Western Australia: Young Offenders Act 1994 (WA)

Western Australia Young Offenders Act 1994 Western Australia Young Offenders Act 1994 Contents Part 1 — Preliminary 1. Short title 1 2. Commencement 1 3. Terms used 1 4. Young offenders reaching 18 1 5. Criminal Procedure Act 2004 overridden 1 6A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies 1 Part 2 — Objectives and principles 6. Objectives 1 7. General principles of juvenile justice 1 8. Responsible adults, role of 1 Part 3 — Administration Division 1 — Chief executive officer 9. Chief executive officer, functions of 1 10. Chief executive officer may delegate 1 Division 2 — Other officers and employees 11. Officers and employees, appointment of 1 11A. Duties of all officers and employees 1 11B. Powers and duties of custodial officers 1 Division 3 — Removal of custodial officers due to loss of confidence Subdivision 1 — Preliminary 11CA. Terms used 1 Subdivision 2 — Removal of custodial officers 11CB. Application of Subdivision 1 11CC. Removal action 1 11CD. Notice of loss of confidence 1 11CE. Maintenance payment 1 11CF. Withdrawal of removal action and revocation of removal 1 11CG. Resignation of custodial officer who has been removed 1 Subdivision 3 — Appeal against removal of custodial officer 11CH. Appeal right 1 11CI. Proceedings on appeal 1 11CJ. Leave to tender new evidence on appeal 1 11CK. Opportunity to consider new evidence 1 11CL. Revocation of removal after consideration of new evidence 1 11CM. Application of Industrial Relations Act 1979 to appeals 1 11CN. Adjournment of appeal if appellant charged with offence 1 11CO. Resumption of appeal before end of adjournment 1 11CP. Decision by WAIRC 1 11CQ. Determining amount of compensation 1 11CR. Restriction on publication 1 Subdivision 4 — General 11CS. Effect of charge for, or conviction or acquittal of, offence 1 11CT. Failure to comply with procedure 1 11CU. Transfer, standing down and leave of custodial officer 1 11CV. Review of Division 1 Division 4 — Management, control, security and wellbeing of young offenders 11C. Use of force 1 11D. Use of restraints 1 11E. Assistance by prison officers 1 11F. Assistance by police officers 1 12. Departmental and subsidised facilities, establishment of 1 13. Detention centres, establishing 1 14. Records of young offenders, duty to keep 1 15. Records of young offenders, access to 1 15A. Disclosure of personal information relating to young offenders 1 16. Exchange of information 1 16A. Disclosure authorised 1 16B. Protection of Commissioner of Police reports that may be withdrawn 1 16C. Protection of Commissioner of Police reports containing terrorist intelligence information 1 16D. Protection of terrorist intelligence information in legal proceedings 1 17. Confidentiality 1 Division 5 — Arrangements with councils of Aboriginal communities 17A. Terms used 1 17B. Community supervision agreement 1 17C. Appointment of monitor 1 17D. Compensation for injury 1 Part 4 — Young persons in custody before being dealt with for an offence 19. Detention of young persons apprehended by police 1 20. Responsible adult to be notified 1 21. Young person in custody awaiting trial 1 21A. Chief executive officer may direct that mandatory transfer does not apply 1 Part 5 — Dealing with young offenders without taking court proceedings Division 1 — Cautioning 22A. Purpose of this Division 1 22B. Police officer to consider alternatives to court proceedings 1 22. Cautions may be given except for certain offences 1 23. Cautioning to be preferred in certain cases 1 23A. Caution certificate to be given 1 23B. Police officer may retain a thing relating to an offence 1 Division 2 — Referral to juvenile justice team 24. Principles 1 25. Only certain matters may be referred to teams 1 26. Release of young person under arrest 1 27. Referral to team by prosecutor 1 28. Referral to team by court 1 29. First offenders usually should be referred to team 1 30. Role of responsible adult 1 31. Role of victim 1 32. Powers of juvenile justice team 1 33. Effect on liability to be dealt with by court 1 34. Civil liability not affected 1 Division 3 — Juvenile justice teams 35. Terms used 1 36. Juvenile Justice Team Coordinator, appointment of 1 37. Establishing juvenile justice teams 1 37A. No representation by lawyer or agent 1 38. Decisions to be unanimous 1 39. Records to be kept 1 40. No report of proceedings to be published 1 Part 6 — Court proceedings 41. Preliminary considerations for police before prosecuting 1 42. Notice to attend court usually preferable to summons 1 43. Notices to attend court, general provisions about 1 44. Proceedings to be explained to young persons 1 45. Responsible adult may be required to attend court 1 Part 7 — Sentencing and related matters Division 1 — General 46. Principles and considerations to be applied to young offenders 1 46A. Application of Sentencing Act 1995 1 47. Court may request information 1 48. Certain reports required 1 49. Remand for observation 1 50. Offender aged under 17 at time of sentence, options 1 50A. Offender aged 17 or over but under 18 at time of sentence, options 1 50B. Offender aged 18 or over at time of sentence, options 1 51. Responsible adult to be present for certain orders 1 52. Order requiring consent to be explained 1 54. Body samples may be required to be provided 1 55. Conviction, when to be recorded 1 56. Compensation and restitution, orders for 1 57. Costs may be ordered to be paid 1 58. Responsible adult may be made liable for fine etc. 1 59. Court orders to be provided in writing 1 60. Orders etc. under this Part are sentences 1 62. Workers' compensation for compulsory work 1 63. Terms used 1 64. Enforcing payment by young person who has reached 18 1 65. Enforcing payment by young person who has not reached 18 1 65A. Court's powers to deal with defaulter 1 65B. Community work order 1 65C. Detention order 1 Division 2 — No punishment and no conditions 66. Court may refrain from punishing in some cases 1 Division 3 — No punishment but conditions 67. Undertakings and informal punishment 1 68. Adjournment 1 Division 4 — No punishment but security or recognisance 69. Recognisance by offender to be of good behaviour etc. 1 70. Responsible adult may give security for offender's good behaviour etc. 1 Division 5 — Fine 71. Fine instead of imprisonment 1 72. Offender must be able to pay 1 Division 6 — Youth community based order 73. Youth community based order, nature of 1 74. Offender must be suitable and consent 1 75. Proposed agenda required for suitable person 1 76. Duration of order 1 77. Supervising officer 1 78. Conditions implied in order 1 79. Obligations under order may be suspended 1 80. Amendment of order, extent of power 1 81. Amendment of order 1 82. Breach of order, CEO may require offender to attend court 1 83. Breach of order, powers to deal with 1 84. Breach of order by re‑offending, new order may be made 1 85. Discharge or fulfillment of order, effect of 1 86. Proof of identity in proceedings for breach of order 1 87. Notice of court applications 1 Subdivision 1 — Attendance conditions 88. Requirement to attend courses 1 Subdivision 2 — Community work conditions 89. Requirement to perform unpaid work 1 90. Conditions cannot be imposed on child under 12 1 91. Community work, minimum and maximum hours of 1 92. Offender to attend before Departmental officer 1 93. Performing the work 1 94. Regulations relating to community work conditions 1 Subdivision 3 — Supervision conditions 95. Requirement to be supervised 1 96. Duration of supervision 1 97. Changing duration of supervision 1 Division 7 — Intensive youth supervision order 98. Intensive youth supervision order, nature of 1 99. Order may be made with or without custodial sentence 1 100. Order without custodial sentence 1 101. Order with custodial sentence (conditional release