Youth Justice Act 2005

This Act may be cited as the Youth Justice Act 2005.

This Act comes into operation on the date fixed by the Administrator by notice in the Gazette.

The following are objects of this Act:

to specify the general principles of justice in respect of youth;

to provide for the administration of justice in respect of youth;

to provide how a youth who has committed, or is alleged to have committed, an offence is to be dealt with;

to ensure that a youth who has committed an offence is made aware of his or her obligations (and rights) under the law and of the consequences of contravening the law;

to ensure that a youth who has committed an offence is given appropriate treatment, punishment and rehabilitation;

to continue in existence the Juvenile Court, established by the repealed Act, as the Youth Justice Court.

The following are general principles that must be taken into account in the administration of this Act:

if a youth commits an offence, he or she must be held accountable and encouraged to accept responsibility for the behaviour;

the youth should be dealt with in a way that acknowledges his or her needs and will provide him or her with the opportunity to develop in socially responsible ways;

a youth must be dealt with in the criminal law system in a manner consistent with his or her age and maturity and have the same rights and protection before the law as would an adult in similar circumstances;

a youth should be made aware of his or her obligations under the law and of the consequences of contravening the law;

a youth who commits an offence should be dealt with in a way that allows him or her to be re-integrated into the community;

a balanced approach must be taken between the needs of the youth, the rights of any victim of the youth's offence and the interests of the community;

family relationships between a youth and members of his or her family should, where appropriate, be preserved and strengthened;

a youth should not be withdrawn unnecessarily from his or her family environment and there should be no unnecessary interruption of a youth's education or employment;

a youth's sense of racial, ethnic or cultural identity should be acknowledged and he or she should have the opportunity to maintain it;

a victim of an offence committed by a youth should be given the opportunity to participate in the process of dealing with the youth for the offence;

a responsible adult in respect of a youth should be encouraged to fulfil his or her responsibility for the care and supervision of the youth;

a decision affecting a youth should, as far as practicable, be made and implemented within a time frame appropriate to the youth's sense of time;

punishment of a youth must be designed to give him or her an opportunity to develop a sense of social responsibility and otherwise to develop in beneficial and socially acceptable ways;

if practicable, an Aboriginal youth should be dealt with in a way that involves the youth's community;

programs and services established under this Act for youth should:

be culturally appropriate; and

promote their health and self-respect; and

foster their sense of responsibility; and

encourage attitudes and the development of skills that will help them to develop their potential as members of society;

unless the public interest requires otherwise, criminal proceedings should not be instituted or continued against a youth if there are alternative means of dealing with the matter;

as far as practicable, proceedings in relation to youth offenders must be conducted separately from proceedings in relation to adult offenders.

Division 2 Interpretation matters

In this Act:

Aboriginal means:

a descendant of the Aboriginal people of Australia; or

a descendant of the indigenous inhabitants of the Torres Strait

Islands.

Aboriginal customary law means:

customary law of the Aboriginal people of Australia; or

customary law of the indigenous inhabitants of the Torres Strait

Islands.

Aboriginal experience report, for Part 5, Division 4, see section 80B.

Aboriginal tradition means:

tradition of the Aboriginal people of Australia; or

tradition of the indigenous inhabitants of the Torres Strait

Islands.

alternative detention order means an order made under section 83(1)(j).

appropriate authority, in relation to a youth, means:

for a youth sentenced to a term of imprisonment – the

Commissioner of Correctional Services; or

otherwise – the CEO.

approved member, for Part 5, Division 4, see section

80A.

approved monitoring device means a monitoring device approved under section 140AB.

approved project means a rehabilitation project or work, or both, approved under section 97.

buccal swab means a procedure where a sample of saliva or mouth cells is taken from the inside of a person's cheek by use of a swab.

CEO means the Chief Executive Officer.

charge, in respect of an offence, includes:

an information in respect of an indictable offence; and

a complaint in respect of a summary offence.

community court sentencing procedure, for Part 5,

Division 4, see section 80A.

community work order means an order made under section 83(1)(h).

community youth justice officer means a person who is appointed as a community youth justice officer under section 140AA.

Court means the Youth Justice Court as mentioned in section 45 and, if the context requires, includes the Supreme

Court exercising its jurisdiction under this Act.

custodial correctional facility, see section 11(1)(a) of the Correctional Services Act 2014.

detainee means a youth lawfully detained in a detention centre.

detention centre means a youth detention centre approved under section 148.

divert, for Part 3, see section 38.

emergency situation includes a situation in which there is an imminent risk of a youth:

inflicting self-harm; or

harming another person; or

seriously damaging property.

family responsibility agreement means an agreement under Part 6A, Division 2.

Fines Recovery Unit means the Fines Recovery Unit established under the Fines and Penalties (Recovery) Act 2001.

forensic procedure means an intimate procedure or non-intimate procedure.

good behaviour order means an order made under section 83(1)(f).

identifying procedure has the meaning in section 8(2).

illicit drug or substance has the meaning in section 9.

intimate procedure has the meaning in section 7.

