an ncylc e-bulletin

Issue #1: June 2003

AN UPDATE ON NSW LEGISLATION

The past 6 months has seen the NSW Parliament passing a slew of legislation. Not unexpectedly, some of these pieces of legislation have had considerable impact on young people's rights. Among these include:

Young Offenders Amendment Act 2002
Terrorism (Police Powers) Act 2002
Public Health Amendment (Juvenile Smoking) Act 2002
Bail Amendment (Repeat Offenders) Act 2002

Brief commentary on how the above Acts impact on young persons is given below.

Young Offenders Amendment Act 2002

This Act provides that young offenders who have been:

  1. convicted by a court; or
  2. found guilty of an offence by a court; or
  3. dealt with previously under the Young Offenders Act 1997

will not be entitled to a warning or caution under the Act anymore.

This amendment contradicts the spirit of the original 1997 Act - that Act provided that juveniles who had committed criminal offences were to be diverted away from the formal court system, and were to be encouraged to accept responsibility for their behaviour by using a variety of warnings, cautions and conferences. However, with this amendment, young offenders will only be granted one warning/caution/conference - it they re-offend, then they will be directly put back into the court system that they were supposed to be diverted away from.

Terrorism (Police Powers) Act 2002

Through this Act, police are given broad powers to search persons, premises, and vehicles without a warrant and without any need for a reasonable basis of suspicion for the search. However, of greater concern for children's liberties is Sch 1 cl 6 which permits police to strip-search children between the ages of 10 and 18 without a warrant - even though the Act "requires" that these strip-searches only be conducted in the presence of a parent/guardian of the child, it also states that this presence is not required if it is not "practicable". Although this seems to act as a safeguard against the abuse of children's liberties for the purposes of protection of the public against terrorism, this "safeguard" is merely discretionary and thus ultimately futile in upholding the rights of children.

Public Health Amendment (Juvenile Smoking) Act 2002

This Act amends the Public Health Act 1991 by giving a police officer the right to seize a smoking product from a person who s/he reasonably suspects to be under 18 years old: s 58(3) of the Public Health Act 1991. In allowing police to do so, not only is it degrading and embarrassing to the youth involved, but it is also unnecessary and useless in truly rehabilitating them. Even if the police officer does catch a young person smoking in a public place and seizes the product, the police officer can only prevent this prohibited action in that instance, and this will not be really of any long-term benefit either to the youth or society. This may also act as a further avenue through which police can physically come in contact with youth, and can thus potentially be open to abuse.

Bail Amendment (Repeat Offenders) Act 2002

This Act amends the Bail Act 1978 and removes the presumption in favour of bail for certain repeat offenders (described in ss 9B(1), 9B(2), 9B(3)), regardless of the type of offence they have committed: s 9B. Of particular concern is s 9B(1), where people will no longer be granted bail if, in connection with any other offence, they are:

  1. at liberty on bail;
  2. on parole;
  3. serving a sentence but was not in custody;
  4. subject to a good behaviour bond; or
  5. in custody.

Clearly this raises major concerns especially regarding people who have committed offences that do not even end up receiving a prison sentence - they will be imprisoned for offences which ultimately will not be given sentences of imprisonment. Whilst the adverse effects will be great in the adult population, the effects of such a law will inevitably be even more pronounced for children who have committed any of the above. To a certain extent, the courts may be able to mitigate these effects as they must have regard to the type of criminal history of the accused in order to refuse or grant bail: s 32(1)(b)(vi).

Gloria Chan