order) 1 102. Conditional release order to include agenda of conditions 1 103. Offender must be suitable and consent 1 104. Agenda proposal required for suitable person 1 105. Conditional release order, duration of 1 106. Conditional release order may relate to several sentences 1 107. Conditional release not to exceed 12 months 1 108. Supervising officer 1 109. Conditional release order, implied conditions of 1 109A. Conditional release order: specified places 1 109B. Conditional release order: devices 1 110. Obligations under order may be suspended 1 111. Amendment of order, extent of power 1 112. Amendment or cancellation of order 1 113. Breach of order, CEO may require offender to attend court 1 114. Breach of order, powers to deal with 1 115. Conditional release order, effect of expiry of 1 116. Cancellation of conditional release order, effect of 1 117. Notice of court applications 1 Division 8 — Custodial sentence 118. Sentencing for offences punishable by imprisonment 1 118A. Where sentence of imprisonment to be served 1 119. Taking time on remand into account 1 119A. Effect of not being in custody 1 120. Custodial sentence is sentence of last resort 1 121. Minimum period before release from detention 1 122. Aggregation of multiple sentences of detention 1 123. Cumulative sentences of detention, service of 1 Division 9 — Dealing with young person who repeatedly commits serious offences 124. When this Division applies 1 125. Protection of the community paramount 1 126. Special order, making of 1 127. Special order, time of operation 1 128. Special order, effect of 1 129. Special order, application to discharge 1 130. Special order, effect of expiry of 1 Part 8 — Supervised release orders Division 1 — Definitions 131. Terms used 1 Division 2 — The order 132. Supervised release order, Board may make 1 133. Supervised release order, when can be made 1 134. Duration of order 1 135. Order may relate to more than one sentence 1 136. Conditions implied in order 1 136A. Express conditions: specified places 1 136B. Express conditions: devices 1 137. Effect of proposed order to be explained to offender 1 138. Order to be provided in writing 1 139. Supervising officer 1 140. Obligations under order may be suspended 1 141. Amendment of order, extent of power 1 142. Amendment or cancellation of order 1 142A. Cancellation automatic in case of offender with links to terrorism 1 142B. Supervised release order, when cancellation under s. 142A takes effect 1 143. Cancellation of certain obligations after 6 months' release 1 144. Breach of order other than by re‑offending, report to CEO 1 145. Courts to notify Board and CEO of re‑offending 1 146. Report to be provided when referring matter to Board 1 147. Breach of order, how Board may deal with 1 147A. Offending while on supervised release order: automatic cancellation 1 148. Compliance with order, effect of 1 149. Suspension or cancellation of order, effect of 1 150. Cancellation of order after offender reaches 18 1 Division 2A — Offenders with links to terrorism or subject to Commissioner of Police reports Subdivision 1 — Preliminary 150A. Release considerations 1 Subdivision 2 — Supervised release orders in cases of offenders with links to terrorism 150B. References to Board 1 150C. Making supervised release orders 1 150D. Commissioner of Police reports 1 150E. Withdrawing Commissioner of Police reports 1 Subdivision 3 — Supervised release orders for other offenders subject to Commissioner of Police reports 150F. Releasing offender subject to Commissioner of Police report under supervised release order 1 Subdivision 4 — Review 150G. Review of Division 1 Division 3 — The Supervised Release Review Board 151. Board established 1 152. Board members 1 153. Term of office 1 154. Alternate members 1 155. Remuneration and allowances 1 156. Meetings 1 157. Quorum 1 158. Presiding at meetings 1 159. Board may request reports 1 160. Determination of questions 1 161. Procedure 1 162. Board may reconsider its decision 1 163. Rules of natural justice excluded 1 164. Judicial notice of Board's documents 1 165. Annual report 1 165A. Information to be excluded from annual reports 1 Part 9 — Detention centres 166. Appointment of visiting justices 1 168. Visiting justices, functions of 1 169. Right of certain persons to enter detention centre 1 169A. Investigation of alleged incident at detention centre 1 170. Detention offences 1 171. Detention offence charge, procedure on 1 172. Visiting justice may deal with referred charges 1 173. Detention offences, dealing with 1 174. Detention offence charges, hearing of 1 175. Visiting justice may direct prosecution for detention offence 1 176. Early discharge from detention 1 178. Transfer of offender who is 16 or 17 years old from detention centre to prison 1 178A. Transfer of offender who has reached age of 18 years from detention centre to prison 1 178B. Chief executive officer may direct that mandatory transfer does not apply 1 179. Medical treatment, removal for 1 180. Death of detainee, coroner to investigate 1 181. Rules for detention centres, CEO may make 1 Part 10 — Miscellaneous 182. Protection from legal liability 1 183. Order to be defence to actions 1 184. CEO may give consent in relation to detainee 1 185. Minister may make certain payments 1 186. Officer of Department may conduct cases 1 187. Certificate of superintendent to be evidence 1 188. Person having charge of detainee has legal custody 1 189. Certain offenders to be regarded as not convicted 1 190. Disclosure of certain convictions 1 191. Unlawfully communicating with detainee 1 192. Unlawfully remaining in detention centre 1 193. Escape from custody 1 193A. Arrest warrant may be issued if warrant of commitment in force 1 194. Personating an officer 1 195. General penalty 1 196. Regulations 1 197. Delegation of prescribed functions 1 197A. Delegation by Commissioner of Police 1 Part 11 — Amendment of certain other Acts and transitional provisions Division 3 — Transitional provisions Subdivision 1 — General 231. Interpretation Act 1984 applies 1 232. Orders for past matters 1 233. Orders under former provisions 1 234. Detention centres under Child Welfare Act 1947 1 235. Proceedings pending before children's panels 1 Subdivision 2 — Transitional provisions for Young Offenders Amendment Act 2023 235A. Term used: commencement day 1 235B. Young persons in detention on commencement day who have reached age of 18 years 1 235C. Offenders in detention on commencement day who have reached age of 18 years 1 235D. Applications not yet determined taken to be withdrawn 1 Division 4 — Miscellaneous 237. Review of Act 1 Schedule 1 — Schedule 1 offences Schedule 2 — Schedule 2 offences Schedule 3 — Adaptations for community work in default of payment 1. References to offender 1 2. Conditions 1 3. Duration of order 1 4. Powers of court in dealing with breach 1 5. Effect of partially performing work ordered in default of payment 1 6. Proof of identity 1 Notes Compilation table 1 Uncommenced provisions table 1 Other notes 1 Defined terms Western Australia Young Offenders Act 1994 An Act relating to young persons who commit offences against the law, to amend certain Acts 1, and for related purposes. Part 1 — Preliminary 1. Short title This Act may be cited as the Young Offenders Act 1994. 2. Commencement This Act comes into operation on such day as is fixed by proclamation. 