Northern Territory Explanatory Statements

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YOUTH JUSTICE AMENDMENT BILL 2010

YOUTH JUSTICE AMENDMENT BILL 2010
SERIAL NO. 120

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR CHILDREN AND FAMILIES
MINISTER FOR CHILD PROTECTION


EXPLANATORY STATEMENT
GENERAL OUTLINE

These amendments are proposed to clarify Parliament's position following the decision of the Full Court of the Supreme Court of the Northern Territory in Howie v Youth Justice Court & Ors [2010] NTSC 32. In that matter, the majority held that the Youth Justice Act (‘the Act’) did not grant jurisdiction to the Youth Justice Court to summarily hear and determine so-called 'gap' offences.

‘Gap’ offences are those serious indictable offences which fall within the ‘gap’ between offences for which, if committed by an adult, the maximum penalty is life imprisonment and indictable offences for which an adult can consent to summary jurisdiction. The ‘gap’ offences are indictable offences for which an adult could not consent to summary jurisdiction.

The Youth Justice Court does not have jurisdiction to hear and determine matters for which the maximum penalty, if committed by an adult, is life imprisonment. These matters must proceed by way of preliminary examination.

The effect of the Full Court’s decision has meant the jurisdiction of the Youth Justice Court to hear and determine indictable offences is limited to the parameters of sections 120 and 121A of the Justices Act. All other indictable matters are required to proceed by way of preliminary examination, for ultimate determination in the Supreme Court. This is the same as the procedure for adult defendants.


It has always been the intention that the Youth Justice Court operate according to international standards for the administration of juvenile justice. Youths who make contact with the criminal justice system should be kept separated from adult offenders, and are to be dealt with by the Court in a manner which is appropriate to their age and level of maturity. These considerations are set out in section 4 of the Act.

The amendments proposed to the Act are intended to clarify the jurisdiction of the Youth Justice Court extends to the hearing and determining summarily all matters for which a youth is charged, except for those where the maximum penalty for an adult offender is life imprisonment. This was the position under the predecessor to the Youth Justice Act, the Juvenile Justice Act, and is consistent with the approach taken in other youth justice jurisdictions.

Given the Youth Justice Act commenced operation in 2006, the proposed amendments include a retrospective component, which will correct and validate all decisions made and sentences imposed by the Youth Justice Court in relation to ‘gap’ offences since its inception.


NOTES ON CLAUSES

1. Short title

Following passage through the parliament this Bill is to be known as the Youth Justice Amendment Act 2010.

2. Act Amended

This Bill proposes amendment to the Youth Justice Act.

3. Section 5 amended Clause 3 omits the current definition of Court and inserts a new definition. The new definition clarifies that Court means the Youth Justice Court as mentioned in section 45 of the Act and, if the context requires may include the Supreme Court exercising its jurisdiction under the Act and a magistrate conducting a preliminary examination in accordance with Part V of the Justices Act.


4. Section 52 amended

Clause 4 clarifies the extent of the jurisdiction of the Youth Justice Court is to hear and determine all summary and indictable offences which a youth has allegedly committed.

Notwithstanding, the Act does not fetter the overall discretion of the Supreme Court to hear and determine any matter in circumstances where an ex-officio indictment is presented to that Court.

5. Section 53 amended

This clause deletes section 53(2)(a) of the Act. Youth matters do not proceed on information or complaint in the Youth Justice Court. They proceed by way of charge made with the consent of an authorised officer, under section 21 of the Act.

6. Sections 54 to 56 replaced

The purpose of this clause is to clarify the extent of jurisdiction of the Youth Justice Court. It repeals current sections 54 to 56 and inserts new sections 54 to 56A.

Proposed section 54: Court to deal with matters summarily except in certain cases

Proposed section 54 provides that the Youth Justice Court may hear and determine all matters in a summary fashion, except where sections 54A, 55(4) and 56 apply.

