skip to content
Banner image

YOUTH COURT

Introduction

The Legal Services Commission of South Australia provides a duty solicitor service in the Youth Court of South Australia on a full time basis, to ensure that those appearing in the Court are not disadvantaged or denied access to justice.

This chapter contains information about practice and procedure in the criminal and civil jurisdictions of the Youth Court. More specifically, the information relates to young defendants charged with criminal offences, and to care and protection proceedings, highlighting the aim of the Court’s criminal jurisdiction ‘to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential’ [see Young Offenders Act 1993 s 3(1)].

There is also reference to how young offenders can be diverted away from the criminal law justice system through police cautions, family conferences and other specialist court programs.

OBLIGATIONS WHEN ACTING FOR YOUTH

There are some important points for duty solicitors to bear in mind when taking instructions from a youth.

The duty solicitor must be certain that the youth has a sufficient understanding of the nature of the charge and of the allegations made against them, and that they are capable of making reasoned judgments regarding the legal options available.

The duty solicitor must also be sure that when they proceed to act it is on the youth’s instructions and no-one else’s. It is the youth who is the client, not their parents, guardians or close associates, and not Department for Child Protection personnel. Information that may be gleaned from such sources may assist the duty solicitor when they come to apply for bail or make submissions in mitigation of penalty. However, the opinions of other people should not distract the duty solicitor from, or colour the youth’s instructions. The duty solicitor's professional duty is to the youth alone, and they must act on the youth's instructions only.

Wherever possible, the duty solicitor should see the youth alone when first taking instructions. Where the youth particularly requests the presence of a parent, guardian or associate, the duty solicitor should be careful to make it clear that that such a person may remain present in a supportive capacity, not as an instructor.

Relevant legislation and regulations

There are a number of instruments of legislation governing practice, procedure, and sentencing principles when dealing with young offenders. The provisions in the Criminal Procedure Act 1921 (SA), the Bail Act 1985 (SA) and the Sentencing Act 2017 (SA) remain relevant in relation to practice, procedure, bail applications and the sentencing of young offenders. However, there are other legislative sources which modify these Acts and empower the Youth Court to impose particular penalties or orders.

The Youth Court Act 1993 (SA) and the Young Offenders Act 1993 (SA) outline powers, practice and procedure particular to the Youth Court and penalties which are unique to young offenders.

The Youth Justice Administration Act 2016 (SA) administers the youth detention system and the treatment of young offenders within training centres.

Relevant regulations are the Youth Court (Fees) Regulations 2010 (SA), the Young Offenders Regulations 2008 (SA) and the Youth Justice Administration Regulations 2016 (SA).

The Youth Court also has civil jurisdiction in relation to the care and protection of children under the Children and Young People (Safety) Act 2017 (SA) see The civil jurisdiction of the Youth Court.

The Youth Court of South Australia

Jurisdiction and powers

The Youth Court Act 1993 (SA) establishes the Youth Court as a court of criminal and civil jurisdiction with powers conferred in accordance with the Young Offenders Act 1993 (SA), the Bail Act 1985 (SA), the Children and Young People (Safety) Act 2017 (SA), and any civil or criminal jurisdiction as conferred by any other Act [see Youth Court Act 1993 (SA) s 7].

In addition to these jurisdictions, the Youth Court may make, vary or revoke a non-association, place restriction or restraining order under the Criminal Procedure Act 1921 (SA) or an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA), where the person for or against whom protection is sought is a child or young person [see Youth Court Act 1993 (SA) s 7(ba) and (c)].

The judiciary of the Youth Court

The court’s judiciary consists of a Senior Judge of District Court who is the principal judicial officer of the court, as well as Judges of the District Court, Magistrates, judicial registrars and special justices [see Youth Court Act 1993 (SA) ss 9 and 10]. In practice there are two District Court Judges (the Senior Judge and another) and two Magistrates who preside over the Youth Court.

In relation to criminal proceedings, the Court may not impose a sentence of more than 3 years [see Youth Court Act 1993 (SA) s 14(2)], and a judicial registrar may not impose a sentence of detention [s 14(2a)]. A special justice may not hear and determine a major indictable offence, impose a sentence of detention or hear and determine any application relating to the care and protection of children or young people [s 14(3)]. If necessary, a judicial registrar or special justice may adjourn the question of sentence for hearing and determination by the Senior Judge or a Magistrate [s 14(5)].

The Registrar, a judicial registrar or a special justice may issue summonses and warrants, adjourn proceedings or exercise any procedural or non-judicial powers as assigned by the rules [see s 14(7)].

Confidentiality of Proceedings

Closed court

Section 24 of the Youth Court Act 1993 (SA) provides that proceedings in the Youth Court are held in closed court and no person may be present at any sitting of the Court except for:

  • officers of the Court [see s 24(a)];
  • officers or employees of the administrative unit responsible for assisting a Minister in the administration of the Youth Justice Administration Act 2016 (SA) [see s 24(ab)];
  • officers or employees of the administrative unit responsible for the administration of the Family and Community Services Act 1972 (SA) [see s 24(b)];
  • parties to the proceedings and their legal representatives [see s 24(c)];
  • witnesses while giving evidence or where permitted by the Court to remain in the Court [see s 24(d)];
  • a guardian of the child or youth to whom the proceedings relate, and if the proceedings relate to an offence or alleged offence, an adult nominated by the youth who has had a close association with the youth or who has been counselling, advising or aiding the youth [see ss 24(e) and 24(f)(iii)];
  • where the proceedings relate to an offence or alleged offence: an alleged victim of the offence and a person chosen by the victim to provide them with support, including where the proceedings also relate to other alleged offences [see ss 24(f)(i) and 24(1a)];
  • a genuine representative of the news media [see s 24(f)(ii)];
  • any other persons authorised by the Court to be present [see s 24(h)].

The Court may exclude any of the persons listed above where the Court considers it necessary to do so in the interests of the proper administration of justice [see s 24(2)].

Reporting restrictions on court proceedings

Section 63C of the Young Offenders Act 1993 (SA) prohibits the publication of court proceedings by radio, television, newspaper or in any way where a child or youth is alleged to have committed an offence where:

  • the Court has prohibited such publication [see s 63C(1)(a)]; or
  • the report identifies the child or youth, or contains information tending to identify the child or youth [see s 63C(1)(b)(i)]; or
  • the report reveals the name, address, school, or includes any particulars, picture or film that may lead to the identification of a child or youth involved in the court proceedings (whether as a party or a witness) [see s 63C(1)(b)(ii)].

The Court may permit the publication of particulars, pictures or films that would otherwise be suppressed from publication in accordance with section 63C(1)(b) on such conditions as it thinks fit [see s 63C(2) Young Offenders Act 1993 (SA)].

It is an offence to contravene section 63C(1), or a condition imposed under section 63C(2). The maximum penalty is a fine of $10,000 [see s 63C(3)].

Applying for a suppression order

Section 63C of the Young Offenders Act 1993 (SA) invests the Court with power to make suppression orders, and in so doing the Court must have regard to the object of section 3(1) of the Young Offenders Act 1993 (SA) which is:

to secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential’ [see R v Jones [2008] SASC 150] .

Different considerations apply for a suppression order in accordance with section 63C, which focuses on the youth, compared to a suppression order in accordance with section 69A of the Evidence Act 1929 (SA), which focuses on the proper administration of justice and undue hardship to a victim, witness or child.

SUPPRESSION ORDERS

Suppression orders can be sought to prohibit the reporting of any material which could prejudice a fair trial at a later stage, but it is advisable for duty solicitors to arrange to brief such applications to a senior practitioner immediately.

A duty solicitor may need to apply to the Court for an order suppressing the publication of material which may not directly tend to identify the youth, but may nonetheless be prejudicial to the objects of the Young Offenders Act 1993 (SA), or to the proper administration of justice in accordance with section 69A of the Evidence Act 1929 (SA). Some examples are:

  • Allegations of prior offending;
  • Allegations of admissions purportedly made to police;
  • Reference to psychiatric, psychological or medical disorders which may be made within reports ordered by or submitted to the Court;
  • Reference to family, school, employment or racial background.

Reporting restrictions on police cautions and family conferences

It is an offence to publish, by radio, television, newspaper or in any other way, a report of any action or proceeding taken against a youth by a police officer or family conference where the report identifies the youth or contains information tending to identify the youth, or reveals the name, address or school, or contains particulars, or picture or film that may lead to the identification of any youth concerned in the action or proceeding [see Young Offenders Act 1993 (SA) ss 13(1)(a) and 13(1)(b)].

In similar fashion, it is an offence to publish information which would identify the victim or any other person involved in an action or proceeding (other than a person involved in an official capacity) without the consent of the person [see Young Offenders Act 1993 (SA) s 13(1)(c)]. A person employed or engaged in the administration of the Act must not divulge information about a youth against whom any action or proceeding is taken, except in the course of his or her official function, or where the information is given to a person in accordance with a court order [see ss 13(2) and 13(1f)(a)]. The maximum penalty for these offences is a fine of $10,000 [see s 13(3)].

The criminal jurisdiction of the Youth Court

Youth Court Rules

There are Youth Court Rules and Youth Court (Young Offenders) Rules and Youth Court Practice Directions relevant to the criminal jurisdiction of the Court - See the Courts SA website for the Rules, Practice Directions, and Forms.

Magistrates Court Rules 1992

The Youth Court (Young Offenders) Rules 2016 r 7 states that except as already provided for by these rules, and subject to any provision to the contrary in the Young Offenders Act 1993 (SA) or the Youth Court Act 1993 (SA), the Magistrates Court Rules 1992 will apply to the extent that they are relevant in the criminal jurisdiction of the Court.

Youth Court Practice Directions

From time to time the Senior Judge may issue Practice Directions governing procedural requirements and court etiquette.

There are practice directions for the criminal jurisdiction of the Youth Court - these can be found on the Courts SA website.

Practice Direction 1 of 2003 - Case Flow Management, is concerned with the listing and disposition of criminal matters under the Young Offenders Act 1993 (SA). Of particular note:

First court appearance

  • Upon the first appearance for a criminal matter, the Court shall advise unrepresented youth of their right to representation and provide any other relevant information to satisfy the requirements of Cooling v Steel[see Practice Direction 1 of 2003 para 3; Cooling v Steel (1971) 2 SASR 249].
  • Where the youth does not plead guilty at the first court appearance, the matter may be adjourned or remanded to enable the youth to obtain legal aid, advice and representation, but not for a period exceeding six weeks [see Practice Direction 1 of 2003 para 4].

Second court appearance

  • At the second court appearance, the youth must inform the Court as to whether they intend to plead guilty or not guilty [see Practice Direction 1 of 2003 para 5].
  • Where the youth informs the Court of their intention to plead guilty, the matter may be adjourned or remanded to enable the court and the youth to obtain information, evidence and reports required for consideration of the penalty [see Practice Direction 1 of 2003 para 6].
  • Where the youth informs the Court of their intention to plead not guilty, the Court may adjourn or remand the matter for a further eight weeks for a pre-trial conference. All parties must comply with rule 26 of the Magistrate Court Rules 1992.

