Children, Youth and Families Amendment (Security ...FILE/14-029a.docx · Web viewChildren, Youth and Families Amendment (Security Measures) Act 2014 No. 29 of 2014 Children, Youth

Children, Youth and Families Amendment (Security Measures) Act 2014

No. 29 of 2014

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purpose 12 Commencement 23 Principal Act 2

PART 2—COMMUNITY SERVICES 3

4 Definitions 35 Delegation 36 Section 44 substituted 4

44 Departmental community services and secure welfare services 4

7 New Division 8 of Part 3.3 inserted 4

Division 8—Secure welfare services—Security measures 4

72A Definitions 472B Search on entering or leaving a secure welfare service 772C Secretary may order search 772D Unclothed search of child resident 772E Manner of conducting frisk search or unclothed search 872F Manner of conducting any search under this Division 872G Consequences of refusal to submit to search 1072H Seizure 1072I Seizure register 1072J Certain seized items to be handed to police 1172K Manner of dealing with seized things that may be

used in a legal proceeding 1172L Manner of dealing with seized money 1272M Manner of dealing with other seized articles or things 1272N Disposal 1372O Prohibition of use of seclusion as punishment 1372P Seclusion in secure welfare service 14

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PART 3—MANAGEMENT OF CHILDREN IN OUT OF HOME CARE 15

8 New Part 3.7 inserted 15

PART 3.7—MANAGEMENT OF CHILDREN IN OUT OF HOME CARE 15

161A Definitions 15161B Prohibited actions 15

PART 4—PERSONS IN DETENTION 17

9 Definitions 1710 Search on entering or leaving a youth justice facility 1811 Officer in charge may order search 1912 Unclothed search of detainee 1913 Manner of conducting search 19

PART 5—REPEAL OF AMENDING ACT 20

14 Repeal of amending Act 20═══════════════

ENDNOTES 21

Children, Youth and Families Amendment (Security Measures) Act

2014†

No. 29 of 2014

[Assented to 15 April 2014]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purpose

The main purpose of this Act is to amend the Children, Youth and Families Act 2005—

(a) to provide for security arrangements for secure welfare services;

Victoria

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(b) to prohibit certain actions in relation to children placed in an out of home care service, including a secure welfare service, or in the care of an out of home carer; and

(c) to make amendments in relation to the searches permitted in youth justice facilities; and

(d) to make other miscellaneous amendments.

2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 July 2014, it comes into operation on that day.

3 Principal Act

In this Act, the Children, Youth and Families Act 2005 is called the Principal Act.

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s. 2

See:Act No.96/2005.Reprint No. 4as at27 March 2013 and amending Act Nos 96/2005, 51/2006, 9/2013, 30/2013 and 52/2013.LawToday:www.legislation.vic.gov.au

Section Page

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PART 2—COMMUNITY SERVICES

4 Definitions

In section 3(1) of the Principal Act—

(a) in the definition of community service, after paragraph (a) insert—

"(ab) a secure welfare service established under section 44; or";

(b) for the definition of secure welfare service substitute—

"secure welfare service means a secure welfare service established under section 44;".

5 Delegation

(1) After section 17(1)(b) of the Principal Act insert—

"(c) the power to approve under section 72P(3) a period of seclusion of more than 24 hours; and".

(2) For section 17(4) of the Principal Act, for "above the power to approve under section 488(3) a period of isolation of more than 24 hours." substitute—

"above—

(a) the power to approve under section 72P(3) a period of seclusion of more than 24 hours; and

(b) the power to approve under section 488(3) a period of isolation of more than 24 hours.".

s. 4Part 2—Community Services

Children, Youth and Families Amendment (Security Measures) Act 2014No. 29 of 2014

3

6 Section 44 substituted

For section 44 of the Principal Act substitute—

"44 Departmental community services and secure welfare services

The Governor in Council may, by Order published in the Government Gazette—

(a) establish to be operated by the Department to meet the needs of children requiring protection, care or accommodation—

(i) a service as a community service; or

(ii) a service with lock-up facilities as a secure welfare service; or

(b) abolish a service referred to in paragraph (a).".