Proposed Section 54A : Exception if adult offender would be liable to life imprisonment

An exception to the jurisdiction of the Youth Justice Court to hear and determine charges is where a youth has been charged with an offence where the maximum penalty if the accused were an adult is life imprisonment. In those circumstances the Court must proceed by way of preliminary examination. This was the case under the Juvenile Justice Act and is the case under the Youth Justice Act.

Proposed Section 55 : Indictable offence tried summarily if youth consents

Proposed section 55 provides that if a youth is charged with an indictable offence that is neither a 'minor offence' nor an offence which carries a maximum penalty of life imprisonment, the youth may elect to have the matter dealt with summarily before the Youth Justice Court. A responsible adult for the youth must be present when the youth makes the election. If the youth consents, the Youth Justice Court may hear and determine the matter summarily. If the youth does not consent, the Court must proceed by way of preliminary examination.

A 'minor offence' is defined as those offences set out in section 120 of the Justices Act.

Proposed section 56: Court may decline jurisdiction

Proposed section 56 provides that the Youth Justice Court may decline to hear and determine a charge in respect of an indictable offence over which it has jurisdiction if it considers it is not appropriate for the matter to be heard and determined summarily. The Court must give reasons for declining and must continue the proceedings as if the Court had been dealing with the charge by way of preliminary examination. It is immaterial whether or not the youth has consented to the charge being heard and determined summarily.

Proposed Section 56A : Youth may elect to be tried summarily

Proposed section 56A applies in circumstances where a youth is charged with an offence to which proposed section 54A (see above) does not apply. At any stage of the proceedings, including during preliminary examination, the defendant youth may elect to have the charge heard and determined in a summary fashion.

7. Section 57 amended

This clause amends references to numbers of sub-sections to reflect changes in numbering. Further it provides guidance to the Court if a youth charged with an offence which may be dealt with under proposed section 56 (clause 6) wishes to enter a plea of guilty. In those circumstances the Court may accept the plea and impose a sentence. Alternatively, the Court may refer the youth to the Supreme Court for sentence if it considers it appropriate to do so.

8. Section 58 amended

This clause amends section 58 to ensure consistency of terminology within Part 5, Division 1.

9. Part 16 inserted Part 16 Provision for Youth Justice Amendment Act 2010

This clause inserts a new Part 16 to ensure that acts and omissions of the Youth Justice Court since its inception are valid, despite the want of jurisdiction in relation to offences which, if committed by an adult, the adult could not consent to summary jurisdiction (the so-called ‘gap’ offences referred to in Howie v Youth Justice Court & Ors [2010] NTSC 32).

Proposed Section 224 Exercise of jurisdiction before under pre-commencement Act

Proposed section 224 validates the exercise of jurisdiction by the Youth Justice Court in relation to declared charges or the purported exercise of such jurisdiction.

This validation does not apply to proceedings in relation to a declared charge allegedly committed by a youth if, before the commencement of the Act, the Supreme Court made a decision about the jurisdiction or want of jurisdiction of the Youth Justice Court and the application of this section would be inconsistent with the decision of the Supreme Court.

‘Declared charge’ is defined to mean a charge in respect of an indictable offence that, if the offence had been committed by an adult , would not be punishable by imprisonment for life and the adult could not consent to the charge being heard summarily; in other words a ‘gap’ offence as referred to in Howie v Youth Justice Court & Ors

Proposed Section 225 Matter before Supreme Court at commencement

Proposed section 225 applies to a matter which, on commencement of this Act, is before the Supreme Court and for which, after commencement, the Youth Justice Court will have the jurisdiction to hear and determine summarily.

The Supreme Court must consider whether it should continue to deal with the matter or the Youth Justice Court should deal with the matter. If the Supreme Court considers the matter should be heard and determined by the Youth Justice Court, and the youth consents, the Supreme Court may remit the matter to the Youth Justice Court and give any directions it considers appropriate.

 

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