Youth Justice (Transitional) Regulation 2018

1Short title

This regulation may be cited as the Youth Justice (Transitional) Regulation 2018.

2Commencement

This regulation commences immediately after the commencement of the Youth Justice and Other Legislation (Inclusion of 17-year-old Persons) Amendment Act 2016, section 5.

3Declaration that regulation is a transitional regulation—Act, s 388

This regulation is a transitional regulation.

Note—

Under section 388(3) of the Act, this regulation expires 2 years after the commencement of section 388 of the Act.

4Definitions

Schedule 1 defines particular words used in this regulation.

5Application of part

(1)This part applies in relation to an offence committed, or alleged to have been committed, by a person when the person was 17 years old if—

(a)there is a current proceeding for the offence; and

(b)the person is 17 years old on the commencement.

(2)However, this part does not apply to—

(a)a proceeding for a reference under the Mental Health Act 2016 for the offence; or

(b)a proceeding under the Penalties and Sentences Act 1992, section 122 for the offence.

6Exercise of particular powers by police officers

From the commencement, a police officer must not exercise a power under the Police Powers and Responsibilities Act 2000 in relation to the person if the power could not be exercised in relation to the person if the person had committed the offence as a child.

7Application of division

This division does not apply if the current proceeding is—

(a)an appeal about the conviction or sentence of the person; or

(b)a proceeding for an offence against the Bail Act 1980, section 29(1); or

(c)a proceeding for an offence against the Penalties and Sentences Act 1992, section 123(1).

Note—

See part 6 for proceedings for appeals against the conviction or sentence of the person.

8Current proceeding in Supreme Court

(1)This section applies in relation to a current proceeding in the Supreme Court.

(2)On the commencement, the person must be treated as a child in relation to the offence and, for that purpose, the Act and other Acts apply to the person.

(3)The proper officer of the court must give the chief executive written notice about the proceeding.

(4)Sections 9 to 13 do not apply to the current proceeding.

9Current proceeding if trial started

(1)This section applies if a trial for the offence had started but not ended before the commencement.

(2)The court dealing with the current proceeding must do 1 of the following—

(a)if the court considers it is in the interests of justice to do so, stop hearing the proceeding and transfer it, by order, to the Childrens Court under section 15;

(b)if the court would have the necessary jurisdiction in its concurrent jurisdiction if the person had committed the offence as a child—continue to hear and decide the proceeding as if the person had committed the offence as a child;

(c)otherwise—

(i)continue to hear and decide the proceeding; and

(ii)if the court convicts the person, transfer the proceeding, by order, to the Childrens Court under section 15 for the purpose of sentencing.

(3)If the court decides to act under subsection (2)(a) or (b), on the making of the decision, the person must be treated as a child in relation to the offence and, for that purpose, the Act and other Acts apply to the person.

(4)If the court transfers the current proceeding under subsection (2)(c)(ii), on the transfer of the proceeding, the person must be treated as a child in relation to the offence and, for that purpose, part 7 of the Act applies to the person.

(5)As soon as practicable after the court decides to act under subsection (2)(a), (b) or (c), the proper officer of the court must give written notice of the decision to the chief executive.

10Current proceeding if committed for trial or sentence and indictment not presented

(1)This section applies if—

(a)the person had been committed for trial or sentence for the offence before the commencement; and

(b)immediately before the commencement, an indictment for the offence had not been presented to the Supreme Court or the District Court.

(2)On the commencement, the person must be treated as a child in relation to the offence and, for that purpose, the Act and other Acts apply to the person.

(3)This section does not apply if an application has been made under section 11 or 12 to reopen the committal proceeding.

11Reopening of committal proceeding if committed for trial

(1)This section applies if—

(a)the person had been committed for trial for the offence before the commencement; and

(b)immediately before the commencement, an indictment for the offence had not been presented to the Supreme Court or the District Court; and

(c)the Childrens Court constituted by a magistrate would have had jurisdiction to hear the charge if the person had committed the offence as a child.

(2)The person or the director of public prosecutions may apply to the court or justice who committed the person for trial for the offence (the committing court) for the committal proceeding for the offence to be reopened under this section.

(3)The person or the director of public prosecutions may make the application—

(a)at any time before an indictment for the offence is presented to the Supreme Court or the District Court; and

(b)if the person is still 17 years old.

(4)Written notice of the application must be given to—

(a)if the person made the application—the director of public prosecutions; or

(b)if the director of public prosecutions made the application—the person.

(5)If an application is made under subsection (2)—

(a)the committing court must reopen the committal proceeding; and

(b)on the reopening of the proceeding, the person must be treated as a child in relation to the offence and, for that purpose, the Act and other Acts apply to the person.

(6)If the committal proceeding is reopened under this section, the committing court must—

(a)commit the person to be tried before a court of competent jurisdiction; or

(b)with the person’s consent, discontinue the committal proceeding and—

(i)hear and decide the charge summarily in the court’s concurrent jurisdiction; or

(ii)if the court does not have the necessary concurrent jurisdiction—transfer the current proceeding to the Childrens Court constituted by a magistrate to hear and decide the charge summarily.

(7)In acting under this section, the committing court may direct the person and any warrant of commitment to be brought before the committing court.

(8)Section 84 of the Act applies to a proceeding to hear and decide the charge summarily under this section as if a reference in section 84 of the Act to section 83(5) included a reference to this regulation.

(9)If a committal proceeding is reopened under this section, the proper officer of the court must give written notice of the reopening of the proceeding to the parties to the proceeding and the chief executive.

12Reopening of committal proceeding if committed for sentence

(1)This section applies if—

(a)the person had been committed for sentence for the offence before the commencement; and

(b)immediately before the commencement, an indictment for the offence had not been presented to the Supreme Court or the District Court; and

(c)the Childrens Court constituted by a magistrate would have had jurisdiction to hear the charge if the person had committed the offence as a child.

(2)The person or the director of public prosecutions may apply to the court or justice who committed the person for sentence for the offence (the committing court) for the committal proceeding for the offence to be reopened under this section.

(3)The person or the director of public prosecutions may make the application—

(a)at any time before an indictment for the offence is presented to the Supreme Court or the District Court; and

(b)if the person is still 17 years old.

(4)Written notice of the application must be given to—

(a)if the person made the application—the director of public prosecutions; or

(b)if the director of public prosecutions made the application—the person.

