Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011

Authorised by the Chief Parliamentary Counsel Authorised Version i Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 TABLE OF PROVISIONS Section Page 1 Purpose 1 2 Commencement 1 3 Principal Act 2 4 New Division 1AA inserted in Part 5.8 of Chapter 5 2 482A Definitions 2 482B Authorisation of an officer in charge 4 5 Search 5 6 Heading to Division 3 of Part 5.8 of Chapter 5 substituted 5 7 Section 488A substituted 5 488A Search on entering or leaving a youth justice facility 5 488AB Officer in charge may order search 6 488AC Strip search of detainee 6 488AD Manner of conducting search 7 488AE Consequences of refusal to submit to search 8 488AF Officer in charge may order search to be terminated 9 8 Sections 488E, 488F and 488G substituted 9 488E Seizure 9 488F Seizure register 9 488G Certain seized items to be handed to police 10 488GA Manner of dealing with seized things that may be used in a legal proceeding 10 488GB Manner of dealing with seized money 11 488GC Manner of dealing with other seized articles or things 11 488GD Disposal 12 9 New section 492A inserted 13 492A Secrecy of security arrangements at youth justice facilities 13 10 Offences in relation to persons held in centres 16 11 Regulations 17 -- 1 of 21 -- Section Page ii Authorised by the Chief Parliamentary Counsel 12 New section 619 inserted 17 619 Transitional provision—Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 17 13 Repeal of amending Act 18 ═══════════════ ENDNOTES 19 -- 2 of 21 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 † No. 54 of 2011 [Assented to 2 November 2011] The Parliament of Victoria enacts: 1 Purpose The purpose of this Bill is to amend the Children, Youth and Families Act 2005 to change the security arrangements for youth justice facilities. 2 Commencement (1) This Act comes into operation on a day to be proclaimed. Victoria -- 3 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 2 Authorised by the Chief Parliamentary Counsel (2) If this Act does not come into operation before 19 December 2011 it comes into operation on that day. 3 Principal Act In this Act, the Children, Youth and Families Act 2005 is called the Principal Act. 4 New Division 1AA inserted in Part 5.8 of Chapter 5 Before Division 1 of Part 5.8 of Chapter 5 of the Principal Act insert— "Division 1AA—Preliminary 482A Definitions In this Part— approved dog means a dog approved in accordance with the regulations for use by an officer; detainee means a person detained in a youth justice facility, including a person detained under a preventative detention order (within the meaning of Part 2A of the Terrorism (Community Protection) Act 2003) or an order for his or her detention made under a s. 3 See: Act No. 96/2005. Reprint No. 3 as at 1 January 2011 and amending Act Nos 51/2006 (as amended by Act No. 51/2009), 53/2010, 27/2011 and 29/2011. LawToday: www. legislation. vic.gov.au -- 4 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 3 Authorised by the Chief Parliamentary Counsel corresponding preventative detention law (within the meaning of that Part); formal search means a search to detect the presence of drugs, weapons or metal articles carried out— (a) by an electronic or mechanical device; or (b) with the assistance of an approved dog; frisk search means a search of a person or of things in the possession or under the control of a person, including— (a) a search of a person conducted by quickly running the hands over the person's outer clothing or by passing an electronic or mechanical device over or in close proximity to the person's outer clothing; and (b) an examination (including an examination conducted by passing an electronic or mechanical device over or in close proximity) of anything worn or carried by the person, including— (i) requiring the person to remove only his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes and hat; and (ii) anything else that is conveniently and voluntarily removed by the person; s. 4 -- 5 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 4 Authorised by the Chief Parliamentary Counsel 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 means the officer in charge of Victorian Youth Justice Custodial Services in the Department; seizure register means the register maintained under section 488F; strip search means a search of a person or of things in the possession or under the control of a person that may include— (a) requiring the person to remove all of his or her clothes; and (b) an examination of the person's body (but not of the person's body cavities) and of those clothes; visitor means any person, other than a detainee or an officer, who enters, leaves or remains in a youth justice facility; youth justice facility means a remand centre, a youth residential centre, a youth justice centre or a youth justice unit. 482B Authorisation of an officer in charge The officer in charge of Victorian Youth Justice Custodial Services in the Department may authorise in writing a person or class of persons employed in the Department or engaged by the Department to exercise any power or perform any function of the officer in charge under this Part, other than— (a) this power of authorisation; or s. 4 -- 6 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 5 Authorised by the Chief Parliamentary Counsel (b) in the case of a person not employed by the Department, a power under section 488AC or 488AD(4) or (5).". 