Under Part 7A of the Controlled Substances Act 1984 (SA), the Youth Court of South Australia may make orders for the assessment and treatment of children for drug dependency ("Youth Treatment Orders"). The paramount consideration in the administration, operation and enforcement of this legislation must always be the best interests of the child, subjected to, or proposed to be subject to an order [s 54A]. The Youth Treatment Orders jurisdiction of the Youth Court is governed by Chapter 8 Part 5 of the Uniform Special Statutory Rules 2022 (SA).
Initially an order may only be made in relation to a child who is subject to detention in a training centre at the time the order is made (whether or not the period of detention has commenced), and the order will cease when the child is released from detention [s 54B(3) and (6)]. A date will be declared by the Governor by proclamation at which time orders may be made in relation to children who are not subject to detention in a training centre [s 54B(7)].
All references in this section are to the Controlled Substances Act 1984 (SA), unless stated otherwise.
A person may be assessed, treated or detained, and reports provided as required, despite the fact that a person has reached the age of 18 years if the order [s 54J]:
A child cannot be ordered to pay for the costs of their own assessment or treatment [s 54K]. A person who is ordered to pay these costs may apply to vary or revoke the order [s 54K (3)].
Youth Treatment Orders may be made by the Court of its own motion, if there are proceedings before it involving the relevant child [s 54C]. Alternatively, if there are proceedings before the Court:
In any case, an application to make these orders may also be made to the Court by [s 54C(c)]:
Before making an order in relation to a child who is in the custody or guardianship of the Chief Executive of the Department for Child Protection, the Court must ensure the Chief Executive has been given notice of the proceedings and an opportunity to make submissions [s 54D(5)].
An assessment order requires a child to attend a nominated assessment service and for the service to provide a report to the applicant, the child (or a person representing a child) and the Court following its assessment [s 54B(1)(a)].
The Court may only make an assessment order in relation to a child if satisfied [s 54D(1)]:
A treatment order requires a child to attend a nominated treatment service and for the service to provide a report to the applicant, the child (or a person representing a child) and the Court following its assessment [s 54B(1)(b)].
The Court may only make a treatment order in relation to a child if the child has been assessed by a medical practitioner (pursuant to an assessment order or otherwise) as being dependent on one or more controlled drugs [s 54D(2)(a)], and:
A child may be assessed and given treatment in accordance with a treatment order, and reports provided, despite the refusal of consent by the child [s 54H]. Other treatment may be provided (other than treatment for the child’s dependency on controlled drugs), in accordance with the Consent to Medical Treatment and Palliative Care Act 1995 (SA). For more information, see Medical Treatment and Related Issues, Consent.
A detention order is an order authorising the detention of a child for the purpose of ensuring compliance with an assessment order or a treatment order [s 54B(1)(c)].
A detention order must be for the shortest period the Court thinks appropriate, and must not exceed 12 months [s 54B(4)]. The order must also be reviewed by the Court at regular intervals until the child is released from detention [s 54B(5)].
The Court may only make a detention order in relation to a child if [s 54D(3)]:
A child may only be detained at an assessment or treatment service, unless the child is already subject to a period of detention in a training centre. In this case the child may be detained at the training centre, but only for the period of the other detention [s 54I].
The Chief Executive of the Department of the Minister administering the Controlled Substances Act 1984 (SA) is responsible for ensuring that [s 54L]:
The Court must not make an Youth Treatment Order unless satisfied that the child is assisted or represented in the proceedings by a family member or advocate [s 54E(1)].
Legal representation
Children are entitled to be represented by a legal practitioner (at no cost to the child) in relation to proceedings for assessment, treatment and detention orders under Part 7A of the Controlled Substances Act 1984 (SA) [s 54M(1)]. Children will automatically be allocated a lawyer by the Legal Services Commission, who will offer to provide them with legal representation.
A child, may however, choose to engage a legal practitioner at his or her own expense, appear personally (unrepresented), or have the Public Advocate or another advocate appear on their behalf [s 54M (3)].
Orders made in the child or representative’s absence
However, the Court may make an order in the absence of the child or representation for the child if satisfied:
The Court may adjourn a hearing to which a child is summoned to appear to a later date if satisfied the summons has not been served or there is another adequate reason [s 54E(5)]. An adjournment must usually be for not more than 7 days [s 54E(7)].
If the Court makes an order in the child’s absence for urgency, the Court must make only an interim order and summon the child to appear at a hearing to say why the order should not be confirmed as a final order [s 54E(3)]. An interim order will continue until the conclusion of the hearing to which the child was summoned, but must be confirmed by the Court [s 54E(8)]:
The Court may confirm an order in an amended form [s 54E(9)].
An order for the assessment, treatment or detention of a child must be served on the child personally (given to the child), and is not binding on the child until that time [s 54G(1)]. The same applies to an order that is changed in any way by the Court – the changed order must be served personally (given to the child), and the change is not binding until that time [s 54G(2)].
An order must be given to the child together with a statement outlining the child’s relevant legal and other rights in relation to the order [s 54G(3)].
The order must also be given to the nominated assessment or treatment service [s 54G(4) and (5)]. The applicant for the order may also be requested to provide copies of the order to a medical practitioner treating the child or a family member or advocate for the child who has a proper interest in the health, safety and welfare of the child [s 54G(6)].
The Court may vary or revoke a Youth Treatment Order of its own motion if there are proceedings before it involving the relevant child. Alternatively, the Court may vary or revoke an order on the application of any of those who may apply for such an order in the first place [s 54F(2)].
A child subject to an order may also apply for the order to be varied or revoked with the permission of the Court. The Court may only grant permission if there has been a substantial change in circumstances since the order was made or last varied [s 54F(2)]. All parties must be given a reasonable opportunity to be heard on the matter [s 54F(3)].
If the order is made by a magistrate, there is a right of appeal to the Supreme Court, constituted of a single judge [Youth Court Act 1993 (SA) s 22(2)(b)]. If the order is made by a Judge of the Youth Court, there is a right of appeal to the Court of Appeal [s 22(2)(a)].
On appeal, the Court may confirm, vary or revoke the order, remit the matter for hearing or make any other order necessary or desirable in the circumstances [s 22(3)].
Appeals must be lodged within 21 calendar days of the order the subject of appeal [Uniform Civil Rules 2020 (SA) r 214.1].
Legal advice should be sought before lodging an appeal.
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