Children, Youth and Families Amendment (Security of Youth Justice Facilities) Bill 2011
Introduction Print
EXPLANATORY MEMORANDUM
571084
13/9/2011
Clause Notes
Clause 1sets out the purpose of the Bill, which is to amend the Children, Youth and Families Act 2005 to change the security arrangements for youth justice facilities.
Clause 2provides for the commencement of the Bill. The Bill comes into operation on a day to be proclaimed. If the Bill does not come into operation before 19 December 2011 it will come into operation on that day.
Clause 3states that in the Bill the Children, Youth and Families Act 2005 is called the Principal Act.
Clause 4inserts new Division 1AA(Preliminary) into Part 5.8 of Chapter5 of the Principal Act. The new Division includes the following sections—
New section 482A(Definitions) sets out definitions of some key terms used in Part 5.8, including formal search, frisk search, strip search and detainee.
Officer means any person employed or engaged in a youth justice facility with duties in relation to ensuring the security or good order of the facility or the safety and security of any detainee in the facility.
Officer in charge is defined to mean the officer in charge of Victorian Youth Justice Custodial Services in the Department.
Visitor means any person, other than a detainee or an officer, who enters, leaves or remains in a youth justice facility.
New section 482B(Authorisation of an officer in charge) allows the officer in charge to authorise in writing a person or class of persons employed in or engaged by the Department to exercise any power or perform any function of the officer in charge under Part 5.8, except the power of authorisation. There is an exception—the powers under section 488AC (Strip search of detainee) and 488AD(4) and (5) (Manner of conducting search) can only be authorised to a person or persons employed in the Department.
Clause 5repeals section 486 (Search) of the Principal Act.
Clause 6substitutes a new heading to Division 3 of Part 5.8 of Chapter 5 of the Principal Act.
Clause 7substitutes section 488A of the Principal Act with new sections488A, 488AB, 488AC, 488AD, 488AE and 488AF.
New section 488A(Search on entering or leaving a youth justice facility) provides that any person who wishes to enter or leave a youth justice facility, except for a judge of the Supreme Court or County Court or a magistrate, must submit to a formal search and frisk search if asked. A person must not be asked to submit to a strip search or body cavity search under this section.
New section 488AB(Officer in charge may order search) provides that the officer in charge may order at any time, if necessary to do so in the interests of the security or good order of a youth justice facility or the detainees, that an officer search any part of the facility, search and examine any person in the facility other than a judge of the Supreme Court or County Court or a magistrate, or search and examine any thing in the facility. Aperson must not be asked to submit to a strip search or body cavity search under this section.
New section 488AC(Strip search of detainee) allows the officer in charge to cause a detainee to be subjected to a strip search (but not a body cavity search) if necessary to do so in the interests of the security or good order of a youth justice facility, or in the interests of the safety or security of the detainee or any other person in the facility. If necessary, reasonable force may be used to carry out a strip search.
New section 488AD(Manner of conducting search) sets out the following requirements for the manner in which searches under Division 3 are conducted—
- a frisk search or strip search must be conducted only by an officer of the same sex as the person being searched;
- the officer carrying out a search must give the person who is to be searched (other than a detainee) certain information before carrying out the search;
- if a person consents to a search, the officer must ask the person if he or she has any article or thing which jeopardises or is likely to jeopardise the security of the facility or the safety of persons within it, such as a weapon, alcohol or money, and ask the person to produce the article or thing;
- strip searches must be conducted in the presence of another officer, positioned in such a way that the detainee being searched is not in view of that officer. The other officer must be of the same sex as the detainee, unless the search is urgently required and an officer of the same sex is not available;
- searches must be carried out expeditiously, with regard to the decency and self-respect of the person being searched, and in compliance with any other prescribed requirement.
New section 488AE(Consequences of refusal to submit to a search) provides that an officer may prohibit a person (other than a detainee) from entering a youth justice facility or order the person to leave the facility immediately if the person does not submit to an authorised search when asked. A person commits an offence if they do not obey such an order. The maximum penalty for a contravention is 5 penalty units.
New section 488AF(Officer in charge may order search to be terminated)allows the officer in charge to make an order terminating a search under Division 3 at any time.
Clause 8substitutes sections 488E, 488F and 488G of the Principal Act with a new Division 3A (Seizure).
