Hansard debates

Ms PULFORD (Minister for Agriculture) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the charter), I make this statement of compatibility with respect to the Children and Justice Legislation Amendment (Youth Justice Reform) Bill 2017 (the bill).

In my opinion, the bill, as introduced to the Legislative Council, is compatible with human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.

Overview

The bill amends the Children, Youth and Families Act 2005 (the CYFA) and introduces a wide range of reforms to respond to the changing nature and profile of young offenders, and to strengthen safety and security at remand centres, youth residential centres and youth justice centres (youth justice facilities). The bill also creates a legislative basis for a pre-plea diversion program in the criminal division of the Children's Court, and enables the relevant secretary to issue a written instruction to a person directing them to not communicate with a child under the secretary's care or in detention.

In particular, the bill:

creates a new offence that applies to an adult who arranges for a child to commit a crime on their behalf;

provides greater guidance to the Children's Court regarding uplift; ensures that, where possible, the same magistrate oversees proceedings relating to a young offender; allows the Children's Court to impose an aggregate sentence of detention, and; increases the maximum period of detention that can be imposed;

creates a new sentencing option for the Children's Court, the 'youth control order' (YCO);

creates particular rules around eligibility for dual-track sentencing, uplift to the higher courts, community safety considerations and mandatory parole conditions that will apply to young people who commit specific serious offences;

amends existing section 484 of the CYFA to clarify the secretary's considerations when making a decision to transfer a young person between youth justice facilities;

permits the co-location of remanded and sentenced detainees in accordance with strict criteria, taking into account the welfare and safety of the detainee, staff and other detainees;

improves information sharing between the secretary, the Youth Parole Board (YPB) and Victoria Police;

allows the secretary to grant permission for the publication of limited identifying information when a child escapes from a youth justice facility; and

provides increased consequences for offences committed in a youth justice facility, including increased penalties and cumulation of sentence.

Human rights issues

The vulnerability and special status of children is recognised under several provisions of the charter. Section 17(2) of the charter provides that every child (defined as a person under 18 years of age) has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child.

Several sections of the charter also provide special protections for children involved in the criminal process. For example, section 23(1) provides that an accused child who is detained must be separated from detained adults. Section 23(3) provides that a child convicted of an offence must be treated in a way that is appropriate for their age. Section 25(3) provides that a child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child's rehabilitation. These special protections apply to children in addition to those sections of the charter that protect the rights of detained persons, including the right to freedom from cruel, inhuman and degrading treatment under section 10(b), the right of a person in detention to humane treatment under section 22(1), and the right of an accused person to be treated in a way that is appropriate for a person who has not been convicted under section 22(3).

The charter rights that apply to children in the criminal process, and in particular sections 17(2) and 23(3), recognise the need to minimise the stigma to a child that may result from being detained, and the importance of promoting and ensuring the development and rehabilitation of the child.

Youth control order

Part 3 of the bill introduces a new part titled: youth control orders into the CYFA. The YCO is a new sentencing option in the sentencing hierarchy, and is an alternative to detention. It will involve intense supervision and monitoring by the court for up to 12 months. In addition to court supervision, the order will include a requirement that the child engage in education, training or work. It will best suit young offenders who have committed serious offences, but who have potential to be rehabilitated with intensive support from youth justice officers and supervision by the court.

Freedom from forced work (section 11)

The YCO is a court-ordered sentencing decision that may require a child to undertake work requirements as one of its conditions. Clause 13 of the bill inserts this new section 409F(1) into the CYFA. Section 11(2) of the charter is relevant here and provides that a person must not be made to perform forced or compulsory labour. However, section 11(3) of the charter provides that for the purposes of subsection (2) 'forced or compulsory labour' does not include work or service normally required of a person who is under detention because of a lawful court order or who, under a lawful court order, has been conditionally released from detention or ordered to perform work in the community. Court-ordered work or service is an exception to freedom from forced work under section 11, and therefore the right under section 11 is not limited by the YCO.