Third court appearance

  • Where the matter was not finalised on the second court appearance, the Court should attempt to finalise the matter on the third court appearance [see Practice Direction 1 of 2003 para 7].
  • At the pre-trial conference, counsel is expected to make “realistic and achievable” estimates of the length of trials and remain available during the time allocated for the trial [see Practice Direction 1 of 2003 para 9].
ENSURE COMPLIANCE WITH PRACTICE DIRECTIONS
It is important that the duty solicitor know and observe these practice directions and ensure that their matters are prepared in compliance with them.

The Young Offenders Act 1993 (SA)

As already mentioned [see Applying for a suppression order] an objective of the Young Offenders Act 1993 (SA) is to 'secure for youths who offend against the criminal law the care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential’ [see Young Offenders Act 1993 s 3(1)]. This must be balanced against the need for youths to be aware of their obligations under the law and the consequences of breaching the law, and the need for the community to be protected against violence and wrongful acts [see s 3(2)].

The Young Offenders Act 1993 (SA) sets out a three-tiered system of juvenile justice. There are two tiers of pre-court diversion which apply where a youth admits to offending and is a first offender or a relatively low-level offender. These are formal and informal police cautions and family conferences [see ss 6, 7 and 9-12]. Offences dealt with by police caution or family conference are not formally charged and do not come before the Youth Court unless a youth fails to attend a family conference, or does not admit the offence, or subsequently fails to comply with an undertaking as to penalty.

Hearings conducted by the Youth Court are the third tier of the juvenile justice system. The Youth Court hears and determines matters for which charges have been formally laid and include:

  • any matters which are disputed, however minor in nature;
  • more serious offences which are set for trial or for guilty plea and sentence;

Breaches of undertakings given in the course of a formal police caution or a family conference may result in a charge or charges being laid and referred to the Youth Court. The Youth Court also has a discretion to refer matters to be dealt with by way of formal police caution or family conference where appropriate [see Young Offenders Act 1993 s 17(2)]. Examples of this are where a youth admits allegations of minor or first offending which had previously been disputed, or agrees to attend diversionary proceedings despite prior failure(s) to attend

THE ROLE OF DUTY SOLICITOR
Where the duty solicitor is instructed in relation to a disputed matter involving minor and/or first time offending, the youth should be advised that the matter may still be dealt with by way of diversion where theyinstruct that the facts in the allegations are admitted.

Negotiations with the police prosecutor at court are frequently successful in resolving disputes of fact to enable the matter to be referred back to a police caution or family conference with the youth admitting to the facts as agreed. The youth should be advised that matters which are admitted at a formal police caution or family conference are recorded as prior criminal offending and will be brought up in any further Youth Court proceedings, but they will not be alleged in adult matters. [see Young Offenders Act 1993 (SA) s 58 ].

The youth should be clearly advised about the availability of diversionary alternatives to court. However, you should avoid the appearance of inducing or pressuring the youth to admit to a disputed offence for the sake of convenience, bearing in mind that frequently he or she may be anxious to resolve matters this way.
SIGNED INSTRUCTIONS

It is a good idea for the duty solicitor to obtain signed instructions from the youth if they change instructions and wish to admit the offence for referral back to police caution or family conference.

Terminology used in the Young Offenders Act 1993

Youth

A youth is defined as a person of, or above the age of ten years but under the age of eighteen years on the date of the alleged offence [see Young Offenders Act 1993 s 4 for definition]. Where the Court does not have satisfactory evidence of the age of a youth against whom proceedings have been brought, the Court may make its own estimate of the age of the youth and act on the basis of that estimate [see s 57].

In accordance with the Young Offenders Act 1993 (SA), a person under the age of ten years cannot commit a criminal offence [see s 5].

In relation to Commonwealth offences, a child under ten years cannot be liable for an offence against a law of the Commonwealth [see Crimes Act 1914 (Cth) s 4M]. A child aged ten years or more but under fourteen years can only be liable for an offence against a law of the Commonwealth if the child knows that his or her conduct is wrong [see Crimes Act 1914 (SA) s 4N(1)]. Whether a child knows that his or her conduct is wrong is one of fact for which prosecution have the burden of proof [see s 4N(2)].

THE COMMON LAW DOCTRINE OF DOLI INCAPAX

The duty solicitor should be aware of the common law doctrine of doli incapax, whereby a minor between the ages of ten and fourteen is presumed incapable of criminal conduct. The presumption must be rebutted by prosecution evidence that the youth had guilty knowledge that he or she was doing wrong in committing the actus reus (physical element of the offence) [see R v JTB [2009] 3 All ER 1 as an example].

The doctrine arises relatively rarely in practice. However, it may be an issue where the youth’s upbringing of neglect or specific culturally-condoned behaviours suggests that the youth may lack knowledge of ordinary moral notions. Where there appears to be a possibility that the presumption may not be capable of rebuttal on the prosecution case, you should advise the youth to refrain from entering a plea of guilty until senior legal advice is sought. Rebuttal evidence could include, for example, admissible proof of prior convictions for similar offending or inferences capable of being drawn from statements made by the youth in a record of interview or elsewhere.

Youth Justice Administration Act 2016

The Youth Justice Administration Act 2016 (SA) commenced on 1 December 2016. The objects of the Act are to provide for the administration of the juvenile detention scheme and to ensure the safe, humane and secure management of youths held in training centres within South Australia.

The Youth Justice Administration Act 2016 (SA) and the Young Offenders Act 1993 (SA) are companion pieces of legislation and should be read together and construed as if they were a single Act [Youth Justice Administration Act 2016 (SA) s 5(1)]. Terms used in both Acts have the same meaning unless otherwise indicated [s 5(2)].

Under section 4 of the Youth Justice Administration Act 2016 (SA) the term ‘resident’ is used to refer to a youth detained in a youth training centre and this terminology is used in the following section.

Training Centre Visitor

The Act creates the position of Training Centre Visitor.

The role of the Training Centre Visitor encompasses the following responsibilities [s 11]:

  • to conduct visits to training centres;
  • to conduct inspections of training centres;
  • to promote the best interests of the residents of training centres;
  • to act as an advocate for the residents of a training centre in promoting the resolution of issues relating to their care, treatment or control;
  • to make inquiries and provide advice to the Minister in relation to any necessary systemic reforms;
  • to inquire into and investigate any matter referred to them by the Minister.

The Training Centre Visitor is required to give proper weight to the views of training centre residents and to have particular regard to the needs of residents who are under the guardianship of the Minister, Aboriginal or Torres Strait Islander youths or residents with a physical, psychological or intellectual disability.

A resident of a training centre; a guardian, relative or carer of a resident; or any other person providing support to a resident may make a request to contact the Training Centre Visitor. Any such request must be made to the Chief Executive who must advise the Training Centre Visitor of the request within 2 days of receipt of the request [s 17].

Charter of Rights

The Act also provides for the creation of a Charter of Rights for Youths Detained in Training Centres. Any person exercising functions or powers under the Act must have regard to the terms of the Charter in any dealings with a youth who is in detention. A copy of the Charter must be provided to a training centre resident on their arrival.

Assessment on admission to a training centre

In addition to being provided with a copy of the Charter, the following must take place on admission into a training centre:

  • a guardian, relative or carer of the youth must be notified that the youth has been admitted to the centre;
  • as soon as practicable after the initial admission, a screening must be done to assess the youth’s individual needs and circumstances preferably with the participation of the a guardian, relative or carer of the youth;

The assessment must take into account the following:

  • age;
  • gender or gender identity
  • sexuality or sexual identity;
  • cultural identity;
  • developmental and cognitive capacity, ability or disability;
  • any special needs;
  • social, medical, psychological and educational background;
  • needs in respect of education and training and medical, psychological or psychiatric treatment;
  • aptitude of the youth for any particular form of education, vocational training or work;
  • the nature of the offence(s) for which the youth has been detained and the length of the sentence;
  • the behaviour of the youth while in the training centre;
  • maintenance of the youth’s family and community ties;
  • any responsibilities the youth has a carer;
  • any proposed plans for release of the youth and his or her rehabilitation;
  • any representations made by the youth and any other person (e.g. a guardian, relative or carer);
  • any such other matters as the Chief Executive thinks relevant.

Assessments must occur at least once in each prescribed period whilst the youth is resident in a training centre [s 23(4)] and and if no period is prescribed then a period of no longer than 3 months.

Management and treatment of training centre residents

Under section 26 of the Act the Chief Executive may make rules relating to the management of a training centre and regulating the conduct of residents in training centres. Any such rules must be published for the benefit of residents and, where a resident is illiterate or non-English speaking, a reasonable attempt must be made to make the rules known to them.

Residents who are of compulsory school or education age are to be encouraged to continue their education [s 27].

Safe rooms

The use of safe rooms is regulated by the Act under section 28. A resident may only be detained if an employee of the centre believes on reasonable grounds that:

  • the resident is about to harm him/herself or another person; or
  • the resident is about to casue significant damage to property; or
  • it is necessary to detain the resident to maintain order or security in the centre.

Regardless of the above, a resident who is under the age of 12 years must not be detained in a safe room.

The manager of the centre must be informed as soon as is reasonably practicable if any resident is detained in a safe room.

For residents aged between 12 and 14 years detention must be for no longer than 24 hours.

If a resident is aged 15 years or over the detention can be for no longer than 48 hours.

Residents must be closely supervised whilst detained in a safe room and observed at intervals of not longer than 5 minutes. All observations must be recorded in writing and records are to kept. A written account of the incident that lead to the detention must also be provided by the youth. If the resident cannot write they can nominate their case manager or case worker, a lawyer, the Guardian for Children and Young People, the Training Centre Visitor, a cultural advisor, a parent, guardian or carer to write the account on their instructions.

Prohibited treatment

The Act prohibits the following forms of treatment [s 29]:

  • corporal punishment;
  • isolation or segregation from other residents (other than in a safe room or in prescribed circumstances) – for details see regulations 6 and 7 of the Youth Justice Administration Regulations 2016 (SA);
  • the use of any psychological intimidation or emotional abuse intended to intimidate or humiliate;
  • deprivation of medical attention;
  • deprivation of basic food or drink, clothing or other essential items;
  • deprivation of sleep;
  • restriction of free movement by the use of mechanical restraints (other than in prescribed circumstances – for details see regulation 8 of the Youth Justice Administration Regulations 2016 (SA);
  • unjustified deprivation of contact with persons outside of the centre;
  • any other treatment that is cruel, inhuman or degrading.
Circumstances in which prohibited actions allowed

Isolation

Regulation 6 of the Youth Justice Administration Regulations 2016 prescribes the circumstances under which a resident of a training centre may be isolated by being placed in a locked room, that is, where a training centre employee believes on reasonable grounds that:

  • the resident is in need of protection from other residents for their personal safety; or
  • the resident’s behaviour constitutes a threat to the safety of others and all reasonable de-escalation actions have failed; or
  • it is necessary to isolate the resident from other residents to maintain order or preserve security in the centre or to protect the health of other persons.