7 New Division 8 of Part 3.3 inserted

After Division 7 of Part 3.3 of the Principal Act insert—

"Division 8—Secure welfare services—Security measures

72A Definitions

In this Division—

child resident means a child who has been placed in a secure welfare service under this Act;

frisk search means a search of a person or of things in the possession or under the control of a person, other than a search conducted by use of an electronic or mechanical device, including—



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(a) a search of a person conducted by quickly running the hands over the person's outer clothing; and

(b) for the purposes of paragraph (a), requiring the person to remove—

(i) his or her overcoat, coat or jacket or similar article of clothing and any gloves, shoes and hat; and

(ii) anything else that is conveniently removed by the person;

screening search means a search of a person or of things in the possession or under the control of a person to detect the presence of unauthorised items, other than a search that may involve bodily contact, including—

(a) a search of a person conducted by passing or placing an electronic or mechanical device over, on or in close proximity to the person's outer clothing; and

(b) an examination (including an examination conducted by passing or placing an electronic or mechanical device over, on or in close proximity) of anything worn or carried by the person, including requiring the person to remove—




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(ii) anything else that is conveniently removed by the person;

seclusion, in relation to a child resident, means the placing of the child in a locked room separate from others and from the normal routine of the secure welfare service;

seizure register means the register maintained under section 72I;

staff member, in relation to a secure welfare service, means a person who is employed or directly engaged in the care of the child residents of the secure welfare service;

unauthorised item means any article or thing that may jeopardise the security of the secure welfare service or the safety of persons in the secure welfare service, including an article or thing referred to in section 72F(2)(a);

unclothed search means a search of a person or of things in the possession or under the control of a person that may include—

(a) requiring the person to remove all of his or her clothes; and

(b) an examination of the person's body (but not of the person's body cavities) and of those clothes;

visitor means any person, other than a child resident or staff member, who enters, leaves or remains in a secure welfare service.



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72B Search on entering or leaving a secure welfare service

(1) A person (whether a child resident, a visitor or any other person) who wishes or is required to enter or leave a secure welfare service must, if asked, submit to a screening search.

(2) A person must not be asked under this section to submit to a frisk search, an unclothed search or a search of his or her body cavities.

72C Secretary may order search

(1) The Secretary may order at any time, if in his or her opinion it is necessary to do so in the interests of the security or good order of a secure welfare service or the child residents, that a staff member—

(a) conduct a screening search or a frisk search on a child resident; or

(b) search and examine any thing in the secure welfare service.

(2) A child resident must not be asked under this section to submit to an unclothed search or a search of his or her body cavities.

72D Unclothed search of child resident

(1) The Secretary may cause a child resident to be subjected to an unclothed search if in his or her opinion it is necessary to do so—

(a) in the interests of the security or good order of the secure welfare service; or

(b) in the interests of the safety or security of the child resident or any other person in the secure welfare service.



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(2) A search under subsection (1) must not include a search of the child resident's body cavities.

(3) If necessary, reasonable force may be used to carry out a search under subsection (1).

72E Manner of conducting frisk search or unclothed search

(1) In the case of a frisk search or an unclothed search, the Secretary must ensure that the search is conducted only by a staff member of the same sex as the child resident being searched.

(2) In the case of an unclothed search, the Secretary must ensure that the search is conducted in the presence of another staff member.

(3) The other staff member referred to in subsection (2)—

(a) must be positioned in such a way that the child resident being searched is not in the view of that other staff member; and

(b) must be of the same sex as the child resident being searched, unless—

(i) the search is, in the opinion of the Secretary, urgently required; and

(ii) a staff member of the same sex is not available.

72F Manner of conducting any search under this Division

(1) Before carrying out a search of a person under this Division, the staff member who is to conduct the search must—



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(a) inform the person of his or her authority to conduct the search; and

(b) in the case of a person other than a child resident—

(i) inform the person that he or she may refuse the search; and

(ii) inform the person of the consequences of refusal.

(2) The staff member who is to conduct the search of a child resident or any person who has consented to the search must—

(a) ask the person if he or she has in his or her possession any article or thing which jeopardises or is likely to jeopardise the security of the secure welfare service or the safety of persons in the service, including—

(i) any firearm, offensive weapon or other article that is capable of being used as a weapon; or

(ii) any form of drug without the consent of the Secretary; or

(iii) any form of alcoholic liquor or beverage; or

(iv) money; or

(v) any other article or thing not allowed by the regulations; and

(b) ask the person to produce any article or thing referred to in paragraph (a).