Freedom of movement (section 12)

Clause 13 of the bill, which inserts new section 409F into the CYFA, places restrictions on the free movement of a child on a YCO. Section 12 of the charter is relevant, as it provides that every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it, and has the freedom to choose where to live.

While new section 409F provides for restrictions on free movement, in my opinion these are reasonable and justified in accordance with section 7(2) of the charter. The YCO is a new sentencing option; a lawful court order that is an alternative to detention. As part of the order, the court can decide to restrict the child's movements by:

a)     imposing a curfew at specific hours or on specific days;

b)     ordering the child to attend education, work or training requirements at specific times or on specific days;

c)     ordering the child to reside at a specific address; or

d)     directing the child when to attend court.

The purpose of these restrictions is to rehabilitate the child through intensive supervision and court monitoring and are consistent with the sentencing requirements listed in section 362 of the CYFA. Requiring the child to attend work or training, imposing a curfew and requiring them to attend court is part of a process to remove them from negative influences or situations that could lead them to reoffend. Further, these measures seek to promote the best interests of children in accordance with specific children's rights under the charter mentioned earlier.

Privacy (section 13)

Clause 13, which inserts new sections 409F, 409G and 409T into the CYFA, places specific requirements on the child and their family, which could potentially interfere with their right to privacy. These requirements include: attending the YCO planning meeting, giving an undertaking to support the child's compliance with the order, and directing the child to attend court to review their progress. These requirements would involve the disclosure of personal information to the court, youth justice officers and other departmental representatives about the child and their family life. Section 13 provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with and not to have his or her reputation unlawfully attacked.

The court's ability to question the child's compliance, to ensure they are attending the relevant course or training and complying with the conditions of the order is not an arbitrary or unlawful interference with their privacy. Similarly, the obligations imposed on the child's family are not mandatory or punishable, but are there to assist the child in lawfully abiding by the conditions of the order. New sections 409F, 409G, and 409T do not provide a broad power for the court to interfere, rather, the legislation specifies the precise circumstances in which interferences with privacy may be permitted. For example, at the court directed hearings, the child and in some cases, the child's family members will be asked about the child's compliance with the order. This will include divulging personal information about the child's participation in community service activities, treatment for drug or alcohol problems, or how the child is performing at school or at work. I believe these restrictions are in accordance with the law and are not an arbitrary interference. As such, I do not believe section 13 is limited.

Freedom of expression (section 15)

At clause 13 of the bill, which inserts new section 409F(2) into the CYFA, the court can restrict the child's use of social media as part of a YCO. This restriction raises section 15(2) of the charter, which provides that every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Victoria and whether orally, in writing, in print, by way of art, or in another medium chosen by him or her. However, I do not believe section 15(2) is limited, as new section 409F falls within section 15(3) of the charter. Section 15(3) of the charter expressly provides that special duties and responsibilities are attached to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary for the protection of public order or public morality. Protecting public order is the reason for imposing restrictions on a child's use of social media. Children can be incredibly impressionable and susceptible to peer pressure. For some children, their access to social media pages or groups that encourage unlawful behaviour may normalise pro-criminal attitudes that could lead the child to reoffend.

As such, the ability to restrict social media use is necessary for the YCO, as an alternative to detention, to properly operate to rehabilitate children and so protect public order.

Freedom of association (section 16(2))

Section 16(2) of the charter provides that every person has the right to freedom of association with others. At clause 13 of the bill, which inserts new section 409F(2) into the CYFA, the court can impose a requirement that the child not contact or be in contact with specified persons. The purpose of this restriction is to separate the child from associations the court deems may negatively influence them and affect their rehabilitation. Pro-social connections will be unaffected by the amendments in recognition that they are extremely important in positively influencing the child's decision-making and their lives generally. I consider that any limitation on the child's right under section 16(2) is reasonable and justified in accordance with section 7(2) of the charter, for the reasons set out above.

Right to a fair hearing (section 24)

Clause 13 of the bill inserts a number of new sections that deal with varying or revoking a YCO:

new section 409N enables the court to vary the YCO on its own initiative or on application by the secretary;

new section 409Q enables the court to revoke a YCO on application by the child, the secretary or Victoria Police;

new section 409O provides that the court may give a warning to the child that their order may be varied or revoked; and

new section 409P provides that a YCO can be varied or revoked without the consent of the child. New section 409P raises the child's right to a fair hearing, specifically protecting the principle of procedural fairness.