(5)If an application is made under subsection (2)—

(a)the committing court must reopen the committal proceeding; and

(b)on the reopening of the proceeding, the person must be treated as a child in relation to the offence and, for that purpose, the Act and other Acts apply to the person.

(6)If the committal proceeding is reopened under this section, the committing court must—

(a)commit the person to be sentenced before a court of competent jurisdiction; or

(b)with the person’s consent, discontinue the committal proceeding and—

(i)sentence the person for the offence in the court’s concurrent jurisdiction; or

(ii)if the court does not have the necessary concurrent jurisdiction—transfer the current proceeding to the Childrens Court constituted by a magistrate to sentence the person for the offence.

(7)If a committal proceeding is reopened under this section, the proper officer of the court must give written notice of the reopening of the proceeding to the parties to the proceeding and the chief executive.

13Current proceeding if court started to hear matter

(1)This section applies to a current proceeding if, immediately before the commencement, a court had started to hear or otherwise consider, but had not finally dealt with, any of the following matters in relation to the offence—

(a)a committal proceeding;

(b)a direction hearing under the Justices Act 1886, section 83A;

(c)whether to give a direction or ruling under the Criminal Code, section 590AA;

(d)any other matter of a similar nature.

(2)When the court has finally dealt with the matter, the court must, by order, transfer the current proceeding to the Childrens Court under section 15.

(3)On the transfer of the current proceeding, the person must be treated as a child in relation to the offence and, for that purpose, the Act and other Acts apply to the person.

(4)The proper officer of the court must give a copy of the order to the parties to the proceeding and the chief executive.

14Transfer of other current proceedings to Childrens Court

(1)This section applies in relation to a current proceeding that is not otherwise dealt with under this division.

(2)The court dealing with the current proceeding must, by order, transfer the proceeding to the Childrens Court under section 15 at the person’s first court appearance for the proceeding after the commencement.

(3)On the transfer of the current proceeding, the person must be treated as a child in relation to the offence and, for that purpose, the Act and other Acts apply to the person.

(4)The proper officer of the court must give a copy of the order to the parties to the proceeding and the chief executive.

15Procedure for transfer of current proceeding to Childrens Court

(1)This section applies to a current proceeding transferred to the Childrens Court under this division.

(2)For a current proceeding transferred under section 9, 13 or 14, the court dealing with the current proceeding must transfer the proceeding—

(a)if the court is the District Court—

(i)for an indictable offence that is not a serious offence—to the Childrens Court constituted by a judge or the Childrens Court constituted by a magistrate as the District Court considers appropriate; or

(ii)otherwise—to the Childrens Court constituted by a judge; or

(b)if the court is a Magistrates Court—to the Childrens Court constituted by a magistrate.

(3)The court dealing with the current proceeding may make any other order the court considers appropriate including, for example, an order relating to bail or remanding the person in custody.

16Pleas of guilty before the commencement

(1)This section applies if—

(a)before the commencement, the person pleaded guilty to a charge for the offence made against the person by a police officer; and

(b)under this division, the person must be treated as a child in relation to the offence.

(2)For applying sections 21 or 24A of the Act to the person—

(a)a reference in the sections to a child pleading guilty before a Childrens Court is taken to be a reference to the person pleading guilty to the charge before the Supreme Court, the District Court or a Magistrates Court; and

(b)the court may be satisfied of a matter mentioned in section 21(1)(b) or 24A(1)(b) of the Act in relation to the person despite the person having been treated as an adult in relation to the offence before the commencement.

17Bail and custody

Part 5 of the Act applies to the person as if the person had committed the offence as a child.

Note—

See also part 7A for provisions about custody.

s 17 amd 2018 SL No. 7 s 3

18Withdrawal of charge and ending of proceeding for offence against Bail Act 1980

(1)This section applies if—

(a)the current proceeding is a proceeding for an offence against the Bail Act 1980, section 29(1); and

(b)on the commencement, the person has not been convicted of the offence.

(2)At the person’s first court appearance for the current proceeding after the commencement—

(a)the charge of the offence is withdrawn; and

(b)the proceeding for the offence ends.

(3)The court may make any order the court considers appropriate to give effect to subsection (2).

(4)Subsection (2) does not affect an application under the Bail Act 1980, section 30.

Note—

See also part 7A for provisions about custody.

s 18 amd 2018 SL No. 7 s 4

19Withdrawal of charge and continuation of proceeding under the Act, s 238 for offence against Penalties and Sentences Act 1992

(1)This section applies if—

(a)the current proceeding is a proceeding for an offence against the Penalties and Sentences Act 1992, section 123(1) in relation to the person’s adult order; and

(b)on the commencement, the person has not been convicted of the offence.

(2)At the person’s first court appearance for the current proceeding after the commencement—

(a)the charge of the offence is withdrawn; and

(b)the proceeding is taken to be a proceeding on a complaint and summons made by the chief executive under section 238 of the Act that the person has breached a community based order; and

Note—

Part 5 provides for the application of the Act, and other Acts, to an adult order as if it were a corresponding child order. A corresponding child order may be a probation order, graffiti removal order, community service order or a conditional release order.

(c)the court must, by order, transfer the proceeding to a Childrens Court magistrate.

(3)The court may make any order the court considers appropriate to give effect to subsection (2).

Note—

See also part 7A for provisions about custody.

s 19 amd 2018 SL No. 7 s 5

20Application of part

This part applies in relation to a sentence of a person for an offence mentioned in section 389 of the Act.

21Application of division

(1)This division applies if, immediately before the commencement, the person was serving a term of imprisonment in relation to the offence.

(2)However, this division does not apply if the person is subject to any of the following orders in relation to the offence—

(a)an adult probation order;

(b)an intensive correction order;

(c)a parole order.

22Application of provisions about release

(1)From the commencement—

(a)part 7, division 10, subdivision 3 of the Act, and any other provision of the Act necessary for the operation of that subdivision, apply to the person’s term of imprisonment as if it were a period of detention; and

Examples of provisions of the Act necessary for the operation of that subdivision—

section 218 and part 7, division 12A of the Act

(b)the Corrective Services Act 2006, chapter 5 does not apply in relation to the term of imprisonment; and

(c)any other Act applies to the term of imprisonment for the purposes of paragraph (a), as if the term of imprisonment were a period of detention.