(3) A staff member carrying out a search of a person under this Division must do so—

(a) expeditiously; and



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(b) with regard to the decency and self-respect of the person searched; and

(c) in compliance with any other prescribed requirement.

72G Consequences of refusal to submit to search

If, when asked, a person other than a child resident does not submit to a search authorised to be carried out under this Division, a staff member may—

(a) prohibit the person from entering the secure welfare service; or

(b) if the person is in the secure welfare service, order the person to leave the service immediately.

72H Seizure

(1) In carrying out a search of a person under this Division, a staff member may seize any article or thing of a kind referred to in section 72F(2)(a) that is found in the person's possession or produced in response to a request under section 72F(2)(b).

(2) A staff member who seizes any article or thing under subsection (1) must inform the Secretary.

(3) The Secretary must deal, in accordance with this Division, with any article or thing seized under this section.

72I Seizure register

(1) The Secretary must maintain a register of articles and things seized under section 72H(1).



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(2) If an article or thing is seized during a search, the Secretary must ensure that the prescribed information is entered in the seizure register.

72J Certain seized items to be handed to police

(1) If any of the following articles or things is seized, it must be handed to a member of the police force—

(a) a weapon;

(b) an explosive substance;

(c) a drug of dependence;

(d) any other article or thing which the person conducting the search suspects—

(i) is stolen; or

(ii) has been used in, or obtained as the result of, the commission of an offence.

(2) In this section, drug of dependence has the same meaning as it has in the Drugs, Poisons and Controlled Substances Act 1981.

72K Manner of dealing with seized things that may be used in a legal proceeding

Subject to section 72J, if an article or thing that may be used in a legal proceeding is seized at a secure welfare service, the Secretary must ensure that—

(a) the article or thing is held securely until the end of that proceeding; and



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(b) if the person from whom the article or thing was seized is not the owner of the article or thing—

(i) the person from whom it was seized is informed whether or not it will be returned to the owner; and

(ii) if the owner's name and address are known, the owner is informed whether or not it will be returned; and

(c) if the person from whom the article or thing was seized is the owner of the article or thing, the person is informed whether or not it will be returned; and

(d) the article or thing is otherwise dealt with in accordance with section 72M.

72L Manner of dealing with seized money

If money is seized at a secure welfare service and that money is not suspected of being stolen or used in, or obtained as a result of, the commission of an offence, the money must be returned to the person from whom it was seized when the person is released from the secure welfare service or the person leaves the secure welfare service.

Note

See section 72F(2)(a)(iv).

72M Manner of dealing with other seized articles or things

Subject to sections 72J, 72K and 72L, if an article or thing is seized at a secure welfare service, the Secretary must ensure that—



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(a) if the person from whom the article or thing was seized is not the owner of the article or thing—

(i) the person from whom it is seized is informed whether or not it will be returned to the owner; and

(ii) if the owner's name and address are known, the owner is informed whether or not it will be returned; and

(b) if the person from whom the article or thing was seized is the owner of the article or thing, the person is informed whether or not it will be returned; and

(c) the article is dealt with in any manner that is appropriate having regard to the nature of the article, including—

(i) disposing of the article or thing in accordance with section 72N;

(ii) returning the article or thing;

(iii) dismantling the article or thing.

72N Disposal

(1) The Secretary must ensure that at least 2 staff members carry out the disposal of an article or thing that has been seized at a secure welfare service.

(2) If an article or thing is disposed of, the Secretary must ensure that the prescribed details are recorded in the seizure register.

72O Prohibition of use of seclusion as punishment

The use of seclusion as a punishment is prohibited in relation to a child resident placed in a secure welfare service.



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72P Seclusion in secure welfare service

(1) The Secretary may authorise the seclusion of a child resident of a secure welfare service.

(2) Seclusion may only be authorised under subsection (1) if—

(a) all other reasonable steps have been taken to prevent the child resident from harming himself or herself or any other person or from damaging property; and

(b) the child's behaviour presents an immediate threat to his or her safety or the safety of any other person or to property.

(3) The period of seclusion must be approved by the Secretary.

(4) If necessary, reasonable force may be used to place a child resident in seclusion under this section.

