CHILDREN, YOUTH AND FAMILIES ACT 2005 (NO 96 OF 2005) - SECT 517 Koori Court (Criminal Division)

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CHILDREN, YOUTH AND FAMILIES ACT 2005 (NO 96 OF 2005) - SECT 517

Koori Court (Criminal Division)

(1) The Koori Court (Criminal Division) has all of the powers of the Court that are necessary to enable it to exercise its jurisdiction.

(2) Despite anything to the contrary in this Act, the Koori Court (Criminal Division) may only sit and act at a venue of the Court specified by the President, after consulting the Chief Magistrate, by notice published in the Government Gazette.

(3) The Koori Court (Criminal Division) must exercise its jurisdiction with as little formality and technicality, and with as much expedition, as the requirements of this Act and the proper consideration of the matters before the Court permit.

(4) The Koori Court (Criminal Division) must take steps to ensure that, so far as practicable, any proceeding before it is conducted in a way which it considers will make it comprehensible to—

(a) the child; and

(b) a family member of the child; and

(5) Subject to this Act, the regulations and the rules, the Koori Court (Criminal Division) may regulate its own procedure.

(6) Nothing in this section limits Part 7.3.

(7) In this section "family member" of a child means—

(a) the spouse or domestic partner of the child; or

(b) a person who has or has had an intimate personal relationship with the child; or

(d) a person who is or has been a relative of the child; or

(e) another child who normally or regularly resides with the child; or

(f) a person who is or has been ordinarily a member of the household of the child.

518.Jurisdiction of Koori Court (Criminal Division)

The Koori Court (Criminal Division) has—

(a) the jurisdiction to deal with a proceeding for an offence given to it by section 519; and

(b) jurisdiction to deal with a breach of a sentencing order made by it (including any offence constituted by such a breach) or variation of such a sentencing order; and

519. Circumstances in which Koori Court (Criminal Division) may deal with certain offences

(1) The Koori Court (Criminal Division) only has jurisdiction to deal with a proceeding for an offence (other than an offence constituted by a breach of a sentencing order made by it) if—

(a) the child is Aboriginal; and

(b) the offence is within the jurisdiction of the Criminal Division, other than a sexual offence as defined in section 6B(1) of the Sentencing Act 1991 ; and

(i) intends to plead guilty to the offence; or

(ii) pleads guilty to the offence; or

(iii) has been found guilty of the offence by the Criminal Division; and

(d) the child consents to the proceeding being dealt with by the Koori Court (Criminal Division).

(2) Subject to and in accordance with the rules—

(a) a proceeding may be transferred to the Koori Court (Criminal Division), whether sitting at the same or a different venue; and

(b) the Koori Court (Criminal Division) may transfer a proceeding (including a proceeding transferred to it under paragraph (a)) to the Criminal Division, whether sitting at the same or a different venue.

(3) Despite anything to the contrary in this Act, if a proceeding is transferred from one venue of the Court to another, the transferee venue is the proper venue of the Court for the purposes of this Act.

520. Sentencing procedure in Koori Court (Criminal Division)

(1) This section applies to the Koori Court (Criminal Division) when it is considering which sentencing order to make in respect of a child.

(2) The Koori Court (Criminal Division) may consider any oral statement made to it by an Aboriginal elder or respected person.

(3) The Koori Court (Criminal Division) may inform itself in any way it thinks fit, including by considering a report prepared by, or a statement or submission prepared or made to it by, or evidence given to it by—

(a) a Children's Koori Court officer; or

(b) a youth justice worker employed under Part 3 of the Public Administration Act 2004 ; or

(d) a victim of the offence; or

(e) a family member of the child; or

(f) anyone else whom the Koori Court (Criminal Division) considers appropriate.

(4) Nothing in this section affects the requirement to observe the rules of natural justice.

(5) This section does not limit—

(a) any other power conferred on the Court by or under this or any other Act; or

(b) any other specific provision made by or under this or any other Act for the making of any report, statement or submission, or the giving of any evidence, to the Court for the purpose of assisting it in determining sentence.

(6) Nothing in section 358 operates to limit this section.

(7) In this section "family member" has the same meaning as it has in section 517.

521. Application of Act to other Courts

Except for the purposes of appeals this Act applies, with any necessary modifications, in relation to an order made by the Supreme Court or the County Court of a type that could be made by the Children's Court under this Act, whether the order was made on appeal or under section 586 or otherwise, as if it were an order made by the Children's Court.

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PART 7.3—PROCEDURE

522. Procedural guidelines to be followed by Court

(1) As far as practicable the Court must in any proceeding—

(a) take steps to ensure that the proceeding is comprehensible to—

(i) the child; and

(ii) the child's parents; and

(iii) all other parties who have a direct interest in the proceeding; and

(b) seek to satisfy itself that the child understands the nature and implications of the proceeding and of any order made in the proceeding; and

(i) the child; and

(ii) in the case of a proceeding in the Family Division, the child's parents and all other parties who have a direct interest in the proceeding—

to participate fully in the proceeding; and

(d) consider any wishes expressed by the child; and

(e) respect the cultural identity and needs of—

(i) the child; and

(ii) the child's parents and other members of the child's family; and

(f) minimise the stigma to the child and his or her family.

(2) If at any time there are proceedings in more than one Division of the Court relating to the same child, the Court must, unless it otherwise orders, hear and determine the proceeding in the Family Division first.

(3) If the Court makes an order under sub-section (2), it must state orally the reasons for the order.

(4) An order made by the Court in a proceeding is not invalidated by, nor liable to be challenged, appealed against, reviewed, quashed or called in question in any court on account of the failure of the Court to comply with sub-section (3) in the proceeding.

523. Proceedings to be heard in open court

(1) Proceedings in the Court are, subject to sub-section (2), to be conducted in open court.

(2) The Court may, on the application of a party or of any other person who has a direct interest in the proceeding or without any such application—

(a) order that the whole or any part of a proceeding be heard in closed court; or

(b) order that only persons or classes of persons specified by it may be present during the whole or any part of a proceeding.

(3) Any party to the proceeding and any other interested person has standing to support or oppose an application under sub-section (2).

(4) If an order has been made under this section, the Court must cause a copy of it to be posted on a door of, or in another conspicuous place at, the place at which the Court is being held.

(5) An order posted under this section must not contain any particulars likely to lead to the identification of the child who is a party to the proceeding.

(6) A person must not contravene an order made and posted under this section.

Penalty:

(a) In the case of a person of or above the age of 18 years, 25 penalty units or committal for a term of not more than six months to prison; or

(b) In the case of a child of or above the age of 15 years, 25 penalty units or detention for a period of not more than six months in a youth justice centre; or

(c) In the case of a child under the age of 15 years, 12 penalty units or detention for a period of not more than three months in a youth residential centre.

524. Legal representation

(1) If at any stage—

(a) in a proceeding in the Family Division, a child is not separately legally represented; or

(b) in a proceeding in the Criminal Division, a child is not legally represented; or

(d) in a proceeding in the Family Division for the making, variation or revocation of a permanent care order, an applicant for the order or a person named in the application as suitable to have custody and guardianship of a child or a person who was granted custody and guardianship of a child under the order is not legally represented—

the Court may adjourn the hearing of the proceeding to enable the child or the child's parents or the person referred to in paragraph (d) (as the case requires) to obtain legal representation.

(2) If a child who, in the opinion of the Court, is mature enough to give instructions is not, subject to section 216, separately legally represented in a proceeding referred to in section 525(1) or a child is not legally represented in a proceeding referred to in section 525(2), the Court must adjourn the hearing of the proceeding to enable the child to obtain legal representation and, subject to sub-section (3), must not resume the hearing unless the child is legally represented.

(3) The Court may resume a hearing that was adjourned by it in accordance with sub-section (2) even though the child is not legally represented if satisfied that the child has had a reasonable opportunity to obtain legal representation and has failed to do so or, in the case of a proceeding in the Family Division, that the child is otherwise represented pursuant to leave granted under sub-section (8).

(4) If, in exceptional circumstances, the Court determines that it is in the best interests of a child who, in the opinion of the Court is not mature enough to give instructions, for the child to be legally represented in a proceeding in the Family Division, the Court must adjourn the hearing of the proceeding to enable that legal representation to be obtained.

(5) With the leave of the Court, more than one child in the same proceeding may be represented by the same legal practitioner.

(6) The Court may only grant leave under sub-section (5) if satisfied that no conflict of interest will arise.

(7) If after having granted leave under sub-section (5) the Court is satisfied in the course of the proceeding that a conflict of interest has arisen, the Court may withdraw the leave previously granted.

(8) With the leave of the Court, a child (other than a child to whom a determination under sub-section (4) applies) may be represented in a proceeding in the Family Division by a person who is not—

(a) a legal practitioner; or

(b) a parent of the child.

(9) A person referred to in sub-section (8) who is granted leave to represent a child in a proceeding in the Family Division must act in accordance with any instructions given or wishes expressed by the child so far as it is practicable to do so having regard to the maturity of the child.
s. 524

(10) A legal practitioner representing a child in any proceeding in the Court must act in accordance with any instructions given or wishes expressed by the child so far as it is practicable to do so having regard to the maturity of the child.