(2)Part 7, division 10, subdivision 3 of the Act applies to the person’s term of imprisonment as if—

(a)a reference in the subdivision to a child included a reference to the person; and

(b)a reference in the subdivision to being released from detention were a reference to being released from a corrective services facility; and

(c)a reference in section 230 of the Act to a period spent in detention included a reference to a period spent in a corrective services facility.

23Original sentencing court for term of imprisonment

(1)This section applies if the court that imposed the sentence was the District Court or a Magistrates Court.

(2)For part 7, division 12A of the Act, the original sentencing court for the supervised release order is taken to be—

(a)if the court is the District Court—the Childrens Court constituted by a judge; or

(b)if the court is a Magistrates Court—the Childrens Court constituted by a magistrate.

24Particular provision for applying the Act to date for parole under Penalties and Sentences Act 1992

(1)This section applies if—

(a)immediately before the commencement, the person had a date fixed for the person’s release on parole under the Penalties and Sentences Act 1992, part 9, division 3 (the court-ordered parole date); and

(b)the court-ordered parole date falls before the person serves 70% of the term of imprisonment for the offence.

(2)The person is taken to be required under section 227 of the Act to be released from custody or detention on a supervised release order on the court-ordered parole date.

Note—

See also part 7A for what applies if, after release, the person is returned to custody.

s 24 amd 2018 SL No. 7 s 6

25Particular provision for applying the Act to parole eligibility date under Corrective Services Act 2006

(1)This section applies if—

(a)immediately before the commencement, the person had a parole eligibility date under the Corrective Services Act 2006; and

(b)the parole eligibility date falls before the person serves 70% of the term of imprisonment for the offence.

(2)Despite section 22, the Corrective Services Act 2006, chapter 5 continues to apply to the person until the person has served 70% of the term of imprisonment for the offence.

(3)If, because of subsection (2), the person is granted a parole order when the person is still 17 years old, the parole order provisions apply to the parole order as if a reference in the provisions to the commencement were a reference to the granting of the parole order.

(4)If, because of subsection (2), the person is granted a parole order when the person is 18 years or more, section 22 stops applying to the person.

(5)In this section—

parole order provisions means the following provisions—

(a)section 31;

(b)section 32(1)(a) to (f) and (h) and (i) and (3);

(c)section 33;

(d)section 34.

26Application of division

(1)This division applies if—

(a)the person’s sentence is a term of imprisonment that has been suspended by order under the Penalties and Sentences Act 1992, section 144; and

(b)either—

(i)a court convicts the person of an offence for which imprisonment may be imposed if the person were an adult; or

(ii)the person is otherwise before a court and the court is satisfied the person was convicted, in or outside Queensland, of an offence for which imprisonment may be imposed if the person were an adult; and

(c)the person committed the offence mentioned in paragraph (b) as a 17-year-old; and

(d)the court is satisfied the offence was committed during—

(i)the operational period of the order; or

(ii)an extension of the operational period ordered under the Penalties and Sentences Act 1992, section 147(1)(a)(i); or

(iii)a further stated operational period ordered under the Penalties and Sentences Act 1992, section 147(1)(a)(ii)(B).

(2)This division applies despite the Penalties and Sentences Act 1992, sections 146 and 147, but does not limit the sections.

(3)In this section—

operational period, of a term of imprisonment suspended under the Penalties and Sentences Act 1992, section 144(1), see section 4 of that Act.

27Court may deal with suspended imprisonment

(1)The Penalties and Sentences Act 1992, section 145 applies to the person in relation to the sentence as if a reference in the section to an order under section 147 of that Act included a reference to an order under subsection (2)(b) or (c).

(2)The court may, in the interests of justice—

(a)take no action in relation to the suspended imprisonment; or

(b)order the person to serve the whole of the suspended imprisonment; or

(c)order the person to serve the part of the suspended imprisonment that the court orders.

28Application of the Act to suspended imprisonment

If the court orders the person to serve the whole or part of the suspended imprisonment under section 27(2)(b) or (c)—

(a)the Act applies to the term of imprisonment the person is ordered to serve as if it were a period of detention; and

(b)sections 22 to 25 apply to the term of imprisonment ordered to be served—

(i)as if the reference in section 22 to the commencement were a reference to the making of the order; and

(ii)as if the reference in sections 24 and 25 to immediately before the commencement were a reference to on the making of the order; and

(c)part 4 applies to the person—

(i)as if the person were an eligible person under section 47(1); and

(ii)as if the reference in section 47(2) to the commencement were a reference to the making of the order.

s 28 amd 2018 SL No. 7 s 7

29Meaning of immediate suspension request

A person’s parole order is subject to an immediate suspension request if both of the following apply in relation to the person—

(a)before the commencement, the chief executive (corrective services) had asked the parole board to suspend the person’s parole order under the Corrective Services Act 2006, section 208A;

(b)immediately before the commencement, a prescribed board member under that Act had not decided the request under section 208B of that Act.

30Application of subdivision

(1)This subdivision applies if, immediately before the commencement, the person was subject to a parole order.

(2)However, this subdivision does not apply if, immediately before the commencement, the person was subject to a parole order—

(a)that was suspended under the Corrective Services Act 2006; or

(b)that was the subject of an immediate suspension request.

31Application of the Act to person

On the commencement, the Act and other Acts apply to the person as if the person were released from detention under a supervised release order.

32General provisions for applying the Act to person

(1)For section 31, the Act applies to the person as if—

(a)the person’s parole order had been made by the chief executive; and

(b)a reference in the Act to a period of detention were a reference to the term of imprisonment to which the parole order relates; and

(c)a reference in the Act to a child being released from detention under a supervised release order were a reference to the person being released from a corrective services facility under the parole order; and

(d)a reference in the parole order to the chief executive (corrective services) were a reference to the chief executive; and

(e)a reference in the parole order to a period of imprisonment were a reference to a period of detention; and

(f)a reference in the parole order to the parole period were a reference to the period of the order; and

(g)a reference in section 230 of the Act to a period of time for which the person is released from detention under a supervised release order included a reference to a period of time before the commencement for which the person was released on parole under the parole order under the Corrective Services Act 2006; and

(h)a condition of the parole order requiring the person to comply with a direction given to the person under the Corrective Services Act 2006, section 200A were a condition requiring the person to comply with a reasonable direction of the chief executive; and

(i)a condition imposed on the parole order by the parole board under the Corrective Services Act 2006, section 200(3) were a condition imposed by the chief executive under section 228(3)(a) of the Act.

