Youth Justice Act 1992

This section applies if a court or police officer is making any of the following decisions in relation to a child in custody in connection with a charge of an offence (the alleged offence)—

whether there is an unacceptable risk of a matter mentioned in section 48AAA(2);

whether there is an unacceptable risk of a matter mentioned in section 48AAA(3);

whether to release the child despite being satisfied there is an unacceptable risk of a matter mentioned in section 48AAA(3);

whether to release the child without bail or grant bail to the child;

whether the child has shown cause under section 48AF(2) why the child’s detention in custody is not justified.

The court or police officer must have regard to the following matters of which the court or police officer is aware—

any promotion by the child of terrorism;

any association the child has or has had with a terrorist organisation, or with a person who has promoted terrorism, that the court or police officer is satisfied was entered into by the child for the purpose of supporting the organisation or person—

in the carrying out of a terrorist act; or

in promoting terrorism.

Also, if the decision is being made by a court, the court must have regard to the sentence order or other order likely to be made for the child if found guilty.

In making a decision mentioned in subsection (1)—

the court or police officer may have regard to any of the following matters of which the court or police officer is aware—

the nature and seriousness of the alleged offence;

the child’s criminal history and other relevant history, associations, home environment, employment and background;

the history of a previous grant of bail to the child;

the strength of the evidence against the child relating to the alleged offence;

the child’s age, maturity level, cognitive ability and developmental needs;

whether a parent of the child, or another person, has indicated a willingness to the court or police officer that the parent or other person will do any of the following things—

support the child to comply with the conditions imposed on a grant of bail;

notify the chief executive or a police officer of a change in the child’s personal circumstances that may affect the child’s ability to comply with the conditions imposed on a grant of bail;

notify the chief executive or a police officer of a breach of the conditions imposed on a grant of bail;

if the child is an Aboriginal person or Torres Strait Islander—a submission made by a representative of the community justice group in the child’s community, including, for example, a submission about—

the child’s connection with the child’s community, family or kin; or

cultural considerations; or

considerations relating to programs and services established for offenders in which the community justice group participates;

any other relevant matter; and

for a decision mentioned in subsection (1)(d)—the court or police officer may have regard to any of the following—

the desirability of strengthening and preserving the relationship between the child and the child’s parents and family;

the desirability of not interrupting or disturbing the child’s living arrangements, education, training or employment;

the desirability of minimising adverse effects on the child’s reputation that may arise from being kept in custody;

the child’s exposure to, experience of and reaction to trauma;

the child’s health, including the child’s need for medical assessment or medical treatment;

for a child with a disability—the disability and the child’s need for services and supports in relation to the disability;

if the child is an Aboriginal person or Torres Strait Islander—the desirability of maintaining the child’s connection with the child’s community, family and kin;

if the child is under 14 years—the particular desirability of releasing children under 14 years from custody due to their vulnerability and community expectations that children under 14 years are entitled to special care and protection;

the likely effect that refusal to release the child would have on—

a person with whom the child is in a family relationship and for whom the child is the primary caregiver; or

a person with whom the child is in an informal care relationship; or

if the child is pregnant—the child of the pregnancy.

In deciding whether there is an unacceptable risk of a matter mentioned in section 48AAA(3), the court or police officer may—

consider whether a condition could, under section 52A, be imposed on a grant of bail to the child; and

have regard to the effect on the risk of imposing the condition.

The court or police officer must not decide there is an unacceptable risk of a matter mentioned in section 48AAA(2) or (3), or to refuse to release a child from custody, solely because 1 or both of the following apply—

the child has no apparent family support;

the child will not have accommodation, or adequate accommodation, on release from custody.

In this section—