(11) A legal practitioner representing, in the Family Division, a child who is not mature enough to give instructions must—

(a) act in accordance with what he or she believes to be in the best interests of the child; and

(b) to the extent that it is practicable to do so, communicate to the Court the instructions given or wishes expressed by the child.

(12) Any process served on a child or the parent of a child requiring the child or parent (as the case requires) to attend the Court in a proceeding referred to in section 525(1) or 525(2) must contain or be accompanied by a notice—

(a) setting out the circumstances in which a child is required to be legally represented; and

(b) stating the desirability of obtaining legal representation; and

525. Proceedings in which child is required to be legally represented

(1) Subject to section 524, a child must be legally represented in the following proceedings in the Family Division—

(a) application for an interim accommodation order;

(b) protection application;

(d) application for a temporary assessment order, (unless the Court grants leave for the application to proceed without notice to the other parties);

(e) application for—

(i) a therapeutic treatment order; or

(ii) a therapeutic treatment (placement) order;

(f) application for a permanent care order;

(g) application for the variation of an interim accommodation order;

(h) application for the variation or revocation of—

(i) a temporary assessment order; or

(ii) a therapeutic treatment order; or

(iii) a therapeutic treatment (placement) order; or

(iv) a supervision order; or

(v) a custody to third party order; or

(vi) a supervised custody order; or

(vii) a custody to Secretary order; or

(viii) a permanent care order;

(i) application in respect of a failure to comply with—
s. 525

(i) an interim accommodation order; or

(ii) an interim protection order; or

(iii) a supervision order; or

(iv) a supervised custody order;

(j) application for the extension of—

(i) a supervision order; or

(ii) a supervised custody order; or

(iii) a custody to Secretary order; or

(iv) a guardianship to Secretary order;

(k) application for the revocation of—

(i) a guardianship to Secretary order; or

(ii) a long-term guardianship to Secretary order;

(l) application for an order regarding the exercise of any right, power or duty vested in a person as joint custodian or guardian of a child;
s. 525

(m) application for an order transferring a child protection order within the meaning of Schedule 1 to a participating State within the meaning of that Schedule;

(n) application for an order transferring a child protection proceeding within the meaning of Schedule 1 to the Children's Court in a participating State within the meaning of that Schedule;

(o) application for the revocation of the registration of a document filed under clause 19 of Schedule 1.

(2) Subject to section 524, a child must be legally represented in the following proceedings in the Criminal Division—

(a) proceeding with respect to bail if the informant or prosecutor or any person appearing on behalf of the Crown intends to oppose the grant of bail;

(b) proceeding under section 24 of the Bail Act 1977 ;

(d) review of a monetary penalty imposed by the Court in respect of an offence punishable, in the case of an adult, by imprisonment;

(e) application in respect of a breach of an accountable undertaking, bond, probation order, youth supervision order or youth attendance order imposed by the Court in respect of an offence punishable, in the case of an adult, by imprisonment.

526. Interpreter

If the Court is satisfied that a child, a parent of a child or any other party to a proceeding has a difficulty in communicating in the English language that is sufficient to prevent him or her from understanding, or participating in, the proceeding, it must not hear and determine the proceeding without an interpreter interpreting it.

527. Explanation of and reasons for orders

(1) If the Court makes an order, it must explain the meaning and effect of the order as plainly and simply as possible and in a way which it considers the child, the child's parents and the other parties to the proceeding will understand.

(2) An explanation under sub-section (1) must be given through an interpreter to any person referred to in that sub-section whom the Court considers has a difficulty in communicating in the English language that is sufficient to prevent him or her from understanding the explanation given by the Court.

(3) Immediately after the Court makes an order to which this sub-section applies, the appropriate registrar must provide a written copy of the order in the prescribed form to—

(a) the child; and

(b) if the order is made by the Family Division—

(i) unless the Court otherwise orders, the child's parents; and

(ii) if the Court so orders, any other person with whom the child is living; and

(i) unless the Court otherwise orders, the child's parents if the child is under the age of 15 years; or

(ii) if the Court so orders, the child's parents if the child is of or above the age of 15 years; and

(d) the Secretary, in appropriate cases; and

(e) in the case of a permanent care order, the person who has, or persons who have, been granted custody and guardianship under the order.

(4) Sub-section (3) applies to the following orders—

(a) an interim accommodation order;

(b) a protection order;

(c) a temporary assessment order, (unless the Court made the order without notice being given to the child and the parent of the child);

(d) a therapeutic treatment order or a therapeutic treatment (placement) order;

(e) an order varying or revoking a supervision order;

(f) an order varying or revoking—

(i) a temporary assessment order; or

(ii) a therapeutic treatment order; or

(iii) a therapeutic treatment (placement) order;

(g) an order varying—

(i) a custody to third party order; or

(ii) a supervised custody order; or

(iii) a custody to Secretary order;

(h) an order extending—

(i) a supervision order; or

(ii) a supervised custody order; or

(iii) a custody to Secretary order; or

(iv) a guardianship to Secretary order;

(i) an order revoking—

(i) a custody to third party order; or

(ii) a supervised custody order; or

(iii) a custody to Secretary order; or

(iv) a guardianship to Secretary order; or

(v) a long-term guardianship to Secretary order;

(j) a permanent care order;

(k) an order granting or refusing bail;

(l) a sentencing order;

(m) an order made in respect of a breach of a sentencing order.

(5) The Secretary must provide a written copy of a temporary assessment order made without notice to the child and the parent of the child, to the child and the parent of the child immediately on exercising any power given to the Secretary under the order.

(6) If the Family Division makes a final order in a proceeding, it must—

(a) state in writing the reasons for the order; and

(b) cause the statement of reasons to be entered in the court register; and

(c) unless the Court otherwise orders, cause a copy of the written statement of reasons to be given or sent by post within 21 days after the making of the order to the child, the child's parents and the other parties to the proceeding.

(7) A person who receives a document under sub-section (3), (5) or (6) may lodge with the Court a statement to the effect that he or she has a difficulty in communicating in the English language that is sufficient to prevent him or her from understanding the document but that he or she could understand it if it were written in another language specified in the statement.

(8) The Court must, within one working day after a person lodges a statement under sub-section (7), cause a copy of the document to be sent by post to a translator for translation into the language specified in the statement.

(9) The Court must, within 21 days after a person lodges a statement under sub-section (7), cause a copy of the document written in the specified language to be given or sent by post to that person.

(10) Neither the explanation given of an order nor the statement of reasons for an order is part of the order.

(11) The explanation given of an order is not part of the reasons for the order.

(12) An order made by the Court in a proceeding is not invalidated by, nor liable to be challenged, appealed against, reviewed, quashed or called in question in any court on account of the failure of the Court to comply with a provision of this section in the proceeding.

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PART 7.4—POWERS

528. Court to have powers of Magistrates' Court

(1) The Court has and may exercise in relation to all matters over which it has jurisdiction all the powers and authorities that the Magistrates' Court has in relation to the matters over which it has jurisdiction.

(2) The Magistrates' Court Act 1989 (except section 58 and Part 5) and the regulations made under that Act apply with any necessary modifications, unless the contrary intention appears in this Act or in any other Act, to the Children's Court and the proceedings of any Division of the Court and, without limiting the application of section 419, to the issue of process in the same manner and to the same extent as it applies to the Magistrates' Court and the proceedings of that Court and the issue of process.

(3) In punishing a person for a contempt of court under section 133 or 134 of the Magistrates' Court Act 1989 (as applied by sub-section (2) of this section) the Court must not order that a person under the age of 18 years be committed to prison but instead be committed to—

(a) in the case of a child of or above the age of 15 years, a youth justice centre; or

(b) in the case of a child under the age of 15 years, a youth residential centre.

529. Recall and cancellation of warrant

(1) A warrant issued by a registrar, magistrate or bail justice may be recalled and cancelled by—

(a) that registrar, magistrate or bail justice; or

(b) if issued by a registrar, the registrar for the time being at the venue of the Court at which it was issued or except in the case of—

(i) a warrant issued in accordance with an order under section 378(1)(e); or

(ii) a warrant to seize property to satisfy a fine issued under Schedule 3—

any other registrar; or

(2) If a warrant has been recalled and cancelled under sub-section (1), a fresh warrant may be issued for the same purpose as that for which the recalled warrant was issued.

(3) A warrant to imprison or detain in a youth justice centre for non-payment of a fine (whether issued before or after the commencement of this section) or a warrant referred to in sub-section (1)(b)(i) or (1)(b)(ii) is null and void if it has not been executed within the period of 3 years after a warrant of that type was first issued against the person named in the warrant for the purpose specified in the warrant.

(4) If a warrant referred to in sub-section (3) becomes null and void under that sub-section, the fine in respect of which it was issued, together with any associated fees and costs, ceases to be enforceable or recoverable if no part of the fine had been paid before the date on which the warrant became null and void.

(5) Nothing in sub-section (3) or (4) prevents the issue, with the leave of the Court, of a fresh warrant for the same purpose as that for which a warrant that has become null and void under sub-section (3) was issued.

(6) Despite sub-section (3), if under sub-section (5) a fresh warrant is issued, the fine in respect of which it was issued, together with any associated fees and costs, again becomes enforceable or recoverable as if there had been no cessation.

530. Power to adjourn proceeding

(1) Subject to this section, the Court may, on the application of a party to a proceeding or without any such application, adjourn the hearing of the proceeding—

(a) to such times and places; and

(b) for such purposes; and

as it considers necessary or just in the circumstances.