I do not believe new section 409P limits the child's right to a fair hearing. There are a number of safeguards within the bill and the CYFA that protect a child's rights under section 24 of the charter in relation to varying or revoking the YCO. Firstly, the child must consent to being placed on a YCO. This requirement is inserted by clause 13 of the bill, which inserts new section 409C into the CYFA. At this stage of the process, if a YCO is imposed, the court is obligated, under section 527(1) of the CYFA, to explain the meaning and effect of the order as plainly and as simply as possible. This includes the court's ability to vary or revoke the order if it deems appropriate, based on relevant considerations.

If the court is considering a variance or revocation of an order, clause 13 of the bill, which inserts new section 409O into the CYFA, provides that the court may warn the child at an earlier court hearing of their intentions.

Further, clause 13 of the bill, which inserts new section 409L into the CYFA, provides that the court can only vary the order at a hearing, which is attended by the child. Clause 13 of the bill, which inserts section 409Q into the CYFA, provides a similar provision that the court can only revoke the order at a hearing with the child. This provides an opportunity for the court to discuss with the child the reasons for the variance or revocation and the child can respond, albeit that the child's consent to the order is not required.

Collectively, the obligations on the court to explain its ability to vary or revoke the order, to warn the child of a potential variance or revocation, and to discuss with the child why the court believes the order should be varied or revoked at a hearing, protect against any limitation on section 24 of the charter.

Right not to be tried or punished more than once (section 26)

Section 26 of the charter provides that a person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law. While relevant, this right is not limited by the YCO. If a YCO is revoked, section 13 of the bill, which creates new section 409R in the CYFA, provides that if the court decides it is appropriate, the child can be sentenced to detention to serve a period no longer than the remaining period of the YCO. The child will not be re-sentenced based on their offence and as such will not be subject to a double penalty. For these reasons, I do not consider that section 26 of the charter is limited.

Strengthening consequences for young offenders who commit serious offences

The bill will increase consequences for young people who commit certain serious offences and those who come before the court multiple times for such offences, by creating two new categories, category A serious youth offences and category B serious youth offences. The consequences of committing category A or category B offences include:

a)     amend section 32 of the Sentencing Act 1991;

b)     different rules for when certain offences are heard in the higher courts;

c)     the Children's Court being required to take into account protection of the community when sentencing certain young offenders;

d)     YPB required to impose certain special parole conditions on serious young offenders.

Recognition and equality before the law (section 8(3))

Section 8(3) of the charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination. Discrimination in relation to a person means discrimination within the meaning of the Equal Opportunity Act 2010 on the basis of an attribute protected by that act, such as age. Section 8 of that act provides that direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. This right is relevant to the amendments to section 32 of the Sentencing Act and the different rules for when certain offences are heard in the higher courts.

Amending section 32 of the Sentencing Act

The bill will limit the ability for certain young people aged 18–21 years to be sentenced to a period of detention in a youth justice facility.

Clauses 20 to 22 of the bill amend section 32 of the Sentencing Act. The amendment means that a court cannot sentence a young adult offender to youth detention if they have been convicted of a category A offence or a category B offence (where they have previously been convicted of a category A or category B offence), unless exceptional circumstances apply, such as an intellectual disability. This amendment will result in the young adult offender being treated as an adult and dealt with in the adult criminal justice system.

The reforms will differentiate between 18–20-year-old offenders on the basis of their offending. This type of differential treatment already occurs in many other aspects of the sentencing system by differentiating categories of offending and the consequences and procedures that apply to certain categories. As this differential treatment does not engage a protected attribute (such as age or gender), I do not consider that the right to equality is limited by this reform.

Different rules for when certain offences are heard in the higher courts

The bill will create a presumption that certain matters will be heard in the higher courts, rather than the Children's Court, when a young person is aged 16 years or over. The creation of the two new categories of offending will result in different procedures in how an offence is heard depending on the age of the young person. This will treat young people differently depending on their age.