3. Terms used (1) In this Act, unless the contrary intention appears — Aboriginal community has the meaning given to that term in section 3 of the Aboriginal Communities Act 1979; attendance conditions means conditions referred to in section 73(1)(a); body sample means a sample of a person's blood, breath, or urine; category 1 offender means — (a) an offender who — (i) has been charged with, or convicted of, a terrorism offence; or (ii) is subject to an interim control order or a confirmed control order; or (b) an offender who has been subject to an interim control order or a confirmed control order at any time during — (i) the period of the offender's sentence (the current sentence); or (ii) the period of 4 years ending on the day on which the offender's current sentence begins or is taken to have begun; or (c) an offender for whom an interim control order in respect of the offender is being sought under the Commonwealth Criminal Code section 104.3; category 2 offender means an offender who has been charged with, or convicted of, an offence against the Commonwealth Criminal Code section 80.2C(1); chairperson means the person appointed under section 152(1)(a); chief executive officer means the chief executive officer of the Department; Commissioner of Police report means a written report referred to in section 150D(1) or (4); Commonwealth Criminal Code means the Criminal Code set out in the Schedule to the Criminal Code Act 1995 (Commonwealth); community work conditions means conditions referred to in section 73(1)(b); conditional release order has the meaning given by section 101; confirmed control order has the meaning given in the Commonwealth Criminal Code section 100.1(1); court means the Children's Court or other court dealing with a young person for an offence; custodial officer means — (a) a superintendent, or other officer with custodial functions, appointed under section 11(1); or (b) a person who is appointed under section 11(1a)(a) as a custodial officer; Department means the department of the Public Service principally assisting the Minister in the administration of this Act; detainee means a person who is detained in a detention centre; detention, when referring to a sentence of detention, means detention in a detention centre; detention centre means a place declared to be a detention centre under section 13; earliest release day, in relation to a sentence of detention, means the earliest day on which the offender can, in accordance with section 121, be released under a supervised release order from custody under the sentence; exempt responsible adult, in relation to a young person, means a responsible adult whose responsibility for the young person arises from being — (a) a person having the custody, care or control of the young person for a period that the court considers to be limited or temporary; or (b) the CEO as defined in section 3 of the Children and Community Services Act 2004 who, under that Act, has parental responsibility for the young person; or (c) an officer as defined in section 3 of the Children and Community Services Act 2004; or (d) in any other capacity prescribed for the purposes of this paragraph by the regulations; general principles of juvenile justice means the principles described in section 7; imprisonment means imprisonment in a prison under the Prisons Act 1981; independent young person means a young person who — (a) has reached the age of 17 years; and (b) has sufficient maturity to live independently without the guidance or control of a responsible adult, and is doing so; intensive youth supervision order means an order made under section 98; interim control order has the meaning given in the Commonwealth Criminal Code section 100.1(1); lock‑up means a lock‑up as defined in the Court Security and Custodial Services Act 1999; notice to attend court means a notice to attend court issued to a young person in accordance with section 43; offender with links to terrorism means — (a) a category 1 offender; or (b) a category 2 offender who is subject to a Commissioner of Police report; or (c) an offender who — (i) is subject to a Commissioner of Police report; and (ii) the Supervised Release Review Board as constituted by the chairperson alone is satisfied, having regard to the report, has made statements or carried out activities that support, or advocate support for, terrorist acts; registrar of the court, in relation to the Children's Court, means the registrar of the Children's Court at the place where the relevant matter was heard; remove, in relation to an officer or other person appointed under section 11(1), means terminate the employment of the officer or person; responsible adult, in relation to a young person, means a parent, guardian, or other person having responsibility for the day to day care of the young person but does not include a person who the regulations may provide is not a responsible adult; Schedule 1 offence means — (a) an offence that is committed against an enactment referred to in column 1 of Schedule 1 and is — (i) described in column 2 of Schedule 1 opposite the reference; or (ii) committed in the circumstances set out in column 2 of Schedule 1 opposite the reference; or (b) the offence of counselling or procuring the commission of an offence mentioned in paragraph (a); Schedule 2 offence means — (a) an offence that is committed against an enactment referred to in column 1 of Schedule 2 and is — (i) described in column 2 of Schedule 2 opposite the reference; or (ii) committed in the circumstances set out in column 2 of Schedule 2 opposite the reference; or (b) the offence of counselling or procuring the commission of an offence mentioned in paragraph (a); special order means an order made under section 126; superintendent means the person in charge of a detention centre; supervised release order means an order made under section 132 for a person who is serving a sentence of detention to be released from custody subject to conditions; supervision conditions means conditions referred to in section 73(1)(c); terrorism offence means — (a) an offence against the Commonwealth Criminal Code Division 72 Subdivision A; or (b) an offence against the Commonwealth Criminal Code Division 80 Subdivision B; or (c) an offence against the Commonwealth Criminal Code Part 5.3, other than an offence against section 104.22, 104.27, 104.27A, 105.41 or 105.45; or (d) an offence against the Commonwealth Criminal Code Part 5.5; or (e) an offence against the following provisions of the Charter of the United Nations Act 1945 (Commonwealth) — (i) Part 4; (ii) Part 5, to the extent that it relates to the Charter of the United Nations (Sanctions—Al‑Qaida) Regulations 2008 (Commonwealth); or (f) an offence against the Crimes (Foreign Incursions and Recruitment) Act 1978 (Commonwealth) (repealed); or (g) an offence against the Crimes (Internationally Protected Persons) Act 1976 (Commonwealth) section 8; or (h) an offence under a written law or a law of the Commonwealth, another State, a Territory or another country, that substantially corresponds to an offence referred to in paragraph (a), (b), (c), (d), (e) or (g); or (i) an offence of attempting, inciting or conspiring to commit an offence referred to in paragraph (a), (b), (c), (d), (e), (f), (g) or (h); terrorist act has the meaning given in the Terrorism (Commonwealth Powers) Act 2002 section 3; terrorist intelligence information means information relating to a prohibited act or suspected prohibited act, the disclosure of which could reasonably be expected to — (a) prejudice national security; or (b) endanger a person's life or physical safety; or (c) threaten significant damage to infrastructure or property; or (d) prejudice a criminal investigation; or (e) reveal intelligence gathering methodologies, investigative techniques or technologies or covert practices; or (f) enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement; work includes any form of work, service or activity; young person means — (a) a person who has not reached the age of 18 years; or (b) a person to whom this Act applies because of section 4; youth community based order means an order made under section 73. (2) For the purposes of the definition of terrorist intelligence information, a prohibited act is — (a) a terrorism offence; or (b) an offence against the Commonwealth Criminal Code section 80.2C(1); or (c) a terrorist act (whether in this State or elsewhere). [Section 3 amended: No. 47 of 1999 s. 40; No. 34 of 2004 s. 251; No. 58 of 2004 s. 4; No. 59 of 2004 s. 141; No. 29 of 2014 s. 11; No. 14 of 2022 s. 30.] [Section 3. Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section altered 1 Dec 2009. See endnote 1M.] 4. Young offenders reaching 18 If a person commits or allegedly commits an offence before reaching the age of 18 years, this Act applies to the person as a young person for purposes connected with that offence or any order that was made in dealing with the person for that offence. 5. Criminal Procedure Act 2004 overridden To the extent that this Act is inconsistent with the Criminal Procedure Act 2004 this Act prevails. [Section 5 amended: No. 59 of 2004 s. 141; No. 84 of 2004 s. 77.] 6A. Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies The Courts and Tribunals (Electronic Processes Facilitation) Act 2013 Part 2 applies to this Act. [Section 6A inserted: No. 20 of 2013 s. 137.] Part 2 — Objectives and principles 6. Objectives The main objectives of this Act are — (a) to provide for the administration of juvenile justice; and (b) to set out provisions, embodying the general principles of juvenile justice, for dealing with young persons who have, or are alleged to have, committed offences; and (c) to ensure that the legal rights of young persons involved with the criminal justice system are observed; and (d) to enhance and reinforce the roles of responsible adults, families, and communities in — (i) minimising the incidence of juvenile crime; and (ii) punishing and managing young persons who have committed offences; and (iii) rehabilitating young persons who have committed offences towards the goal of their becoming responsible citizens; and (e) to integrate young persons who have committed offences into the community; and (f) to ensure that young persons are dealt with in a manner that is culturally appropriate and which recognises and enhances their cultural identity. 7. General principles of juvenile justice The general principles that are to be observed in performing functions under this Act are that — (a) there should be special provision to ensure the fair treatment of young persons who have, or are alleged to have, committed offences; and (b) a young person who commits an offence is to be dealt with, either formally or informally, in a way that encourages the young person to accept responsibility for his or her conduct; and (c) a young person who commits an offence is not to be treated more severely because of the offence than the person would have been treated if an adult; and (d) the community must be protected from illegal behaviour; and (e) victims of offences committed by young persons should be given the opportunity to participate in the process of dealing with the offenders to the extent that the law provides for them to do so; and (f) responsible adults should be encouraged to fulfil their responsibility for the care and supervision of young persons, and supported in their efforts to do so; and (g) consideration should be given, when dealing with a young person for an offence, to the possibility of taking measures other than judicial proceedings for the offence if the circumstances of the case and the background of the alleged offender make it appropriate to dispose of the matter in that way and it would not jeopardise the protection of the community to do so; and (h) detaining a young person in custody for an offence, whether before or after the person is found to have committed the offence, should only be used as a last resort and, if required, is only to be for as short a time as is necessary; and (i) detention of a young person in custody, if required, is to be in a facility that is suitable for a young person and at which the young person is not exposed to contact with any adult detained in the facility, although a young person who has reached the age of 16 years may be held in a prison for adults but is not to share living quarters with an adult prisoner; and (j) punishment of a young person for an offence should be designed so as to give the offender an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways; and (k) a young person who is dealt with for an offence should be dealt with in a time frame that is appropriate to the young person's sense of time; and (l) in dealing with a young person for an offence, the age, maturity, and cultural background of the offender are to be considered; and (m) a young person who commits an offence is to be dealt with in a way that — (i) strengthens the family and family group of the young person; and (ii) fosters the ability of families and family groups to develop their own means of dealing with offending by their young persons; and (iii) recognises the right of the young person to belong to a family. [Section 7 amended: No. 82 of 1994 s. 20; No. 78 of 1995 s. 145; No. 29 of 1998 s. 20.] 8. Responsible adults, role of While observing the general principles of juvenile justice as required by section 7, a person performing functions under this Act is also to have regard to the principles that — (a) responsible adults have an important responsibility for the behaviour of young persons under their care; and (b) responsible adults should be involved in the disposition, by a court or otherwise, of allegations of offences by the young persons under their care and in their punishment or management as a result of having offended; and (c) a responsible adult should be notified as soon as practicable after a young person is taken into custody or otherwise dealt with under this Act and, if the young person is in custody, should be kept informed as to the whereabouts of the young person; and (d) in determining the degree of responsibility expected of a responsible adult the age, intellectual and emotional maturity of the young person and the fact that the young person is in employment or is living independently shall be taken into account. Part 3 — Administration Division 1 — Chief executive officer [Heading inserted: No. 29 of 2014 s. 12.] 9. Chief executive officer, functions of It is the duty of the chief executive officer, under the direction of the Minister, to carry into operation the provisions of this Act so far as the duty is not expressly committed to any other person. 10. Chief executive officer may delegate The chief executive officer may, by a signed instrument of delegation, delegate to an officer of the Department, either generally or as otherwise provided in the instrument, any power or duty under this Act, other than this power of delegation. [Section 10. Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section altered 1 Dec 2009. See endnote 1M.] Division 2 — Other officers and employees [Heading inserted: No. 29 of 2014 s. 13.] 