(2) Without limiting sub-section (1), the Court may, on adjourning the hearing of a proceeding in the Family Division, require the child or his or her parent to enter into (whether orally or in writing) an undertaking to appear, or to produce the child, before the Court on the resumption of the hearing of the proceeding.

(3) If the Court has adjourned the hearing of a proceeding to a particular time, it may order that the hearing be held or resumed before that time.

(4) The Court may only make an order under sub-section (3) with the consent of all the parties or on the application of a party who has given reasonable notice of the application to the other party or parties.

(5) If the Court has adjourned the hearing of a proceeding to a particular time and, in the case of a proceeding in the Criminal Division, has remanded the child in custody or, in the case of a proceeding in the Family Division, has placed the child in a secure welfare service, it may by order direct that the child be brought before, or be brought to another place specified in the order where facilities exist to enable the child (by audio visual link within the meaning of Part IIA of the Evidence Act 1958 ) to appear before, the Court at any time before then in order that the hearing may be held or resumed.

(6) The officer in charge of the remand centre or secure welfare service or other officer in whose custody the child is must obey an order under sub-section (5).

(7) A child being removed from a remand centre or a secure welfare service to be brought before the Court or to another place in compliance with an order under sub-section (5) is, during the time of removal, deemed to be in the legal custody of the member of the police force, protective services officer or other officer having the custody of the child.

(8) The Court must proceed with as much expedition as the requirements of this Act and a proper hearing of the proceeding permit.

(9) The Court should avoid the granting of adjournments in Family Division proceedings to the maximum extent possible.

(10) The Court must not grant an adjournment of a proceeding in the Family Division unless it is of the opinion that—

(a) it is in the best interests of the child to do so; or

(b) there is some other cogent or substantial reason to do so.

(11) In deciding whether and for how long to adjourn a proceeding under this section, the Court must have regard to the requirements in sub-sections (8) to (10).

531. Power to dispense with service

(1) The Secretary may apply to the Family Division for an order dispensing with service on a specified individual of an application, document or order or all applications, documents and orders—

(a) that is or are required, or that may be required, under Chapter 4 or Schedule 1 to be served on that person in respect of a specified child; or

(b) that is or are required, or that may be required, under this Chapter to be served on that person in relation to proceedings in the Family Division in respect of a specified child.

(2) The Court may make the order sought if it is satisfied by oath or affidavit of the Secretary that—

(a) the individual specified in the application cannot be located after the Secretary has made reasonable efforts to discover his or her location; or

(b) there are exceptional circumstances.

532. Witness summonses

(1) The Family Division (on the application of a party or without that application) or a registrar may issue the following witness summonses—

(a) summons to give evidence;

(b) summons to produce documents or things;

(2) Any party to a proceeding in the Family Division may apply for the issue of a witness summons.

(3) A witness summons may be directed to any person who appears to the Court or registrar issuing the summons to be likely—

(a) to be able to give material evidence for any party to the proceeding or the Court; or

(b) to have in the person's possession or control any documents or things which may be relevant on the hearing of the proceeding; or

(c) both to be able to give material evidence and to have in the person's possession or control any relevant documents or things.

(4) A witness summons must require the person to whom it is directed to attend at a specified venue of the Court on a certain date and at a certain time—

(a) to give evidence in the proceeding; or

(b) to produce for examination at the hearing any documents or things described in the summons that are in the person's possession or control; or

(c) both to give evidence and produce for examination any documents or things described in the summons that are in the person's possession or control.

(5) A witness summons must be served on a person a reasonable time before the return date by—

(a) delivering a true copy of the summons to the person personally; or

(b) leaving a true copy of the summons for the person at the person's last or most usual place of residence or of business with a person who apparently resides or works there and who apparently is not less than 16 years of age.

(6) If it appears to the Court, by evidence on oath or by affidavit, that service cannot be promptly effected, the Court may make an order for substituted service.

(7) If the person to be served with the witness summons is a company or registered body (within the meaning of the Corporations Act), the summons may be served on that person in accordance with section 109X or 601CX of that Act, as the case requires.

(8) A person to whom a witness summons is directed is, subject to sub-section (9), excused from complying with the summons unless conduct money is given or tendered to the person at the time of service of the summons or a reasonable time before the return date.

(9) It is not necessary to give or tender conduct money to a person to whom a witness summons is directed if the person will not reasonably incur any expenses in complying with the summons.

(10) Unless the Court or the registrar issuing the summons otherwise directs, a summons to produce documents or things or a summons to give evidence and produce documents or things permits the person to whom the summons is directed, instead of producing the document or thing at the hearing, to produce it, together with a copy of the summons, to the appropriate registrar not later than 2 days before the first day on which production is required.

(11) If a document or thing is produced to the appropriate registrar under sub-section (10), he or she must—

(a) if requested to do so, give a receipt to the person producing the document or thing; and

(b) produce the document or thing as the Court directs.

(12) The production of a document or thing to the appropriate registrar under sub-section (10) in answer to a summons to give evidence and produce documents or things does not remove the requirement on the person to whom the summons is directed to attend for the purpose of giving evidence.

(13) The Court may direct that a witness who has attended before the Court in answer to a witness summons is entitled to receive from the party who applied for the issue of the witness summons conduct money for each day of attendance.

(14) Nothing in this section—

(a) affects Division 3A of Part III of the Evidence Act 1958 relating to books of account; or

(b) derogates from the power of the Court to certify that a witness be paid his or her expenses of attending before the Court.

533. Court may reserve question of law for determination by Supreme Court

(1) If a question of law arises in a proceeding before the Court, the Court, of its own motion or on the application of any person who is a party to the proceeding, may, with the consent of the President, reserve the question in the form of a special case stated for the opinion of the Supreme Court.

(2) If a question of law has been reserved for the opinion of the Supreme Court under sub-section (1), the Court cannot—

(a) finally determine the matter until the opinion of the Supreme Court has been given; or

(b) proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question of law.

__________________

534. Restriction on publication of proceedings

(1) A person must not publish or cause to be published—

(a) except with the permission of the President, a report of a proceeding in the Court or of a proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of—

(i) the particular venue of the Children's Court, other than the Koori Court (Criminal Division), in which the proceeding was heard; or

(ii) a child or other party to the proceeding; or

(iii) a witness in the proceeding; or

(b) except with the permission of the President, a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or

(c) except with the permission of the President, or of the Secretary under sub-section (3), any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court.

Penalty:

(a) In the case of a body corporate—500 penalty units;

(b) In any other case—100 penalty units or imprisonment for 2 years.

(2) The Court in making an order may direct the Secretary not to grant permission under sub-section (3) with respect to the order.
s. 534

(3) The Secretary may, in special circumstances, grant permission for the publication in relation to a child who is the subject of a custody to Secretary order, a guardianship to Secretary order or a long-term guardianship order of any matter that contains any particulars likely to lead to the identification of a child as being the subject of an order made by the Court.

(4) Without limiting the generality of sub-sections (1) and (3), the following particulars are deemed to be particulars likely to lead to the identification of a person—

(a) the name, title, pseudonym or alias of the person;

(b) the address of any premises at which the person resides or works, or the locality in which those premises are situated;

(d) the physical description or the style of dress of the person;

(e) any employment or occupation engaged in, profession practised or calling pursued, by the person or any official or honorary position held by the person;

(f) the relationship of the person to identified relatives of the person or the association of the person with identified friends or identified business, official or professional acquaintances of the person;

(g) the recreational interests or the political, philosophical or religious beliefs or interests of the person;

(h) any real or personal property in which the person has an interest or with which the person is otherwise associated.

(5) Sub-section (1) does not apply the publication of accounts of proceedings of the Court, where those accounts have been approved by the President.

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535. Principal registrar, registrars and deputy registrars

(1) There continues to be the following officers of the Court—

(a) a principal registrar employed under Part 3 of the Public Administration Act 2004 ;

(b) registrars;

(2) Any person who for the time being holds the office of registrar or deputy registrar of the Magistrates' Court also holds the office of registrar or deputy registrar (as the case requires) of the Children's Court.

(3) The principal registrar, registrars and deputy registrars have the duties, powers and functions provided by this Act and the regulations.

(4) The principal registrar may, by instrument, delegate to any registrar or class of registrar any function or power of the principal registrar under this Act or the regulations, except this power of delegation.

(5) A deputy registrar may, subject to this Act and the regulations and to any directions of a registrar, exercise any of the powers or perform any of the functions of a registrar.

536.Appointment of Aboriginal elders or respected persons

(1) The Secretary to the Department of Justice may appoint a person who is a member of the Aboriginal community as an Aboriginal elder or respected person for the purpose of performing functions in relation to the Koori Court (Criminal Division) as set out in this Act.

(2) An Aboriginal elder or respected person holds office for the period, and on the terms and conditions, determined by that Secretary and specified in the instrument of appointment.

(3) An Aboriginal elder or respected person may resign from office by writing signed by him or her and delivered to that Secretary.

537. Court register

(1) The principal registrar must cause a court register to be kept of all the orders of the Court and of such other matters as are directed by this Act to be entered in the court register.

(2) An order made by the Court must be authenticated by the person who constituted the Court.

