police officer that he or she does wish to have that information. (10) A record is to be kept of a formal caution. (11) In a proceeding under this Act, a document purporting to be a formal caution or a copy of a formal caution is evidence of the matters contained in the document. 11. Caution administered by Aboriginal Elder or representative (1) If a formal caution is to be administered to an Aboriginal youth, the caution is to be, if practicable, administered by an Elder of an Aboriginal community or a representative of a recognised Aboriginal organisation despite section 10 . (2) A formal caution may only be administered by an Elder of an Aboriginal community or a representative of a recognised Aboriginal organisation at the request, and in the presence, of an authorised police officer. (3) If an Elder of an Aboriginal community or a representative of a recognised Aboriginal organisation administers a formal caution – (a) section 10 applies as if the Elder or representative were an authorised police officer; and (b) the caution must contain, in addition to the information specified in section 10(4)(c) , the name of the Elder or representative, the name of the Aboriginal community or recognised Aboriginal organisation and the name and rank of the authorised police officer in whose presence the caution was administered. 12. Caution administered by community representative (1) If a formal caution is to be administered to a youth who is or considers himself or herself to be a member of a religious, ethnic or other community group and the authorised police officer who would, but for this section, administer the formal caution considers it appropriate, the caution may be administered by a representative of that group approved by that authorised police officer despite section 10 . (2) A formal caution may only be administered by a representative of a religious, ethnic or other community group at the request, and in the presence, of an authorised police officer. (3) If a representative of a religious, ethnic or other community group administers a formal caution – (a) section 10 applies as if the representative were an authorised police officer; and (b) the caution must contain, in addition to the information specified in section 10(4)(c) , the name of the representative, the name or other identification of the community group and the name and rank of the authorised police officer in whose presence the caution was administered. 12A. Where undertakings in formal caution not substantially fulfilled (1) This section applies in relation to a youth in respect of an offence if – (a) a formal caution is, in accordance with section 9(1)(a) , administered to the youth under section 10 in relation to an offence; and (b) the youth fails, without reasonable excuse, to substantially fulfil an undertaking that he or she was required, when 13 or more years old, to enter into under section 10 in relation to the offence. (2) If this section applies in relation to a youth in respect of an offence, an authorised police officer – (a) may decide to take no further action in relation to the offence; or (b) after consultation with the Secretary, may deal with the youth again under section 9 in relation to the offence. (3) If a youth fails, without reasonable excuse, to substantially fulfil an undertaking (the previous undertaking) that he or she was required, when 13 or more years old, to enter into under section 10 in relation to the offence and, in accordance with subsection (2)(b) , an authorised police officer deals with the youth again under section 9 in relation to the offence – (a) any undertakings, including the previous undertaking, in relation to the offence cease to be in force; and (b) the failure to substantially fulfil the previous undertaking is to be taken, for the purpose of the application of section 10(8) to the offence, not to have occurred. (4) If this section applies in relation to a youth in respect of an offence, a complaint may, despite section 26(1)(a) of the Justices Act 1959 , be filed in accordance with section 9(1)(c) for the offence even though the complaint is filed after the end of the period of 6 months after the time when the matter of complaint arose, but may only be filed before the end of the relevant period in relation to the undertaking, in respect of the offence, that the youth has failed to substantially fulfil. (5) For the purposes of subsection (4) , the end of the relevant period in relation to an undertaking is – (a) if a date or period was specified in the undertaking as the date or period by the expiry of which the undertaking is to be fulfilled, that date or the last day of that period, as the case may be; or (b) if paragraph (a) does not apply to the undertaking, within 3 months after the undertaking was entered into. Division 3 - Community conferences 13. Notifying Secretary that community conference required (1) If a youth enters into an undertaking to attend a community conference, the police officer must notify the Secretary that he or she requires a community conference to be convened and provide the Secretary, whenever possible, with the names and addresses of – (a) the youth; and (b) the guardians of the youth; and (c) any relative of the youth who may, in the opinion of the officer, be able to participate usefully in the community conference; and (d) any other person who – (i) has had a close association with the youth or has been counselling, advising or aiding the youth; and (ii) in the opinion of the officer, may be able to participate usefully in the community conference; and (e) any victim of the offence. (2) The notice requiring the convening of a community conference must specify the details of the offence committed by the youth. 