11. Officers and employees, appointment of (1) The chief executive officer may appoint, under and subject to Part 3 of the Public Sector Management Act 1994, such officers and other persons as are necessary to implement or administer this Act. (1a) In addition to persons appointed under subsection (1) and for the purposes of this Act the chief executive officer may appoint — (a) custodial officers for primarily non‑administrative functions; and (b) officers and employees of particular classes as are prescribed by the regulations, and may remove those persons in the prescribed circumstances. (1b) The custodial officers appointed under subsection (1a)(a) — (a) may be subject to employment conditions set out in an award or industrial agreement; and (b) may be subject to — (i) disciplinary proceedings provided for in the regulations; or (ii) if regulations are made under subsection (1C) — disciplinary proceedings under the Public Sector Management Act 1994 Part 5. (1C) The regulations may prescribe custodial officers for the purposes of the Public Sector Management Act 1994 section 76(1)(b). (2) The officers and employees appointed under subsection (1a)(b) — (a) are to have such functions as are given to them under the regulations; and (b) may be subject to employment conditions set out in an award or industrial agreement; and (c) in prescribed circumstances, may be subject to such disciplinary procedures as are set out in the regulations. (3) Appointments under subsection (1a) may be on a paid or honorary basis. [Section 11 amended: No. 58 of 2004 s. 6(1) and (2); No. 29 of 2014 s. 14.] [11AA. 1M Modifications to be applied in order to give effect to Cross‑border Justice Act 2008: section inserted 1 Nov 2009. See endnote 1M.] 11A. Duties of all officers and employees Every officer, person or employee appointed under section 11 — (a) must observe all rules made under this Act; and (b) must make such returns and reports to the chief executive officer as the chief executive officer may from time to time direct; and (c) must make any records relating to any young offender available, upon request of the chief executive officer, to the chief executive officer or a delegate of the chief executive officer. [Section 11A inserted: No. 58 of 2004 s. 7.] [Section 11A. Modifications to be applied in order to give effect to Cross-border Justice Act 2008: section altered 1 Dec 2009. See endnote 1M.] 11B. Powers and duties of custodial officers A custodial officer — (a) has a responsibility to maintain the security of the facility or detention centre where he or she is employed; and (b) is liable to answer for the escape of a detainee placed in his or her charge or for whom when on duty he or she has a responsibility; and (c) must obey all lawful orders given to him or her by the officer under whose control or supervision he or she is placed; and (d) may issue to a detainee such orders as are necessary for the purposes of this Act, including the security, good order, or management of a facility or detention centre, and may use such force as is prescribed under section 11C as is necessary to ensure that lawful orders given to a detainee are complied with. [Section 11B inserted: No. 58 of 2004 s. 7; amended: No. 29 of 2014 s. 15.] Division 3 — Removal of custodial officers due to loss of confidence [Heading inserted: No. 29 of 2014 s. 16.] Subdivision 1 — Preliminary [Heading inserted: No. 29 of 2014 s. 16.] 11CA. Terms used In this Division, unless the contrary intention appears — appeal means an appeal under section 11CH; appellant means a person who institutes an appeal; Chief Commissioner has the same meaning as in the Industrial Relations Act 1979; decision notice has the meaning given in section 11CD(3)(b); industrial commissioner means a commissioner as defined in the Industrial Relations Act 1979 section 7(1); maintenance payment has the meaning given in section 11CE(1); maintenance period has the meaning given in section 11CE(1); new evidence, on an appeal against the removal of a custodial officer, means evidence other than evidence of any of the following — (a) a document or other material that was examined and taken into account by the chief executive officer in making the removal decision; (b) the notice given under section 11CD(1); (c) a written submission made to the chief executive officer by the custodial officer under section 11CD(2); (d) a decision notice; (e) a notification of the removal; removal action, in relation to a custodial officer, means the removal of the custodial officer under section 11CC; removal decision means a decision of the chief executive officer to take removal action; suitability to continue as a custodial officer means suitability to continue as a custodial officer having regard to the officer's integrity, honesty, competence, performance or conduct; WAIRC means The Western Australian Industrial Relations Commission continued and constituted under the Industrial Relations Act 1979. [Section 11CA inserted: No. 29 of 2014 s. 16.] Subdivision 2 — Removal of custodial officers [Heading inserted: No. 29 of 2014 s. 16.] 11CB. Application of Subdivision (1) This Subdivision applies if — (a) the chief executive officer does not have confidence in a custodial officer's suitability to continue as a custodial officer; and (b) the chief executive officer — (i) decides not to take, or continue to take, disciplinary proceedings referred to in section 11(1b)(b) against a custodial officer; and (ii) decides instead to take removal action in relation to the custodial officer. (2) If regulations are made under section 11(1C), this Subdivision applies despite the Public Sector Management Act 1994 section 76(2). [Section 11CB inserted: No. 29 of 2014 s. 16.] 11CC. Removal action (1) If the chief executive officer does not have confidence in a custodial officer's suitability to continue as a custodial officer, the chief executive officer may remove the custodial officer. (2) Subsection (1) applies in addition to, and does not limit the operation of, the Public Sector Management Act 1994. (3) The chief executive officer may conduct any necessary investigation to determine a custodial officer's suitability to continue as a custodial officer. (4) For the purpose of the investigation the chief executive officer may require the custodial officer to do all or any of the following — (a) provide the chief executive officer with any information or answer any question that the chief executive officer requires; (b) produce to the chief executive officer any document in the custody or under the control of the custodial officer. (5) The custodial officer is not excused from giving information, answering any question or producing a document when required to do so under subsection (4) on the ground that the information, answer or document might — (a) incriminate the custodial officer; or (b) render the custodial officer liable to a disciplinary measure under section 11 or removal under this Division. (6) The information, answer or document is not admissible in evidence against the custodial officer in any criminal proceedings except in proceedings for an offence under subsection (7). (7) A custodial officer must not, in response to a requirement under subsection (4) — (a) fail or refuse to provide the required information or answer or produce the required document; or (b) give information or an answer that is false or misleading in a material particular; or (c) produce a document that the custodial officer knows is false or misleading in a material particular — (i) without indicating that the document is false or misleading and, to the extent the custodial officer can, how the document is false or misleading; and (ii) if the custodial officer has, or can reasonably obtain, the correct information — without providing the correct information. Penalty: a fine of $4 000 and imprisonment for 12 months. [Section 11CC inserted: No. 29 of 2014 s. 16.] 