New section 488E(Seizure)provides that an officer carrying outa search under Division 3 may seize certain articles found inthe person's possession or produced in response to a request. The officer in charge must be informed, and must deal with any seized article in accordance with Division 3A.
New section 488F(Seizure register)requires the officer in charge to maintain a seizure register, and to ensure that the prescribed information is entered in the register in respect of any article or thing seized during a search.
New section 488G (Certain seized items to be handed to police)states that if a weapon, explosive substance, drug of dependence or other article or thing suspected of being stolen or used in or obtained as the result of the commission of an offence is seized, itmust be handed to a member of the police force.
New section 488GA(Manner of dealing with seized things that may be used in a legal proceeding)provides that if an article or thing that may be used in a legal proceeding is seized, and is not required to be handed to police under section 488G, the officer in charge must ensure that it is held securely until the end of the proceeding. The owner of the seized thing (if known) must be informed whether or not it will be returned.
New section 488GB(Manner of dealing with seized money)provides that seized money must be returned to the person from whom it was seized when they leave or are released from the facility, unless the money is suspected of being stolen or used in, or obtained as a result of, the commission of an offence.
New section 488GC(Manner of dealing with other seized articles or things)requires the officer in charge to ensure that seized articles or things that are not subject to the preceding 3 sections must be dealt with in any manner that is appropriate, having regard to the nature of the article, including by disposing of, returning or dismantling it. The owner of the seized thing (ifknown) must be informed whether or not it will be returned.
New section 488GD(Disposal)requires the officer in charge to ensure that at least 2 officers carry out the disposal of a seized article or thing and that the prescribed details are recorded in the seizure register.
Clause 9inserts new section 492A into the Principal Act.
New section 492A(Secrecy of security arrangements at youth justice facilities)makes it an offence for a person who holds or who has held a certain position to record, disclose, communicate or make use of confidential information, except to the extent that is reasonably necessary to perform a duty or function or exercise a power of that position under the Principal Act or any other Act. The maximum penalty for a contravention is 5 penalty units.
Confidential information is defined as certain information given to the Youth Parole Board, information concerning youth justice facility emergency procedures, plans and security measures, information concerning the investigation of a breach or possible breach of the law by a detainee or officer, certain information in court reports, and information of a business, commercial or financial nature relating to the provision of services within a youth justice facility if disclosure may threaten the good order or security of the facility or any person.
Position is defined as an officer, a delegate of the Secretary, a provider of support services to a detainee or within a youth justice facility, a sheriff, deputy sheriff or sheriff's officer, or a person appointed by the Department or an independent body to investigate or review a youth justice facility or any aspect of it or to visit a facility or a detainee.
Exceptions to the offence are set out in new section 492A(3). Aperson is not prevented from disclosing or communicating confidential information in certain circumstances, including where they have the written authority of the Minister or the person to whom the information relates.
New section 492A(4) provides that nothing in this section prevents the recording or accessing and using of health information within the meaning of the Health Records Act 2001 in accordance with that Act.
Clause 10amends section 501 (Offences in relation to persons held in centres) of the Principal Act.
Section 501(1)(aa) is inserted into the Principal Act, which makes it an offence to enter or attempt to enter a youth justice facility without lawful authority or excuse.
Section 501(1)(ab) is inserted into the Principal Act, which makes it an offence to communicate or attempt to communicate with a detainee on escorted temporary leave from a youth justice facility, if the communication threatens the security of the facility or any person. A person must not be charged with this offence unless an officer accompanying the detainee has warned the person that they are not authorised to communicate with the detainee, and may commit an offence if they continue to communicate or attempt to communicate with the detainee, and the person continues to do so despite the warning.
The maximum penalties for each of the offences set out in section501 are amended to 15 penalty units or imprisonment for 3 months in the case of a child, and in any other case imprisonment for 2 years.
Clause 11repeals section 600(1)(o) of the Principal Act. The repealed provision is the regulation-making power for searches and dealing with seized things. As these provisions have been moved up to the Principal Act by the Bill, this regulation-making power is no longer required.
Clause 12inserts new section 619 in the Principal Act. This is a transitional provision relating to the seizure register.
Clause 13provides for the repeal of the amending Act on 19 December 2012. In accordance with section 15(1) of the Interpretation of Legislation Act 1984, the repeal of the amending Act will not affect the amendments made by it.
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