(3) Any person may, with the approval of a magistrate and on payment of the prescribed fee, inspect that part of the court register that contains the final orders of the Court.

(4) A party to a proceeding or such a party's legal practitioner may inspect without charge that part of the court register that relates to that proceeding.

(5) A document purporting to be an extract from the register and purporting to be signed by a registrar who certifies that in his or her opinion the extract is a true extract from the court register is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters appearing in the extract.

538. Process

(1) Process may only be issued out of the Court by a registrar, except where otherwise provided by or under this or any other Act.

(2) The principal registrar must, subject to the regulations, keep the original of all process issued out of the Court and must issue or cause to be issued as many copies as are necessary.

(3) Process issued by a registrar may be recalled and cancelled by—

(a) that registrar; or

(b) if issued by a registrar, the registrar for the time being at the venue of the Court at which it was issued; or

(4) Service of any process issued out of the Court may be proved in any manner in which service of a summons to answer to a charge may be proved under section 35 of the Magistrates' Court Act 1989 .

539. Powers of registrar

(1) A registrar has the following powers in addition to those conferred on him or her by this or any other Act—

(a) power to issue any process out of the Court;

(b) power to administer an oath;

(c) with the consent of the parties to a proceeding in the Family Division, power to extend an interim accommodation order of a kind referred to in section 263(1)(a) or 263(1)(b) made in respect of a child appearing on a return date in relation to the proceeding;

(d) power to extend the bail of a person appearing on a return date in relation to a criminal proceeding in respect of which the person has been granted bail;

(e) power to endorse a warrant to arrest in accordance with section 62 of the Magistrates' Court Act 1989 .

(2) Sub-section (1)(c) does not empower a registrar to vary the amount or conditions of bail.

540. Fees

A registrar must demand and receive the prescribed fees.

541. Extortion by and impersonation of court officials

(1) A court official must not extort, demand, take or accept from any person any unauthorised fee or reward.

Penalty: 60 penalty units.

(2) A court official must not pretend to be the holder of an office or position in or in relation to the Court which he or she does not hold.

Penalty: 60 penalty units.

(3) A person who is not a court official must not pretend to be a court official.

Penalty: 60 penalty units.

542. Protection of registrars

The principal registrar, a registrar and a deputy registrar have in the performance of their duties the same protection and immunity as a magistrate has in the performance of his or her duties.

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543. Youth justice officers

(1) The Secretary—

(a) has the duty of generally supervising all probation work under this Act; and

(b) has the powers and duties prescribed by or under this Act.

(2) There are to be employed under Part 3 of the Public Administration Act 2004 as many youth justice officers for the Court as are necessary to be employed.

(3) A youth justice officer employed under sub-section (2) has the powers and duties prescribed by or under this Act.

(4) The Secretary may, by instrument published in the Government Gazette, appoint as an honorary youth justice officer any fit and proper person who is willing to exercise and perform the powers and duties given to honorary youth justice officers by or under this Act.

(5) An honorary youth justice officer is not in respect of the office of honorary youth justice officer subject to the Public Administration Act 2004 .

(6) A youth justice officer is, in relation to a probation order, subject to the direction of the Court but otherwise he or she is subject to the direction and control of the Secretary.

(7) The Secretary must co-ordinate the activities of youth justice officers.

544. Duties of youth justice officers

(1) It is the duty of a youth justice officer if required by the Criminal Division or the Secretary—

(a) to give the Court any assistance that it requires in relation to a child who has been found guilty of an offence, including preparing and furnishing it with a pre-sentence report prepared in accordance with section 572; or

(b) to visit and supervise any child as directed by the Court and in consultation and co-operation with the child's parents; or

(2) All registrars of the Court and all members of the police force must, in the prescribed manner, supply the Secretary or a youth justice officer nominated by the Secretary with any information concerning charges before the Criminal Division that are necessary for the purposes of this Act.

(3) A youth justice officer must carry out any inquiries required under this section in such manner as to cause as little prejudice as possible to the reputations of the child concerned and of his or her parents.

(4) A written report prepared under this section must not be tendered to or received by the Court until the Court is satisfied that the child is guilty of the offence charged.

545. Children's Court Liaison Office

(1) There continues to be a Children's Court Liaison Office.

(2) Subject to the Public Administration Act 2004 , there are to be appointed to the Children's Court Liaison Office as many court liaison officers and other persons as are necessary for the proper functioning of the Office.

(3) The Children's Court Liaison Office has the following functions—

(a) to provide information and advice about the Court to children, families and the community;

(b) to co-ordinate the provision to the Court of any reports that are required;

(d) to provide general advice and assistance to the Court;

(e) to undertake any research that is required to enable it to carry out its functions.

546. Children's Court Clinic

(1) The Secretary to the Department of Justice may continue and maintain a Children's Court Clinic.

(2) The Children's Court Clinic has the following functions—

(a) to make clinical assessments of children;

(b) to submit reports to courts and other bodies;

(3) In addition to the functions mentioned in sub-section (2) the Children's Court Clinic has any other functions that are prescribed.
s. 546

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547. Reports to which Part applies

This Part applies to the following types of reports—

(a) protection reports;

(b) disposition reports;

(d) therapeutic treatment application reports;

(e) therapeutic treatment (placement) reports;

(f) pre-sentence reports;

(g) group conference reports;

(h) progress reports.

548. Notification of requirement to submit report

If the Court orders the Secretary or the Secretary to the Department of Justice or any other person to submit a report to which this Part applies, the registrar at the venue of the Court at which the order is made must, within one working day after the making of the order—

(a) orally notify him or her of the making of the order; and

(b) forward a copy of the order to him or her.

549. Warning to be given to persons being interviewed

The author of a report to which this Part applies must at the beginning of any interview being conducted by him or her in the course of preparing the report inform the person being interviewed that any information that he or she gives may be included in the report.

550. Attendance at Court of author of report

(1) The author of a report to which this Part applies may be required to attend to give evidence at the hearing of the proceeding to which the report is relevant by a notice given in accordance with sub-section (2) by—

(a) the child in respect of whom the report has been prepared; or

(b) a parent of that child; or

(d) the Court.

(2) A notice under sub-section (1) must be—

(a) in writing; and

(b) filed with the appropriate registrar or a court liaison officer at the proper venue of the Court as soon as possible and, if practicable, not later than 2 working days before the hearing.

(3) On the filing of a notice under sub-section (1), the registrar or court liaison officer must immediately notify the author of the report that his or her attendance is required on the return date.

(4) A person is guilty of contempt of court if, being the author of a report who has been required to attend the Court under sub-section (1), he or she fails, without sufficient excuse, to attend as required.

(5) The author of a report who has been required under sub-section (1) by the child or a parent of the child or the Secretary to attend at the hearing of a proceeding must, if required by the child or the parent or the Secretary (as the case requires), be called as a witness and may be cross-examined on the contents of the report.

551. Disputed report

(1) If any matter in a report to which this Part applies is disputed by the child who is the subject of the report or, if the proceeding is in the Family Division, by a parent of the child, the Court must not take the disputed matter into consideration when determining the proceeding unless satisfied that the matter is true—

(a) in the case of a proceeding in the Family Division, on the balance of probabilities; or

(b) in the case of a proceeding in the Criminal Division, beyond reasonable doubt.

(2) If—

(a) a report to which this Part applies, or any part of it, is disputed by the child who is the subject of the report or, if the proceeding is in the Family Division, by a parent of the child; and

(b) the author of the report does not attend the hearing of the proceeding despite having been required to attend under section 550(1)—

the Court must not take the report or the part in dispute into consideration when determining the proceeding unless the child or parent (as the case requires) consents to the report or the part in dispute being admitted into evidence.

552. Confidentiality of reports

(1) A person who prepares or receives or otherwise is given or has access to a report to which this Part applies, or any part of such a report, must not, without the consent of the child who is the subject of the report or that child's parent, disclose any information contained in that report or part report (as the case requires) to any person who is not entitled to receive or have access to that report or that part (as the case requires).

Penalty: 10 penalty units.

(2) Sub-section (1) is subject to any contrary direction by the Court.

(3) Sub-section (1) does not prevent—

(a) the Secretary; or

(b) a legal practitioner representing the Secretary or a protective intervener; or

(d) an honorary youth justice officer or an honorary youth parole officer to the extent necessary in connection with the exercise of his or her powers or the performance of his or her duties—

from being given or having access to a report to which this Part applies, or any part of such a report.

(4) A reference in sub-section (1) to a report includes a reference to a copy of a report.

553. Protection reports

If the Family Division requires further information to enable it to determine a protection application, it may order the Secretary to submit to the Court a protection report concerning the child who is the subject of the application.

554. Secretary to forward report to Court

If the Court orders the Secretary to submit a protection report to the Court, he or she must do so within 21 days and not less than 3 working days before the hearing.

555. Content of protection report

A protection report must only deal with matters that are relevant to the question of whether the child is in need of protection.

556. Access to protection report

(1) If the Court orders the Secretary to prepare a protection report, the Secretary must, subject to sub-section (2), cause a copy of a protection report to be given before the hearing of the proceeding to each of the following—

(a) the child who is the subject of the report;

(b) that child's parent;

(d) the legal practitioners representing that child's parent;

(e) the protective intervener who made the protection application, if the protective intervener is not the Secretary;

(f) a party to the proceeding;

(g) any other person specified by the Court.

