Young Offenders Act 1994
Young Offenders Regulations 1995
Young Offenders Act 1994
Young Offenders Regulations 1995
Western Australia
Young Offenders Regulations 1995
Contents
Part 1 — Preliminary
1.Citation1
2.Terms used in these regulations1
Part 2 — Form of written statement given to a young person not represented by a legal practitioner
3.Form of written statement given to a young person not represented by a legal practitioner2
Part 3 — Youth community based orders and intensive youth supervision orders
Division 2 — Taking of body samples
9.Taking of body samples3
Division 3 — Attendance conditions
10.Proposed agenda4
Division 4 — Community work conditions
11.Terms used in this Division4
12.Offender subject to community work conditions4
13.Maximum number of hours to be worked in any day5
14.Safe working environment and safe manner of work5
15.Authorised breaks counted as work5
16.Certain breaks allowed and counted as work5
17.Offender not required to work if supervising officer or overseer fails to arrive unless alternative arrangements made6
18.Certain substances prohibited6
19.Offender under the influence of alcohol etc.6
20.Offender not to possess weapon, and confiscation7
21.Offender not to drive vehicle unless authorised7
22.Offender may be excused from work7
23.Offender ill or injured while performing work7
24.Supervising officer to notify responsible adult8
25.Offender unable to attend to perform work because of illness8
Division 5 — Supervision conditions
26.Limits on the reporting requirements of supervision conditions9
27.Requirement to report for offender who lives in remote area of the State9
Division 6 — Intensive youth supervision orders without detention
28.Term used in this Division10
29.Application of Divisions 3, 4 and 5 to supervision orders10
30.Limits on the reporting requirements of supervision conditions10
31.Offender to inform supervising officer of change in address within 48 hours10
Division 7 — Conditional release orders
32.Application of Division 4 to offender released under conditional release order10
33.Offender unable to attend to perform work because of illness11
Part 4 — Special detention centres
34.Detention centres established and operated as special detention centres13
Part 6 — Hearing and determination of detention offences
36.Term used in this Part14
37.Charge of detention offence14
38.Notification of hearing14
39.Representation of detainee15
40.Procedure15
Part 6A — Miscellaneous
40A.Calculation of period of detention by reference to unpaid amount (s. 65C(2))17
40B.Restriction of access to exchange information (s. 16(8)(b))17
Part 7 — Detainee gratuities
Division 1 — Special detention centres
41.Classification of activities undertaken by detainees in special detention centres18
42.Gratuities credited to a detainee in special detention centre18
Division 2 — Detention centres other than special detention centres
43.Gratuities credited to a detainee in detention centre that is not a special detention centre19
Division 3 — General
44.Superintendent may direct gratuities be withheld or reduced19
45.Superintendent may direct deductions from gratuities20
46.Superintendent may direct when gratuities are to be credited20
Part 7A — Detainee privileges
46A.Granting and withdrawing of privileges21
46B.Privileges21
Part 8 — Employees
Division 1 — Preliminary
47.Term used: miscellaneous employee23
Division 2 — Employment generally
48A.Term used: remove23
48.Application23
49.Officers and employees of particular classes prescribed (section 11(1a)(b))24
50.Functions of officers and employees of particular classes prescribed (section 11(2))24
51.Circumstances of removal for physical or mental health reasons (section 11(1a))25
52A.Circumstances of removal for other reasons (section 11(1a))25
52.Notice prior to removal (section 11(1a))26
Division 3 — Discipline of custodial officers
53.Application of Public Sector Management Act 1994 Part 527
Division 4A — Removal of custodial officer due to loss of confidence
54.Terms used27
55.Application of this Division28
56.Appointment of review officer28
57.Role of review officer29
58.Provision of material to chief executive officer30
59.Notice of loss of confidence31
60.Access to material32
61.Chief executive officer’s assessment of custodial officer’s submissions32
62.Further ground for removal33
63.Notice of chief executive officer’s decision on removal action and material relied on35
64.Service of notices or documents36
65.Application36
66.Restriction on suspending custodial officer’s pay37
Division 4 — Use of force
70.Application37
71.Prescribed force (section 11C(1))37
72.Prescribed circumstances for use of force (section 11C(2))38
Part 9 — Confinement of detainees
Division 1 — Preliminary
73.Term used in this Part39
74.Imposition of confinement39
Division 2 — Detention offence confinement
75.Application39
76.Confinement procedures40
77.Confinement monitoring, searches etc.40
Division 3 — Good government, good order or security confinement
78.Application41
79.Confinement procedures41
80.Confinement monitoring, searches etc.42
Part 10 — Search and seizure
Division 1 — Preliminary
81.Terms used in this Part and application43
82.Superintendent empowered to search44
83.Superintendent empowered to search with assistance of trained dog45
84.Superintendent empowered to use force when searching detainees45
Division 2 — Searching detainees
85.When45
86.How46
87.If illegal or unauthorised things are found46
Division 3 — Searching officers or other employees
88.When47
89.How47
90.If illegal or unauthorised things are found48
Division 4 — Searching other persons
91.When48
92.How49
93.If illegal or unauthorised things are found50
Division 5 — Use of dogs
94.Dogs can be used to search for drugs51
95.Dogs to be under the control of a dog handler52
96.Dogs to be used in authorised manner52
97.Dogs in searches53
Division 6 — Securing illegal or unauthorised things
98.Securing illegal or unauthorised things53
Part 11 — Body samples
Division 1 — Taking body samples
99.Officer who suspects unauthorised or illegal substance use to inform superintendent55
100.Circumstances that may prompt requirement for body samples55
101.Taking of body samples56
Division 2 — Analysis
102.Approval of analysis agent56
103.Analyst to give certificate57
104.Admissibility of analyst’s certificate58
Part 12 — Savings and transitional provisions
105.Discipline before commencement day59
Schedule 1
Notes
Compilation table62
Defined terms
Western Australia
Young Offenders Act 1994
Young Offenders Regulations 1995
These regulations may be cited as the Young Offenders Regulations 1995 1.