11CD. Notice of loss of confidence (1) The chief executive officer may give the custodial officer a written notice setting out the grounds on which the chief executive officer does not have confidence in the custodial officer's suitability to continue as a custodial officer. (2) The custodial officer may make written submissions to the chief executive officer in relation to the notice within the following period (the submission period) — (a) 21 days after the day on which the notice is given; or (b) any longer period after that day allowed by the chief executive officer. (3) After the submission period, the chief executive officer must — (a) decide whether or not to take removal action against the custodial officer; and (b) give the custodial officer written notice of the decision (the decision notice). (4) The chief executive officer must not decide to take removal action against the custodial officer unless the chief executive officer — (a) has taken into account any written submissions received from the custodial officer during the submission period; and (b) still does not have confidence in a custodial officer's suitability to continue as a custodial officer. (5) If the chief executive officer decides to take removal action against the custodial officer, the decision notice must contain the reasons for the decision. (6) Except as provided in the regulations, the chief executive officer must, within 7 days after giving the decision notice — (a) give to the custodial officer a copy of any documents that were considered by the chief executive officer in making the decision; and (b) make available to the custodial officer for inspection any other materials that were considered by the chief executive officer in making the decision. (7) The removal action may be carried out when the notice is given or at any time after that. [Section 11CD inserted: No. 29 of 2014 s. 16.] 11CE. Maintenance payment (1) If a custodial officer is removed as a result of removal action, the custodial officer is entitled to receive a payment (a maintenance payment) for the period of 28 days after the day on which the custodial officer is removed (the maintenance period). (2) The Minister may, in exceptional circumstances, direct that a maintenance payment must be paid to the custodial officer for a specified period after the maintenance period. (3) For the purpose of subsection (2), the specified period is a period not exceeding 6 months specified by the Minister but in any event ending on the day any appeal is determined by the WAIRC. (4) Any maintenance payment must be determined on the basis of the salary of the custodial officer at the time of the removal. [Section 11CE inserted: No. 29 of 2014 s. 16.] 11CF. Withdrawal of removal action and revocation of removal (1) If a custodial officer is removed as a result of removal action, the chief executive officer may, by notice in writing to the custodial officer, revoke the removal. (2) Subsection (1) applies even if an appeal has been instituted against the removal. (3) Despite any other enactment, if the removal is revoked under subsection (1), the removal is to be taken to be of no effect and to have never had any effect. (4) If the chief executive officer revokes the removal of a custodial officer under subsection (1), the custodial officer is not entitled to be paid his or her salary for any period the custodial officer received a maintenance payment. [Section 11CF inserted: No. 29 of 2014 s. 16.] 11CG. Resignation of custodial officer who has been removed (1) Even if a custodial officer is removed as a result of removal action, the custodial officer may resign at any time before the end of the maintenance period. (2) Subsection (1) does not apply if an appeal has been instituted against the removal. (3) A resignation under subsection (1) takes effect at the end of the maintenance period. (4) Despite any other enactment, if a custodial officer resigns under subsection (1), the removal of the custodial officer is to be taken to be of no effect and to have never had any effect. [Section 11CG inserted: No. 29 of 2014 s. 16.] Subdivision 3 — Appeal against removal of custodial officer [Heading inserted: No. 29 of 2014 s. 16.] 11CH. Appeal right (1) If a custodial officer is removed as a result of removal action, the custodial officer may appeal to the WAIRC against the removal decision on the ground that it was harsh, oppressive or unfair. (2) The custodial officer may institute the appeal by a notice to the chief executive officer stating — (a) the reasons for the removal decision being harsh, oppressive or unfair; and (b) the nature of the relief sought. (3) The appeal cannot be instituted — (a) after the maintenance period; or (b) if the custodial officer has resigned under section 11CG(1). (4) For the purposes of proceedings relating to the appeal, the WAIRC is to be constituted by not less than 3 industrial Commissioners, at least one of whom must be — (a) the Chief Commissioner; or (b) the Senior Commissioner within the meaning of that term in the Industrial Relations Act 1979. (5) The only parties to the appeal are the custodial officer and the chief executive officer. (6) The custodial officer does not have any right of appeal against the removal decision other than under this section. [Section 11CH inserted: No. 29 of 2014 s. 16.] 11CI. Proceedings on appeal (1) On the hearing of an appeal, the WAIRC must proceed in the following manner — (a) first, it must consider the chief executive officer's reasons for the removal decision; (b) second, it must consider the case presented by the appellant as to why the removal decision was harsh, oppressive or unfair; (c) third, it must consider the case presented by the chief executive officer in answer to the appellant's case. (2) The appellant has at all times the burden of establishing that the removal decision was harsh, oppressive or unfair. (3) Subsection (2) has effect despite any law or practice to the contrary. (4) Without limiting the matters to which the WAIRC is otherwise required or permitted to have regard in determining the appeal, it must have regard to — (a) the interests of the appellant; and (b) the public interest, which is to be taken to include — (i) the importance of maintaining public confidence in the integrity, honesty, conduct and standard of performance of custodial officers; and (ii) the special nature of the relationship between the chief executive officer and custodial officers. [Section 11CI inserted: No. 29 of 2014 s. 16.] 11CJ. Leave to tender new evidence on appeal (1) New evidence cannot be tendered to the WAIRC during a hearing of an appeal unless the WAIRC grants leave under subsection (2) or (3). (2) The WAIRC may grant the chief executive officer leave to tender new evidence if — (a) the appellant consents; or (b) it is satisfied that it is in the interests of justice to do so. (3) The WAIRC may grant the appellant leave to tender new evidence if — (a) the chief executive officer consents; or (b) the WAIRC is satisfied that — (i) the appellant is likely to be able to use the new evidence to show that the chief executive officer has acted upon wrong or mistaken information; or (ii) the new evidence might materially have affected the chief executive officer's removal decision; or (iii) it is in the interests of justice to do so. (4) In the exercise of its discretion under subsection (3), the WAIRC must have regard to — (a) whether or not the appellant was aware of the substance of the new evidence before the appellant's removal; and (b) whether or not the substance of the new evidence was contained in a document to which the appellant had reasonable access before the appellant's removal. [Section 11CJ inserted: No. 29 of 2014 s. 16.] 11CK. Opportunity to consider new evidence (1) If the chief executive officer is given leave to tender new evidence under section 11CJ(2) — (a) the WAIRC must give the appellant a reasonable opportunity to consider the new evidence; and (b) the appellant may, without the leave of the WAIRC, tender new evidence under this section in response to the new evidence tendered by the chief executive officer. (2) If the appellant is given leave to tender new evidence under section 11CJ(3), the WAIRC must give the chief executive officer a reasonable opportunity to consider the new evidence. [Section 11CK inserted: No. 29 of 2014 s. 16.] 