(2) The Court may by order restrict access to the whole of a protection report, or a part of the report specified in the order, by a person mentioned in sub-section (1)(a), (1)(b), (1)(f) or (1)(g) and specified in the order, if the Court is satisfied that information in the report, or the part of the report, may be prejudicial to the physical or mental health of the child or a parent of the child.

(3) An application for an order under sub-section (2) may be made by—

(a) the Secretary; or

(b) a person mentioned in sub-section (1); or

and must be made not less than 2 working days before the hearing of the proceeding.

(4) If the Court makes an order under sub-section (2), it must cause a copy of the order to be served on the persons mentioned in sub-section (1).

(5) A person who receives a copy of a protection report or of part of a protection report under this section (part or all of which was not given to the child who is the subject of the report or to that child's parent on account of an order made under sub-section (2)) must not, unless otherwise directed by the Court, disclose to that child or parent any information contained in the report or the part of it (as the case requires) that was not given to that child or parent.

Penalty: 10 penalty units.

557. Disposition reports

(1) The Secretary must prepare and submit to the Family Division a disposition report if—

(a) the Court becomes satisfied that—

(i) a child is in need of protection; or

(ii) there is a substantial and presently irreconcilable difference between the person who has custody of a child and the child to such an extent that the care and control of the child are likely to be seriously disrupted; or

(iii) there has been a failure to comply with a supervision order, a supervised custody order or an interim protection order; or

(b) the Secretary applies for a permanent care order; or

(i) for the variation or revocation of a supervision order, a custody to third party order, a supervised custody order, a custody to Secretary order, an interim protection order or a permanent care order; or

(ii) for the extension of a supervision order, a supervised custody order, a custody to Secretary order or a guardianship to Secretary order; or

(iii) for the revocation of a guardianship to Secretary order or a long-term guardianship to Secretary order; or

(d) an interim protection order has expired or is about to expire; or

(e) the Court orders the Secretary to do so.

(2) Unless the Court otherwise orders, the Secretary is not required under sub-section (1)(a)(i) or (1)(a)(ii) to prepare and submit to the Court a disposition report if the Court states that it does not propose to make a protection order or that it only proposes to make an order requiring a person to give an undertaking.

558. Content of disposition report

A disposition report must include—

(a) the draft case plan, if any, prepared for the child; and

(b) recommendations, where appropriate, concerning the order which the Secretary believes the Court ought to make and concerning the provision of services to the child and the child's family; and

(c) if the report recommends that the child be removed from the custody or guardianship of his or her parent, a statement setting out the steps taken by the Secretary to provide the services necessary to enable the child to remain in the custody or under the guardianship of the parent; and

(d) any other information—

(i) that the Court directs to be included; or

(ii) that the regulations require to be included.

559. Access to disposition report

(1) If a disposition report is required under section 557(1) or the Court orders a disposition report, the Secretary must, subject to sub-section (2), cause a copy of the disposition report to be given before the hearing of the proceeding to each of the following—

(a) the child who is the subject of the report;

(b) that child's parent;

(d) the legal practitioners representing that child's parent;

(e) the protective intervener who made the protection application, if the protective intervener is not the Secretary;

(f) a party to the proceeding;

(g) any other person specified by the Court.

(2) The Court may by order restrict access to the whole of a disposition report, or a part of the report specified in the order, by a person mentioned in sub-section (1)(a), (1)(b), (1)(f) or (1)(g) and specified in the order, if the Court is satisfied that information in the report, or the part of the report, may be prejudicial to the physical or mental health of the child or a parent of the child.

(3) An application for an order under sub-section (2) may be made by—

(a) the Secretary; or

(b) a person mentioned in sub-section (1); or

and must be made not less than 2 working days before the hearing of the proceeding.

(4) If the Court makes an order under sub-section (2), it must cause a copy of the order to be served on the persons mentioned in sub-section (1).

(5) A person who receives a copy of a disposition report or of part of a disposition report under this section (part or all of which was not given to the child who is the subject of the report or to that child's parent on account of an order made under sub-section (2)) must not, unless otherwise directed by the Court, disclose to that child or parent any information contained in the report or the part of it (as the case requires) that was not given to that child or parent.

Penalty: 10 penalty units.

560. Additional report

If in any proceeding in which a disposition report is required under section 557(1) the Family Division is of the opinion that an additional report is necessary to enable it to determine the proceeding, it may order the preparation and submission to the Court of an additional report by—

(a) the Secretary; or

(b) the Secretary to the Department of Justice; or

561. Access to additional report

(1) If the Court orders an additional report from a person other than the Secretary to the Department of Justice, the author of the report must, subject to sub-section (2), within 21 days and not less than 3 working days before the hearing forward the report to the proper venue of the Court and a copy to each of the following—

(a) the child who is the subject of the report; and

(b) that child's parent; and

(d) the legal practitioners representing that child's parent; and

(e) the Secretary, if the Secretary is not the author of the report; and

(f) a party to the proceeding; and

(g) any other person specified by the Court.

(2) The author of a report is not under sub-section (1) required to forward copies of the report in accordance with paragraph (a), (b), (f) or (g) of that sub-section if—

(a) he or she is of the opinion that information contained in the report may be prejudicial to the physical or mental health of the child or a parent of the child; or

(b) the child or a parent of the child or another party to the proceeding notifies him or her of his or her objection to the forwarding of copies of the report.

(3) If because of sub-section (2) the author of a report is not required to forward a copy of the report to a person in accordance with sub-section (1), he or she may forward to that person a copy of part of the report.

(4) If because of sub-section (2) the author of a report does not forward copies of the report in accordance with sub-section (1)(a), (1)(b), (1)(f) or (1)(g)—

(a) he or she must inform the appropriate registrar or the other persons referred to in that sub-section of that fact; and

(b) the Court may by order direct the appropriate registrar to forward a copy of the report or of a specified part of the report, together with a copy of the order, to a person named or described in the order as soon as possible and before the hearing.

(5) A person who receives a copy of a report or of part of a report under this section (part or all of which was not forwarded to the child who is the subject of the report or to that child's parent because of sub-section (2)) must not, unless otherwise directed by the Court, disclose to that child or parent any information contained in the report or the part of it (as the case requires) that was not forwarded to that child or parent.

Penalty: 10 penalty units.

562. Access to additional reports prepared by Secretary to Department of Justice

(1) If the Court orders an additional report from the Secretary to the Department of Justice, the Secretary to the Department of Justice must within 21 days and not less than 3 working days before the hearing forward the report to the proper venue of the Court.

(2) If the Secretary to the Department of Justice is of the opinion that information contained in the report will be or may be prejudicial to the physical or mental health of the child or a parent of the child, the Secretary to the Department of Justice may forward a statement to the Court to that effect with the report.

(3) Subject to sub-section (4), the Court must release a copy of the report to each of the following—

(a) the child who is the subject of the report; and

(b) that child's parent; and

(d) the legal practitioners representing that child; and

(e) the legal practitioners representing that child's parent; and

(f) the legal representative of the Secretary or an employee authorised by the Secretary to appear in proceedings before the Family Division; and

(g) a party to the proceeding; and

(h) any other person specified by the Court.

(4) Despite sub-section (3), if after having regard to the views of the parties to the proceedings, and any statement of the Secretary to the Department of Justice under sub-section (2)—

(a) in the case of the release of the report to the Secretary, the Court is satisfied that the release of the report or a particular part of the report to the Secretary may cause significant psychological harm to the child, the Court may—

(i) refuse to release the report or part of the report to the Secretary; or

(ii) determine a later time for the release of the report or part of the report to the Secretary; or

(iii) release the report to the Secretary;

(b) in the case of the release of the report to any other person, the Court is satisfied that the release of the report or a particular part of the report to the person will be prejudicial to the development or mental health of the child, the physical or mental health of the parent or the physical or mental health of that person or any other party, the Court may—

(i) refuse to release the report or part of the report to the person; or

(ii) determine a later time for the release of the report or part of the report to the person; or

(iii) release the report to the person.

(5) The Court may impose conditions in respect of the release of a report under this section.

563. Therapeutic treatment application reports

If the Family Division requires further information to enable it to determine an application for a therapeutic treatment order or an application for a variation, revocation or extension of a therapeutic treatment order, it may order the Secretary to submit to the Court a therapeutic treatment application report concerning the child who is the subject of the application.

564. Content of therapeutic treatment application report

A therapeutic treatment application report must include—

(a) information sufficient to assist the Court to determine whether the order should be made; and

(b) recommendations concerning the order that the Secretary believes the Court ought to make, including, if appropriate, the conditions of that order; and

(c) except in the case of an application for revocation of a therapeutic treatment order, a statement by the Secretary that therapeutic treatment is available for the child; and

(d) any other information that the Court directs to be included.

565. Secretary to forward report to Court

If the Court orders the Secretary to submit a therapeutic treatment application report to the Court, he or she must do so within 21 days and not less than 3 working days before the hearing.

566. Access to therapeutic treatment application report

(1) If the Court orders the Secretary to prepare a therapeutic treatment application report, the Secretary must, subject to sub-section (2), cause a copy of a therapeutic treatment application report to be given before the hearing of the proceeding to each of the following—

(a) the child who is the subject of the report;

(b) that child's parent;

(d) the legal practitioner representing that child's parent;

(e) a party to the proceeding;

(f) any other person specified by the Court.