Isolation (within the resident’s room) may occur at the request of the resident themselves, or if they are ill. If isolation occurs under these circumstances, the resident must be released upon their request.

Isolation of a resident must not be used as a punishment measure and must not contravene the resident’s rights under the Charter of Rights for Youths Detained in Training Centres. It must also not act so as to limit the resident’s ability to communicate with employees of the centre at any time.

During the period of isolation the resident must be closely supervised and observed at intervals of not longer than 15 minutes. Observations must be recorded.

The manager of the training centre must ensure that a record is kept noting the name and age of the resident; the dates and times that the isolation began and ended; the reason for the isolation; the name of the employee who ordered the isolation and any action taken before the resident was isolated.

Length of isolation period

The manager of the centre must be information if isolation occurs for a period greater than 30 minutes.

Isolation must not continue for longer than is reasonably necessary under the circumstances or for longer than 3 hours unless the manager of the centre approves a longer period.

Where a resident is isolated for a period greater than 3 hours the isolation must not continue for longer than 24 hours unless the manager of the centre considers that the circumstances are exceptional and isolation for the longer period has been approved by the Chief Executive.

Segregation

Regulation 7 specifies that segregation may only occur on the following grounds:

  • the resident is in need of protection from other residents for their personal safety; or
  • the resident’s behaviour poses a threat to their own safety or the safety of others and all other reasonable de-escalation actions have failed; or
  • it is necessary to segregate the resident to maintain order in the centre or preserve the security of the centre.

As with isolation, segregation cannot be used to the punish the resident nor can it be used to limit the ability of the resident to communicate with employees of the centre at any time or limit access to exercise periods or contact with visitors (beyond what is normally allowed for the resident).

Contact with other residents cannot be restricted for more than 22 hours in any 24 hour period unless it would be detrimental to the wellbeing of the resident or other residents.

Where a resident is segregated a parent, guardian or carer must be informed as soon as reasonably practicable. Where a resident is under 12 years of age the Training Centre Visitor must be informed.

Use of mechanical restraints (reg. 8 of the Youth Administration Regulations 2016)

A resident may only be restricted by means of a mechanical restraint of a kind approved by the Chief Executive and where an employee of the centre believes on reasonable grounds that:

  • the resident is about to harm themselves or another; or
  • it is necessary to restrain the resident to preserve the security of the centre; to prevent the resident from escaping or to protect the community.

The use of a mechanical restraint is a last resort option and must not be used to punish a resident or to contravene the resident’s rights under the Charter of Rights for Youths Detained in Training Centres.

Use of force

Under section 33 an employee may only use such force as is reasonably necessary in the following instances:

  • to prevent the resident from harming him/herself or another person; or
  • to prevent the resident from causing significant damage to property; or
  • to maintain the order or preserve the security of the centre.

Where force is used a written report must be provided to the manager of the training centre from the employee as well as an account of the incident prepared by the resident.

Pre-court diversion for minor offences

Minor offence

A minor offence is an offence which should, in the opinion of the police officer in charge of the investigation of the offence, be dealt with as a minor offence because of:

  • the limited extent of the harm caused through the commission of the offence; and
  • the character and antecedents of the alleged offender; and
  • the improbability the youth will re-offend; and
  • where relevant, the attitude of the youth’s parents or guardians.

[see Young Offenders Act 1993 (SA) s 4 for definition]

A minor offence is defined by reference to the subjective assessment of the police officer in charge of the investigation of the offence. That assessment effectively determines whether an admitted offence is diverted to an informal or formal police caution, a family conference, or whether charges for the offence(s) are laid and the matter referred to the Youth Court for determination. Such an assessment will depend on whether:

  • the youth has offended before;
  • the offence caused limited harm only (examples are shoplifting items of low value; dishonesty offending involving property of low value; property damage of low value or where restitution is offered; behavioural or 'street' offences which do not involve a specific victim; simple cannabis offences; minor offences related to public transport; consumption of liquor; and rarely, traffic offences which do not involve licence disqualification or detention by way of sanction);
  • the youth is likely to re-offend;
  • the youth’s parents or guardians support pre-court diversion.

Part 2 of the Young Offenders Act 1993 (SA) provides for pre-court diversion for minor offences by way of informal and formal police caution.

Informal police caution

Section 6(1) of the Young Offenders Act 1993 (SA) provides that where a youth admits the commission of a minor offence, and a police officer is of the opinion that the matter does not warrant any formal action, the police officer may informally caution the youth against further offending. Where an informal caution is given:

  • no further proceedings may be taken against the youth for the offence for which they received a caution [see s 6(2)]; and
  • any record of a formal caution does not constitute a criminal record and may not be referred to for the purposes of a criminal record check or in any judicial proceedings (without the youth’s consent) [see s 6(3)].

Formal police caution

Section 7 of the Young Offenders Act 1993 (SA) provides that where a youth admits the commission of a minor offence and the police officer is of the opinion that the matter warrants a formal action, such as a formal caution or family conference, the police officer must first explain to the youth:

  • the nature of the offence and the allegations [see s 7(2)(a)(i)]; and
  • the youth is entitled to obtain legal advice [see s 7(2)(a)(ii)]; and
  • the youth is entitled to have the matter dealt with by the Court rather than by the police [see s 7(2)(a)(iii)]; and
  • where the offence is admitted, and the youth does not wish to have the matter heard in court, the admission should be reduced to writing and signed by the youth [see s 7(2)(b)].

The explanation and signing of an admission by the youth should be undertaken, where practicable, in the presence of a guardian of the youth or an adult person nominated by the youth who has had a close association with the youth or has been counselling, advising or aiding the youth [see s 7(3)].

The nature of a formal police caution

In the exercise of a formal caution, the police officer must explain to the youth the nature of the caution and the fact that evidence of the caution may be treated as evidence of commission of the offence, if the youth is subsequently dealt with in court for the offence [see Young Offenders Act 1993 (SA) s 8(2)(a)]. In addition, the caution must be administered, where practicable, in the presence of a guardian of the youth or an adult person nominated by the youth who has had a close association with the youth or has been counselling, advising or aiding the youth [see s 8(2)(b)]. The caution must be put into writing and acknowledged by the youth in writing [see s 8(2)(c)].

The police officer must take all reasonable steps to give the guardians of the youth an opportunity to make representations with respect to the matter [see s 8(3)]. The police officer must consult with the victim as to whether he or she wishes to be informed of the identity of the offender and how the offence has been dealt with [see s 8(9)].

ADVICE RELATING TO FORMAL POLICE CAUTIONS
The duty solicitor may need to advise a youth or their guardian about the nature and consequences of a formal police caution to help them decide whether it is appropriate to use this “out-of-court” method to resolve the matter.

Powers and sanctions available in relation to a formal police caution

Section 8 of the Young Offenders Act 1993 (SA) provides the powers and sanctions available to a police officer in relation to a formal police caution. In addition to administering a formal caution against further offending, the police officer may also require the youth to enter into an undertaking to:

  • pay compensation to the victim of the offence [see s 8(1)(a)];
  • carry out a specified period of community service, but not exceeding seventy five hours [see s 8(1)(b)];
  • apologise to the victim of the offence [see s 8(1)(c)];
  • apologise to the person who has suffered loss or damage as a result of the offence [s 8(1)(d)]; or
  • do anything else that may be appropriate in the circumstances of the case [s 8(1)(e)].

    Any apology by a youth to a victim or person who has suffered loss or damage must be made in the presence of an adult person approved by the police officer [see s 8(5)].

Any undertaking must be signed by the youth, a representative of the Commissioner of Police, and if practicable, the youth’s parents or guardians [see s 8(6)(a)]. An undertaking has a maximum duration of three months [see s 8(6)(b)].

If a youth is cautioned, and there are no further requirements, or all requirements made are complied with, the youth is not liable for prosecution for the offence [see s 8(8)].

As a matter of practice, a formal police caution is delivered by a senior police officer in uniform in the presence of the youth’s guardian or an adult person associated with the youth. It need not be given at a police station and may take place, for example, at the youth’s home, school, or where a matter has proceeded at the Court but then been referred back to a formal police caution under section 17(2) of the the Young Offenders Act 1993 (SA), in the precincts of the Court itself. Before a caution can be delivered, the allegations must be admitted by the youth and he or she must acknowledge the caution in writing.

OFFICIAL RECORD OF FORMAL CAUTION
An official record of police cautions is kept. In this way, the youth’s admission of the offence and receipt of a formal police caution can be subsequently alleged as prior offending should the youth re-offend and come before the Youth Court at a later date. Cautions are not alleged as prior offending past the age of eighteen, although records are maintained. [see Young Offenders Act 1993 (SA) s 58].

Failure to comply with a formal police caution

Section 8 of the Young Offenders Act 1993 (SA) provides that where a youth fails to comply with a requirement of a police officer, or an undertaking, the police officer may:

  • refer the matter to a Youth Justice Co-ordinator so that a family conference may be convened to deal with the offence [see s 8(7)(a)]; or
  • where the youth requires the matter be dealt with by the Court, lay a charge for the offence before the Court [see s 8(7)(b)].
CONFLICTING INSTRUCTIONS

A situation may arise where a youth maintains the assertion of innocence to the duty solicitor in confidence but instructs that they wish to admit the charge and accept a formal caution to ‘get it over and done with’. While this is a decision the youth is entitled to make, they duty solicitor cannot ethically continue to act on the basis of those instructions.

The proper course is for the duty solicitor to advise the youth that acceptance of a caution constitutes admission of the offence and provide the youth with information about the range of penalties which can be imposed following a caution. The duty solicitor should also advise the youth that they have a right to take the matter to trial and decline to act further on the youth's behalf.

This means that where the youth’s confidential instructions do not represent an unambiguous admission of liability the duty solicitor should not be physically present when the caution is delivered, nor continue to negotiate agreed facts with prosecution which conflict with the youth’s confidential instructions. In practice, solicitors would not normally attend during the cautioning process anyway.

SIGNED INSTRUCTIONS

In cases where the duty solicitor has been involved in negotiating disputed issues with prosecution with the result that the youth now instructs that they admit the offence on a basis of agreed facts, and wishes to accept the caution, the duty solicitor must obtain signed instructions to that effect.

Family conference

The object of the family conference is to establish a forum for offender/victim mediation aimed at making non-recidivist young offenders aware of the consequences of and accepting responsibility for their behaviour. It is a non-adversarial model which involves discussion, often over a period of several hours, of the causes and damaging consequences of the particular offence in the hope of dissuading the youth from further offending.