(2)If a direction or instruction given to, or a requirement made of, the person by the chief executive (corrective services) or a corrective services officer under the parole order was in effect immediately before the commencement—

(a)the direction, instruction or requirement continues to have effect under the Act for the parole order; and

(b)the direction or instruction is taken to have been given to the person by the chief executive; and

(c)the requirement is taken to have been made of the person by the chief executive under the Act.

(3)Unless another provision of this regulation expressly provides otherwise, the chief executive may only amend, under section 228(3)(b) of the Act, a condition imposed by the chief executive under section 228(3)(a) of the Act after the commencement.

33Additional requirement for parole order about change of school

The person’s parole order is taken to include a requirement that the person, or a parent of the person, must notify the chief executive within 2 business days of any change of school.

34Original sentencing court for parole order

(1)This section applies if the court that imposed the sentence relating to the parole order was the District Court or a Magistrates Court.

(2)For applying part 7, division 12A of the Act in relation to the person’s parole order, the original sentencing court for the parole order is taken to be—

(a)if the court was the District Court—the Childrens Court constituted by a judge; or

(b)if the court was a Magistrates Court—the Childrens Court constituted by a magistrate.

35Existing amendment of parole order by chief executive (corrective services)

(1)This section applies if—

(a)before the commencement, the person’s parole order was amended by written order of the chief executive (corrective services) under the Corrective Services Act 2006, section 201; and

(b)immediately before the commencement, the written order continued to have effect.

(2)The written order is taken to be a condition of the parole order imposed by the chief executive under section 228(3)(a) of the Act for the remainder of the period stated in the written order.

(3)The chief executive may amend the condition under section 228(3)(b) of the Act.

36Proposed amendment of parole order under Corrective Services Act 2006, s 205

(1)This section applies if—

(a)before the commencement, the person had been given an information notice under the Corrective Services Act 2006, section 205 about a proposed amendment of the person’s parole order; and

(b)immediately before the commencement, the parole board had not finally decided whether to amend the parole order under that section.

(2)Despite section 31, the Corrective Services Act 2006, chapter 5, part 1, division 5, subdivision 2 continues to apply to the person’s parole order until the parole board makes a final decision on the proposed amendment.

(3)If the parole board decides to amend, insert or remove a condition of the parole order under the Corrective Services Act 2006, section 205—

(a)the chief executive is taken to have amended, inserted or removed the condition in relation to the parole order under section 228(3)(a) of the Act; and

(b)for an amended or inserted condition—the chief executive may amend the condition under section 228(3)(b) of the Act.

37Existing orders to travel interstate or overseas

(1)This section applies if—

(a)before the commencement—

(i)the chief executive (corrective services) or the parole board made a written order under the Corrective Services Act 2006, section 212 granting the person leave to travel interstate; or

(ii)the parole board made a written order under the Corrective Services Act 2006, section 213 granting the person leave to travel overseas; and

(b)immediately before the commencement, the written order continued to have effect.

(2)The written order is taken to be an approval of the chief executive mentioned in section 228(4)(f) of the Act.

38Application of subdivision

This subdivision applies if the person’s parole order is subject to an immediate suspension request.

39Decision to not suspend parole order

(1)This section applies if—

(a)as a result of the immediate suspension request, a prescribed board member under the Corrective Services Act 2006 decides not to suspend the parole order; and

(b)when the decision is made, the person is still 17 years old.

(2)Subdivision 2 applies to the parole order as if a reference in the subdivision to the commencement were a reference to the making of the decision by the prescribed board member under the Corrective Services Act 2006.

40Suspension of parole order

(1)This section applies if—

(a)as a result of the immediate suspension request, the person’s parole order is suspended; and

(b)the suspension of the parole order ends and the order is not cancelled; and

(c)when the suspension ends, the person is still 17 years old.

(2)Subdivision 2 applies to the parole order as if a reference in the subdivision to the commencement were a reference to the ending of the suspension.

41Application of the Act to suspended parole order

(1)This section applies if—

(a)immediately before the commencement, the person’s parole order was suspended under the Corrective Services Act 2006; and

(b)on or after the commencement, the suspension of the parole order ends and the order is not cancelled; and

Examples of the suspension of a parole order ending—

•under the Corrective Services Act 2006, section 208 or 208C

•at the end of the suspension

•on a review of the decision to suspend the parole order

(c)when the suspension ends, the person is still 17 years old.

(2)Subdivision 2 applies to the parole order as if a reference in the subdivision to the commencement were a reference to the ending of the suspension.

42Application of subdivision

This subdivision applies if, before the commencement, the parole board cancelled the person’s parole order relating to the offence mentioned in section 389 of the Act under the Corrective Services Act 2006, section 205.

43Continued application of Corrective Services Act 2006

Despite section 22, the Corrective Services Act 2006, chapter 5, part 1, division 5, subdivision 2 continues to apply in relation to the person.

44Effect of reconsidered decision on supervised release order

(1)This section applies if, on or after the commencement, the parole board changes its decision under the Corrective Services Act 2006, section 208 so that the person’s parole order is no longer cancelled (the changed decision).

(2)If the person is subject to a supervised release order in relation to the offence, the supervised release order ends when the changed decision has effect.

Note—

A person may be subject to a supervised release order because of division 2.

45Application of the Act to parole order if not suspended

(1)This section applies if—

(a)as a result of the changed decision, the parole order is not suspended; and

(b)when the changed decision has effect, the person is still 17 years old.

(2)Subdivision 2 applies to the parole order as if a reference in the provisions to the commencement were a reference to the changed decision having effect.

46Application of the Act to parole order if suspended

(1)This section applies if—

(a)as a result of the changed decision, the parole order is suspended; and

(b)the suspension of the parole order ends and the parole order is not cancelled; and

(c)when the suspension ends, the person is still 17 years old.

(2)Subdivision 2 applies to the parole order as if a reference in the provisions to the commencement were a reference to the ending of the suspension.

47Meaning of eligible person

(1)A person is an eligible person if—

(a)before the commencement, the person committed, or was alleged to have committed, an offence as a 17-year-old; and

(b)on the commencement, either—

(i)there is a current proceeding for the offence; or

(ii)the person is serving a term of imprisonment in a corrective services facility in relation to the offence; and

(c)the person is still 17 years old on the commencement.