(2) The Court may by order restrict access to the whole of a therapeutic treatment application report, or a part of the report specified in the order, by a person mentioned in sub-section (1)(a), (1)(b), 1(e) or (1)(f) and specified in the order, if the Court is satisfied that information in the report, or the part of the report, may be prejudicial to the physical or mental health of the child or a parent of the child.

(3) An application for an order under sub-section (2) may be made by—

(a) the Secretary; or

(b) a party to the proceeding; or

(d) with the leave of the Court, any other person—

and must be made not less than 2 working days before the hearing of the proceeding.

(4) If the Court makes an order under sub-section (2), it must cause a copy of the order to be served on the persons mentioned in sub-section (1).

(5) A person who receives a copy of a therapeutic treatment application report or of part of a therapeutic treatment application report under this section (part or all of which was not given to the child who is the subject of the report or to that child's parent on account of an order made under sub-section (2)) must not, unless otherwise directed by the Court, disclose to that child or parent any information contained in the report or the part of it (as the case requires) that was not given to that child or parent.

Penalty: 10 penalty units.

567. Therapeutic treatment (placement) reports

If the Family Division requires further information to enable it to determine an application for a therapeutic treatment (placement) order or an application for a variation, revocation or extension of a therapeutic treatment (placement) order, it may order the Secretary to submit to the Court a therapeutic treatment (placement) report concerning the child who is the subject of the application.

568. Content of therapeutic treatment (placement) report

A therapeutic treatment (placement) order report must include—

(a) information sufficient to assist the Court to determine whether the order should be made; and

(b) recommendations concerning the order that the Secretary believes the Court ought to make, including, if appropriate, the conditions of that order; and

569. Secretary to forward report to Court

If the Court orders the Secretary to submit a therapeutic treatment (placement) report to the Court, he or she must do so within 21 days and not less than 3 working days before the hearing.

570. Access to therapeutic treatment (placement) report

(1) If the Court orders the Secretary to prepare a therapeutic treatment (placement) report, the Secretary must, subject to sub-section (2), cause a copy of a therapeutic treatment (placement) report to be given before the hearing of the proceeding to each of the following—

(a) the child who is the subject of the report;

(b) that child's parent;

(d) the legal practitioners representing that child's parent;

(e) a party to the proceeding;

(f) any other person specified by the Court.

(2) The Court may by order restrict access to the whole of a therapeutic treatment (placement) report, or a part of the report specified in the order, by a person mentioned in sub-section (1)(a), (1)(b), (1)(e) or (1)(f) and specified in the order, if the Court is satisfied that information in the report, or the part of the report, may be prejudicial to the physical or mental health of the child or a parent of the child.

(3) An application for an order under sub-section (2) may be made by—

(a) the Secretary; or

(b) a party to the proceeding; or

(d) with the leave of the Court, any other person—

and must be made not less than 2 working days before the hearing of the proceeding.

(4) If the Court makes an order under sub-section (2), it must cause a copy of the order to be served on the persons mentioned in sub-section (1).

(5) A person who receives a copy of a therapeutic treatment (placement) report or of part of a therapeutic treatment (placement) report under this section (part or all of which was not given to the child who is the subject of the report or to that child's parent on account of an order made under sub-section (2)) must not, unless otherwise directed by the Court, disclose to that child or parent any information contained in the report or the part of it (as the case requires) that was not given to that child or parent.

Penalty: 10 penalty units.

571. Court may order pre-sentence report

(1) If the Criminal Division finds a child guilty of an offence it may, before passing sentence, order a pre-sentence report in respect of the child and adjourn the proceeding to enable the report to be prepared.

(2) The Criminal Division must order a pre-sentence report if it is considering making a youth residential centre order or a youth justice centre order.

(3) If it appears to the Court that a child found guilty of an offence is intellectually disabled, the Court must, before passing sentence, order a pre-sentence report in respect of the child and adjourn the proceeding to enable the report to be prepared.

(4) If a declaration of eligibility in respect of the child has been issued under section 8 of the Intellectually Disabled Persons' Services Act 1986 , a pre-sentence report prepared in accordance with an order under sub-section (3) must include a copy of that declaration and specify services which are available under that Act and appropriate for the child and which are designed to reduce the likelihood of the child committing further offences.

572. Who prepares pre-sentence reports?

A pre-sentence report must be prepared by—

(a) the Secretary; or

(b) the Secretary to the Department of Justice.

573. Contents of pre-sentence report

(1) A pre-sentence report may set out all or any of the following matters but no others—

(a) the sources of information on which the report is based;

(b) the circumstances of the offence of which the child has been found guilty;

(d) the family circumstances of the child;

(e) the education of the child;

(f) the employment history of the child;

(g) the recreation and leisure activities of the child;

(h) medical and health matters relating to the child.

(2) Any statement made in a pre-sentence report must be relevant—

(a) to the offence of which the child has been found guilty in the proceeding before the Court; and

(b) to the sentencing order (if any) recommended in the report.

(3) The author of a pre-sentence report may, in his or her report, recommend an appropriate sentencing order for the child who is the subject of the report.

(4) If a recommendation is made under sub-section (3) for a probation order, a youth supervision order or a youth attendance order, it must state—

(a) whether, and if so where, the recommended service or program is available; and

(b) the proposed date of commencement of the child's participation in the recommended service or program; and

(d) the child's attitude towards the recommended service or program.

574. Pre-sentence report to be filed with registrar

A pre-sentence report must be filed with the appropriate registrar at least 4 working days before the return date and in any event no later than 21 days after the report was ordered by the Court.

575. Access to pre-sentence reports

(1) The author of a pre-sentence report must, within the period referred to in section 574, send a copy of the report to—

(a) the child who is the subject of the report; and

(b) the legal practitioners representing the child; and

(2) The author of a pre-sentence report is not under sub-section (1) required to send copies of the report in accordance with paragraph (a) or (c) of that sub-section if—

(a) he or she is of the opinion that information contained in the report may be prejudicial to the physical or mental health of the child; or

(b) the child notifies him or her of the child's objection to the forwarding of copies of the report.

(3) If because of sub-section (2) the author of a pre-sentence report is not required to send a copy of the report to a person in accordance with sub-section (1), he or she may forward to that person a copy of part of the report.

(4) If because of sub-section (2) the author of a pre-sentence report does not send copies of the report in accordance with paragraph (a) or (c) of sub-section (1)—

(a) he or she must inform the appropriate registrar of that fact; and

(5) A person who receives a copy of a pre-sentence report or of part of a pre-sentence report under this section (part or all of which was not sent to the child who is the subject of the report because of sub-section (2)) must not, unless otherwise directed by the Court, disclose to that child any information contained in the report or the part of it (as the case requires) that was not sent to that child.

Penalty: 10 penalty units.

576. Group conference report

If the Criminal Division finds a child guilty of an offence and defers sentencing the child for the purposes of a group conference, it must order a group conference report.

577. Who prepares group conference reports?

A group conference report must be prepared by the convenor of the group conference.

578. Content of group conference report

A group conference report must set out the following matters—

(a) the child's participation in the group conference;

(b) the results of the group conference including the outcome plan (if any) agreed to by the child;

579. Group conference report to be filed with registrar

A group conference report must be filed with the appropriate registrar at least 4 working days before the return date and in any event no later than the date fixed by the Court.

580. Access to group conference report

The author of a group conference report must, within the period referred to in section 579 send a copy of the report to—

(a) the child who is the subject of the report; and

(b) the legal practitioner representing the child; and

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581. CAYPINS procedure

(1) The procedure set out in Schedule 3 may be used instead of commencing a proceeding against a child for—

(a) an offence for which an infringement notice or a penalty notice within the meaning of Schedule 3 could be issued; or

(b) a prescribed offence within the meaning of that Schedule.

(2) If a child may be prosecuted for an offence in respect of which an infringement notice may be issued—

(a) a reference in an Act to enforcement under Schedule 7 to the Magistrates' Court Act 1989 includes a reference to enforcement under Schedule 3 to the Children, Youth and Families Act 2005 ; and

(b) a reference to a courtesy letter served under Schedule 7 to the Magistrates' Court Act 1989 includes a reference to a courtesy letter served under Schedule 3 to the Children, Youth and Families Act 2005 .

582. Certain agencies may give information for enforcement purposes

(1) In this section, "specified agency" means a person or body—

(a) that holds information that may be of use in the enforcement of court orders and fines; and

(b) that is stated by regulations made for the purposes of this section to be a specified agency—

but does not include a person or body listed in section 90A(1) of the Melbourne City Link Act 1995 .

(2) Words and expressions used in this section have the same meanings as in section 124A of the Magistrates' Court Act 1989 and Schedule 3 to this Act.

(3) A registrar of the Court, the sheriff and any contractor or sub-contractor supporting the functions of the sheriff may, for the purpose of the enforcement of court orders and fines, request information that may assist in carrying out that purpose from any person or body.

(4) On the written request of a registrar of the Court, the sheriff or any contractor or sub-contractor supporting the functions of the sheriff, a specified agency may give the person or body making the request access to any information held by the agency that may be of use in the enforcement of court orders and fines.