14. Convening of community conference (1) On receipt of a notice from a police officer that the convening of a community conference is required, the Secretary must assign a facilitator to convene and facilitate the community conference. (2) The facilitator – (a) must fix a time and place for the community conference; and (b) must issue a notice specifying the time and place at which the community conference is to be held; and (c) must invite the following persons to attend the community conference: (i) the persons whose names and addresses are provided to the Secretary under section 13(1) ; (ia) a youth justice worker; (ii) if the youth is a member of an Aboriginal community, an Elder or other representative of that community; (iii) any other person the facilitator, after consulting with the youth and the youth's guardians and family (if available), considers appropriate to attend the community conference; and (d) must inquire of the victim of the offence whether he or she wishes to be informed of the outcome of the community conference. (3) The facilitator must provide the police officer who required the community conference or the Commissioner of Police with a copy of the notice specifying the time and place at which the community conference is to be held. (4) If reasonably practicable, the time fixed for a community conference must be within 3 weeks after the Secretary receives the notice from the police officer requiring the convening of a community conference. 15. Constitution of and attendance at community conference (1) A community conference consists of – (a) the facilitator; and (b) the youth; and (c) those persons who attend the conference in response to the invitation of the facilitator; and (d) the police officer who required the community conference or a representative of the Commissioner of Police. (2) The victim of an offence who attends a community conference is entitled to be accompanied by one or more persons of the victim's choice to provide support and assistance to the victim. (3) The youth who attends a community conference is entitled to be accompanied by one person of his or her choice to provide support and assistance to the youth. (4) A person may, with the permission of the facilitator, attend a community conference for the purpose of providing expert advice or information on matters relevant to the conference. (5) Despite this section, if the facilitator considers that a person attending the community conference is deliberately attempting to disrupt the conference, the facilitator may – (a) require that person to leave the conference; and (b) if the person refuses to leave, take such steps as are necessary to remove the person from the conference. 16. Powers of community conference (1) A community conference may impose one or more of the following sanctions: (a) administer a caution against further offending; (b) require the youth to enter into an undertaking to pay compensation for injury suffered by the victim or any other person by reason of the commission of the offence; (c) require the youth to enter into an undertaking to pay compensation for loss or destruction of, or damage to, offence-affected property; (d) require the youth to enter into an undertaking to make restitution of offence-affected property; (e) if the youth is 13 or more years old, require the youth to enter into an undertaking to perform a specified period, not exceeding 70 hours, of community service; (f) with the agreement of the victim of the offence, require the youth to enter into an undertaking to apologise to the victim; (g) require the youth to enter into an undertaking to do anything else that may be appropriate in the circumstances of the case. (2) An undertaking may have a duration not exceeding 12 months. (3) An undertaking must not be required under subsection (1)(e) if the effect would be to require the youth to undertake a number of hours of community service that would, when combined with the number of hours of community service the youth still has to perform under all community service orders, or all undertakings previously entered into under that subsection or section 10(2)(c) , total – (a) more than 70 hours, if the youth is 13, 14 or 15 years old when required to enter into the undertaking; or (b) more than 210 hours, if the youth is 16 or more years old when required to enter into the undertaking. (4) An undertaking under subsection (1)(e) operates cumulatively to every other such undertaking under that subsection or section 10(2)(c) . 17. Procedure at community conference (1) The facilitator must ensure that all persons attending a community conference understand its nature, purpose and consequences. (2) In deciding an appropriate sanction, a community conference is to consider – (a) the objectives specified in section 4 and the principles specified in section 5 ; and (b) the sanctions imposed by courts, community conferences and police officers on youths in respect of similar offences if that information is readily available to the community conference. (3) If practicable, a community conference should reach a decision on the sanctions to be imposed on a youth by consensus. (4) A community conference fails to reach a decision unless all the following persons agree to the imposition of a sanction: (a) the youth; (b) the police officer or representative of the Commissioner of Police; (c) if the victim is present at the conference, the victim. (5) If the facilitator considers it appropriate, the facilitator may adjourn a community conference from time to time and from place to place. 18. Concluding community conference (1) Before a community conference ends – (a) a decision of the community conference must be recorded in writing and signed by each of the following persons: (i) the youth; (ii) the police officer or representative of the Commissioner of Police; (iii) if the victim is present at the conference, the victim; and (b) if a caution is administered to the youth, the caution must be – (i) administered to the youth by the person the community conference has determined is to do so; and (ii) recorded in writing and signed by the youth; and (c) if the youth is required to enter into an undertaking, the undertaking must be recorded in writing and signed by the youth; and (d) if the youth enters into an undertaking to apologise to the victim of the offence, the police officer or representative of the Commissioner of Police must approve an adult in whose presence the apology is to be made. (2) The decision must include – (a) the names of the persons who attended the conference; and (b) details of the time and place at which the conference was held; and (c) the name of the person determined by the conference to administer the caution; and (d) details of any approval given under subsection (1)(d) . 