(2)However, a person is not an eligible person if, on the commencement—

(a)the person is liable to be remanded in custody, or serve a term of imprisonment, in a corrective services facility for 4 weeks or less; or

(b)the person will turn 18 years in 4 weeks or less; or

(c)if the person was detained in a detention centre, the person would be liable to be transferred to a corrective services facility under section 276B of the Act because of the person’s remaining period of detention under that section.

s 47 amd 2018 SL No. 7 s 8

48Chief executive to decide whether to transfer eligible person to detention centre

(1)The chief executive must, as soon as practicable, decide to do either of the following for each eligible person—

(a)transfer the eligible person from a corrective services facility to a detention centre;

(b)refuse to transfer the eligible person from a corrective services facility to a detention centre.

(2)The chief executive must transfer the eligible person from a corrective services facility to a detention centre unless the chief executive is satisfied—

(a)it is not in the person’s best interest; or

(b)it is not appropriate to transfer the person having regard to the chief executive’s responsibilities under section 263 of the Act.

(3)In making a decision under subsections (1) and (2) for an eligible person, the chief executive may consider the following—

(a)the views and preferences of the person or members of the person’s family or community;

(b)if the person is participating in a particular program or service—whether the person could continue to participate in the program or service, or a similar program or service, if transferred to a detention centre;

(c)the person’s proximity to the person’s family;

(d)if the person is serving a period of imprisonment—any relevant remarks by the sentencing court;

(e)the person’s criminal history;

(f)the time the person has already served in a corrective services facility and the time the person is liable to serve in a corrective services facility;

(g)information provided by the chief executive (corrective services) about the person’s behaviour in the corrective services facility;

(h)if the person is an Aboriginal or Torres Strait Islander—any views of a representative of the community justice group in the person’s community, including, for example, about—

(i)the person’s relationship to the person’s community; or

(ii)any cultural considerations;

(i)whether the person has a history of victimisation in a corrective services facility.

(4)The chief executive must give the eligible person an information notice for the decision.

(5)In this section—

sentencing court, for an eligible person, means—

(a)the court that sentenced the person to the term of imprisonment the person is serving; or

(b)if the person is serving more than 1 term of imprisonment—each court that sentenced the person to a term of imprisonment the person is serving.

s 48 amd 2018 SL No. 7 s 9

49Transfer direction

(1)This section applies if the chief executive decides to transfer an eligible person from a corrective services facility to a detention centre under section 48.

(2)The chief executive must give a written direction (a transfer direction) to the chief executive (corrective services) stating that the person is to be transferred to a stated detention centre on a stated day agreed between the chief executive and the chief executive (corrective services).

50Notice of transfer direction

(1)If the chief executive decides to transfer an eligible person from a corrective services facility to a detention centre under section 48, the chief executive must give the following persons a copy of the transfer direction—

(a)the eligible person;

(b)a parent of the eligible person;

(c)if the eligible person is being held on remand and is represented by a lawyer—the lawyer.

(2)The chief executive must, if asked by the eligible person, give a copy of the transfer direction to another person.

(3)However, the chief executive is not required to give a person a copy of the transfer direction under subsection (1)(b) or (c) if the eligible person asks the chief executive not to give a copy of the transfer direction to the person.

(4)Also, the chief executive is not required to give a person a copy of the transfer direction under subsection (1)(b) or (2) if the chief executive reasonably believes giving the person a copy of the transfer direction may endanger—

(a)the security of a detention centre; or

(b)the safe custody or welfare of a child detained in a detention centre; or

(c)the safety or welfare of another person.

51Effect of transfer

(1)This section applies if an eligible person is transferred to a detention centre under a transfer direction.

(2)On the transfer—

(a)if the person is subject to a term of imprisonment—the Act and other Acts apply to the person’s term of imprisonment as if it were a period of detention; and

(b)any rights, liberties or immunities of the person as a prisoner under the Corrective Services Act 2006 end and are not preserved, transferred or otherwise applicable for the person as a detainee.

(3)When the person is transferred, the chief executive (corrective services) must pay an amount to the credit of the person in the prisoners trust fund under the Corrective Services Act 2006 to the chief executive for the person.

(4)Subsection (2) applies subject to part 3, division 2.

(5)Subsection (3) applies despite the Corrective Services Act 2006, section 311(7).

52Notice to court about transfer

(1)This section applies if an eligible person transferred to a detention centre under a transfer direction is being held on remand in relation to an offence.

(2)As soon as practicable after the person is transferred to the detention centre, the chief executive must give the court dealing with the proceeding for the offence written notice that the person has been transferred to a stated detention centre.

53Authority for admission to detention centre—Act, s 266

For section 266(2)(e) of the Act, a transfer direction is prescribed.

Note—

See also part 7A for provisions about custody.

pt 5 hdg amd 2018 SL No. 7 s 10

54Application of part

This part applies in relation to a sentence of a person for an offence mentioned in section 389 of the Act if, immediately before the commencement, the person was subject to an adult order.

55Meaning of corresponding child order

An order under the Act mentioned in column 2 is a corresponding child order for the adult order mentioned in column 1—

adult order	corresponding child order
adult community service order	community service order
adult graffiti removal order	graffiti removal order
adult probation order	probation order
fine option order	community service order
intensive correction order	conditional release order

56Application of the Act to adult order

From the commencement—

(a)the Act applies to the person’s adult order as if it were a corresponding child order; and

(b)except as otherwise provided in this regulation, the Act under which the adult order was made does not apply in relation to the adult order; and

(c)for the purposes of paragraph (a), any other Act applies to the adult order as if it were a corresponding child order.

57General provisions for applying the Act to adult orders

(1)The Act applies to the person’s adult order as if—

(a)a reference in the Act to a child included a reference to the person; and

(b)a reference in the adult order to an authorised corrective services officer were a reference to the chief executive; and

(c)for an adult order made by the District Court—the adult order were made by a Childrens Court judge; and

(d)for an adult order made by a Magistrates Court—the adult order were made by a Childrens Court magistrate; and

(e)a requirement contained in the adult order to perform community service under the Penalties and Sentences Act 1992 were a requirement to perform community service under the Act.

(2)A direction or permission given to the person by an authorised corrective services officer under the adult order that was in effect immediately before the commencement—

(a)continues to have effect under the Act for the adult order; and

(b)is taken to have been given to the person by the chief executive.

(3)If the adult order requires the person to give notice of every change in the person’s place of residence or employment, the person is taken to comply with the requirement if a parent of the person gives the notice.