(5) A person who obtains access to any information as a result of a request made under this section—

(a) may use the information to enforce court orders and fines; but

(b) is otherwise subject to all the requirements and restrictions concerning the use and disclosure of the information that apply to the person who provided, or granted access to, the information in response to the request.

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PART 7.10—GENERAL

583. Witness who has previously appeared in Children's Court

(1) If a person is called as a witness in any legal proceeding within the meaning of section 3 of the Evidence Act 1958 (other than a proceeding in the Children's Court) and the person—

(a) has appeared before the Court charged with an offence; or

(b) has been the subject of an application to the Family Division for a protection order—

no question regarding—

(d) that application or any appearance of the person before the Court in respect of, or consequent on, that application—

is to be asked of the person after the end of 3 years from the date of the charge, application or appearance (whichever last happens).

(2) Sub-section (1) does not apply if—

(a) the question is relevant to the facts in issue in the proceeding or to matters necessary to be known in order to determine whether or not those facts existed; or

(b) the Court considers that the interests of justice require that the question be asked.

(3) A person referred to in sub-section (1) must not be asked any question about any application made to the Family Division other than an application for a protection order.

584. Defendant or other person who has previously appeared in Children's Court

(1) If—

(a) a person has appeared before the Court charged with an offence; or

(b) an application has been made to the Family Division for a protection order in respect of the person—

the fact of the charge or of any order made in respect of the charge or of the application or of any appearance of the person before the Court in respect of, or consequent on, the application must not be given in evidence against the person in any legal proceeding within the meaning of section 3 of the Evidence Act 1958 (other than a proceeding in the Children's Court) after the end of 3 years from the date of the charge, application or appearance (whichever last happens).

(2) Sub-section (1) does not apply if that fact is relevant—

(a) to the facts in issue in the proceeding; or

(b) to matters necessary to be known in order to determine whether or not those facts existed.

(3) Despite sub-section (1), if a person is found guilty by a court of an offence, evidence may be given to the court of an order of the Criminal Division in relation to an offence committed by the person, if the order was made not more than 10 years before the hearing at which it is sought to be proved.

585. Transfer of proceedings from Magistrates' Court to Children's Court

(1) If before or during the hearing of a charge for an offence it appears to the Magistrates' Court that the defendant is a child or was a child when the proceeding for the offence was commenced in the Magistrates' Court, the Magistrates' Court must discontinue the proceeding and order that it be transferred to the Children's Court and in the meantime it may—

(a) permit the defendant to go at large; or

(b) grant the defendant bail conditioned for the appearance of the defendant before the Children's Court at the time and place at which the proceeding is to be heard; or

(2) In exercising a power conferred by sub-section (1)(b) or (1)(c) the Magistrates' Court must exercise the power in accordance with this Act as if it were the Children's Court.

586. Supreme Court or County Court may exercise sentencing powers of Children's Court

The powers that the Supreme Court or the County Court may exercise in sentencing a child for an indictable offence include the power to make any sentencing order which the Children's Court may make under this Act but an order that the child be detained in a youth residential centre or youth justice centre must be made in accordance with Subdivision (4) of Division 2 of Part 3 of the Sentencing Act 1991 .

587. Notice required to be filed if child is taken into safe custody or apprehended without warrant

If under the provisions of this Act (other than section 172(3)) a child is taken into safe custody or apprehended without a warrant and that child is required to be brought before the Court, the person who took the child into safe custody or apprehended the child must file with the appropriate registrar as soon as possible after doing so and before the child is brought before the Court a notice setting out the grounds for taking the child into safe custody or apprehending the child.

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PART 7.11—RULES

588. Rules

(1) The President together with 2 or more magistrates for the Court may jointly make Rules for or with respect to the prescription of forms for the purposes of the Family Division of the Court.

(2) A rule under sub-section (1) must not be inconsistent with a provision made by or under this or any other Act, whether the provision was made before or after the making of the rule.

589. Rules of court

The President together with 2 or more magistrates for the Court may jointly make rules of court for or with respect to—

(a) requirements for the purposes of Part IIA of the Evidence Act 1958 for or with respect to—

(i) the form of audio visual or audio link;

(ii) the equipment, or class of equipment, used to establish the link;

(iii) the layout of cameras;

(iv) the standard, or speed, of transmission;

(v) the quality of communication;

(vi) any other matter relating to the link;

(b) applications to the Court under Division 2 or 3 of Part IIA of the Evidence Act 1958 ;

590. Rules of court—Koori Court (Criminal Division)

The President together with 2 or more magistrates for the Court may jointly make rules of court for or with respect to—

(a) any matter relating to the practice and procedure of the Koori Court (Criminal Division); and

(b) the transfer of proceedings to and from the Koori Court (Criminal Division).

591. Disallowance

The power of the President together with 2 or more magistrates for the Court to jointly make rules of court, whether that power is conferred by this or any other Act, is subject to the rules being disallowed by a House of the Parliament in accordance with section 23 of the Subordinate Legislation Act 1994 .

592. Practice notes

(1) The President may from time to time issue practice directions, statements or notes for the Court in relation to proceedings in the Family Division or the Criminal Division or any class of proceeding in the Family Division or the Criminal Division or in relation to the exercise by a registrar of any jurisdiction, power or authority vested in the registrar as registrar under Schedule 3.

(2) Practice directions, statements or notes issued under sub-section (1) must not be inconsistent with any provision made by or under this or any other Act.

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CHAPTER 8—GENERAL

593. Service of documents

(1) If by or under this Act a person is required to serve a document and no provision is made, other than in this section, as to how the document is to be served, the document must be served on the person to be served—

(a) by delivering a true copy of the document to that person personally; or

(b) by sending by registered post a true copy of the document addressed to that person at that person's last known place of residence or business; or

(c) by leaving a true copy of the document for that person at that person's last or most usual place of residence or of business with a person who apparently resides or works there and who apparently is not less than 16 years of age.

(2) If it appears to the Court, by evidence on oath or by affidavit, that service cannot be promptly effected, the Court may make an order for substituted service.

(3) If the person to be served is a company or registered body (within the meaning of the Corporations Act), the document may be served on that person in accordance with section 109X or 601CX of that Act, as the case requires.

594. Service on parent or child or other person

If this Act requires a notice of an application or hearing to be served on a child or a parent of a child or other person in accordance with this section, the notice may be served—

(a) by posting, not less than 14 days before the hearing date stated in the notice, a true copy of the notice addressed to the parent or the child or the person (as the case requires) at the last known place of residence or business of the parent or the child or the person; or

(b) by delivering, not less than 5 days before the hearing date stated in the notice, a true copy of the notice to the parent or the child or the person (as the case requires); or

(c) by leaving, not less than 5 days before the hearing date stated in the notice, a true copy of the notice for the parent or the child or the person (as the case requires) at the last known place of residence or business of the parent or the child or the person with a person who apparently resides or works there and who apparently is not less than 16 years of age.

595. Proof of service

(1) Service of a document may be proved by—

(a) evidence on oath; or

(b) affidavit; or

(2) Evidence of service must identify the document served and state the time and manner in which service was effected.

(3) A document purporting to be an affidavit or declaration under sub-section (1)(b) or (1)(c) is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements in it.

596. Person may cause document to be served

If by or under this Act a person is required or permitted to serve a document, the person may serve the document by causing it to be served by another person.

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597. Powers of Secretary in relation to medical services and operations

(1) The Secretary may at any time order that a person—

(a) in the care or custody of the Secretary as the result of—

(i) an interim accommodation order; or

(ii) a custody to Secretary order; or

(iii) a guardianship to Secretary order; or

(iv) a long-term guardianship to Secretary order; or

(v) a therapeutic treatment (placement) order;

(b) in the legal custody of the Secretary as provided by section 483; or

(c) placed with a suitable person or suitable persons or in an out of home care service as a result of an interim accommodation order; or

(d) in safe custody under section 241, 268(5), 269(3), 269(4), 270(5), 270(6), 291(4), 313 or 314—

be examined to determine his or her medical, physical, intellectual or mental condition.

(2) The Minister and the Minister administering Division 1 of Part II of the Health Act 1958 may make arrangements for the provision of any necessary medical, dental, psychiatric, psychological or pharmaceutical services to persons referred to in sub-section (1) or to any class or classes of those persons or to any other persons placed in an out of home care service.

(3) On the advice of a registered medical practitioner that medical treatment or a surgical or other operation or admission to hospital is necessary in the case of a child referred to in sub-section (1)(a)(ii), (1)(a)(iii), (1)(a)(iv), (1)(a)(v) or (1)(b), the Minister, the Secretary or any person (other than an officer or employee) authorised by the Secretary to do so may consent to the medical treatment or the surgical or other operation or the admission to hospital even if the child's parent objects.

(4) The Minister, the Secretary or any person (other than an employee) authorised by the Secretary to do so may consent to medical treatment or a surgical or other operation or admission to hospital in the case of a child who is not referred to in sub-section (1)(a)(ii), (1)(a)(iii), (1)(a)(iv), (1)(a)(v) or (1)(b) if—

(a) the child is placed in an out of home care service or with a suitable person or suitable persons as the result of—

(i) having been taken into safe custody under section 241, 268(5), 269(3), 269(4), 270(5), 270(6), 291(4), 313 or 314; or

(ii) an interim accommodation order; and

(b) a registered medical practitioner has advised that the medical treatment or operation or admission to hospital is necessary to avoid a serious threat to the health of the child; and

(i) refuses to give his or her consent; or

(ii) cannot be found within a time which is reasonable in the circumstances.