19. Procedure after community conference (1) If a community conference reaches a decision, the facilitator must – (a) file with the district registrar each undertaking to pay compensation or make restitution entered into by the youth; and (b) provide the youth and each person who attended the community conference in response to the invitation of the facilitator with a copy of the decision and each undertaking entered into by the youth; and (c) provide the victim of the offence with a copy of the decision and each undertaking entered into by the youth if the victim was not present at the community conference but has indicated that he or she wishes to be informed of the outcome of the community conference. (1A) If an undertaking to pay compensation or make restitution is filed with the district registrar in accordance with subsection (1)(a) , the district registrar must – (a) refer the undertaking to the Director, Monetary Penalties Enforcement Service for collection of the amount of compensation or restitution; and (b) notify the Director, Monetary Penalties Enforcement Service of the date the undertaking was entered into. (2) If a youth enters into an undertaking at a community conference to pay compensation or make restitution, payments of compensation or restitution must be made to the Director, Monetary Penalties Enforcement Service who will disburse the compensation or restitution to the victims named in the undertaking. (3) The Director, Monetary Penalties Enforcement Service must notify the Secretary if the youth does not complete the payment of compensation or the making of restitution as required by an undertaking entered into at a community conference. (4) If a youth enters into an undertaking at a community conference to apologise to the victim of the offence, the apology must be made in the presence of an adult approved under section 18(1)(d) . (5) If a youth apologises to the victim of the offence in accordance with an undertaking entered into at a community conference, the adult in whose presence the apology is made must notify the Secretary that the apology has been made. (6) When the youth has fulfilled all undertakings entered into at a community conference, the Secretary must file with the Commissioner of Police a certificate stating that fact. (7) The Secretary must notify the Commissioner of Police if the youth does not fulfil all undertakings entered into at the community conference. 20. Liability of youth to be prosecuted (1) A youth is not liable to be prosecuted for an offence in respect of which a community conference was convened if – (a) the community conference administers a caution against further offending but does not require the youth to enter into an undertaking; or (b) the youth enters into the undertakings required by the community conference and performs the obligations arising from those undertakings. (2) A police officer may file a complaint before the Court for an offence in respect of which a community conference is convened if – (a) the youth fails to attend the community conference; or (b) the community conference fails to reach a decision; or (c) the youth fails to enter into an undertaking as required by the community conference; or (d) the youth fails to perform the obligations arising from undertakings entered into as required by the community conference. (3) A complaint may be filed under subsection (2) even though a period of limitation relating to the commencement of proceedings for the relevant offence has expired, but the complaint must be filed – (a) if the youth fails to attend the community conference, not more than 2 months after that failure to attend; or (b) if the community conference fails to reach a decision, not more than 2 months after the community conference ends; or (c) if the youth fails to enter into an undertaking as required by the community conference, not more than 2 months after that failure to enter into the undertaking; or (d) if the youth fails to perform an obligation arising from an undertaking, not more than 6 months after the end of the period of the undertaking. Division 4 - Provisions of general application 21. Instructions by Commissioner of Police In the exercise of their powers under this Part, authorised police officers must comply with any instructions issued by the Commissioner of Police. 22. Confidentiality (1) A person must not publish any information in respect of any action or proceedings that are to be, are being or have been taken by a police officer, an Elder of an Aboriginal community, a representative of a recognised Aboriginal organisation or a religious, ethnic or other community group or a community conference under this Part against a youth if the information identifies, or may lead to the identification of – (a) the youth; or (b) the victim; or (c) any other person involved in the action or proceedings (otherwise than in a professional capacity as a police officer or a person employed or engaged in the administration of this Act) who has not consented to the publication of the information. Penalty: Fine not exceeding 100 penalty units. (2) Subsection (1) does not apply to the provision of information to – (a) the youth or his or her legal representative; and (b) a guardian of the youth; and (c) a person who is present at the administration of an informal caution, a formal caution or at a community conference; and (d) a victim of the offence; and (e) a police officer, or a person or a member of an authority responsible for the enforcement of laws in this State, in the course of his or her official functions; and (ea) a member of the Australian Federal Police, a member of the police force of another State or a Territory or a person or a member of any other authority responsible for the enforcement of laws of the Commonwealth, any other State or a