A family conference may be convened by a Youth Justice Coordinator on notification by a police officer pursuant to section 7 of the Young Offenders Act 1993 (SA) where the youth:

  • admits the offence as reduced to writing; and
  • does not require the matter to come before the court; and
  • has had an opportunity to obtain legal advice.

[see Young Offenders Act 1993 s 7(1)(b) for referral to family conference; s 8(7)(a) for referral upon failure to comply with a police caution requirement or undertaking]

A family conference may not be convened where the youth disputes the offence and/or particular allegations. Where a matter is contested the youth must be charged and the matter must come before the Court for determination [see Young Offenders Act 1993 s 7(4)].

ADVICE RELATING TO A FAMILY CONFERENCE
As with a formal police caution, a youth must have the opportunity to seek legal advice prior to such a referral. The duty solicitor may on occasion be required to advise a youth and/or their parent or guardian of the nature and consequences of family conference proceedings, the youth’s rights and obligations if they agree to attend a family conference, and the advantages or otherwise of exercising the right to have the matter dealt with by the Court rather than by family conference.

The nature of a family conference

Sections 9 - 12 of the Young Offenders Act 1993 (SA) provide for referral to a family conference. Section 10 outlines the arrangements to be made by a Youth Justice Coordinator upon notification by a police officer for a matter to be convened for a family conference [see s 10 for the persons to be notified]. The date, time and place of the family conference are arranged by the Youth Justice Coordinator in consultation with all intended participants who should then be notified in writing. The family conference consists of:

  • a Youth Justice Coordinator (who chairs the conference) [see s 11(1)(a)];
  • the youth [see s 11(1)(b)];
  • such persons invited to attend the conference, including any of the youth’s parents, guardians, relatives or support persons [see s 11(1)(c); s 10(1) for persons who may attend];
  • the victim if they wish to attend, and his or her support person [see s 11(1)(c); s 10(1) for persons who may attend; s 10(2)(c)];
  • a representative of the Commissioner of Police [see s 11(1)(d)]; and
  • the youth’s legal representative if required [see s 11(4)].

A family conference should act if possible by consensus of the youth and such of the persons invited to attend the conference as attend [see s 11(2)]. If a family conference fails to reach a decision, the matter must be referred to the Court, and the Court may decide any question, and exercise any power, that could have been decided or exercised by the family conference [see s 11(5)].

A decision by a family conference is not validly made unless the youth and the representative of the Commissioner of Police concur in the decision [see s 11(3)]. The police officer present at the family conference in effect has power to veto any agreement or decision reached by the family conference. Where such veto is exercised, the youth must be formally charged and the matter brought before the Court. The youth may refuse to sign an undertaking as to penalty, in which case the youth is formally charged and the matter brought before the Court.

The Youth Justice Coordinator must consult with the victim or the person who has suffered loss or damage as to whether he or she wishes to be informed of the identity of the offender and how the offence has been dealt with [see ss 12(11)-(12)].

LEGAL REPRESENTATION AT A FAMILY CONFERENCE

A youth is entitled to have a legal representative present at a family conference and be advised by them. However, the legal representative may not make submissions or representations on behalf of the youth. The solicitor’s role is confined to that of advice only [see Young Offenders Act 1993 (SA) s 11(4)].

Time constraints prevent duty solicitors attending family conferences except on rare occasions. However, a request by a youth to attend may occur where the duty solicitor has had an ongoing solicitor/client relationship with the youth, such as where a matter has been referred back to family conference from the Youth Court under section 17(2) of the Young Offenders Act 1993 (SA).

Powers and sanctions available to a family conference

Section 12 of the Young Offenders Act 1993 (SA) sets out the powers and sanctions available to a family conference. The family conference has power to administer a formal caution against further offending and/or to require the youth to enter into an undertaking for a period not exceeding twelve months [see ss 12(1)(a) and 12(4)]. In exercising its powers, the family conference must have regard to sentences imposed for comparable offences by the Court [see s 12(2)].

Where a formal caution is administered, the caution must be in writing and acknowledged by the youth [see s 12(3)].

An undertaking may require the youth to:

  • pay compensation to the victim of the offence or person who has suffered loss or damage [see s 12(1)(b); s12(1)(ba); and s 12(5) for filing undertaking with the Registrar];
  • perform community service work not exceeding 300 hours [see s 12(1)(c); s 12(6) for filing undertaking with the Registrar];
  • apologise to the victim of the offence or person who has suffered loss or damage [see ss 12(1)(d)-(e)]; or
  • do anything else that may be appropriate [see s 12(1)(f)].

Any apology to a victim or to the person who has suffered loss or damage must be made in the presence of an adult person approved by the family conference or Youth Justice Coordinator [see s 12(7)].

Where a youth is cautioned and no further requirements are made of the youth or all the requirements made of the youth (including obligations arising from an undertaking) are complied with, the youth is not liable for prosecution for the offence [see s 12(10)].

Failure to comply with a family conference

Where a youth fails to attend a family conference, or does not comply with a requirement or undertaking from a family conference, a police officer may lay a charge before the Court for the offence in relation to which the conference was convened [see Young Offenders Act 1993 (SA) s 12(8)]. Charges may be laid within 12 months of the expiration of the relevant statutory period of limitation [see s 12(9)].

ADVICE RELATING TO A FAMILY CONFERENCE
Where the duty solicitor is called upon to advise a youth in relation to a matter in which family conference proceedings have failed for whatever reason, the duty solicitor should seek detailed instructions from the youth as to the reasons for non-attendance or for the breakdown of any agreement reached. Where the problem is able to be remedied it may be possible to facilitate a referral back to a family conference pursuant to section 17(2) of the Young Offenders Act 1993 (SA).

Where the youth has attended at the family conference, but has in the course of discussions denied the offence itself or particular allegations, and the matter is brought back before the Court, it should be further adjourned for negotiations to take place between the youth's solicitor and prosecution. If the disputed issues cannot be resolved the matter will ultimately need to be set for trial or for a disputed facts hearing.

Criminal investigation and arrest

Other state laws relating to criminal investigation, arrest, bail, remand and custody apply to youth criminal proceedings, except where modified by the Young Offenders Act 1993 and related regulations [see s 14(1)]. Where a youth is arrested on suspicion of having committed an offence, and the youth is dealt with in accordance with the Young Offenders Act 1993, the police officer responsible for the arrest and custody of the youth must as soon as practicable after the arrest:

  • explain to the youth the nature of the allegations against them [see s 14(2)(a)]
  • inform the youth of their right to seek legal representation [ see s 14(2)(b)]
  • take all reasonable steps to inform the guardian of the youth, or where the guardian is not available, an adult person nominated by the youth who has had a close association with the youth or has been counselling, advising or aiding the youth, of the arrest and invite him or her to be present during any interrogation or investigation [see s 14(2)(c)]

The provisions in the Summary Offences Act 1953 governing police powers to search, seize, investigate offences, arrest and interrogate suspects apply to youth. In particular, section 79A(1a) requires an investigating police officer to ensure that a youth is not subjected to an interrogation or investigation until they have secured the presence of an independent adult to attend at the interview to represent the youth’s interests [see Summary Offences Act 1953 s 79A(1a); s 79A(1b) for exception].

Bail

The Bail Act 1985 applies to bail applications made in the Youth Court, with the availability of stable accommodation and residential placement assuming particular importance. Specific references to youth in the Bail Act 1985 include:

  • definition of a child [see s 3]
  • eligibility for bail [see s 4(1)(a)(ii)]
  • nature of a bail agreement [see s 6(1a)]
  • application for bail [see s 8(2a)]
  • procedure upon arrest [see ss 13(1)(a) and 13(2)]
  • bail reviews [see ss 14(2), 15A and 15(1)(c)]

Detailed information in relation to bail and applying for bail is available in the Bail chapter.

BAIL APPLICATIONS
Youths in custody will have been arrested and refused police bail following overnight or weekend arrest on a new matter or on a first instance warrant, or both. The present practice in the Youth Court is for the duty solicitor to be provided each morning with a daily custody list giving details of morning and afternoon custodies. Generally first instance warrants are dealt with in the morning and new offences in the afternoon.

Before seeking instructions from a youth client, the duty solicitor should first check the nature of the charges, the allegations, and any grounds of opposition to bail with the prosecutor.

If possible, confirm with Department for Child Protection personnel at or before court whether suitable accommodation is available for the youth, whether in his or her own family home, in foster placement or within any of the Department for Child Protection residential assessment units. At the same time it may be useful to check with Department for Child Protection personnel whether there is any current problem with the youth’s complying with court orders for supervision by Department for Child Protection staff or complying with any other obligation whilst on bail.

Youth Court bail instructions

When taking instructions from a youth for the purpose of a bail application it is important to seek instructions regarding:

  • family ties
  • his or her current address (how long? who with?)
  • school attendance and other educational courses
  • current employment (part time job? apprenticeship?)
  • current income
  • whether any guarantor is available (children under guardianship orders don’t need guarantors)
  • any medical and/or mental health problems
  • whether the youth is now or has recently been under the supervision of a Department for Child Protection officer and whether he or she is complying with any reporting, or other conditions in that order
  • whether the youth has denied the charges in the police interview
  • whether any police interview was conducted with an independent adult person present
  • the reasons for any previous non-appearance at court where the youth has been arrested on a first instance warrant

The objectives and statutory policies of the Young Offenders Act 1993 apply equally to bail as to sentencing [see s 3(3)]. Where appropriate, submissions should be directed to section 3(3), to the effect that a refusal of bail and remand in custody would:

  • be detrimental to the youth’s family relationships (this only applies if the youth lives with his or her family)
  • interrupt his or her education or employment commitments, including current training courses (however the youth may well not be at school, in training or employed)
  • be an unnecessary withdrawal from the family environment
  • impair the youth’s sense of racial, ethnic or cultural identity

The role of a Department of Child Protection officer

The role of the officer from the Department of Child Protection is similar but by no means identical to the role of a Correctional Services officer in the adult court. Department for Child Protection personnel will be familiar with the Department’s past contact with the youth and dealings with the youth’s family and will be required by the Court to furnish information relevant to the Court’s determination of bail. These officers can be of great assistance by providing succinct background information.

CHECK ACCURACY OF INFORMATION
The duty solicitor should always check the accuracy of any information provided by the Department for Child Protection officer with the client and remember they act on the client’s instructions rather than those of Department for Child Protection.

Placement into suitable accommodation

Where a youth cannot or will not reside with a parent, guardian or other suitable person during the period of a remand on bail, the Court as a matter of practice requires assurance that the youth will be placed in suitable accommodation pending finalisation of the charges. Where such placement is available the Court will generally, if bail is granted, require that it be a condition of a bail agreement that the youth be under the supervision of an officer of Department for Child Protection and obey his or her directions as to residence.