For young people aged under 16 years there will be no change to the usual process for hearing and determining criminal matters, regardless of the offence committed.

Clause 27 of the bill inserts a new section 168A into the Criminal Procedure Act 2009, which provides that when a young person aged 16 years or over is charged with a category A offence (apart from offences already determined to be outside the jurisdiction of the Children's Court), different rules will govern when such charges can be heard and determined summarily in the Children's Court, or uplifted to the higher courts.

For category A offences, the matter will only be heard and determined summarily in certain specific circumstances and the Children's Court is satisfied, in accordance with new section 356(6) and (7) inserted by clause 23 of the bill, that it has appropriate sentencing options available to it, and it is able to hear and determine the matter. The bill provides that when a young person aged 16 years or over is charged with a category B offence, the Children's Court will be able to refer the matter to a higher court if they determine exceptional circumstances exist, making it inappropriate for the matter to be heard and determined summarily. These measures will ensure that matters are only uplifted in appropriate circumstances.

To any extent that this limits the right contained in section 8 of the charter, I consider that on balance it is reasonable and justified in the interests of justice and community safety.

Children's rights (section 17(2), section 23(2) and (3) and section 25(5))

As previously stated, the vulnerability and special status of children is recognised under several provisions of the charter including when they are involved in the criminal justice system: sections 17(2) (best interests), 23(2) (brought to trial as quickly as possible), 25(3) (procedures that take account age and rehabilitation) and 23(3) (treated in an age-appropriate way following conviction).

Section 23(2) of the charter provides that an accused child must be brought to trial as quickly as possible. This right may be limited as preparation for trial before the higher courts, may result in a comparatively longer period of time elapsing before the matter is heard than if it was determined summarily in the Children's Court. However, preparation for trial will be in accordance with established criminal procedures and adherence to these established principles ensures that a young person will receive a fair hearing (section 24). Further, I consider that it is necessary that serious offences are heard in the higher courts with a full range of sentencing options available. In this regard, the interests of the individual young person are balanced with the interests of the community, including safety and maintaining confidence in the criminal justice system and the rights of the community to liberty and security (section 21) and their right to life (section 9). For these reasons any limitation on section 23(2) is reasonable and justified.

The uplift to higher courts is also relevant to section 25(3) of the charter as this right recognises that a child has the right to a procedure that takes account of the desirability of promoting the child's rehabilitation. I do not consider this right is limited by uplift to higher courts. While the higher courts are not a specialist jurisdiction dealing exclusively with children, when a charge is heard against a child in the higher courts, the higher courts retain the ability to sentence the child in accordance with the principles and sentencing options of the Children's Court if appropriate. Further, the CYFA already provides that certain offences are outside of the jurisdiction of the Children's Court and these matters are heard and determined in the higher courts. Further, in determining the appropriate sentence for a young person convicted of an offence, the higher court may give consideration to the young person's circumstances, age and the desirability or possibility of rehabilitation (sections 17(2) and 23(3)). For these reasons, I do not consider the right in section 25(3) to be limited.

Overall, the rights in sections 17(2), 23(2) and (3) and 25(3) of the charter are not limited by these aspects of the bill, or any limitation is reasonable and justified in balancing rights, including rights of the community to safety and security.

Freedom of movement (section 12), privacy (section 13(a))

The bill provides for mandatory parole conditions to be imposed on a young person who has been convicted of a category A or category B offence. These are inserted by clause 30 of the bill.

As discussed, section 12 of the charter provides for a person's freedom of movement. This may be limited by the bill on the basis that the young person's movements may be restricted by the YPB. This limitation is reasonable and justified because the young person on parole is considered to still be under sentence and subject to the jurisdiction of the YPB as such it is appropriate for the YPB to be aware of the young person's whereabouts.