(4)In this section—

authorised corrective services officer see the Penalties and Sentences Act 1992, section 4A.

58Particular provisions for adult community service orders

(1)This section applies if the adult order is an adult community service order.

(2)The number of hours of community service stated in the adult order continues to apply despite the maximum period under section 175(1)(e)(ii) of the Act.

(3)The time within which the number of hours stated in the adult order must be performed immediately before the commencement continues to apply despite section 198(a) of the Act.

(4)For applying section 202 of the Act in relation to the adult order, section 198(a) of the Act is taken to refer to the time within which the number of hours stated in the adult order must be performed.

(5)If, immediately before the commencement, the Penalties and Sentences Act 1992, section 108C applied in relation to the number of hours to be performed under the adult order, that section continues to apply to the adult order.

(6)If, immediately before the commencement, the adult order was suspended under the Penalties and Sentences Act 1992, section 108D, that section continues to apply to the adult order.

59Particular provisions for adult graffiti removal orders

(1)This section applies if the adult order is an adult graffiti removal order.

(2)The number of hours of graffiti removal service stated in the adult order continues to apply despite the maximum period under section 176A(3)(c) of the Act.

(3)The time within which the number of hours stated in the adult order must be performed immediately before the commencement continues to apply despite section 194D(a) of the Act.

(4)For applying section 194L of the Act in relation to the adult order, section 194D(a) of the Act is taken to refer to the time within which the number of hours stated in the adult order must be performed.

(5)If, immediately before the commencement, the adult order was suspended under the Penalties and Sentences Act 1992, section 110C(3), that section continues to apply to the adult order.

60Particular provisions for adult probation orders

(1)This section applies if the adult order is an adult probation order.

(2)The period stated in the adult order for which the person is placed on probation continues to apply despite section 175(1)(d), 176 or 180 of the Act.

(3)The adult order is taken to include a requirement that the person, or a parent of the person, must notify the chief executive within 2 business days of any change of school.

(4)If the adult order was made under the Penalties and Sentences Act 1992, section 92(1)(b) and the requirements of the order had not started before the commencement, the requirements of the adult order start as mentioned in section 92(4) of that Act.

(5)However, if the person is transferred to a detention centre under part 4, the requirements of the adult order start immediately on the person’s release from detention.

61Particular provisions for fine option orders

(1)This section applies if the adult order is a fine option order.

(2)The number of hours of community service stated in the adult order continues to apply despite the maximum period under section 175(1)(e)(ii) of the Act.

(3)The time within which the number of hours stated in the adult order must be performed immediately before the commencement continues to apply despite section 198(a) of the Act.

(4)For applying section 202 of the Act in relation to the adult order, section 198(a) of the Act is taken to refer to the time within which the number of hours stated in the adult order must be performed.

(5)The Penalties and Sentences Act 1992, sections 72(1), 73, 88(1)(b) to (d) and 89 continue to apply in relation to the adult order and, for that purpose, any hours of community service performed under the Act are to be counted as community service for those sections.

62Particular provisions for intensive correction orders

(1)This section applies if the adult order is an intensive correction order.

(2)The Act applies to the adult order as if the counselling or another program referred to in the adult order were a conditional release program under section 221(1)(a) of the Act.

(3)The remaining period of the adult order is taken to be the program period for the adult order.

(4)Subsection (3) applies despite section 221(1)(a) of the Act.

(5)The Penalties and Sentences Act 1992, section 113(2) continues to apply to the person in relation to the adult order.

(6)The chief executive must not direct the person to participate in a conditional release program under section 221(1)(a) of the Act for more than 12 hours in a week.

63Existing applications to amend or revoke adult order under Penalties and Sentences Act 1992

(1)This section applies if—

(a)before the commencement, an application had been made under the Penalties and Sentences Act 1992, section 122 in relation to the adult order; and

(b)immediately before the commencement, the application had not been finally dealt with.

(2)The Penalties and Sentences Act 1992, part 7, division 1 continues to apply in relation to the adult order until the application is finally dealt with.

64Application of the Act to particular new sentences imposed after commencement

(1)This section applies if—

(a)on an application mentioned in section 63, a court revokes the person’s adult order and re-sentences the person under the Penalties and Sentences Act 1992; and

(b)when the new sentence is imposed, the person is 17 years old.

(2)If the new sentence is an adult order, on the imposition of the new sentence the adult order provisions apply to the new sentence as if—

(a)a reference in the provisions to an adult order were a reference to the new sentence; and

(b)a reference in the provisions to the commencement were a reference to the imposition of the new sentence.

(3)Subsection (4) applies if the new sentence is a term of imprisonment and when sentencing the person the court did not also make an adult probation order or an intensive correction order for the person.

(4)On the imposition of the new sentence—

(a)the Act applies to the new sentence as if it were a period of detention; and

(b)sections 22 to 25 apply to the new sentence—

(i)as if the reference in section 22 to the commencement were a reference to the imposition of the new sentence; and

(ii)as if the reference in sections 24 and 25 to immediately before the commencement were a reference to on the imposition of the new sentence; and

(c)part 4 applies to the person—

(i)as if the person were an eligible person under section 47(1); and

(ii)as if the reference in section 47(2) to the commencement were a reference to the imposition of the new sentence.

s 64 amd 2018 SL No. 7 s 11

65Adult order to be explained

As soon as practicable after the Act applies to an adult order as if it were a corresponding child order under this part, the chief executive must explain to the person—

(a)the purpose and effect of the adult order; and

(b)what may follow if the person contravenes the requirements of the adult order; and

(c)that the adult order may be varied, discharged or revoked on application of the person or the chief executive under section 247 of the Act.

66Chief executive (corrective services) to help in administering adult order

(1)The chief executive may ask the chief executive (corrective services) for help in administering an adult order to which this part applies.

(2)The chief executive (corrective services) must comply with the request unless it is not reasonably practicable to do so.

67Appeal of conviction or sentence for adult order

(1)This section applies in relation to a sentence of a person for an offence mentioned in section 389 of the Act if, immediately before the commencement, the person was subject to an adult order.