5 Search Section 486 of the Principal Act is repealed. 6 Heading to Division 3 of Part 5.8 of Chapter 5 substituted For the heading to Division 3 of Part 5.8 of Chapter 5 of the Principal Act substitute— "Division 3—Searches of persons entering, leaving or within youth justice facilities and requirements on visitors". 7 Section 488A substituted For section 488A of the Principal Act substitute— "488A Search on entering or leaving a youth justice facility (1) A person (whether a detainee, an officer, a visitor or any other person) who wishes to enter or leave a youth justice facility must, if asked, submit to— (a) a formal search; and (b) a search and examination of the person and of any thing in the person's possession or under the person's control, including a frisk search. (2) Subsection (1)(b) does not apply to a judge of the Supreme Court or County Court or a magistrate. (3) A person must not be asked under this section to submit to a strip search or a search of his or her body cavities. s. 5 -- 7 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 6 Authorised by the Chief Parliamentary Counsel 488AB Officer in charge may order search (1) The officer in charge may order at any time, if in his or her opinion it is necessary to do so in the interests of the security or good order of a youth justice facility or the detainees, that an officer— (a) search any part of the youth justice facility; or (b) search and examine any person in the youth justice facility other than a judge of the Supreme Court or County Court or a magistrate; or (c) search and examine any thing in the youth justice facility. (2) A person must not be asked under this section to submit to a strip search or a search of his or her body cavities. 488AC Strip search of detainee (1) The officer in charge may cause a detainee to be subjected to a strip search if in his or her opinion it is necessary to do so— (a) in the interests of the security or good order of a youth justice facility; or (b) in the interests of the safety or security of the detainee or any other person in the facility. (2) A search under subsection (1) must not include a search of the detainee's body cavities. (3) If necessary, reasonable force may be used to carry out a search under subsection (1). s. 7 -- 8 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 7 Authorised by the Chief Parliamentary Counsel 488AD Manner of conducting search (1) In the case of a frisk search or a strip search, the officer in charge must ensure that the search is conducted only by an officer of the same sex as the person being searched. (2) Before carrying out a search under this Division of a person other than a detainee, the officer who is to conduct the search must— (a) inform the person of his or her authority to conduct the search; and (b) inform the person that he or she may refuse the search; and (c) inform the person of the consequences of refusal. (3) If a person consents to a search, the officer who is to conduct the search must— (a) ask the person if he or she has in his or her possession any article or thing which jeopardises or is likely to jeopardise the security of the youth justice facility or the safety of persons in the facility, including— (i) any firearm, offensive weapon or other article that is capable of being used as a weapon; or (ii) any form of drug without the consent of the Secretary; or (iii) any form of alcoholic liquor or beverage; or (iv) money; or (v) any other article or thing not allowed by the regulations; and s. 7 -- 9 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 8 Authorised by the Chief Parliamentary Counsel (b) ask the person to produce any article or thing referred to in paragraph (a). (4) In the case of a strip search, the officer in charge must ensure that the search is conducted in the presence of another officer. (5) The other officer referred to in subsection (4)— (a) must be positioned in such a way that the detainee being searched is not in the view of that other officer; (b) must be of the same sex as the detainee being searched, unless— (i) the search is, in the opinion of the officer in charge, urgently required; and (ii) an officer of the same sex is not available. (6) An officer carrying out a search of a person under this Division must do so— (a) expeditiously; and (b) with regard to the decency and self- respect of the person searched; and (c) in compliance with any other prescribed requirement. 488AE Consequences of refusal to submit to search (1) If, when asked, a person other than a detainee does not submit to a search authorised to be carried out under this Division, an officer may— (a) prohibit the person from entering the youth justice facility; or s. 7 -- 10 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 9 Authorised by the Chief Parliamentary Counsel (b) if the person is in the youth justice facility, order the person to leave the facility immediately. (2) A person must obey an order under subsection (1). Penalty: 5 penalty units. 488AF Officer in charge may order search to be terminated The officer in charge may at any time make an order terminating a search under this Division.". 8 Sections 488E, 488F and 488G substituted For sections 488E, 488F and 488G of the Principal Act substitute— "Division 3A—Seizure 488E Seizure (1) In carrying out a search of a person under Division 3 an officer may seize any article or thing of a kind referred to in section 488AD(3)(a) that is found in the person's possession or produced in response to a request under section 488AD(3)(b). (2) An officer who seizes any article or thing under subsection (1) must inform the officer in charge. (3) The officer in charge must deal, in accordance with this Division, with any article or thing seized under this section. 