Section 13 of the charter provides that a person has the right not to have his or her privacy unlawfully or arbitrarily interfered with, and not to have his or her reputation unlawfully attacked. Any interference with the young person's privacy is lawful and not arbitrary as the YPB needs to be informed of the young person's activities and compliance with their parole conditions to determine whether the young person should continue on parole. On balance, I do not consider a young person's right to privacy limited by this amendment.

Limitation of liability

Clause 30 of the bill introduces new section 487A, which is an amendment to the CYFA to exclude youth justice officers from liability for any injury caused through the lawful exercise of their powers under the CYFA.

Fair hearing (section 24(1))

Section 24(1) of the charter is relevant here and provides that a person charged with a criminal offence or a party to a civil proceeding has a right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

I do not consider that right is limited by clause 30. There is no restriction on a person's ability to bring legal proceedings against the Crown, nor on their ability to bring proceedings where injury has occurred as a result of a failure to act in accordance with the CYFA. This exemption is intended to support youth justice officers to effectively carry out their duties, including using reasonable force if it is necessary to prevent a detainee from harming themselves or others or damaging property in a youth justice facility, or necessary for the security of a youth justice facility. Without this amendment, youth justice officers may be reluctant to use reasonable force when necessary in those circumstances, impacting the safety and security of the facility.

Transfer decisions

Clause 33 of the bill inserts new section 484(6) into the CYFA to expressly provide that, under section 484(1)(a), (b) or (c), the secretary may, in the secretary's complete discretion, consider a range of factors when making the decision to transfer a detainee between youth justice facilities. These include:

(a)    the availability and appropriateness of accommodation for the combination of all persons detained across all youth justice facilities;

(b)   the safety, security and good order of any youth justice facility;

(c)    the safety, security and needs of any person detained at any youth justice facility;

(d)   the safety of staff and any other persons at any youth justice facility; or

(e)    any other matter the secretary deems relevant.

Children's rights (section 17(2))

Section 17(2) of the charter provides that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

It is possible that the secretary may make a transfer decision that results in detainees being transferred between youth justice facilities, which will not be in the best interest of that detainee. In such a situation, the detainees' rights under section 17(2) of the charter may be limited.

I consider that any limitation on section 17(2) will be reasonable and justified in accordance with section 7(2) of the charter. New section 484(5) ensures that when deciding whether to transfer a child under section 484, the secretary has the discretion to have regard to, and balance: the rights and interests of the child against the rights of staff members and other detainees and their safety, wellbeing and security within the youth justice facility. Ensuring the safety of others contributes to the capability of a youth justice facility to function effectively.

Further, the child will be transferred between youth justice facilities that will provide the same level of resources and functionality. They will not be disadvantaged being in one facility over another.

Section 38 of the charter will continue to apply to the secretary, meaning that the secretary must give proper consideration to human rights before making a transfer decision under section 484 of the CYFA. The new section does not impede any right of the child to seek review of the decision.

Permitting co-location of remandees and sentenced detainees

Clause 32 of the bill will amend section 482(1)(c)(ii) of the CYFA to allow a remandee to be co-located with sentenced prisoners, without the remandee's consent, if the remandee has previously served a period of detention, and it is reasonably necessary for any persons on remand to be accommodated with any persons who are serving a period of detention. The rights raised by this amendment are discussed below.

Humane treatment when deprived of liberty (section 22(2))

Section 22(2) of the charter provides that an accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary.

In the past year, there have been riots by detainees resulting in significant damage to youth justice facilities and there has been a significant increase in the number of young people being held on remand. The increase in remand numbers and the number of young people reoffending and being returned to remand following a period of detention, is changing the youth justice environment. Under the CYFA, the secretary is entrusted with determining the form of care and treatment of all detainees. The secretary must make decisions about placement and management of young people in order to keep all staff and all detainees safe. Enabling sentenced and remanded detainees to be co-located if:

the remandee has previously served a period of detention,

the co-location must be in the best interests of each individual, and

only if it is reasonably necessary

will ensure the safe operation of the facility, and safety of all persons within the facility.