(2)Section 56 does not apply to the adult order in relation to the following matters—

(a)a proceeding relating to an appeal against the conviction or sentence to which the adult order relates that had started, but not ended, before the commencement;

(b)a right to appeal against the conviction or sentence to which the adult order relates that had not ended before the commencement;

(c)an appeal against the conviction or sentence to which the adult order relates started after the commencement in relation to a right mentioned in paragraph (b);

(d)a right to appeal against the decision on an appeal mentioned in paragraph (a) or (c);

(e)an appeal against the decision on an appeal mentioned in paragraph (a) or (c).

68Appeal of conviction or sentence for term of imprisonment

(1)This section applies in relation to a sentence of a person for an offence mentioned in section 389 of the Act if—

(a)immediately before the commencement, the person was serving a term of imprisonment in relation to the offence; and

(b)the person is not subject to any of the following orders in relation to the offence—

(i)an adult probation order;

(ii)an intensive correction order;

(iii)a parole order.

(2)Section 22(1) does not apply to the term of imprisonment in relation to the following matters—

(a)a proceeding relating to an appeal against the conviction or sentence to which the term of imprisonment relates that had started, but not ended, before the commencement;

(b)a right to appeal against the conviction or sentence to which the term of imprisonment relates that had not ended before the commencement;

(c)an appeal against the conviction or sentence to which the term of imprisonment relates started after the commencement in relation to a right mentioned in paragraph (b);

(d)a right to appeal against the decision on an appeal mentioned in paragraph (a) or (c);

(e)an appeal against the decision on an appeal mentioned in paragraph (a) or (c).

69Application of division

This division applies if—

(a)on an appeal to which division 1 applies, another sentence is passed, or another order is made, for the person the subject of the appeal; and

(b)the other sentence or order is—

(i)for a new trial; or

(ii)an adult order; or

(iii)a term of imprisonment; and

(c)when the sentence is passed or order is made, the person is still 17 years old.

70Application of the Act if new trial ordered

If the other order is for a new trial, on the making of the other order the person is to be treated as a child in relation to the offence and, for that purpose, the Act and other Acts apply to the person.

71Application of the Act if adult order made

If the other sentence passed or order made is an adult order, on the passing of the other sentence or making of the other order the adult order provisions apply to the other sentence or order as if—

(a)a reference in the provisions to an adult order were a reference to the other sentence or order; and

(b)a reference in the provisions to the commencement were a reference to the passing of the other sentence or making of the other order.

72Application of the Act if term of imprisonment imposed

(1)This section applies if—

(a)the other sentence passed or order made is a term of imprisonment; and

(b)when passing the other sentence or making the other order the court did not also make an adult probation order or an intensive correction order for the person.

(2)On the passing of the other sentence or making of the other order—

(a)the Act applies to the other sentence or order as if it were a period of detention; and

(b)sections 22 to 25 apply to the other sentence or order—

(i)as if the reference in section 22 to the commencement were a reference to the passing of the other sentence or the making of the other order; and

(ii)as if the reference in sections 24 and 25 to immediately before the commencement were a reference to on the passing of the other sentence or the making of the other order; and

(c)part 4 applies to the person—

(i)as if the person were an eligible person under section 47(1); and

(ii)as if the reference in section 47(2) to the commencement were a reference to the passing of the other sentence or the making of the other order.

s 72 amd 2018 SL No. 7 s 12

73Definitions for part

In this part—

affected person see section 74(1).

original decision see section 74(1).

review, of an original decision, see section 74(1).

74Who may apply for review

(1)A person (an affected person) who has been given, or is entitled to be given, an information notice for a decision under section 48 (an original decision) may apply to the chief executive for a review of the decision under this division (review).

(2)If the affected person has not been given an information notice for the original decision, the affected person may ask the chief executive for an information notice for the decision.

(3)A failure by the chief executive to give the affected person an information notice for the original decision does not limit or otherwise affect the person’s right to apply for a review of the decision.

75Application for review

(1)An affected person’s application for review of an original decision must—

(a)be written; and

(b)if the person has been given an information notice for the decision—include enough information to enable the chief executive to decide the application; and

(c)be made to the chief executive within the application period for the review.

(2)The chief executive may, at any time, extend the period within which the application may be made.

(3)An application for review of an original decision stays the operation of the decision.

(4)The stay operates until the chief executive decides the application for review of the original decision.

(5)In this section—

application period, for a review of an original decision, means—

(a)for a person who has been given an information notice for the decision—

(i)if the person asks the chief executive for help under section 76—28 days after the day the person is given the help; or

(ii)otherwise—28 days after the day the person is given the notice; or

(b)for a person who has not been, but is entitled to be, given an information notice for the decision—

(i)if the person asks the chief executive for help under section 76—28 days after the day the person is given the help; or

(ii)otherwise—28 days after the day the person becomes aware of the decision.

76Affected person may be given help to access lawyer

(1)An affected person may ask the chief executive for help in gaining access to a lawyer—

(a)if the person has been given an information notice for the decision—within 28 days after receiving the notice; or

(b)otherwise—within 28 days after the day the person becomes aware of the decision.

(2)The chief executive must ensure the affected person is given the help that is reasonable in the circumstances within 10 business days after the request is made.

77Review

(1)Within 5 business days after receiving an application for review of an original decision from an affected person, the chief executive must—

(a)review the original decision; and

(b)decide to either—

(i)confirm the original decision; or

(ii)substitute another decision for the original decision; and

(c)give the affected person a written notice stating the chief executive’s decision under paragraph (b) and the reasons for the decision.

(2)The application must not be dealt with by—

(a)the person who made the original decision; or

(b)a person in a less senior office than the person who made the original decision.

(3)If the chief executive does not give the affected person a notice under subsection (1), the chief executive is taken to confirm the original decision.

pt 7A hdg ins 2018 SL No. 7 s 13

77AApplication of part

This section applies to a person if, on the commencement, section 389 or 390 of the Act applies to the person in relation to an offence.

s 77A ins 2018 SL No. 7 s 13

77BParticular provision about detention of persons

(1)If a court remands the person in custody in relation to the offence, the person must be held—

(a)if, at the time the court remands the person, the person is held in a detention centre—in a detention centre; or

(b)otherwise—in a corrective services facility.

(2)If a court orders, or the person is otherwise required to serve, a period of detention in relation to the offence, the person’s period of detention must be served—

(a)if the person is held in a detention centre at the time the order is made or the requirement takes effect—in a detention centre; or

(b)otherwise—in a corrective services facility.