488F Seizure register (1) The officer in charge must maintain a register of articles and things seized under section 488E(1). s. 8 -- 11 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 10 Authorised by the Chief Parliamentary Counsel (2) If an article or thing is seized during a search, the officer in charge must ensure that the prescribed information is entered in the seizure register. 488G Certain seized items to be handed to police (1) If any of the following articles or things is seized, it must be handed to a member of the police force— (a) a weapon; (b) an explosive substance; (c) a drug of dependence; (d) any other article or thing which the person conducting the search suspects— (i) is stolen; or (ii) has been used in, or obtained as the result of, the commission of an offence. (2) In this section, drug of dependence has the same meaning as it has in the Drugs, Poisons and Controlled Substances Act 1981. 488GA Manner of dealing with seized things that may be used in a legal proceeding Subject to section 488G, if an article or thing that may be used in a legal proceeding is seized at a youth justice facility, the officer in charge must ensure that— (a) the article or thing is held securely until the end of that proceeding; and s. 8 -- 12 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 11 Authorised by the Chief Parliamentary Counsel (b) if the person from whom the article or thing was seized is not the owner of the article or thing— (i) the person from whom it was seized is informed whether or not it will be returned to the owner; and (ii) if the owner's name and address are known, the owner is informed whether or not it will be returned; and (c) if the person from whom the article or thing was seized is the owner of the article or thing, the person is informed whether or not it will be returned; and (d) the article or thing is otherwise dealt with in accordance with section 488GC. 488GB Manner of dealing with seized money If money is seized at a youth justice facility and that money is not suspected of being stolen or used in, or obtained as the result of, the commission of an offence, the money must be returned to the person from whom it was seized when the person is released from the youth justice facility or the person leaves the youth justice facility. Note See section 488AD(3)(a)(iv). 488GC Manner of dealing with other seized articles or things Subject to sections 488G, 488GA and 488GB, if an article or thing is seized at a youth justice facility, the officer in charge must ensure that— s. 8 -- 13 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 12 Authorised by the Chief Parliamentary Counsel (a) if the person from whom the article or thing was seized is not the owner of the article or thing— (i) the person from whom it is seized is informed whether or not it will be returned to the owner; and (ii) if the owner's name and address are known, the owner is informed whether or not it will be returned; and (b) if the person from whom the article or thing was seized is the owner of the article or thing, the person is informed whether or not it will be returned; and (c) the article is dealt with in any manner that is appropriate having regard to the nature of the article, including— (i) disposing of the article or thing in accordance with section 488GD; (ii) returning the article or thing; (iii) dismantling the article or thing. 488GD Disposal (1) The officer in charge must ensure that at least 2 officers carry out the disposal of an article or thing that has been seized at a youth justice facility. (2) If an article or thing is disposed of, the officer in charge must ensure that the prescribed details are recorded in the seizure register.". s. 8 -- 14 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 13 Authorised by the Chief Parliamentary Counsel 9 New section 492A inserted After section 492 of the Principal Act insert— "492A Secrecy of security arrangements at youth justice facilities (1) In this section— confidential information means— (a) information given to the Youth Parole Board that is not disclosed in a decision of the Board or in any reasons given by the Board for a decision of the Board; or (b) information concerning procedures or plans to be adopted or followed in a youth justice facility in the event of an emergency; or (c) information concerning the management of, or the operation of security measures in, or in relation to, a youth justice facility; or (d) information concerning the investigation of a breach or possible breach of the law by— (i) a detainee; or (ii) an officer; or (e) information contained in a report given to a court that is not disclosed in a decision of the court or in any reasons given by the court for a decision of the court; or s. 9 -- 15 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 14 Authorised by the Chief Parliamentary Counsel (f) information of a business, commercial or financial nature relating to the provision of services within a youth justice facility, if the disclosure of that information may threaten the good order or security of the youth justice facility or any person; information includes photographs, fingerprints, samples