11CL. Revocation of removal after consideration of new evidence (1) If, having considered any new evidence, the chief executive officer revokes the removal under section 11CF(1) — (a) the chief executive officer must give the WAIRC notice of the revocation; and (b) the hearing of the appeal is discontinued when the WAIRC receives the notice. (2) If the chief executive officer does not give notice under subsection (1), the hearing of the appeal must continue but the chief executive officer may — (a) reformulate his or her reasons for not having confidence in the appellant's suitability to continue as a custodial officer; and (b) without the leave of the WAIRC, tender new evidence under this section in response to the new evidence tendered by the appellant. (3) Reasons reformulated under subsection (2)(a) may differ from, or be additional to, the reasons given to the appellant in the decision notice. (4) If the chief executive officer reformulates reasons under subsection (2)(a) — (a) the chief executive officer must give the WAIRC and the appellant notice in writing of the reasons before the resumption of the hearing of the appeal; and (b) the WAIRC must consider the reasons as if they had been reasons given to the appellant in the decision notice. [Section 11CL inserted: No. 29 of 2014 s. 16.] 11CM. Application of Industrial Relations Act 1979 to appeals The provisions of the Industrial Relations Act 1979 listed in the Table apply to, and in relation to, an appeal and its determination, subject to — (a) any specific modifications set out in the Table; and (b) all other necessary modifications. Table s. 26(1)(a) and (b) s. 26(3) s. 27(1)(b), (c), (d), (e), (f), (h), (ha), (hb), (l), (m), (n), (o) and (v) s. 27(1a) s. 28 The section applies only in relation to powers conferred by section 27 listed in this Table. s. 31(1) Paragraphs (b) and (c) do not apply but the subsection is to be read as if it contained the following paragraphs — " (b) with the leave of the Commission, by an agent; or (c) by a legal practitioner. ". s. 31(3) s. 31(5) s. 32 Section 32(1) is to be read as if a reference to "Where an industrial matter has been referred to the Commission the Commission shall" were a reference to "If the Commission is dealing with an appeal instituted under the Young Offenders Act 1994 section 11CH, the Commission may recommend that the parties to the appeal". References to "the matter" and "an industrial matter" are to be read as if they were references to "the appeal". For the purposes of subsections (2) and (3), Commission does not include an industrial commissioner constituting the WAIRC to hear the appeal. Subsections (4), (6), (7) and (8) do not apply. A summons must not be issued under section 33(1)(a) to the Governor. s. 33 A summons may be issued to the chief executive officer or the Minister but only at the direction of a commissioner appointed under the Industrial Relations Act 1979 if that commissioner is satisfied that there are extraordinary grounds for doing so. A summons may not be issued to any other person except at the direction of a commissioner. s. 34 A reference in subsection (1) to "an award, order or declaration" is to be read as if it were a reference to "an order". A reference in subsection (4) to "no award, order, declaration, finding, or proceeding" is to be read as if it were a reference to "no decision, order, finding or proceeding". s. 35 s. 36 s. 86 The section does not apply in relation to costs and expenses, other than expenses of witnesses. s. 90 A reference in subsection (1) to "any decision of the Full Bench, the Commission on an application under section 49(11) or the Commission in Court Session" is to be read as if it were a reference to "a decision of the Commission under the Young Offenders Act 1994 section 11CP". [Section 11CM inserted: No. 29 of 2014 s. 16; amended: No. 39 of 2018 s. 72.] 11CN. Adjournment of appeal if appellant charged with offence (1) The chief executive officer or an appellant may apply to the WAIRC for an adjournment of the hearing of an appeal if the appellant has been — (a) charged with an offence relating to any matter, act or omission that was taken into account by the chief executive officer in deciding that he or she did not have confidence in the appellant's suitability to continue as a custodial officer; and (b) the charge has not been finally determined by a court or otherwise disposed of. (2) If an adjournment application is made by the chief executive officer, the WAIRC may adjourn the hearing of the appeal if it considers that it is in the interests of justice to do so. (3) If an adjournment application is made by the appellant, the WAIRC must adjourn the hearing of the appeal for the period (not exceeding 12 months) requested by the appellant. (4) Before the end of the period of an adjournment under this section, the chief executive officer or the appellant may apply to the WAIRC for a further adjournment and, if it is in the interests of justice to do so, the WAIRC may grant a further adjournment for the period specified by it. (5) Subsections (2) and (4) do not affect any other power of the WAIRC to grant an adjournment. [Section 11CN inserted: No. 29 of 2014 s. 16.] 11CO. Resumption of appeal before end of adjournment If the charge is finally determined by a court or otherwise disposed of before the end of the period of an adjournment under section 11CN, the chief executive officer or the appellant may apply to the WAIRC for the hearing of the appeal to be resumed on a date specified by the WAIRC. [Section 11CO inserted: No. 29 of 2014 s. 16.] 11CP. Decision by WAIRC (1) This section applies if the WAIRC decides on an appeal that the decision to take removal action relating to the appellant was harsh, oppressive or unfair. (2) The WAIRC may — (a) order that the appellant's removal is, and is to be taken to have always been, of no effect; or (b) if it is impracticable to make an order under paragraph (a), order the chief executive officer to pay the appellant an amount of compensation for loss or injury caused by the removal. (3) In considering whether or not it is impracticable to make an order under subsection (2)(a), it is relevant to consider — (a) whether, at the time of the appellant's removal, the position occupied by the appellant is vacant; and (b) whether there is another suitable vacant position in the Department. (4) If the WAIRC makes an order under subsection (2)(a), the appellant is not entitled to be paid his or her remuneration as a custodial officer for any period the appellant received a maintenance payment. (5) An order under this section may require that it be complied with within a specified time. [Section 11CP inserted: No. 29 of 2014 s. 16.] 11CQ. Determining amount of compensation (1) An amount of compensation ordered under section 11CP(2)(b) must be determined in accordance with this section. (2) In determining the amount, the WAIRC must have regard to all of the following — (a) the efforts, if any, of the chief executive officer and the appellant to mitigate the loss suffered by the appellant as a result of the removal; (b) any maintenance payment received by the appellant; (c) any redress the appellant has obtained under another enactment where the evidence necessary to establish that redress is also the evidence necessary to establish on the appeal that the removal was harsh, oppressive or unfair; (d) any other matter that the WAIRC considers relevant. (3) In determining the amount, the WAIRC may have regard to the average rate of remuneration as a custodial officer received by the appellant during any relevant period of service. (4) The amount must not exceed 12 months' remuneration as a custodial officer. [Section 11CQ inserted: No. 29 of 2014 s. 16.] 11CR. Restriction on publication (1) If the WAIRC is satisfied that it is in the public interest, it may direct that any evidence given before it, or the contents of any document produced to it, on an appeal — (a) must not be published; or (b) must not be published except in a manner, and to persons, specified by the WAIRC. (2) A person must not contravene a direction given under this section. Penalty: a fine of $4 000 and imprisonment for 12 months. [Section 11CR inserted: No. 29 of 2014 s. 16.] Subdivision 4 — General [Heading inserted: No. 29 of 2014 s. 16.] 