Youths under the guardianship of the Minister or Director General are owed a duty of care by the Minister who is guardian and is required to provide accommodation and supervision.

BAIL ASSESSMENT REPORT
Where there are no other matters which should displace the presumption in favour of bail, but the officer from the Department for Child Protection states that no departmentally-arranged accommodation is available for a youth who otherwise has no fixed place of abode, they duty solicitor should submit that it is inappropriate that the youth be detained in custody with more serious offenders for the sole reason that the department is unable to provide suitable accommodation. In practice, where accommodation is unavailable, the Magistrate or Judge will be aware of the need to minimise time spent in custody unnecessarily, and will normally order an urgent bail assessment report be prepared by the Department for Child Protection to address the issue of accommodation. There is a turnaround time of about two days for this report, although it can be quicker.

Conditions of Youth Court bail agreements

Conditions of bail agreements in the Youth Court may include provisions such as that youth:

  • comply with a curfew
  • attend drug and/or alcohol counselling as directed by the supervising Department for Child Protection officer
  • obey house rules at the accommodation where the youth is required to reside
  • not enter specified geographical locales such as the Adelaide City square mile
  • attend school as directed by the supervising Department for Child Protection officer

A copy of the bail conditions can be furnished to relevant local police officers for monitoring of compliance with the bail agreement.

ALLEGATIONS OF BREACHING BAIL CONDITIONS
Where it is alleged that the youth has breached a condition of bail, for example, by non-compliance with house rules or a Department for Child Protection officer’s directions, the duty solicitor should seek the youth’s instructions as to their understanding of what the direction required them to do. Where the direction may be characterised as ambiguous or unreasonable, such as to complete homework, it may be arguable that the direction itself is not lawful.

Home detention bail applies in Youth Court applications for release on bail. Where the youth instructs that they would comply with home detention bail conditions and where there is a suitable residence the duty solicitor should ask the Court to order a home detention bail assessment report.

Court proceedings

Commencement of prosecution

Charges that bring a youth to the Court may only be laid where the youth requires the matter to be dealt with by the Court or where the police officer is of the opinion that the matter should be dealt with by the Court because of the youth’s repeated offending or some other circumstances of aggravation [see Young Offenders Act 1993 (SA) ss 7(4)(a), 8(7)(b) and 7(4)(b)]. In addition, where a youth fails to attend a family conference, or fails to comply with a requirement or undertaking from a family conference a police officer may lay a charge before the Court for the offence in relation to which the family conference was convened [see s 12(8); s 12(9) for exception to statute of limitations].

In the case of a major indictable offence, the DPP may instead of laying a charge against a youth before the Youth Court, lay the charge before the Magistrates Court where the DPP is of the opinion that the youth poses an appreciable risk to the safety of the community and should be dealt with as an adult [see Young Offenders Act 1993 ss 16(2) and 17A; Criminal Procedure Act 1921].

Section 16(2) came into effect on 3 February 2008, and applies to offences committed on or after that date [see Statutes Amendment (Young Offenders) Act 2007] although it is rarely invoked.

In deciding whether a youth poses an appreciable risk to the safety of the community, the DPP or the Magistrates Court (as the case requires), must take into consideration the following matters:

  • the gravity of the alleged offence [see s 15A(a)];
  • whether the offence is part of a pattern of repeat offending (that fact and the circumstances surrounding the alleged offence) [see s 15A(b)];
  • the degree to which the youth has previously complied with any undertaking, requirement or obligation imposed on the youth or with any bail agreement [see s 15A(c)];
  • if the youth has previously been detained, the behaviour and any rehabilitation while detained [see s 15A(d)];
  • where previously released on licence, the degree to which the youth complied with conditions of the licence [see s.15A(e)];
  • any other matter the DPP or the Magistrates Court (as the case may be) thinks fit in the circumstances [see s 15A(f)].

Jurisdiction to hear and determine criminal matters

The Youth Court has jurisdiction to hear and determine offences committed by youth [see Young Offenders Act 1993 (SA) s 16(1)]. It deals with charges in the same way as the Magistrates Court deals with a charge of a summary offence, and in doing so, has the powers of the Magistrates Court [see s 17(1)]. In essence, the Youth Court deals with summary and indictable charges laid before it in the same way as the Magistrates Court deals with summary offences but with the following exceptions:

Referral back for a formal caution or referral to a family conference

The Court may refer a matter back to be dealt with by formal police caution or by family conference where the charge is found proved (either by the youth’s admission of guilt or by a finding of the Court at trial) [see Young Offenders Act 1993 (SA) s 17(2)].

Matters which may or must be referred to a higher court

Homicide, or an offence consisting of an attempt to commit, or assault with intent to commit homicide, must be dealt with in the Supreme Court following preliminary examination and committal procedures in the Youth Court [see Young Offenders Act 1993 (SA) s 17(3)(a); s 19 for preliminary examination; s 29(3) for sentencing as an adult].

ASSISTANCE RELATED TO HOMICIDE MATTERS
The duty solicitor should not take instructions on homicide matters and should immediately assist the youth to obtain senior legal advice and representation. These matters attract media attention and it is prudent to advise the youth in custody to defer any application for bail until senior representation is available.
Where the youth asks to be dealt with as an adult

A youth charged with an indictable offence may ask to be dealt with in the same way as an adult in the District Court [see Young Offenders Act 1993 (SA) s 17(3)(b); s 19 for preliminary examination; s 29(3) for sentencing as an adult; s 36 for detention].

Where the DPP or prosecutor asks for the youth to be treated as an adult

The DPP or a police prosecutor may apply to the Youth Court or the Supreme Court for a determination that the youth should be dealt with as an adult due to the gravity of the offence or because the offence is part of a pattern of repeat offending [see Young Offenders Act 1993 (SA) s 17(3)(c); s 19 for preliminary examination; s 29 for sentencing youth as an adult; s 36 for detention].

Sentencing considerations

The Youth Court has the same powers to sentence a youth for a summary offence as the Magistrates Court, and the same powers in respect an indictable offence as the District Court [see Young Offenders Act 1993 (SA) s 22]. Generally, young offenders are treated more leniently than adults. The Sentencing Act 2017 (SA) is generally applicable, except to the extent that the provisions of that Act conflict with specific provisions of the Young Offenders Act 1993. Section 3 of the Young Offenders Act 1993 (SA)places a different emphasis on the aims of sentencing as compared to sentencing an adult [see R v QTV (2003) 87 SASR 378; [2003] SASC 424]. In sentencing, effect should be given to the following statutory policies:

  • a youth should be made aware of his or her obligations under the law and of the consequences of breach of the law [see s 3(2)(a)]
  • the community, and individual members of it, must be adequately protected against violent or wrongful acts [see s 3(2)(c)]
  • when imposing sanctions on a youth for illegal conduct regard should be had to the deterrent effect any proposed sanction may have on the youth [see s 3(2a)(a)]
  • compensation and restitution should be provided, where appropriate, for victims of offences committed by youths [see s 3(3)(a)]
  • family relationships between the youth, the youth’s parents and other family members should be preserved and strengthened [see s 3(3)(b)]
  • a youth should not be withdrawn unnecessarily from his or her family home environment [see s 3(3)(c)]
  • there should be no interruption to their education of employment [see s 3(3)(d)]
  • a youth’s sense of racial, ethnic or cultural identity should not be impaired [see s 3(3)(e)]

Social Background Report

Before sentencing, the Court may request from the Department for Child Protection a social background report on the personal circumstances of the youth [see Young Offenders Act 1993 (SA) s 32].

CONSIDERATIONS FOR BAIL AND SENTENCING SUBMISSIONS

The duty solicitor’s submissions in applications for release on bail and in mitigation of penalty should address the statutory policies expressed in section 3(3) of the Young Offenders Act 1993. Detailed instructions should be obtained regarding the youth’s personal antecedents including:

  • family circumstances and support
  • medical and psychological concerns
  • school, training or employment commitments and opportunities
  • any relevant racial, ethnic or cultural considerations

Frequently, the youth is known to the Department for Child Protection and you should consult with them and then take instructions about any information provided. Someone from the Department for Child Protection may be in the Court and may be invited to make submissions in relation to an application for bail.

When making submissions, remember that the Young Offenders Act 1993 (SA) places emphasis on the individual youth, and directs the Court to have regard to ensuring the proper realisation of the youth’s potential in accordance with section 3(1).

Penalties

Under the Young Offenders Act 1993 there is no power to take into account the secondary sentencing purpose of ensuring general deterrence as outlined in the Sentencing Act 2017 (SA) section 4(1)(d) when sentencing a young offender, except where the youth is being dealt with as an adult in the Supreme or District Court.

The Court is required to have regard only to the deterrent effect of punishment on a young offender personally [see Schulze v S (1995) 180 LSJS 371;[1995] SASC 5005].

When imposing sanctions on a youth for illegal conduct the sentencing court must have regard to the deterrent effect a proposed sanction may have on the youth [see Young Offenders Act s 3(2a)(a)].

Where a youth is being dealt with as an adult regard should be had to the deterrent effect any proposed sanction may have on other youths and the balance between the protection of the community and the need to rehabilitate the youth [see s 3(2a)(b)].

Power to impose a custodial sentence

Under the Youth Court Act 1993 the Court can make an order for imprisonment or detention and may issue a warrant for a person’s apprehension and imprisonment or detention [see s 29]. However, section 23(1) of the Young Offenders Act 1993 provides (subject to section 23(6)) that the Court cannot sentence a youth to imprisonment. A custodial sentence is viewed as a sentence of last resort as reflected in section 23(4) which provides that a sentence of detention must not be imposed for an offence unless the offender is a recidivist offender, or where the Court is satisfied that a sentence of a non-custodial nature would be inadequate because of the gravity of the circumstances of the offence or because the offence is part of a pattern of repeat offending.

If an offence for which a youth is convicted or found guilty is punishable by imprisonment where committed by an adult, the Court may sentence the youth to:

  • detention in a training centre for a period not exceeding three years [see s 23(2)(a)]; or
  • home detention for a period not exceeding six months, or for periods not exceeding six months in aggregate over one year or less [see s 23(2)(b)]; or
  • detention in a training centre for a period not exceeding two years to be followed by home detention for a period not exceeding six months, or for periods not exceeding six months in aggregate over one year or less [see s 23(2)(c)].

Where the maximum term of imprisonment for the offence is less than three years, the period of detention cannot exceed the maximum [see s 23(3)].

Training Centres

Adelaide Youth Training Centre (previously known as Cavan Training Centre)

The Adelaide Youth Training Centre has two campuses and the age of the youth and their gender will determine on which campus they are placed. The Centre provides safe and secure detention for children between the ages of 10-18 years who have been arrested and refused bail or remanded or sentenced to detention.