Satisfying the qualifying factors before co-location occurs ensures compliance with section 22(2) of the charter, which requires accused persons detained without charge be segregated from persons who have been convicted, 'except where reasonably necessary'. The phrase 'except where reasonably necessary' does not necessarily mean housed in separate buildings, but contact between the two groups should be kept to a minimum. The three criteria and the broader considerations of the safety of everyone in youth justice facilities, as discussed above, will ensure co-location only occurs in specific and necessary circumstances. On balance, I consider that the proposed amendment does not limit section 22(2).

The right to be presumed innocent (section 25(1)) and rights of children in criminal proceedings (section 25(3))

Section 25(1) of the charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to the law. Section 25(3) of the charter provides that a child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child's rehabilitation.

Section 25(1) of the charter is relevant in relation to the remandees' right to be presumed innocent and not treated as though they have been convicted. Co-location will not equate to treating a remandee as if he or she were a sentenced detainee. Remandees co-located with sentenced detainees will receive the same treatment as other remandees, with the same access to facilities and resources.

Co-location decisions made under clause 32 will enable the secretary to be flexible and responsive to the needs of a remandee. The secretary will consider a broader set of factors than just their sentencing status, such as knowledge of the relationships between remandees and detainees, the most suitable accommodation option for the individual, taking into account their particular circumstances, for example, age, drug and alcohol treatment or their need for stability. Considering these factors will contribute toward assisting and enhancing the rehabilitation of the child which is consistent with section 25(3) of the charter.

For these reasons, I believe this decision-making process is in accordance with sections 25(1) and 25(3) of the charter as it takes into account the specific needs of young detainees: their vulnerability, special safety and rehabilitative prospects and they will be treated as remandees. On balance, I believe the proposed amendment to permit co-location in restricted circumstances does not limit the rights under sections 25(1) and (3) of the charter.

Requiring the Youth Parole Board to be informed of incidents

Clause 39 of the bill will insert new section 454 into the CYFA to require the secretary to inform the YPB within 48 hours of becoming aware of a young person's involvement in:

a)     an incident that has threatened the safety or security of a youth justice facility, or

b)     any conduct that has threatened the safety of any other person, or

c)     damage to property in a youth justice facility.

The bill will also provide that the YPB may request that the secretary provide additional information about the incident. The rights relevant to this amendment are:

Privacy and reputation (section 13)

As previously stated, section 13(a) provides for a person's right not to have their privacy unlawfully or arbitrarily interfered with and section 13(b) provides that a person has the right not to have his or her reputation unlawfully attacked. For the YPB to make decisions about parole, it is necessary and appropriate that it be given the above information about a young person's behaviour in custody to ensure that an informed decision is made as to the appropriateness of releasing a young person on parole. I do not believe section 13(a) or (b) is limited by this proposed amendment as the information is limited to that stated, will be obtained in accordance with the law, and is necessary to enable the YPB to effectively carry out its functions.

Informing Victoria Police when young people are released on parole

Clause 39 of the bill will insert new section 455(1) into the CYFA to require the YPB to inform Victoria Police when a young person who has been convicted of a category A or category B offence is released on parole. New section 455(2) will enable the YPB to inform Victoria Police when any other young person is released on parole.

Privacy and reputation (section 13)

When a young offender is released on parole, the YPB in accordance with either section 455(1) or (2) will inform Victoria Police that the particular young offender has been or will be released into the community on parole and inform Victoria Police of the parole conditions. The disclosure serves a legitimate purpose as Victoria Police will be able to inform the YPB when it detects breaches of parole. This supports Victoria Police's role in protecting victims, and in enforcing decisions made by the YPB to cancel parole. Victoria Police will continue to store and use any information they receive in accordance with established privacy law.

For these reasons it is my view that section 13(a) of the charter is not limited, but rather the disclosure of information will assist law enforcement.

Allowing publication of identifying material when a young person escapes from custody

Clause 40 amends section 534 of the CYFA (which restricts the publication of Children's Court proceedings except with the permission of the president) by inserting new section 534(3A) to provide that the secretary may grant permission for the publication of details identifying a child involved in criminal proceedings who has escaped from a youth justice facility and publication is reasonably necessary for the safety of the child or any other person or would assist to apprehend the child.