11CS. Effect of charge for, or conviction or acquittal of, offence The chief executive officer can take removal action in relation to a custodial officer for a particular matter, act or omission even if the matter, act or omission is an element of an offence — (a) with which the custodial officer has been charged; or (b) of which the custodial officer has been convicted or acquitted. [Section 11CS inserted: No. 29 of 2014 s. 16.] 11CT. Failure to comply with procedure An act or omission of the chief executive officer is not invalid, and cannot be called in question, if — (a) the act or omission comprises a failure to comply with procedure prescribed for the purposes of this Division; and (b) the failure is not substantive. [Section 11CT inserted: No. 29 of 2014 s. 16.] 11CU. Transfer, standing down and leave of custodial officer (1) This Division does not derogate from the chief executive officer's power to — (a) transfer a custodial officer; or (b) stand a custodial officer down from performing that custodial officer's usual duties, with or without pay, until the custodial officer is directed by the chief executive officer to return to those duties; or (c) allocate duties to a custodial officer other than the custodial officer's usual duties. (2) If the chief executive officer stands down a custodial officer in relation to whom removal action is being taken, the chief executive officer must review the decision to stand the custodial officer down every 60 days and advise the custodial officer in writing of the result of the review. (3) The chief executive officer must not direct a custodial officer in relation to whom removal action is being taken to take leave during the removal action unless the leave accrues during any period that the custodial officer is stood down from performing the custodial officer's usual duties. [Section 11CU inserted: No. 29 of 2014 s. 16.] 11CV. Review of Division (1) In this section — commencement day means the day on which the Custodial Legislation (Officers Discipline) Amendment Act 2014 Part 3 comes into operation. (2) The Minister must carry out a review of the operation and effectiveness of this Division as soon as is practicable after the expiry of 24 months after the commencement day and in the course of that review the Minister must consider and have regard to — (a) the effectiveness of this Division; and (b) the need for the retention of the Division; and (c) any other matters that appear to the Minister to be relevant to the operation and effectiveness of this Division. (3) Without limiting subsection (2), in carrying out the review, the Minister must consult with and have regard to the views of the Chief Commissioner of the WAIRC, the chief executive officer and any union that has custodial officers as some or all of its members. (4) The Minister must prepare a report based on the review and, as soon as is practicable after the report is prepared (and in any event not more than 30 months after the commencement day), cause a copy of it to be laid before each House of Parliament. [Section 11CV inserted: No. 29 of 2014 s. 16.] Division 4 — Management, control, security and wellbeing of young offenders [Heading inserted: No. 29 of 2014 s. 17.] 11C. Use of force (1) A custodial officer is authorised to use no more than prescribed force in the management, control and security of a facility or detention centre. (2) A custodial officer must not use force on a young offender unless that force is used in the prescribed circumstances. [Section 11C inserted: No. 58 of 2004 s. 7; amended: No. 29 of 2014 s. 18.] 11D. Use of restraints (1) The chief executive officer, or a superintendent, may authorise and direct the restraint of a young offender where in his or her opinion such restraint is necessary — (a) to prevent the young offender injuring himself or herself, or any other person; or (b) upon considering advice from a medical practitioner, on medical grounds; or (c) to prevent the escape of a young offender during his or her movement to or from a facility or detention centre, or during his or her temporary absence from a facility or detention centre. (2) Restraint involving the use of medication must not be used on medical grounds unless the approval of a medical practitioner is obtained first. (3) If restraint is used in relation to a young offender for a continuing period of more than 24 hours, the use and the circumstances must be reported as soon as practicable to the chief executive officer by the superintendent who has overall responsibility for the young offender at the time. [Section 11D inserted: No. 58 of 2004 s. 7.] 11E. Assistance by prison officers (1) A prison officer may, upon the request of the chief executive officer or a superintendent, assist in the exercise or performance of any power or duty conferred or imposed by this Act. (2) A prison officer who is assisting — (a) has the powers; and (b) is subject to the responsibilities; and (c) is to receive the protection from liability, which in like circumstances would be conferred or imposed on a custodial officer, in addition to the powers and duties conferred and imposed on that prison officer by or under any other law. (3) A prison officer who is assisting may use such force as can be used by a custodial officer and, with the approval of the chief executive officer, may use such control weapons as are necessary in the circumstances. [Section 11E inserted: No. 58 of 2004 s. 7; amended: No. 29 of 2014 s. 19.] 11F. Assistance by police officers (1) Subject to the directions of the Commissioner of Police, a police officer may, upon the request of the chief executive officer or a superintendent, assist in the exercise or performance of any power or duty conferred or imposed by this Act. (2) A police officer who is assisting — (a) has the powers; and (b) is subject to the responsibilities; and (c) is to receive the protection from liability, which in like circumstances would be conferred or imposed on a custodial officer, in addition to the powers and duties conferred and imposed on that police officer by or under any other law. [Section 11F inserted: No. 58 of 2004 s. 7; amended: No. 29 of 2014 s. 20.] 12. Departmental and subsidised facilities, establishment of (1) The Minister may, by order, declare a facility to be a Departmental facility or a subsidised facility. (1a) A facility that is a Departmental or subsidised facility immediately before the coming into operation of section 75 of the Prisons and Sentencing Legislation Amendment Act 2006 continues as a Departmental or subsidised facility as if the Minister had made the order under subsection (1) declaring it to be such a facility. (2) The Minister may, by order, vary or revoke an order under subsection (1). (3) An order under this section does not have effect until it is published in the Gazette, and may be expressed to have effect from a time that is after its publication in the Gazette. (4) The chief executive officer may, with the approval of the Minister, make rules for the management and control of Departmental facilities and subsidised facilities generally, or any such facility specified, and for the management and control of young persons in them and the management of officers of the Department. (5) Rules made under subsection (4) may — (a) confer a discretionary authority on any person or class of persons; (b) confer authority to require a young person at a facility to submit for the purpose of having a body sample taken or to wear a device for the purpose of having a body sample taken or detecting the pres