and results of tests; position means any of the following— (a) an officer; (b) a delegate of the Secretary; (c) a provider of support services to a detainee or within a youth justice facility, including a provider of those services on a volunteer basis or under a contract of employment or otherwise; (d) a person employed as a sheriff, deputy sheriff, sheriff's officer or appointed as a deputised person under Part 2 of the Sheriff Act 2009; (e) a person appointed by the Department or an independent body— (i) to investigate or review a youth justice facility or any aspect of a youth justice facility; or (ii) to visit a youth justice facility or a detainee. (2) A person who holds or has held a position must not record, disclose, communicate or make use of confidential information, except to the extent that is reasonably necessary to perform a duty or function of that position, s. 9 -- 16 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 15 Authorised by the Chief Parliamentary Counsel or to exercise a power of that position, under this or any other Act. Penalty: 5 penalty units. (3) Subsection (2) does not prevent a person from— (a) giving evidence or producing a document to a court in the course of criminal proceedings or proceedings under this Act, even though the evidence or document contains confidential information; or (b) disclosing or communicating confidential information in accordance with the written authority of the Minister or the person to whom the information relates; or (c) disclosing or communicating confidential information to the Ombudsman or the Ombudsman's officers; or (d) disclosing confidential information that is a photograph to a person who holds a position or is a member of the police force, if the disclosure is made to assist the person to perform official duties; or (e) disclosing to a member of the police force or an AFP member (within the meaning of Part 5.3 of the Criminal Code of the Commonwealth) information relating to a detainee, if the disclosure is made for the purpose of— (i) implementing or enforcing a preventative detention order (within the meaning of Part 2A of the Terrorism (Community Protection) Act 2003) under s. 9 -- 17 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 16 Authorised by the Chief Parliamentary Counsel which the detainee is being detained or an order for the person's detention made under a corresponding preventative detention law within the meaning of that Part; or (ii) the security or good order of the youth justice facility or the safety or welfare of the detainee; or (f) disclosing confidential information to the extent specifically authorised by another Act. (4) 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. Note See also section 20A.". 10 Offences in relation to persons held in centres (1) Before section 501(1)(a) of the Principal Act insert— "(aa) enter or attempt to enter a remand centre, youth residential centre, youth justice centre or youth justice unit; or". (2) After section 501(1)(a) of the Principal Act insert— "(ab) communicate or attempt to communicate with a person who is on temporary leave from a remand centre, youth residential centre, youth justice centre or youth justice unit accompanied by an officer if the communication threatens the security of the remand centre, youth residential centre, s. 10 -- 18 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 17 Authorised by the Chief Parliamentary Counsel youth justice centre or youth justice unit or any person; or". (3) In section 501 of the Principal Act, for the penalty at the foot of each of subsections (1) and (2) substitute— "Penalty: In the case of a child, 15 penalty units or imprisonment for 3 months. In any other case, imprisonment for 2 years.". (4) After section 501(3) of the Principal Act insert— "(4) A person must not be charged with an offence against subsection (1)(ab) unless an officer accompanying the person on temporary leave has warned the first mentioned person that the person— (a) is not authorised to communicate with the person on temporary leave; and (b) may commit an offence if the person continues to communicate with or attempt to communicate with the person on temporary leave— and the person continues to do so despite the warning.". 11 Regulations Section 600(1)(o) of the Principal Act is repealed. 12 New section 619 inserted After section 618 of the Principal Act insert— "619 Transitional provision—Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 A seizure register maintained under this Act immediately before the commencement of section 8 of the Children, Youth and s. 11 -- 19 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 18 Authorised by the Chief Parliamentary Counsel Families Amendment (Security of Youth Justice Facilities) Act 2011 is taken on and from the commencement of section 8 of that Act to be the register maintained under section 488F.". 13 Repeal of amending Act This Act is repealed on 19 December 2012. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 13 -- 20 of 21 -- Children, Youth and Families Amendment (Security of Youth Justice Facilities) Act 2011 No. 54 of 2011 19 Authorised by the Chief Parliamentary Counsel ENDNOTES † Minister's second reading speech— Legislative Assembly: 14 September 2011 Legislative Council: 13 October 2011 The long title for the Bill for this Act was "A Bill for an Act to amend the Children, Youth and Families Act 2005 and for other purposes." Endnotes -- 21 of 21 --