Goldsborough Road Campus

26-46 Goldsborough Road

Cavan SA 5095

Phone: 8169 1444

Jonal Drive Campus

1 Jonal Drive

Cavan SA 5095

Phone: 8169 1444

A sentence of home detention

A sentence of home detention as distinct from detention within an institution may be ordered pursuant tosection 37A of the Young Offenders Act 1993. A sentence of home detention imposed on a youth is subject to the following conditions:

  • to remain at and not leave a specified residence except for renumerated employment, urgent medical or dental treatment, or attendance at a course of education, training or instruction, or any other activity as required by the Court or by the home detention officer, or for any other purpose as approved by the home detention officer [see s 37A(1)(a)]
  • to be of good behaviour [see s 37A(1)(b)]
  • to obey the lawful directions of the home detention officer [see s 37A(1)(c)]
  • any other conditions as the Court may specify [see s 37A(1)(d)]

A youth is not in breach of home detention conditions if they leave the residence for the purpose of averting or minimising a serious threat of risk or injury [see s 37C(3)].

A sentence of home detention must not be imposed unless the Court is satisfied of the availability of suitable residence, that the youth will be properly maintained and cared for, and adequate resources exist for the proper monitoring of home detention conditions [see s 23(5)]. There is no power to backdate a sentence of detention [see Edwards v South Australian Police (1995) 180 LSJS 215; [1995] SASC 4987(Unreported, Prior J, 27 February 1995)].

The Court may vary an order for home detention if satisfied the residence is no longer suitable for home detention and there is some other suitable residence available [see s 37C(1)]. An order can be revoked where the Court is satisfied that the youth has breached a condition of home detention or the residence is no longer suitable and there is no other residence available [see s 37C(2)]. Where the Court revokes an order for home detention, it may impose some other sentence on the youth, but must take into account the period served by the youth under the order [see s 37C(4)]. Where an order is revoked on the ground of breach of condition, the Court may sentence the youth to detention for a term not exceeding the balance of the period of unexpired home detention as at the date on which the breach occurred, but a sentence of detention may not be imposed in the case of revocation on any other ground [see s 37C(5)]. The Court may issue a warrant for the apprehension of the youth pending determination of the breach [see s 37C(6)].

Upon breaching the condition requiring the youth to remain at his or her residence, that youth is unlawfully at large [see s 37D(1)].

Suspending a custodial sentence

Section 96 of the Sentencing Act 2017 (SA) applies when considering the suspension of a custodial sentence [see Bechara v SA Police [1995] SASC 5013 (Unreported, Lander J, 9 and 31 March 1995) for application of section 38 of the previous Criminal Law (Sentencing) Act 1988 (SA)].

Further information in relation to suspended sentences is available in the Sentencing chapter.

Power to impose an obligation

The Court does not have the power to require a youth to enter into a bond [see Young Offenders Act 1993 (SA) s 26(1)]. However, the Court may order a youth to be placed under an obligation of the kind that would otherwise have been imposed under a bond [see Sentencing Act 2017 (SA) s 97(1)] and this may include (for example) an obligation to:

  • submit to supervision [see Young Offenders Act 1993 (SA) s 26(3)(a)]
  • participate in a specified program, or attend a specified activity centre [see s 26(3)(b)]
  • carry out specified work [see s 26(3)(ba)]
  • reside where directed [see s 26(3)(c)]

Failure to comply with an obligation is an offence. The maximum penalty is a fine of $2,500 or detention for six months, or both [see s 26(4)].

Undertaking from guardians

Although rarely invoked, the Court may release a youth on an undertaking, on condition that the guardians of the youth enter into a supplementary undertaking [see Young Offenders Act 1993 s 27] to:

  • guarantee the youth’s compliance with the conditions of the youth’s undertaking,
  • to take specific action to assist the youth’s development, and guard against further offending, and
  • to report at intervals on the youth’s progress.

Community Service

A court may not require a youth to carry out community service if the aggregate requirement exceeds 500 hours [see Young Offenders Act 1993 s 25(1)]. The period over which community service is to be performed may not exceed eighteen months [see s 25(2); s 49 for placement requirement; s 49A for restrictions; s 51 for work orders limited to certain kinds of work].

Power to disqualify from holding or obtaining a driver’s licence

Section 28 of the Young Offenders Act 1993 gives the Youth Court the power to order that a youth who is found guilty of an offence may not hold or obtain a driver’s licence if it is of the opinion that the child is not a fit and proper person to have a driver’s licence, or to impose a licence disqualification where such a penalty is appropriate for the offence [see s 28(1)]. Where this order is imposed, a youth is not entitled to apply to the Magistrates Court for an order removing a disqualification under section 172 of the Road Traffic Act 1961 until they attain the age of eighteen years [see Young Offenders Act 1993 s 28(3)].

Remittance or reduction of court fees

The Court may not impose a fine exceeding $2,500 for an offence [see Young Offenders Act 1993 s 24]. The Court may remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason [see Youth Court Act 1993 s 33].

Record of appearance kept

A youth’s appearance in the Youth Court will be recorded and kept, so that if they later appear in the adult jurisdiction, a record of prior offences for which they appeared in the Youth Court will be before the Court.

Detention provisions

Conditional release from a training centre

A youth sentenced to a period of detention in a training centre may be granted conditional release by the Training Centre Review Board at any time after the youth has completed at least two-thirds of the period of detention, where it is satisfied that the youth’s behaviour during the period of detention has been satisfactory and that there is no undue risk that the youth would re-offend if conditionally released [see Young Offenders Act 1993 ss 41A(1), 41A(2)(a) and 41A(2)(b)(i)]. Consideration must be given to the impact the release of the youth will have on a registered victim and the victim’s family [see s 41A(2)(b)(ii)].

Conditional release does not apply where the sentence of detention is less than two months [see s 41(1)(c)]. Nor does it apply where the youth has been sentenced as an adult [see s 41(1)(a)].

In addition, on application by the Chief Executive or on the initiative of the Training Centre Review Board a youth may be released onto home detention conditions for the remainder of the unexpired balance of the term of detention or such shorter period as determined by the Training Centre Review Board [see s 41B].

Specific provisions apply relating to the release of young offenders who are also considered terror suspects (as defined in section 4(1) of the Young Offenders Act 1993 (SA)) - see section 43 of the Young Offenders Act 1993 (SA).

Transfer to prison from a youth detention centre

Under section 63 of the Young Offenders Act 1993 a youth sentenced to a period of detention in or remanded to a youth detention centre may be transferred to a prison for the remainder of the period of detention where:

  • the person is now above the age of eighteen years [see s 63(2)]; and
  • the youth or the Chief Executive of the Department makes an application to a Judge of the Youth Court for such a transfer [see s 63(2)]; and
  • the Court is satisfied that a prison would be an appropriate place for the person to be held for the remainder of the period of detention [see s 63(3)].

Section 63(4) provides for transfer of a youth of, or above, the age of 17 to a prison on the application of the Chief Executive where the youth:

  • cannot be properly controlled in the training centre;
  • has been found guilty of assaulting an employee of the training centre within the preceding 14 days;
  • has persistently incited disturbance in the training centre; or
  • has escaped or attempted to escape from the training centre.
APPLICATION FOR TRANSFER TO PRISON
The duty solicitor does not normally appear to oppose an application under section 63(4) of the Young Offenders Act 1993. However, if the duty solicitor does become aware of a youth in custody who wishes to oppose such an application they should arrange to brief senior counsel as a matter of urgency.

Youth Court Treatment Intervention Court

The Treatment Intervention Court operates within the Youth Court and supervises eligible defendants whose offending is relating to mental impairment and/or substance dependence.

The Youth Court Treatment Intervention Program commenced in 2011 and replaced the former Youth Court Assessment and Referral Drug Scheme (Youth CARDS) and the former Youth Court Diversion Program (YCDP).

Eligible defendants appearing in the Youth Court are able to access the 6 month Treatment Intervention stream. Young people who may not be eligible for a referral for a Family Conference due to the nature of their offending are targeted for referral to this stream. Treatment services are usually provided by private psychologists.

For more information on the practices and procedures of the Treatment Intervention Court, see the Duty Solicitor Handbook section on Treatment Intervention Court.

The civil jurisdiction of the Youth Court

Child protection legislation

The Children and Young People (Safety) Act 2017 (SA) (the Act) gives the Youth Court jurisdiction to hear and determine applications for children and young people in need of care and protection. The Act empowers the Court to make wide-ranging orders, such as orders for assessment of children and young people, parents and other caregivers, and for children and young people to go into the custody or guardianship of the Chief Executive or others. The Youth Court also convenes family group conference (previously known as family care meetings) through the court’s Conferencing Unit.

Certain sections of the Act commenced on 26 February 2018. The remaining sections commenced, and repealed the former Child Protection Act 1993 (SA), on 22 October 2018.

The following provides an outline of care and protection practice and procedure.

The priorities of the Children and Young People (Safety) Act 2017

The Children and Young People (Safety) Act 2017 (SA) sets out the priorities in the operation of the Act. Protection of children and young people from harm is the paramount principle in the administration, operation and enforcement of child protection legislation [s 7].

Other considerations in relation to children and young people are [s 8]:

  • the need to be heard and have their views considered
  • the need for love and attachment
  • the need for self esteam
  • the need to achieve their full potential.

Where children and young people are at risk, early intervention is a priority [s 9].

State intervention for children and young people “at risk”

The basis of any child protection intervention is that a child or young person must be considered to be “at risk”. A child or young person is considered to be at risk where [s 18(1)(a)-(c)]:

  • they have suffered harm
  • are likely to suffer harm, or
  • are likely to be removed from the state for illegal purposes (such as marriage or female genital mutilation)

Section 17 of the Act sets out that harm may include physical or psychological harm and abuse or neglect of a sexual, physical, mental or emotional nature.

A child or young person is also considered to be "at risk" if their parents or guardians are unable or unwilling to care for them, if they are of no fixed address, or if they are of compulsory school age, but have been persistently absent from school without satisfactory explanation [s 18(1)(d) and (e)]. In making an assessment about whether a child is at risk attention must be had not only to the current circumstances of the child’s care but also to the history of the child’s care and the likely cumulative effect on the child of that history [s 18(3)].

Notification of abuse or neglect

In accordance with section 31 of the Children and Young People (Safety) Act 2017 (SA) there is a mandatory notification requirement placed upon certain persons to report any suspicion (held on reasonable grounds) that a child or young person is at risk, and the suspicion was formed in the course of their employment. Employment is defined broadly to include that which is paid or voluntary, employees in the traditional sense, but also self-employment, contractors and vocational placements [see s 30(4)]. The maximum penalty for non-compliance is a fine of $10 000 [see s 31(1)].

The mandatory reporting requirement applies to many professional people including medical practitioners, pharmacists, registered or enrolled nurses, dentists, psychologists, police officers, social workers, community corrections officers, teachers, family day care providers, ministers of religion, an employee or volunteer in an organisation that provides health, welfare, education, sporting or recreational, child care or residential services wholly or partly for children and young people, being a person who:

  • provides the services directly to children and young people, or
  • holds a management position in the organisation directly responsible for the provision of the services to children and young people

See Children and Young People (Safety) Act 2017 (SA) s 30 (3).