Territory in the course of his or her official functions; and (f) a person employed or engaged in the administration of this Act in the course of his or her official functions; and (g) a person undertaking research that does not involve the identification of the youth, the victim or any person referred to in subsection (1)(c) if the research has been approved, in writing, by the Commissioner of Police; and (h) a person undertaking research that involves the identification of the youth, the victim or any person referred to in subsection (1)(c) if – (i) all persons to be identified have consented, in writing, to their identity being provided to the researcher; and (ii) the research has been approved, in writing, by the Commissioner of Police; and (i) a prescribed person, a person in prescribed circumstances or a person for a prescribed purpose. (3) Subsection (1) does not apply to the provision of information relating to the administration of a formal caution to – (a) a court, or a party or legal practitioner acting for a party, in proceedings in which the administration of the formal caution is relevant to a matter in issue; and (b) persons attending a community conference when determining an appropriate sanction in respect of an offence committed by the youth after the administration of that formal caution. (4) Subsection (1) does not apply to the provision of information to a court, or a party or legal practitioner acting for a party, in proceedings in which that information is relevant to a matter in issue if the information relates to – (a) the decision of a community conference; and (b) the undertakings entered into by a youth as a result of a community conference; and (c) the performance or non-performance by the youth of obligations arising from those undertakings; and (d) the compliance or non-compliance by the youth with a requirement to enter into an undertaking imposed by a community conference. (4A) Subsection (1) does not apply to the provision of information in relation to a youth – (a) if the youth, or the youth's guardian, consents in writing to the provision of the information for the purpose of the rehabilitation of the youth or a related purpose; or (b) between an information-sharing entity and a Government Agency for the purpose of the rehabilitation of the youth or a related purpose; or (ba) if the information is provided as part of a Commission established under the Commissions of Inquiry Act 1995 ; or (c) between an information-sharing entity and the Commissioner for Children and Young People, or between a Government Agency and the Commissioner for Children and Young People. (4B) Subsection (1) does not apply to the provision of information in relation to a youth – (a) to a person involved in the action or proceedings, taken in respect of the youth, other than the youth or the victim of the offence; or (b) to a person seeking to bring an action, whether criminal or civil, if – (i) the person to whom the information relates is an intended defendant to the action or an alleged perpetrator in respect of the matter to which the action relates; and (ii) the information is relevant to that action; or (c) to a person responding, on behalf of the State, to an action, whether criminal or civil and whether proposed or commenced, against the State if the information is relevant to that action; or (d) to a person undertaking an employment screening or review process, or disciplinary investigations or proceedings, in respect of the person to whom the information relates if the person to whom the information relates is – (i) an employee or contractor, or prospective employee or contractor, of the person to whom the information is provided; or (ii) a volunteer or assistant, or prospective volunteer or assistant, whether paid or unpaid, of an organisation of which the person, to whom the information is provided, is in a position of management or control. (4C) Subsection (1) does not apply to the provision of information in relation to a youth if the information – (a) is provided to a person – (i) seeking to bring an action, whether criminal or civil; or (ii) responding, on behalf of the State, to an action, whether criminal or civil and whether proposed or commenced; or (iii) undertaking an employment screening or review process, or disciplinary investigations or proceedings; and (b) in the case of information provided to a person referred to in paragraph (a)(i) or (ii) , the information – (i) is relevant to the action; and (ii) does not disclose the identity of, or lead to the identification of, a person other than an intended defendant to the action or an alleged perpetrator in respect of the matter to which the action relates; and (c) in the case of information provided to a person referred to in paragraph (a)(iii) , the information – (i) is relevant to the employment screening or review process, or disciplinary investigations or proceedings, being undertaken by the person to whom the information is provided; and (ii) does not disclose the identity of, or lead to the identification of, a person other than the person being screened or reviewed or the subject of those disciplinary investigations or proceedings. (4D) Information provided under subsection (4B)(c) or (d) is subject to the rules of procedural fairness in respect of the person whose information is so provided. (4E) A person to whom information is provided under subsection (4B) or (4C) must not use or disclose the information other than – (a) for the purpose for which the information was so provided to the person; or (b) as authorised, or required, by law. Penalty: Fine not exceeding 50 penalty units or imprisonment for a term not exceeding 2 years, or both. (5) Subsection (1) does not apply in relation to the provision of information as required or allowed under any other provision of this Act. 22A. Forfeiture of articles used in commission of offences (1) This section applies if – (a) a youth has admitted committing an offence; and (b) an article used in connection with, or obtained during or as a result of, the commission of the offence has been seized; and (c) the matter