(5) An authorisation under sub-section (3) or (4)—

(a) must be made by instrument; and

(b) may be made to the holder of an office or position or to any person for the time being acting in or performing the duties of an office or position.

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598. Circumstances in which child may be taken into safe custody

(1) If a magistrate is satisfied by evidence on oath or by affidavit by the Secretary or by a member of the police force that—

(a) an undertaking entered into under section 530(2) has not been complied with; or

(b) a child is absent without lawful authority or excuse from the place in which the child had been placed under an interim accommodation order, a custody to third party order or a supervised custody order or by the Secretary under section 173 or from the lawful custody of a member of the police force or other person; or

(c) a child or a child's parent or the person who has the care of a child is refusing to comply with a lawful direction of the Secretary under section 173 as to the placement of the child—

the magistrate may issue a search warrant for the purpose of having the child taken into safe custody.

(2) A child taken into safe custody under a warrant issued under sub-section (1)(a) must be brought before the Court as soon as practicable and, in any event, within one working day after the child was taken into safe custody.

(3) Despite anything to the contrary in this Act but subject to sub-section (2), a child taken into safe custody under this section must be taken by the member of the police force who executed the warrant to the place specified in the warrant or, if no place is so specified, to a place determined by the Secretary or, in the absence of any such determination, to any place referred to in section 173.

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599. Supreme Court—limitation of jurisdiction

It is the intention of sections 328 and 424 to alter or vary section 85 of the Constitution Act 1975 .

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PART 8.5—REGULATIONS

600. Regulations

(1) The Governor in Council may make regulations for or with respect to—

(a) reports for the purposes of this Act; and

(b) the earnings of a person detained in a youth residential centre or youth justice centre; and

(d) the appointment, powers, duties and functions of persons responsible for youth supervision programs; and

(e) the appointment, powers, duties and functions of youth justice officers; and

(f) the appointment, powers, duties and functions of youth parole officers; and

(g) prescribing the terms and conditions to be included in parole orders; and

(h) prescribing standards to be observed—

(i) for the protection, care or accommodation of persons placed in the care or custody or under the guardianship, control or supervision of the Secretary; and

(ii) in performing any function, supplying any service or otherwise carrying out the objects of this Act; and

(i) the registration of community services and prescribing standards to be observed for the protection, care or accommodation of persons placed in out of home care services and in the conduct, management and control of community services; and

(j) the care, control and management of persons placed in out of home care services or in the custody or under the guardianship of the Secretary; and

(k) the conduct, management and supervision of community services, youth residential centres, youth justice centres, remand centres, youth justice units and any other institutions or places established under this Act or under the control of the Secretary; and

(l) the care, control and management of persons in youth residential centres, youth justice centres, remand centres and youth justice units or otherwise in the legal custody of the Secretary; and

(m) the entitlements of persons detained in remand centres, youth residential centres or youth justice centres or of children detained in police gaols or other places prescribed for the purposes of section 347 and the responsibility of the Secretary, the Chief Commissioner of Police or any other person with respect to those entitlements; and

(n) the management, good order and security of remand centres, youth residential centres or youth justice centres in which persons are detained or of police gaols or other places prescribed for the purposes of section 347 in which children are detained; and

(o) searches under section 486 and manner of dealing with articles or things seized, including the forfeiture of articles or things to the Crown; and

(p) the particulars of the use of isolation to be recorded under section 488(6) ; and

(q) providing for the admission of ministers of religion to community services, youth residential centres, youth justice centres, remand centres, youth justice units and any other institutions or places established under this Act or under the control of the Secretary for the purpose of the spiritual welfare and pastoral care of persons accommodated or detained in those places; and

(r) prescribing regions of the State for the purpose of Division 1 of Part 5.2 and Division 7 of Part 5.3; and

(s) all matters necessary for the good order, discipline, safe custody and health of children in respect of whom a youth attendance order is in force; and

(t) the variation by the Secretary under section 402 of details relating to the dates and times of attendance at a youth justice unit; and

(u) the conduct, management and supervision of youth supervision programs; and

(v) the conduct and management of group conference programs; and

(w) prescribing the nature of reasonable directions which may be given by the Secretary in relation to youth attendance orders; and

(x) the establishment and maintenance of the central register; and

(y) prescribing institutions or places in which children remanded in custody by a court or a bail justice may be placed; and

(z) Division 5 of Part 5.3 generally including—

(i) the matters to be specified in applications or orders made or notices given under that Division; and

(ii) the manner of making applications under section 377; and
s. 600

(iii) the procedure of the Court and of the appropriate registrar under that Division; and

(iv) securing the attendance of a child before the Court and the production of documents by a child to the Court under that Division; and

(v) the functions of the appropriate registrar under that Division; and

(za) prescribing forms; and

(zb) prescribing fees for the purposes of section 537(3); and

(zc) prescribing the fees, costs and charges payable in respect of the exercise by a registrar of any jurisdiction, power or authority vested in the registrar as registrar under Schedule 3; and

(zd) generally prescribing any other matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to this Act.

(2) Regulations made under this Act may be made—

(a) so as to apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body whether—

(i) wholly or partially or as amended by the regulations; or

(ii) as formulated, issued, prescribed or published at the time the regulations are made or at any time before then; and

(b) so as to apply—

(i) at all times or at a specified time; or

(ii) throughout the whole of the State or in a specified part of the State; or

(iii) as specified in both sub-paragraphs (i) and (ii); and

(d) so as to provide for the exemption of persons or proceedings or a class of persons or proceedings from any of the regulations providing for the imposition of fees; and

(e) so as to impose a penalty not exceeding 10 penalty units for a contravention of the regulations.

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601. Repeal of Children and Young Persons Act 1989

The Children and Young Persons Act 1989 is repealed .

602. Amendment of Community Services Act 1970

In the Community Services Act 1970 —

(a) in section 1, after "Services" insert "(Attendance at School)" ;

(b) in section 3, the definitions of "care", "community service", "employee", "Part", "police gaols", "prescribed", "prison", "prisoner", "Superintendent" and "trainee" are repealed ;

(d) sections 7, 9 and 10 are repealed ;

(e) Parts I and II are repealed ;

(f) Divisions 1A, 1B, 1C and 2 of Part III are repealed ;

(g) Parts VI and VII are repealed ;

(h) sections 200A and 200AB are repealed ;

(i) in section 203, paragraphs (a), (c), (d), (e), (f), (g), (j), (p), (q), (u), (ya), (yb), (aa), (ab) and (ac) are repealed ;

(j) Schedule Two is repealed .

603. Amendment of Children and Young Persons Act 1989

(1) In section 143 of the Children and Young Persons Act 1989 for "child" (wherever occurring) substitute "person".

(2) In section 148 of the Children and Young Persons Act 1989 for—

(a) "child" (wherever occurring) substitute "person"; and

(b) in sub-section (3)(b)(ii) for "child's" substitute "person's".

(3) In section 160(3)(f) of the Children and Young Persons Act 1989 omit "other".

(4) In section 184(2) of the Children and Young Persons Act 1989 —

(a) in paragraph (a) omit "or revoking";

(b) for paragraph (c) substitute —

"(c) an order revoking the youth attendance order and imposing any sentencing order that the Court thinks just but must not make an order for the person to be kept in custody for a period longer than the period of the breached youth attendance order.".

(5) In section 185(5) of the Children and Young Persons Act 1989 —

(a) in paragraph (d) omit ", or revoking the youth attendance order";

(b) for paragraph (f) substitute —

"(f) an order revoking the youth attendance order and imposing any sentencing order that the Court thinks just but must not make an order for the person to be kept in custody for a period longer than the period of the breached youth attendance order.".

604. Amendment of Child Wellbeing and Safety Act 2005

(1) In section 3 of the Child Wellbeing and Safety Act 2005 —

(a) for the definition of "central register" substitute —

' "central register" has the same meaning as it has in the Children, Youth and Families Act 2005 ;';

(b) for the definition of "out of home care service" substitute —

' "out of home care service" has the same meaning as it has in the Children, Youth and Families Act 2005 ;';

' "performance standards" means performance standards under Division 4 of Part 3.3 of the Children, Youth and Families Act 2005 ;'.

(2) For section 33(5)(a) of the Child Wellbeing and Safety Act 2005 substitute —

"(a) a child is a child protection client if the child is the subject of a protective intervention report within the meaning of the Children, Youth and Families Act 2005 ; and".

605. Repeal of Koori Court (Criminal Division) provisions of this Act

(1) In section 3(1) of this Act, the definitions of "Aboriginal elder or respected person" and "Children's Koori Court officer" are repealed .

(2) Section 3(4) of this Act is repealed .

(3) Section 504(3)(c) of this Act is repealed .

(4) In sections 504(5) and 522 (2) of this Act for "more than one Division" substitute "both Divisions".

(5) In section 504(7) of this Act for "any Division" substitute "either Division".

(6) Sections 517, 518, 519 and 520 of this Act are repealed .

(7) In section 528(2) of this Act for "any Division" substitute "both Divisions".

(8) Sections 536 and 590 of this Act are repealed .

606. Transitional and saving provisions

Schedule 4 has effect.

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Sch. 1

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