Children and Young Persons (Koori Court) Act 2004
Victorian Legislation and Parliamentary Documents
i
Children and Young Persons (Koori Court) Act
2004
Act No. 89/2004
TABLE OF PROVISIONS
Section Page
1. Purposes 1
2. Commencement 2
3. Principal Act 2
4. Definitions 2
5. Establishment of Koori Court (Criminal Division) 3
6. New sections 16A to 16D inserted 4
16A. Koori Court (Criminal Division) 4
16B. Jurisdiction of Koori Court (Criminal Division) 5
16C. Circumstances in which Koori Court (Criminal
Division) may deal with certain offences 5
16D. Sentencing procedure in Koori Court (Criminal
Division) 6
7. New section 27A inserted 8
27A. Appointment of Aboriginal elders or respected persons 8
8. New section 280BA inserted 8
280BA. Rules of court—Koori Court (Criminal Division) 8
9. Transitional provision 9
10. Repeal of Koori Court (Criminal Division) provisions 9
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ENDNOTES 10
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Victorian Legislation and Parliamentary Documents
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Children and Young Persons (Koori
Court) Act 2004†
[Assented to 7 December 2004]
The Parliament of Victoria enacts as follows:
1. Purposes
The purposes of this Act are—
(a) to establish a Koori Court (Criminal
Division) of the Children's Court; and
(b) to provide for the jurisdiction and procedure
of that Division—
with the objective of ensuring greater participation
of the Aboriginal community in the sentencing
process of the Children's Court through the role to
Victoria
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be played in that process by the Aboriginal elder
or respected person and others so as to assist in
achieving more culturally appropriate sentences
for young Aboriginal people.
2. Commencement
(1) This Act (other than section 10) comes into
operation on the day after the day on which it
receives the Royal Assent.
(2) Subject to sub-section (3), section 10 comes into
operation on a day to be proclaimed.
(3) If section 10 does not come into operation before
1 July 2007, it comes into operation on that day.
3. Principal Act
In this Act, the Children and Young Persons Act
1989 is called the Principal Act.
4. Definitions
(1) In section 3(1) of the Principal Act insert the
following definitions—
' "Aboriginal elder or respected person" means
a person who holds office as an Aboriginal
elder or respected person under section 27A;
s. 2
See:
Act No.
56/1989.
Reprint No. 7
as at
1 March 2002
and
amending
Act Nos
69/1992 (as
amended by
Nos 19/1994
and 40/1995),
11/2002,
35/2002,
83/2003 and
36/2004.
LawToday:
www.dms.
dpc.vic.
gov.au
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"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
(c) a parent of 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;
"Children's Koori Court officer" means a
person who—
(a) is employed under Part 3 of the Public
Sector Management and
Employment Act 1998; and
(b) exercises powers or performs functions
in relation to the Koori Court (Criminal
Division) of the Court;'.
(2) After section 3(5) of the Principal Act insert—
"(6) Unless the context otherwise requires, a
reference in this Act to the Criminal Division
includes a reference to the Koori Court
(Criminal Division).".
5. Establishment of Koori Court (Criminal Division)
(1) For section 8(3)(b) of the Principal Act
substitute—
"(b) the Criminal Division;
(c) the Koori Court (Criminal Division).".
(2) In section 8(5) of the Principal Act, for "both
Divisions" substitute "more than one Division".
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(3) In section 8(7) of the Principal Act, for "either"
substitute "any".
(4) In section 24(2) of the Principal Act, for "both
Divisions" substitute "any Division".
6. New sections 16A to 16D inserted
After section 16 of the Principal Act insert—
"16A. 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
(c) any member of the Aboriginal
community who is present in court.
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(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 Division 3.
16B. 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 16C; 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
(c) any other jurisdiction given to it by or
under this or any other Act.
16C. 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
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(c) the child—
(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.
16D. 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.
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(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 juvenile justice worker employed
under Part 3 of the Public Sector
Management and Employment Act
1998; or
(c) a health service provider; 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 136 operates to limit this
section.".
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7. New section 27A inserted
After section 27 of the Principal Act insert—
"27A. 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.".
8. New section 280BA inserted
After section 280B of the Principal Act insert—
"280BA. 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).".
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9. Transitional provision
In Schedule 3 to the Principal Act, at the end of
the Schedule insert—
"27. The amendments of this Act made by section 6 of the
Children and Young Persons (Koori Court) Act
2004 apply with respect to a proceeding for an
offence, irrespective of when the offence was
committed or the proceeding commenced.".
10. Repeal of Koori Court (Criminal Division)
provisions
(1) In section 3(1) of the Principal Act, the definitions
of "Aboriginal elder or respected person", "family
member" and "Children's Koori Court officer" are
repealed.
(2) Section 3(6) of the Principal Act is repealed.
(3) For section 8(3)(b) of the Principal Act
substitute—
"(b) the Criminal Division.".
(4) In section 8(5) of the Principal Act, for "more than
one Division" substitute "both Divisions".
(5) In section 8(7) of the Principal Act, for "any"
(where first occurring) substitute "either".
(6) Sections 16A, 16B, 16C and 16D of the Principal
Act are repealed.
(7) In section 24(2) of the Principal Act, for "any
Division" substitute "both Divisions".
(8) Sections 27A and 280BA of the Principal Act are
repealed.
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ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 3 November 2004
Legislative Council: 30 November 2004
The long title for the Bill for this Act was "to amend the Children and
Young Persons Act 1989 to establish a Koori Court (Criminal Division)
of the Children's Court, to provide for the jurisdiction and procedure of
that Division and for other purposes."
Endnotes
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