Privacy (section 13(a))

Section 13(a) of the charter provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. The young person's right to privacy may be limited in circumstances where they have escaped from lawful custody and publication is reasonably necessary for the safety of the community or an individual, including the child in question or publication will assist the apprehension of the child. In these circumstances, any attention drawn to the young person will not be undue. If the child has escaped the child will be in contravention of an order of the court and the publication of identifying information will assist law enforcement. As such, any limitation to section 13(a) of the charter will be reasonable and justified.

Protection of families and children (section 17(2)), children in the criminal process (section 23(3))

These sections recognise the importance of supporting a young person's rehabilitation. Section 17(2) of the charter provides that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child. Section 23(3) of the charter provides that a child who has been convicted of an offence must be treated in a way that is appropriate for his or her age.

Significant safeguards accompany these amendments, including that the secretary must only release such identifying particulars as is reasonably necessary to locate and apprehend the child, as well as give consideration to need to avoid any future stigma to the child or the child's family.

The young person may also pose a serious risk to themselves or others, in these circumstances it is necessary to take positive action to identify the young person, in the interests of their own safety and welfare, where they may be unable to act in a way that is consistent with their own best interests. The central objective of the amendment is to provide as limited information as is necessary to ensure community safety and the quick apprehension of the young person. For these reasons, it is my view that any limitation to the rights in sections 17(2) and 23(3) of the charter is reasonable and justifiable.

Youth diversion

The amendments provide for a scheme within the Children's Court to adjourn proceedings to enable a child to complete a diversion program. If the child successfully completes the program, a conviction is not recorded and the charges are discharged. For diversion to be ordered, the prosecutor and the child must consent, and the court must consider it suitable, having regard to certain prescribed considerations. The amendments aim to divert young people, where appropriate, from the criminal justice system and enable a response that is tailored to the needs, circumstances and offending behaviour of the child.

Promoted rights

Clause 59 of the youth diversion scheme promotes a number of rights, in particular, the rights of a child to have a procedure that takes into account the desirability of promoting the child's rehabilitation (section 25(3)), the protection of families and children (section 17), and cultural rights (section 19).

These rights are promoted through: section 356C, which sets out the purposes of diversion to guide the operation of the legislation; section 356D(4), which outlines the factors the Children's Court must take into account when deciding whether a child is suitable for diversion; and section 356G(1), which provides for the factors for determining the appropriate type of diversion order.

The scheme also engages section 21(5)(b) of the charter, which provides that a person who is arrested on a criminal charge has the right to be brought to trial without unreasonable delay, and section 23(2), which provides that an accused child must be brought to trial as quickly as possible.

Section 356D(1) of clause 59 of the bill engages these rights by providing that diversion is to work by way of adjournment to enable participation in diversion activities. The provisions promote sections 21(5)(b) and 23(2) of the charter, as sections 356D(1) and 356H(1) provide that the adjournment period to enable completion is intended to be brief (four months with the possibility for a further two-month extension, if appropriate) to minimise a child's exposure to the criminal justice system. If the child ceases participation in diversion, a plea is taken and the matter is to be resolved by way of contested hearing as soon as possible thereafter.

Equality before the law (section 8)

Section 8(3) of the charter provides that every person is equal before the law and is entitled to equal protection of law without discrimination. Discrimination in relation to a person means discrimination within the meaning of the Equal Opportunity Act on the basis of an attribute protected by that act, such as age. Section 8 of that act provides that direct discrimination occurs if a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute.

Section 356B of clause 59 engages this right as it provides that diversion is not available for offences punishable by a minimum or fixed sentence or penalty, including cancellation or suspension of licence under the Road Safety Act 1986. This restriction reflects Parliament's intention that certain offences should be treated differently to ensure public safety. As mandatory sentences generally do not apply to young people, this will mostly affect road safety offences in limited circumstances.

The reforms differentiate access to diversion on the basis of a child's offending. This type of differential treatment already occurs in many other aspects of sentencing by differentiating categories of offending and the consequences that apply to certain categories. As this differential treatment does not engage a protected attribute (such as age or gender), I do not consider that the right to equality is limited by this reform.

