ALERT DIGEST 4 of 1994

Part 4

CHILDREN AND YOUNG PERSONS (MISCELLANEOUS AMENDMENTS) BILL

9.1

This Bill was introduced into the Legislative Assembly on 30 March 1994 by The Honourable Michael John with The Honourable Phil Gude.

9.2

This Bill amends the Children and Young Persons Act 1989.

9.3 _Ż Delegation of powers to senior executive officer

Clause 6 amends section 7 of the Act to enable the Secretary to the Department of Health and Community Services to delegate to a senior executive officer the power to make authorisations under particular provisions of the Act including those provisions which relate to the authorisations of medical services and operations. The Committee notes that the powers are delegated specifically to senior executive officers and must be made by instrument.

The Committee makes no further comment.

9.4 _Ż Notification to protective intervener

Clause 11 amends section 64 of the Act which relates to the notification of protective interveners. Under the old section 64(3)(c), there is no power for the Court to grant leave for evidence to be admitted which identifies a person as a notifier to be given. The new section gives the Court the power to grant leave for such evidence to be admitted.

New sections 3A and 3B provide that evidence which could identify a person who made a notification is inadmissible unless:- - the notifier consents in writing to the admission of the evidence; or - the Court grants leave.

For the Court to grant leave under section 3A or 3B, it must be satisfied in the case of the Children's Court, that it is necessary for the evidence to be given to ensure the safety and well-being of the child, or, in any other case, that it is satisfied that the interests of justice require that the evidence be given.

This exception reduces the existing statutory protection that a notifier has under the Act. The Committee notes the comments in the Second Reading Speech:-

"A Court will be able to grant leave for the person to be identified as a notifier in certain circumstances, however it is anticipated that it will be rare for the Court to do so. In the vast majority of cases, it will be sufficient for the Court to hear the evidence without the need to know that it was part of a notification or which person notified the department.

It is important that people can contact the department with their concerns, confident that they will not be identified as a notifier unless it is determined by the Court to be necessary. It is expected that when exercising its discretion, Courts will consider seriously the public interest in ensuring that people can make notifications to the department in the knowledge that they will not be stigmatised as a "notifier". For the child protection system to operate effectively, it is vital that the community is encouraged to make notifications."

The Committee also notes the explanatory memorandum which states that:-

"There are circumstances where the person has not consented but the evidence is necessary to the interests of justice or to protect the safety and well being of the child and the importance of the evidence outweighs the public interest in protecting the identity of the notifier. Although it is rare that the identity of a notifier or the fact that a particular matter forms part of a notification is necessary evidence, a blanket prohibition is too restrictive."

The Committee notes the reduction in an existing statutory right but accepts the explanation in the Second Reading Notes and the explanatory memorandum as sufficient and makes no further comment.

9.5 _Ż Interim accommodation orders

Clause 13 substitutes a new Division 4 of Part 3 into the Act. Division 4 relates to interim accommodation orders. The main amendments are:-

to enable the Court to make an interim accommodation order at any time after a protection application is filed with the Registrar.
enable the Court to make an interim accommodation order when a hearing in the Family division is adjourned.
clarify the power of a Court to make an interim order during a contested interim accommodation hearing.
give the Supreme or County Court the power to make an interim accommodation order after the hearing of an appeal has commenced.
give the Court the power to extend an interim accommodation order.
make it clear that an application for variation of an interim order only applies to the conditions of an interim accommodation order.
enable an application for breach of an interim order to proceed by notice as well as by the taking of a safe child into custody.
enable the Court to make a new interim order where the child is living in conditions which are unsatisfactory in terms of the safety and well being of the child even if there has not been a breach of the existing order.

The Committee makes no further comment.

9.6 _Ż Interim Protection Orders

Clause 19 amends the provisions relating to interim protection orders. It provides that the Court must make it a condition of an interim protection order that the parent or person with whom the child is living must produce the child before the Court at the time of making the protection order. It also clarifies the fact that the Court can make the final protection order, even if the protection order has expired.

The Committee makes no further comment.

9.7 _Ż Probation orders and youth supervision orders

Clauses 24, 25 and 26 amend the provisions of the Act relating to probation orders and youth supervision orders to enable them to operate until a person’s nineteenth birthday. The clauses also amend the term of imprisonment that must be available before a probation order or youth supervision order can be made. This reflects amendments to the Sentencing Act 1991.

The Committee makes no further comment.

9.8 _Ż Variation of section 85 of the Constitution Act 1975 (section 4D(b)(i) and(ii) of the Parliamentary Committees Act 1968.)

Clause 35 inserts a new section 279A into the Act which declares its intention to alter or vary section 85 of the Constitution Act 1975 to the extent necessary to prevent the bringing before the Supreme Court, a matter over which the Children’s Court has exclusive jurisdiction as a result of amendments.

In particular, this clause covers the Children’s Court to make orders when a child is seventeen which extend beyond the eighteenth birthday up until the nineteenth birthday. The Committee notes the comments in the Second Reading Speech:-

"The Bill amends probation orders, youth supervision orders and youth attendance orders to give the Court greater scope when sentencing an offender who is nearly eighteen at the time of sentence. At present, if a child appears before the Court just before his or her eighteenth birthday, there are few sentencing options available to the Court given that these orders expire on a child’s eighteenth birthday. The Bill amends the Act so as to allow these orders to be able to operate until a child’s nineteenth birthday to remedy this hiatus in the law.......