The identity of any notifier is protected, unless confidentiality is waived in some way, or a court or tribunal, after a strictly regulated hearing, orders disclosure of such identity [s 163] and notifiers are protected from allegations of any breach of professional ethics [s 166(4)].

Removal when at risk of serious harm

Police officers and child protection officers have the power to remove a child or young person from any premises, place, vehicle or vessel if they believe, on reasonable grounds, that it is necessary to protect them from serious harm and there is no reasonably workable alternative [s 41(1)].

The authorities must attempt to return the child or young person home, unless the child or young person is already under the guardianship, or in the custody of the Chief Executive, or to do so would place the child or young person at risk [s 42]. The Chief Executive has custody of the child or young person until they are returned to their parents or guardians or someone else or until the end of the fifth business day following the day on which the child young person was removed [s 43]. As such, if care and protection orders are necessary, the matter must be brought before the Youth Court within those 5 business days.

When a child or young person is residing with a person who has a restraining order under the Criminal Procedure Act 1921 (SA) s 99AAC preventing them from residing with the child or young person, there is a presumption that the child or young person is in a situation of serious harm from which an officer is authorised to remove the child [see s 41(2) and Children and Young People (Safety) Regulations (SA) reg 17].

Instruments of guardianship or restraining notices

In response to the Coroner’s recommendations arising from the 2015 inquest into the death of Chloe Valentine, new provisions were created to safeguard children whose parents or guardians have previously committed serious offences against a child in their care (‘qualifying offences’). These provisions are now at Part 4 of the Children and Young People (Safety) Act 2017 (SA) [ss 44-48].

A ‘qualifying offence’ is defined under section 44 and includes murder; manslaughter; criminal neglect; causing serious harm; or acts endangering life or creating a risk of serious harm where the victim was a child and the offender was a parent or guardian of the child.

Where the Chief Executive becomes aware that a child or young person born after 28 April 2016 is residing with a parent who has been found guilty of a qualifying offence an instrument of guardianship must be issued in respect of the child or young person [s 45(1)]. In the case of newborn children who have yet to be discharged from hospital, they are taken to be residing with a person if they are likely to reside with them on being discharged [s 45(7)].

The effect of an instrument of guardianship is that the child or young person will be under the guardianship of the Chief Executive [s 45(2)].

Where the Chief Executive becomes aware that a child or young person is residing, or is about to reside, with a person (not being a parent of the child) who has been found guilty of a qualifying offence a restraining notice must be issued against that person, unless the Chief Executive is of the opinion it would be inappropriate to do so under the circumstances [s 46(1)].

A restraining notice can prevent the relevant person from residing at the same premises as the child or young person; coming within a specified distance of the child or young person’s residence or having any unsupervised contact with the child or young person [s 46(2)].

Where an instrument of guardianship or a restraining notice is issued it must be served on the relevant person as soon as practicable and must be lodged with the Court [s 46(4)].

Failure to comply with a restraining notice is an offence with a maximum penalty of 2 years imprisonment [s 46(5)].

Investigations

The Chief Executive of the Department for Child Protection may investigate a child or young person's circumstances if a report is made and the Chief Executive suspects, on reasonable grounds that the child or young person may be at risk [Children and Young People (Safety) Act 2017 (SA) s 34(1)(a)] or in any other appropriate circumstances [34(1)(b)].

Where the Chief Executive issues an instrument of guardianship or restraining notice in relation to a child or young person an assessment or investigation of the child’s circumstances is mandatory [s 34(2)]. See Instruments of guardianship or restraining notices.

Child protection officers (which includes both police officers and authorised departmental employees [s 147(1)]) can enter and inspect any premises, place vehicle or vessel, take photographs, films, audio, video or other recordings, seize items evidencing a contravention of the Act and require people to provide information [see ss 149 and 150; see ss 149(10) and 150(5) for related penalty for failure to comply]. A child protection officer who is an authorised departmental authority, must produce for inspection their identity card or other evidence of their authority, at the request of a person subject to the exercise of their powers under the Act [s 147(4)].

A child protection officer can only use force to enter any premises, place, vehicle or vessel on the authority of a warrant issued by a magistrate, except:

  • where they believe on reasonable grounds that it is necessary to protect them from serious harm and there is no reasonably workable alternative [s 41(1)]
  • to enforce a care and protection order requiring the removal of a child or young person from any premises, place, vehicle or vessel [s 149(3)], or
  • where entry has been refused or cannot be gained, and the child protection officer believes on reasonable grounds that the delay that would ensue as a result of applying for a warrant would significantly increase the risk of harm or further harm to a child or young person [see s 149(4); s 149 (5)-(7) for warrant applications].

A person need not answer a question or produce a document if legal professional privilege applies or if they could not be compelled to answer the question or produce the document in proceedings in the Supreme Court [s 166(1) and (2)].

Assessments

Assessment of child or young person

The Chief Executive may direct that a child or young person be examined or assessed if [s 35]:

  • the child or young person is in the custody of the Chief Executive pursuant to section 41, or
  • an instrument of guardianship or a restraining notice is in force, or
  • the Youth Court orders the examination and assessment of the child or young person, or
  • the Chief Executive considers it necessary or appropriate [Children and Young People (Safety) Regulations 2017 (SA) reg 12].

An employee of the Department will take the child or young person to their appointment with the relevant health professional.

Assessment of parent or guardian

If the Chief Executive reasonably suspects that a child or young person is at risk as a result of drug or alcohol abuse by a parent, guardian or other person or a lack of parenting capacity by anyone responsible for the care of the child or young person, the Chief Executive may direct the person to undergo relevant assessments [s 36].

The child or young person could still be in the parent’s care when they are directed to undergo an assessment. As such, it is important for the parent to get legal advice at this time as the outcome of the assessment will be critical to any further action by the Department. It is important parents understand that it is an offence to refuse to comply with the direction to undergo an assessment [s 36(3)]. The maximum penalty is six months imprisonment.

Those directed to undergo assessments must receive a notice setting out:

  • the nature of the assessment
  • the place at which the person must attend for the assessment
  • the date and time of the assessment
  • contact details of the person or body with whom the person can communicate about the assessment
  • information setting out the consequences of refusing or failing to comply with the direction for the assessment
  • the contact details of the Legal Services Commission

See Children and Young People (Safety) Regulations 2017 (SA) reg 13.

Anyone who has undergone a drug and alcohol assessment or been the subject of an application for an investigation and assessment order under the Children’s Protection Act 1993 (SA) in the last 5 years must take part in random drug and alcohol testing and may be directed to undertake a drug and alcohol rehabilitation program [ss 37 and 38]. It is an offence to refuse, without reasonable excuse, to comply with a requirement for testing or rehabilitation [ss 37 (5) and 38(2)]. The maximum penalty is six months imprisonment.

REFUSING TO COMPLY WITH DIRECTION FOR ASSESSMENT
A refusal to comply with a direction for assessment will not only put the person at risk of prosecution, but it may also prompt the Department to commence proceedings and seek assessment orders from the Youth Court. A refusal to comply with such an order from the Youth Court carries maximum penalty of 2 years imprisonment.

Voluntary custody agreements

Section 96 of the Children and Young People (Safety) Act 2017 (SA) provides for voluntary custody agreements. The parents or guardians of a child can enter into a custody agreement under which the Chief Executive has custody of the child while the agreement has effect [see s 96(1)]. Negotiations for a custody agreement can be entered into by a parent or guardian of a child or young person or by the child or young person (of or above the age of sixteen years) but such agreement cannot be entered into (or extended) in relation to a child or young person of, or above the age of sixteen years without their consent [see ss 96(3), 96(4)].

A custody agreement must be in writing and may be terminated at any time by a parent or guardian who is a party to the agreement, or by agreement between the parties to the agreement, and will be taken to have been terminated on any order made in accordance with the Act (or any other Act) involving guardianship or custody of the child [see s 96(6)].

Unless terminated, a custody agreement has effect for a period not exceeding three months and may be extended, but for no longer than six months [see s 96(9)].

Family group conferences

A family group conference may be convened if the Chief Executive suspects that a child or young person is at risk and it would be appropriate to make arrangements in this way [Children and Young People (Safety) Act 2017 (SA) see s 22]. The Court may also convene a conference [s 22], and adjourn a matter for this purpose [s 67], but there is no longer an legislative requirement that such a conference will be convened (or attempted) by the Department before the Chief Executive makes an application for a care and protection order.

The purpose of a family group conference is to provide an opportunity for the child’s family to make voluntary arrangements for the care and protection of the child or young person and to review those arrangements from time to time [s 21].

Sections 21 to 26 of the Children and Young People (Safety) Act 2017 (SA) provide for the conduct of family group conferences, previously known as family care meetings.

A conference coordinator is nominated by the Chief Executive or the Youth Court, whichever convened the conference. The conference coordinator conducts the meeting [s 22(2)].

Attendance at a conference is voluntary, but if parents or guardians refuse to attend a conference, the Department may make an application to the Youth Court for care and protection orders [s 21(2)].

The coordinator must ensure that the following are notified of the time and place of the conference [s 23(4)]:

  • the parents and guardians;
  • the child or young person him or herself;
  • a suitable person to act as the child or young person's advocate (who may, but need not be a legal practitioner)

The coordinator need not arrange an advocate for the child or young person if satisfied that child or young person has made an informed and independent decision to waive their right to an advocate[s 23(5)].

Others who are entitled to attend the meeting include [s 23(1)]:

  • other family members;
  • anyone who has a close association with the child or young person;
  • a person who has examined, assessed, counselled or treated the child or young person in the course of investigation;
  • a representative from the child's school (if persistent absenteeism is involved);
  • approved support persons (not including legal practitioners) for the child or young person and their parents/guardians; and
  • a Department for Child Protection worker.

If the child or young person is an Aboriginal of Torres Strait Islander, a person nominated by an Aboriginal or Torres Strait Islander organisation [s 23(1)(h)].

After consultation with the child or young person and their parents and guardians, the coordinator may exclude a person from attending the conference [s 23(2) and (3)]. If this is done, the Coordinator must still take reasonable steps to ascertain their views and present them to the conference [s 24(3)]. The same applies if someone is unable to attend for any reason.

The coordinator must ensure that information about the child or young person’s circumstances and any grounds for suspecting the child or young person may be at risk is presented to the conference [s 24(1)]. Once the information is given, the parents, guardians and family members (including the child or young person if appropriate) must be given the opportunity to privately discuss and decide their own recommendations for the child or young person’s care and protection [s 24(2)].