is dealt with by way of a diversionary procedure. (2) At the conclusion of the diversionary procedure, a commissioned police officer, by an instrument in writing called a forfeiture declaration, may declare that the seized article is forfeit. (3) In deciding whether or not to make the forfeiture declaration, the commissioned police officer may have regard to – (a) the prescribed guidelines, if any; and (b) any relevant instructions issued under section 21 ; and (c) such other matters as the commissioned police officer considers relevant and fair in the circumstances. (4) However – (a) the forfeiture declaration must be made if – (i) the manufacture, use or possession of the seized article is prohibited under a law of the State or the Commonwealth; or (ii) the seized article would, under a law of the State, be automatically forfeited to the Crown or to an officer or agency of the Crown if the youth were to be convicted or found guilty of the offence by a court; and (b) the forfeiture declaration must not be made if paragraph (a) does not apply and the seized article is owned by a person other than the youth and the owner had no knowledge of or involvement in the commission of the offence. (5) If the forfeiture declaration is made and the identity and address of the owner of the seized article have been established (and the owner is a person other than the youth) – (a) the commissioned police officer is to give the owner a copy of the forfeiture declaration as soon as practicable; and (b) the owner may apply to the Magistrates Court (Administrative Appeals Division) for a review of the decision to make the forfeiture declaration; and (c) subject to the making of such an application for review and its outcome, the forfeiture declaration takes effect immediately after the appeal period. (6) If the forfeiture declaration is made but it has not been possible to establish the identity and address of the owner of the seized article despite the making of reasonable inquiries in that regard (or the owner is or appears to be the youth) the forfeiture declaration takes effect as soon as it is made. (7) If the forfeiture declaration takes effect, the seized article is forfeited to the Crown and may be disposed of as the Commissioner of Police thinks fit. (8) For the purposes of this section, the police officer responsible for the diversionary procedure (or another police officer) is to warn the youth of the prospective forfeiture before, or as soon as practicable after, the diversionary procedure begins. (9) However, a failure to comply with subsection (8) does not affect the operation of other provisions of this section. (10) For the purposes of this section, a diversionary procedure is taken to have been concluded once (depending on the procedure) – (a) an informal caution has been administered to the youth under section 8(1) ; or (b) a formal caution against further offending has been administered to the youth, put in writing and signed by the youth under section 10(4)(d) ; or (c) a copy of the decision of a community conference has been provided to the youth under section 19(1)(b) . (11) In this section – appeal period means the period within which, under the Magistrates Court (Administrative Appeals Division) Act 2001 , a person may apply for a review of a decision; diversionary procedure means a procedure under section 8(1) or section 9(1) or (2) ; owner, of an article, means the person who, but for the making of a forfeiture declaration, would be entitled to possession of the article. PART 3 - Arrest, search, bail and custody of youth Division 1 - Application 23. Application of general law Subject to this Act, the law of the State relating to investigation, interrogation, arrest, bail, remand and custody applies to youths, with necessary adaptations and any further adaptations that are set out in this Act or the regulations. Division 2 - Power of arrest and bail 24. Limit on power to arrest A police officer may only arrest a youth in relation to an offence if the arresting officer believes the offence is serious enough to warrant an arrest and also believes, on reasonable grounds, that – (a) the arrest is necessary to prevent a continuation or repetition of the offence or the commission of another offence that, if it were committed by the youth, would be sufficiently serious to warrant the youth being arrested in relation to the commission of that offence; or (b) the arrest is necessary to facilitate the making of a police family violence order, within the meaning of the Family Violence Act 2004 , an application for a family violence order under that Act or an application for a restraint order under Part XA of the Justices Act 1959 ; or (c) the arrest is necessary to prevent concealment, loss or destruction of evidence relating to the offence; or (d) the youth is unlikely to appear before the Court in response to a complaint and summons. 24A. Duties of police officer where youth arrested (1) If a youth is arrested, a reference in the Criminal Law (Detention and Interrogation) Act 1995 to a friend is to be taken, in relation to the youth, to include a reference to a person who is a responsible adult, within the meaning of this Act, in respect of the youth. (2) A police officer who arrests a youth must, as soon as practicable – (a) inform the youth of the youth's right to refuse to answer questions, or to participate in investigations, except where required to do so by or under an Act of the State or of the Commonwealth; and (b) ensure that, if practicable, the youth's guardian is notified of the arrest. (3) Subsection (2) does not derogate from any other duties that a police officer who arrests a youth has under any other law of the State relating to investigation, interrogation, arrest, bail, remand or custody. 24B. Conditions of bail A court or justice, or a police officer, who intends to admit a youth to bail must have regard to the principles set out in section 5 , so far as they may apply to the circumstances of the youth, in deciding whether to impose any conditions on the bail and in determining the conditions that are imposed on the bail. 2