Law and Justice Group, for Part 5, Division 4, see section 107C(2) of the Sentencing Act 1995.

midwife means a person registered under the Health

Practitioner Regulation National Law to practise in the midwifery profession (other than as a student).

monitoring device means one of the following:

an electronic device attached to, or worn by, a person for one or more of the following purposes:

to monitor a person's compliance with a monitoring order;

to monitor a person's compliance with this Act;

a purpose prescribed by regulation;

to enable electronic reporting of the results of the matters mentioned in subparagraphs (i) to (iii);

a voice recognition system that is designed to:

verify the voice of a particular person; and

enable the person's geographical location to be monitored.

monitoring order means any of the following:

an alternative detention order;

any other order made under this Act or the Sentencing Act 1995 that:

imposes a condition on a youth; and

requires the CEO or a community youth justice officer to monitor compliance with the condition;

a parole order as defined in section 3(1) of the Parole

Act 1971.

non-intimate procedure has the meaning in section 8(1).

non-parole period, for a sentence of detention or imprisonment, means a period fixed by the Court during which the youth is not eligible to be released on parole.

nurse means a person registered under the Health

Practitioner Regulation National Law to practise in the nursing profession (other than as a student).

official visitor means a person appointed to be an official visitor under section 169.

parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.

periodic detention order means an order made under section 83(1)(k).

permitted restraint means a restraint device prescribed under section 155(1).

preliminary examination means the procedure under

Part V of the Local Court (Criminal Procedure) Act 1928

relating to indictable offences.

prescribed alcohol/drug test means a test prescribed as mentioned under section 140AF(6)(a).

prescribed offence, see section 38A.

proceedings, in relation to a youth, includes a preliminary examination.

prosecutor includes the Director of Public

Prosecutions.

relative includes a relative according to Aboriginal tradition or contemporary social practice, a spouse and a de facto partner.

responsible adult, in respect of a youth, means a person who exercises parental responsibility for the youth, whether the responsibility is exercised in accordance with contemporary social practice, Aboriginal customary law and Aboriginal tradition or in any other way.

restricted drug, for a youth, means any of the following:

a dangerous drug as defined in section 3(1) of the Misuse of

Drugs Act 1990;

a Schedule 4, 8 or 9 substance as defined in section 7 of the

Medicines, Poisons and Therapeutic Goods Act 2012;

any other drug specified in the youth's monitoring order as one that the youth is not permitted to use.

support person has the meaning in section 35.

the repealed Act means the Juvenile Justice Act 1983 as in force immediately before the date on which this Act commences.

victim means:

a person who suffers harm arising from an offence; or

if a person dies as a result of the commission of the offence, a person who was a relative of, or who was financially or emotionally dependent on, the deceased person.

youth has the meaning in section 6.

Youth Justice Conference, in relation to a youth, includes:

a conference with the victim or victims of the offence the youth is believed to have committed; and

a conference with members of the youth's family.

Note for subsection (1)

The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act.

In this Act, if the context requires, Local Court Judge includes a Supreme Court Judge.

In this Division:

intimate part of the body means any of the following:

the genital area;

the anal area;

the buttocks;

if the youth is a female – the breasts.

non-intimate part of the body means a part of the body that is not an intimate part of the body.

In this Act, a youth is:

a person under 18 years of age; or

in the absence of proof as to age, a person apparently under

18 years of age.

If the context requires, a youth includes a person who committed an offence as a youth but has since turned 18 years of age.

For this Act, an intimate procedure includes any of the following:

an internal or external examination of an intimate part of the body;

an internal examination of a non-intimate part of the body;

taking from an intimate part of the body a substance, or a sample of a substance, on or in the body;

taking a sample of blood (other than by a swab or washing from an external non-intimate part of the body);

taking a sample of pubic hair;

taking a sample from an intimate part of the body:

by swab or washing; or

by vacuum suction, scraping or lifting by tape;

taking a dental impression or an impression of a bite mark;

taking a photograph, or an impression or cast, of a wound to an intimate part of the body;

taking an X-ray;

taking a sample of urine.

For this Act, a non-intimate procedure includes any of the following:

taking a sample of saliva or a sample by buccal swab;

an external examination of a non-intimate part of the body;

taking a sample of hair other than pubic hair;

taking a sample from an external non-intimate part of the body:

by swab or washing; or

by vacuum suction, scraping or lifting by tape;

taking a photograph of, or an impression or cast of a wound to, a non-intimate part of the body;

an identifying procedure.

In subsection (1):

identifying procedure means:

the taking of prints of the hands, fingers, feet or toes; or

the taking of photographs of the youth that are:

of an identifying nature; and

of a non-intimate part of the body.

For this Act, an illicit drug or substance is any of the following:

a drug or substance, the possession of which is prohibited under a law in force in the Territory;

a drug or substance for which a prescription is required, if no prescription is in force in relation to the youth:

in whose possession the drug or substance is found; or

in whose body the drug or substance is detected;

in relation to a youth who is detained at a detention centre –

a drug or substance, the possession of which is prohibited under the rules of the detention centre;

in relation to a youth who is the subject of an alternative detention order – a drug or substance, the possession of which is prohibited under the conditions of the order.

Division 3 Use of force generally

If this Act permits a person to use force on a youth, the person may only use force if:

all other reasonably practicable measures to resolve the situation have been attempted and those measures have failed to resolve the situation; and

the person using the force:

gives a clear warning of the intended use of force; and

allows a reasonable amount of time for the youth to observe the warning; and

uses no more force than the person considers to be necessary and reasonable in the circumstances as perceived by the person; and

holds a current qualification in physical intervention techniques on youths.

Note for subsection (1)(b)(iv)

See section 147C(4) in relation to police officers and correctional officers providing assistance under that section.

Subsection (1)(a) and (b)(i) and (ii) do not apply if the force is used in an emergency situation.

For subsection (1)(b)(iii), a person considering what force is necessary and reasonable in the circumstances may have regard to the age, gender, physical and mental health, or background of the youth in relation to whom the force is to be used.

Part 2 Apprehension and remand

Division 1 General matters

This Part applies despite the provisions of any other Act.

In this Part, unless the contrary intention appears:

authorised officer means:

the Commissioner of Police, a Deputy Commissioner of Police or

Assistant Commissioner of Police; or

a police officer authorised under section 36.

interview includes asking questions of a person.