If possible, decisions should be made by consensus, particularly the consensus of the child or young person and their family members [s 24(4)(a)]. Decisions will only be valid if the child or young person, their parents or guardians and the Department each accept them in writing [s 24(4)(c) and Children and Young People (Safety) Regulations 2017 (SA) reg 7(1)(a)]. However, the regulations provide that decisions need not be accepted by a child or young person, if having regard to the child or young person’s age or and development, it is not necessary or appropriate [reg 7(3)].

If a decision cannot be reached or a conference cannot be held (such as where the parents or guardians refuse to attend the conference), the Chief Executive may apply to the Youth Court for a Care and Protection Order [s 21(2)].

A written record of the decisions must be prepared and provided to each person present at the conference and included as part of the case plan for the child or young person [s 24 (5)]. The Department may wish to secure the arrangements by way of court order [s 50(3)(b)]. Either way, if a decision is made at the conference but not implemented or complied with, the Chief Executive may also apply to the Youth Court for a Care and Protection Order [s 26(2)].

Evidence of anything said at a conference is not admissible in any proceedings, but the written record of the decisions made is admissible for the purpose of establishing that those decisions were made [s 27].

Review procedures may be built into any arrangements that are formulated at a conference [s 25].

Care and Protection Orders

Unless a care and protection application is made to:

  • secure proper arrangements for care and protection already put in place, such as those made by way of family group conference, or
  • otherwise by consent of the parties or
  • appoint an approved carer as a long-term guardian

the Chief Executive must reasonably suspect that child or young person is at risk, and be of the opinion that orders are necessary and appropriate to protect the child or young person from harm [see Children and Young People (Safety) Act 2017 (SA) s 50(3)]. If an instrument of guardianship or restraining notice has been issued, the Chief Executive must make an application for a care and protection order as soon as practicable thereafter [s 50(1) and (2)]. See Instruments of guardianship or restraining notices.

There is no longer a legislative requirement that a family group conference (previously known as a family care meeting) will be held (or attempted) by the Department before the Chief Executive makes an application for a care and protection order, but it may nevertheless be the case that a conference has already been held (or attempted).

It is now a legislative requirement that before making an application for an order granting custody of a child or young person, or placing a child or young person under the guardianship of the Chief Executive or another specified person, the Chief Executive must assess the likelihood of a reunification occurring and, if likely, the period within which reunification is likely to occur [s 50(4) and (5)]. This assessment then informs the Chief Executive's own determination of the arrangements that may be made for the parent or guardians to have continued contact with the child or young person. See Contact arrangements.

Upon hearing the care and protection application, if the Youth Court is satisfied it is appropriate to do so, it may make wide-ranging orders, including [s 53]:

  • written undertakings by parents or guardians and children and young people (such as for supervision) for a specified period not exceeding twelve months [s 53(1)(a)]
  • for the examination and assessment of the child or young person [s 53(1)(b)]
  • for the assessment of a parent or guardian or other person responsible for the care of the child or young person [s 53(1)(c)]
  • for a parent or guardian to care for a child or young person in a specified way or undertake specific courses or programs to increase their capacity to care [s 53(1)(m)]
  • for a child or young person's passport to be held by the Court (in some circumstances) [s 53((1)(d)]
  • for the Chief Executive to have custody of the child or young person [s 53(1)(j)]
  • for a parent or guardian or other family member to have custody of the child or young person for up to 12 months [s 53(1)(i)]
  • for the child or young person to be placed under the guardianship of the Chief Executive for 12 months or until the child or young person attains the age of 18 [s 53(1)(e) and (g)]
  • for the child or young person to be placed under the guardianship of a specified person/s (not exceeding two) for 12 months or until the child or young person attains the age of 18 [s 53(1)(f) and (h)]
  • revoking an instrument of guardianship or restraining notice [s 53(1)(l)]
  • restraining orders regarding such things as who may reside with, or come within a specified distance of, the child or young person [s 53(1)(k)]

There are no longer strict legislative limits on the length of time between the lodgement of the initial application and the commencement of any trial. However, all proceedings must be dealt with expeditiously with due regard to the degree of urgency of each particular case [s 56(1)].

WHERE THERE ARE ALSO CRIMINAL PROCEEDINGS
Where there are proceedings against a parent in an adult court arising from the same circumstances as in the Youth Court, proceedings in the Youth Court may be delayed. For example, where children or young people have been removed because of allegations of abuse and the parent has been charged with these offences. In such cases the proceedings may be adjourned for longer than normal to allow the adult court charges to be heard before the care and protection hearing.

Failure to comply with an order

Failure to comply with any order made under section 53 is an offence. The maximum penalty is imprisonment for two years [see Children and Young People (Safety) Act 2017 (SA) s 61].

Legal representation

Children must be represented by a lawyer unless the court is satisfied that they have made an informed and independent decision not to be represented or that the application should be heard as a matter of urgency [see Children and Young People (Safety) Act 2017 (SA) s 64]. In the latter case, any orders made will only apply until the child or young person is represented (if they wish) and the matter is back before the court.

To the extent that it is consistent with the legal practitioner's duty to the court, a legal practitioner acting for the child or young person must [s 63]:

  • act in accordance with any instructions given by the child or young person
  • to the extent that the child has not given, or is not capable of giving instructions, act in accordance with the practitioner's own view of the best interests of the child or young person
  • explain to the child or young person the nature of the legal practitioner's role (including any limitation on the practitioner's ability to act in accordance with their instructions)
  • explain to the court the basis on which submissions are made, that is; on the child's instructions or in their best interests.

A legal practitioner who acts in accordance with section 63 cannot be held to have breached any code of professional etiquette or ethics [s 63(2)].

A child or young person, whether or not represented, must be given a reasonable opportunity to express their own views personally to the Court about his or her ongoing care and protection, unless the Court is satisfied that the child or young person is not capable of doing so, or to do so would not be in the best interests of the child or young person [see Children and Young People (Safety) Act 2017 (SA) s 62].

OPPORTUNITY FOR A CHILD TO EXPRESS THEIR OWN VIEWS
Normally the child’s separate representative will ask the child or young person whether they want to talk to the Court.

Evidence

Under the Children and Young People (Safety) Act 2017 (SA) the Court is not bound by the rules of evidence and may inform itself as it thinks fit, acting according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms [see s 57(1)]. A fact to be proved in proceedings is sufficiently proved on the balance of probabilities [see s 58]. The requirement under this Act for proof on the balance of probabilities “more likely than not”, rather than “beyond reasonable doubt” is another reason why adult criminal proceedings are given precedence (as outlined above) in relation to time limits.

In practice, section 57 means that there is a less stringent adherence to the rule against hearsay. To protect children and young people from the trauma of having to give evidence in open court, the court has traditionally permitted professionals who have interviewed the child or young person (such as teachers, school counsellors, doctors, psychologists and social workers) to give evidence of their conversations with the child or young person, including statements they have made to them. Of course in a criminal court they would not be able to give evidence of things said to them by the child or young person. There is not an automatic right to give such evidence. It must be established in response to an objection at the time. Professionals assisting in these matters will need to accurately record any conversations with the child or young person if the evidence is to be admitted, or if it is to be given any weight. The conversation should be recorded verbatim where possible, in a question and answer format using “open ended” questions.

Contact arrangements

The Chief Executive determines arrangements for contact between children and young people who are in the custody or under the guardianship of the Chief Executive and those from whose care they have been removed, and may determine for any reason that there is to be no contact at all between the child or young person and another person [s 93(2)].

A determination of contact arrangements must be by notice in writing and must set out all of the following[s 93(5) and reg 24]:

  • the Chief Executive’s consideration of the likelihood of reunification and how that influenced the contact arrangements
  • the Chief Executive’s reasons for making the contact arrangements
  • the frequency and duration of contact visits in a specified period
  • the venue or venues at which contact visits are to take place
  • the methods by which contact visits may or may not be undertaken (for example, face to face contact visits, telephone calls, written communication, social media)
  • the persons who may and may not be present during contact visits
  • whether the visits are to be supervised by the Department

The Chief Executive must take reasonable steps to provide a copy of any contact arrangement determinations to each person affected by the determination and explain to them the right to have contact arrangements reviewed [reg 24(2) and s 95]. The Chief Executive must also record and keep a copy of the reasons for any determination [reg 24(e)].

The Chief Executive may change or stop contact arrangements at any time by notice in writing [s 93 (6)].

For more information about contact arrangements and applications for review, see the Law Handbook, Contact arrangements.

Appeals

A party to proceedings in the Youth Court can appeal against any judgment given in the proceedings including an acquittal on a charge of a summary or indictable offence, but not against a judgment in a preliminary examination [see Youth Court Act 1993 (SA) s 22(1)].

An appeal from an interlocutory judgment given by a Magistrate or special justice is instituted by filing the relevant Notice of Appeal in the Youth Court Registry and serving it on all parties [see Youth Court Rules rr 12.01 and 12.03].

Such an appeal must be instituted within fourteen days from the giving of the interlocutory judgment appealed from, or such extended time as the Youth Court may fix [see r 12.04].The Senior Judge may give such directions deemed fit for the conduct of such an appeal [see r 12.05].

An appeal from:

  • an interlocutory judgment given by a Magistrate or special justice is heard by the Senior Judge of the Youth Court [see Youth Court Act 1993 (SA) s 22(2)(a)];
  • a sentence imposed by a Magistrate on the conviction of a person of a major indictable offence is heard by the Full Court of the Supreme Court [see Youth Court Act 1993 (SA) s 22(2)(ba)];
  • any other judgement given by a Magistrate or special justice is by a single Judge of the Supreme Court [see Youth Court Act 1993 (SA) s 22(2)(c); Youth Court Rules r 12.02 for relevant Notice of Appeal];
  • an interlocutory judgment given by a Judge is heard by a single Judge of the Supreme Court [see Youth Court Act 1993 (SA) s 22(2)(b); r 12.02 for relevant Notice of Appeal];
  • any other judgment given by a Judge is heard by the Full Court of the Supreme Court [see Youth Court Act 1993 (SA) s 22(2)(d); r 12.02 for relevant Notice of Appeal].

An interlocutory judgment is a declaration or order related to a matter but which does not finally dispose of the matter. For example, a decision to refer a matter to a family conference is an interlocutory order [see Police v G,PA (2007) 97 SASR 6; [2007] SASC 78]. Such an appeal is by way of re-hearing and is not a hearing de novo (where the matter is heard afresh).

Appeals to the Supreme Court are by way of rehearing whereby the matter is ‘reheard on the evidence taken in the court below with a power in the Supreme Court to receive further evidence ’ [see H,A v Minister for Families and Communities [2005] SASC 339].

On appeal, the appellate court may exercise one or more of the following powers:

  • confirm, vary or quash the judgment subject to the appeal, and in the interests of justice the court may vary or quash any other judgment given in the same or related proceedings [see Youth Court Act 1993 (SA) s 22(3)(a)]
  • remit the matter for hearing or further hearing [see s 22(3)(b)]
  • make any other order (including an order for costs) [see s 22(3)(c)]