Privilege against self-incrimination (section 25(2))

Section 25(2)(k) of the charter provides a person has the right to not be compelled to confess guilt in criminal proceedings. The right to a fair hearing under section 24 is also relevant to the privilege against self-incrimination.

Clause 59 inserts section 356E(1)(a), providing that an order for diversion requires the child to acknowledge responsibility for the offence. Section 356E(1)(a) engages the right to not be compelled to confess guilt as a child might feel compelled to admit responsibility for an offence in order to participate in the scheme. Acknowledgement of responsibility will not, however, be taken as a finding of guilt, except for certain purposes outlined in section 356I(1)(c) such as forfeiture of proceeds of crime and weapons. Where the acknowledgement is treated as a finding of guilt, it is consistent with the adult diversion scheme and necessary to ensure an order can be made for the lawful confiscation and disposal of unlawful property as part of the protection of community safety. I consider any limitation in these circumstances is therefore reasonable and justified.

In addition, any limitation is appropriately safeguarded by other provisions within the bill. Section 356I(1)(a) provides that upon successful completion of diversion, no plea is to be taken and the court must discharge the child without any finding of guilt. Section 356E(2) provides that if the child ceases participation in the diversion program, the acknowledgement of responsibility will be inadmissible as evidence in a contested hearing. Section 356D(2) explicitly provides that the magistrate may refuse to accept a guilty plea, or grant leave for the child to withdraw a guilty plea if already entered, for suitability of diversion to be assessed, if the Children's Court considers it is appropriate.

The requirement that a child acknowledge responsibility is an important part of reducing recidivism and ensuring that the child is referred to appropriate support services, which are key parts of the overall purpose of the scheme.

The right not to be tried or punished more than once (section 26)

Section 26 of the charter provides that a person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law.

Section 356I(1)(d) of clause 59 of the bill provides that participation in and completion of the diversion program is a defence to a later charge for the same offence or a similar offence arising out of the same circumstances to protect the child from being punished more than once for the same offending.

Section 356I(2) of the bill provides that in circumstances where the child partially completes a diversion order but is then found guilty of the offence, the court must take into account the extent to which the child complied with the diversion program when sentencing the child. Taking participation in the diversion program into account ensures the response to the offending is not more onerous on the child than it would have been had the child not agreed to diversion.

Issuing an instruction not to communicate with a child (section 17)

The bill will amend sections 497 and 501 of the CYFA to provide for a mechanism for the relevant secretary to issue a written instruction to a person that they must not communicate with or attempt to communicate with a child placed under an interim accommodation order (clause 60) or in a youth detention facility (clause 61).

The amendments are intended to support prosecutions in relation to child sexual exploitation and as such, promote the rights of children under the charter, namely section 17(2) that provides every child has the right to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

Freedom of expression (section 15)

Section 15 of the charter provides that every person has the freedom to seek, receive and impart information and ideas, including orally and in writing. The right may be subject to lawful restrictions reasonably necessary to respect the rights of other persons, or for the protection of national security, public order, public health or public morality.

Clauses 60 and 61 of the bill provide for a mechanism whereby the relevant secretary may issue an instruction to a person that they not communicate with or attempt to communicate with a child in certain circumstances. This could limit a person's right to freedom of expression as it restricts the ability to communicate with another person. It is anticipated that an instruction not to communicate would primarily be issued where there is sufficient evidence that the child is at risk of sexual exploitation and following consultation with Victoria Police. While these provisions might limit the right to freedom of expression, any limitation would be justified and necessary to promote the rights of children under the charter. In particular, section 17(2) provides that every child has the right to protection as is in his or her best interests and is needed by him or her by reason of being a child.

The provisions might indirectly engage the rights to freedom of association (section 16(2)) and freedom of movement (section 12). To the extent that those rights are limited, that would similarly be reasonable and justified for the reasons given above.

For the reasons stated, I consider that this bill is compatible with human rights as set out in the charter.

The Hon. Gayle Tierney, MP
Minister for Corrections