(5) A child resident placed in seclusion must be closely supervised and observed at intervals of not longer than 15 minutes.

(6) The Secretary must make sure that the prescribed particulars of every use of seclusion under subsection (1) are recorded in a register established for this purpose.".

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PART 3—MANAGEMENT OF CHILDREN IN OUT OF HOME CARE

8 New Part 3.7 inserted

After Part 3.6 of the Principal Act insert—

"PART 3.7—MANAGEMENT OF CHILDREN IN OUT OF HOME CARE

161A Definitions

In this Part—

out of home carer has the same meaning as in section 74.

161B Prohibited actions

The following actions are prohibited in relation to a child placed in accordance with this Act in an out of home care service, including a secure welfare service, or in the care of an out of home carer—

(a) the use of physical force unless it is reasonable and—

(i) is necessary to prevent the child from harming himself or herself or anyone else or from damaging property; or

(ii) is necessary for the security of the out of home care service, secure welfare service or place where the child is cared for; or

(iii) is otherwise authorised by or under this or any other Act or at common law;



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(b) the administering of corporal punishment, that is, any action which inflicts, or is intended to inflict, physical pain or discomfort on the child as a punishment;

(c) the use of any form of psychological pressure intended to intimidate or humiliate the child;

(d) the use of any form of physical or emotional abuse.

__________________".

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PART 4—PERSONS IN DETENTION

9 Definitions

In section 482A of the Principal Act—

(a) the definition of formal search is repealed;

(b) for the definition of frisk search substitute—

"frisk search means a search of a person or of things in the possession or under the control of a person, other than a search conducted by use of an electronic or mechanical device, including—

(a) a search of a person conducted by quickly running the hands over the person's outer clothing; and

(b) for the purposes of paragraph (a), requiring the person to remove—


(ii) anything else that is conveniently removed by the person;";

(c) insert the following definitions—

"screening search means a search of a person or of things in the possession or under the control of a person to detect the presence of unauthorised items, other than a search that may involve bodily contact, including—

(a) a search of a person conducted by passing or placing an electronic or mechanical device over, on or in



17

close proximity to the person's outer clothing; and

(b) an examination (including an examination conducted by passing or placing an electronic or mechanical device over, on or in close proximity) of anything worn or carried by the person, including requiring the person to remove—


(ii) anything else that is conveniently removed by the person; and

(c) a search conducted with the assistance of an approved dog;

unauthorised item means any article or thing that may jeopardise the security of the youth justice facility or the safety of persons in the youth justice facility, including an article or thing referred to in section 488AD(3)(a);".

(d) in the definition of strip search, for "strip search" substitute "unclothed search".

10 Search on entering or leaving a youth justice facility

(1) In section 488A(1) of the Principal Act, for paragraphs (a) and (b) substitute—

"(a) a screening search; and

(b) a frisk search.".

(2) In section 488A(3) of the Principal Act, for "a strip search" substitute "an unclothed search".



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11 Officer in charge may order search

In section 488AB(2) of the Principal Act, for "a strip search" substitute "an unclothed search".

12 Unclothed search of detainee

(1) In the heading to section 488AC of the Principal Act, for "Strip search" substitute "Unclothed search".

(2) In section 488AC(1) of the Principal Act, for "a strip search" substitute "an unclothed search".

13 Manner of conducting search

In section 488AD(1) and (4) of the Principal Act, for "a strip search" substitute "an unclothed search".

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PART 5—REPEAL OF AMENDING ACT

14 Repeal of amending Act

This Act is repealed on 1 July 2015.Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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ENDNOTES

Endnotes


21

† Minister's second reading speech—

Legislative Assembly: 11 December 2013

Legislative Council: 27 March 2014

The long title for the Bill for this Act was "A Bill for an Act to amend the Children, Youth and Families Act 2005 to provide for security arrangements for secure welfare services, to prohibit certain actions in relation to children placed in an out of home care service, including a secure welfare service, or in the care of an out of home carer, to make amendments in relation to the searches permitted in youth justice facilities and for other purposes."

Documents

Children, Youth and Families Amendment (Security ...FILE/14-029a.docx · Web viewChildren, Youth and Families Amendment (Security Measures) Act 2014 No. 29 of 2014 Children, Youth