(3)If a court orders the person, or the person is otherwise required, to serve a term of imprisonment in relation to the offence, the person’s term of imprisonment must be served—

(a)if the person is held in a detention centre at the time the order is made or the requirement takes effect—in a detention centre; or

(b)otherwise—in a corrective services facility.

(4)For subsection (1)(b) and (2)(b), any rights, liberties or immunities of the person as a detainee are not preserved, transferred or otherwise applicable for the person as a prisoner.

(5)Also, for subsection (2)(b)—

(a)the person is liable to serve a term of imprisonment equal to the period of detention to which the person is sentenced; and

(b)the person is taken to be a prisoner subject to the Corrective Services Act 2006.

(6)For subsection (3)(a)—

(a)the Act and other Acts apply to the person’s term of imprisonment as if it were a period of detention; and

(b)any rights, liberties or immunities of the person as a prisoner under the Corrective Services Act 2006 end and are not preserved, transferred or otherwise applicable for the person as a detainee.

Note—

This section does not prevent the person being an eligible person under part 4—see section 47.

s 77B ins 2018 SL No. 7 s 13

77CParticular provision about release

(1)If section 77B(2)(b) or (3)(b) applies to the person, on the day the person would otherwise have been released from the period of detention under section 227 of the Act, the person is to be released—

(a)if the person is 18 years or more—on parole under the Corrective Services Act 2006; or

(b)otherwise—on a supervised release order.

(2)However, if the person is to be released on parole under the Corrective Services Act 2006—

(a)the release is subject to that Act as if granted under a court ordered parole order (the statutory parole order); and

(b)the provisions of that Act applying to parole orders also apply to the statutory parole order.

s 77C ins 2018 SL No. 7 s 13

77DRelationship with pt 4

If section 77B(2)(b) or (3)(b) applies to the person and the person is not a person mentioned in section 28, 64 or 72, part 4 applies to the person—

(a)as if the person were an eligible person under section 47(1); and

(b)as if the reference in section 47(2) to the commencement were a reference to the making of the order or requirement.

s 77D ins 2018 SL No. 7 s 13

78Eligible persons register

(1)This section applies if—

(a)under a transfer direction, a person is transferred from a corrective services facility to a detention centre (the transferee); and

(b)a person is included on the eligible persons register under the Corrective Services Act 2006 as an eligible person under that Act in relation to the transferee.

(2)On the transfer of the transferee to the detention centre, the chief executive (corrective services) must give the chief executive the person’s details from the eligible persons register under the Corrective Services Act 2006.

(3)However, the chief executive (corrective services) may only act under subsection (2) with the person’s consent.

(4)If the person’s details are given under subsection (2), the chief executive must register the person as an eligible person under the Act in relation to the transferee.

(5)The chief executive (corrective services) must, immediately after the transfer of the transferee to the detention centre, remove the person’s details from the eligible persons register under the Corrective Services Act 2006 in relation to the transferee.

79Existing applications for eligible persons register

(1)This section applies if—

(a)under a transfer direction, a person is transferred from a corrective services facility to a detention centre (the transferee); and

(b)before the transferee is transferred, a person had applied under the Corrective Services Act 2006, section 320, to be registered as an eligible person under that Act in relation to the transferee; and

(c)immediately before the transferee is transferred, the application had not been decided.

(2)On the transfer of the transferee to the detention centre, the chief executive (corrective services) must give the chief executive the application.

(3)However, the chief executive (corrective services) may only act under subsection (2) with the person’s consent.

(4)If the application is given under subsection (2), the chief executive must decide the application as if it were an application made by the person under section 282A of the Act in relation to the transferee.

80Disclosure of confidential information by chief executive (corrective services)

(1)This section applies to confidential information about a person mentioned in section 389 or 390 of the Act who is dealt with under this regulation.

(2)The chief executive (corrective services) may disclose the confidential information to the chief executive for dealing with the person under this regulation.

(3)In this section—

confidential information—

(a)includes information—

(i)about a person’s affairs; or

(ii)about a person’s security classification under the Corrective Services Act 2006; but

(b)does not include—

(i)information already disclosed to the general public, unless further disclosure of the information is prohibited by law; or

(ii)statistical or other information that could not reasonably be expected to result in the identification of the person to whom the information relates.

81Admissibility of particular matters

(1)This section applies to a person who—

(a)as a 17-year-old, committed, or was alleged to have committed, an offence before the commencement; and

(b)under this regulation, must be treated as a child in relation to the offence.

(2)A provision of the Act or another Act that would otherwise provide that a matter is inadmissible in a proceeding for the offence because the person is a child does not apply to the person in relation to the offence.

(3)This section does not limit the exercise of a court’s discretion under the common law to exclude evidence in a criminal proceeding.

section 4

adult community service order means a community service order under the Penalties and Sentences Act 1992.

adult graffiti removal order means a graffiti removal order under the Penalties and Sentences Act 1992.

adult order means any of the following orders—

(a)an adult community service order;

(b)an adult graffiti removal order;

(c)an adult probation order;

(d)a fine option order;

(e)an intensive correction order.

adult order provisions means the following provisions—

(a)section 56;

(b)section 57(1), (3) and (4);

(c)section 58(1) to (4);

(d)section 59(1) to (4);

(e)section 60;

(f)section 61;

(g)section 62.

adult probation order means a probation order under the Penalties and Sentences Act 1992.

affected person, for part 7, see section 74(1).

changed decision, for part 3, division 4, subdivision 5, see section 44(1).

corrective services officer see the Corrective Services Act 2006, schedule 4.

corresponding child order, for part 5, see section 55.

current proceeding see section 390(5) of the Act.

eligible person, for part 4, see section 47.

fine option order see the Penalties and Sentences Act 1992, section 4.

immediate suspension request, for part 3, division 4, see section 29.

information notice, for a decision under section 48, means a written notice stating the following information—

(a)the decision;

(b)the reasons for the decision;

Note—

See the Acts Interpretation Act 1954, section 27B (Content of statement of reasons for decision).

(c)the rights of review under this regulation for the decision;

(d)how, and the period within which, a review under this regulation for the decision may be started;

(e)that, under section 75(3), an application for review stays the operation of the decision.

intensive correction order see the Penalties and Sentences Act 1992, section 4.

original decision, for part 7, see section 74(1).

parole board see the Corrective Services Act 2006, section 216.

parole order see the Corrective Services Act 2006, schedule 4.

review, of an original decision, for part 7, see section 74(1).

transfer direction see section 49(2).