This section has been included to make it clear that the Children’s Court can make orders when a child is seventeen which extend beyond the person’s eighteenth birthday and that while the order is in force, the Court can hear applications for variation and revocation in relation to those matters.

A number of technical amendments are also contained in the Bill. This Bill is a reflection of this Government’s commitment to the improvement of child protection services in this State and ensures that the Children’s Court has the sentencing options available to it to adequately deal with young offenders."

The Committee reports that the proposed provision is desirable and appropriate in all the circumstances.

SENTENCING (VICTIM IMPACT STATEMENT) BILL

10.1

This Bill was introduced into the Legislative Assembly on 30 March 1994 by The Honourable Jan Wade, the Attorney-General with The Honourable Phil Gude.

10.2

This Bill amends the Sentencing Act 1991 and the Children and Young Persons Act 1989 to require courts, in sentencing the offender, to have regard to the impact of crime on the victim. More specifically, it:-

provides for victims on a voluntary basis, to present a written statement to the court containing details of any injury or loss which they have experienced as a direct effect of the crime.

The Committee recognises that the introduction of Sentencing (Victim Impact) Statements is fundamentally a matter of policy and that the policy has the bipartisan support of all the parties. However, certain matters arising from the Bill have rights implications and the Committee makes the following comments.

(1) As a result of the Bill, the positive benefit to victims is that there is a statutory recognition of their rights. Victims now have the right to be heard by a court and to have their views placed on the court record. Those views are one of the factors which the court takes into account in the sentencing of the defendant.

(2) One of the possible effects on the defendant is that if he or she has attacked an articulate victim as opposed to an inarticulate victim, then the defendant may receive a stronger penalty because the victim’s views have been expressed more clearly. However, the Committee recognises that the Courts will take into account the individual capacities or interests of victims when sentencing defendants.

(3) The other matter is that victims may feel under pressure to make victim impact statements and those who do not may feel disadvantaged. Those victims who do make a statement may be subject to cross-examination which can be traumatic in some instances, particularly when the victim has to face his or her attacker.

The Committee recognises that the policy behind the Bill is to increase victims’ rights and that public interest in the increase in victims ’rights far outweighs the minority of convicted defendants who may be disadvantaged. The Committee also recognises that the Bill has the overall support from the community.

10.3 _Ż Definition of "victim" and sentencing guidelines

Clause 4 inserts the definition of "victim" into the Principal Act.

Clause 5 ensures that the personal circumstances of any victim of any offence and any injury, loss or damage resulting directly from the offence are included in the guidelines for sentencing.

The Committee makes no further comment.

10.4 _Ż Indefinite sentencing and hospital security orders

Clause 6 inserts a new sub-section in section 18E of the Principal Act to provide that a hospital security order made under section 93(1)(e) has effect as an indefinite sentence. A court may impose an indefinite sentence pursuant to section 18B of the Act. Section 93 of the Act provides that a court may instead of passing sentence, make an order to detain the person in a psychiatric in-patient service as an involuntary patient.

This amendment removes any uncertainty that a hospital security order under section 18E may not be viewed as an indefinite sentence which was the intention of the Act. The Committee makes no further comment.

10.5 _Ż Victim impact statements

Clause 7 inserts a new Division 1A into Part 6 of the Act. The new section 95A-E provides that victims may make victim impact statements. They may be in writing by statutory declaration or given in writing and orally by sworn evidence. A victim or a person who makes a victim impact statement may be subject to cross-examination or re-examination. Any other witness who is called to give any evidence in respect of any matter contained in a victim impact statement may also be subject to cross-examination and re-examination.

"A reasonable time ?"

Section 95C provides that the victim must file a copy of the victim impact statement with the court and provide a copy to the offender or his legal practitioner and the prosecutor " a reasonable time before sentencing is to take place". The Committee's attention has been drawn to the fact, by a submission from Mr Sturt Glacken, that in the Magistrates' Court when appeals are heard by way of a new hearing the time between the finding of guilt, the hearing of a plea and the passing of sentence is extremely short. Would there be sufficient time for the victim to file a victim impact statement and sufficient time for the defendant to call relevant witnesses ? Similarly, a matter may proceed by way of a guilty plea in the Magistrates' Court on the first mention day. Again, this raises the issue of sufficient time for the victim to file a victim impact statement and sufficient time for the defendant to call the relevant witnesses.

However the Committee notes that the Court generally has a discretion to adjourn a case, if it is not ready to proceed and presumably it would be exercised in such an instance. The accompanying explanatory memorandum to the Bill states that:-

"The new section 95C states that if a victim statement is prepared, the victim must file a copy with the court and provide a copy to the prosecutor and the offender and offender's legal practitioners. The copies are to be provided a reasonable time before the sentence date. As the date on which sentencing may take place is uncertain, the specific time for provision of the statement was not set."

The explanation appears to contemplate the exercise of a discretion. The Committee has written to the Attorney-General to clarify the effect of the provision.

10.6 _Ż Children's Court to consider victim impact statements

Clause 9 inserts section 136A to require the Children's Court to consider victim impact statements in determining sentence. The same issue as to time arises. The Committee has written to the Minister to clarify the effect of the provision with respect to the time available to parties who wish to make a victim impact statement or call witnesses to give evidence.

ALERT DIGEST 4