2.Terms used in these regulations
In these regulations unless the contrary intention appears —
juvenile custodial officer means a person appointed under section 11(1a)(a) of the Act;
medical practitioner means a medical practitioner registered under the Medical Act 1894;
special detention centre means a detention centre referred to in regulation 34;
supervising officer means —
(a)in relation to a youth community based order, an officer of the Department assigned to be the supervising officer under section 77 of the Act; or
(b)in relation to a conditional release order, an officer of the Department assigned to be the supervising officer under section 108 of the Act;
the overseer, in relation to an offender, means the person assigned to oversee the offender under regulation 7.
[Regulation 2 amended in Gazette 19 Jun 2009 p. 2232.]
Part 2 — Form of written statement given to a young person not represented by a legal practitioner
3.Form of written statement given to a young person not represented by a legal practitioner
The form of the written statement that the court is required to give a young person under section 44(2)(b) of the Act is set out in Schedule 1.
Part 3 — Youth community based orders and intensive youth supervision orders
[Division 1 (r. 4-8) deleted in Gazette 27 Jun 2005 p. 2851.]
Division 2 — Taking of body samples
(1)If a youth community based order or an intensive youth supervision order is made on the condition or undertaking that the offender submit to the taking of a body sample, and the chief executive officer requires the offender to submit to the taking of a body sample —
(a)if the body sample to be taken is breath, the breath test is to be conducted by means of an apparatus of an approved kind; or
(b)if the body sample to be taken is blood or urine, the blood or urine taken is to be labelled with —
(i)the name of the offender;
(ii)the type of the sample;
(iii)the name of the person who took the sample; and
(iv)the date and time that the sample was taken.
(2)A body sample that is to be taken in the form of blood is to be taken by a medical practitioner.
(3)The chief executive officer is to direct, either generally or in respect of the particular case, whether a body sample is to be taken in the form of blood, breath or urine.
(4)In subregulation (1)(a), approved means approved by the chief executive officer.
Division 3 — Attendance conditions
When a report that attendance conditions would be suitable for an offender is submitted to the court, the proposed agenda submitted to the court under section 75 of the Act is to specify —
(a)proposals relating to the educational, rehabilitative or other course in which the offender is to participate;
(b)details of the days and times when the course operates; and
(c)proposals relating to the aggregate number of hours during which the offender is to participate in the course.
Division 4 — Community work conditions
11.Terms used in this Division
In this Division —
drug means a prohibited drug, or prohibited plant, within the meaning of the Misuse of Drugs Act 1981;
work means work required to be performed in accordance with community work conditions imposed by way of a youth community based order under section 73(1)(b) of the Act.
12.Offender subject to community work conditions
An offender performing work —
(a)is to comply with any reasonable direction given by the overseer; and
(b)is to wear any safety clothing or equipment supplied to the offender for the purpose of performing the work.
13.Maximum number of hours to be worked in any day
Unless the supervising officer and offender both consent to the requirement, an offender performing work is not to be required to perform more than 6 hours of work in any day.
14.Safe working environment and safe manner of work
The supervising officer is to take any measures that are practicable to ensure that an offender performing work —
(a)is not exposed to hazards at the place where the work is being performed; and
(b)performs the work in a manner that does not expose the offender or any other person to hazards.
15.Authorised breaks counted as work
If an offender performing work takes a break authorised by the supervising officer or overseer, the period of the break is to be taken to be a period of work in computing the number of hours of work performed by the offender.
16.Certain breaks allowed and counted as work
(1)An offender performing work is to be allowed during a normal working day —
(a)a break of 15 minutes in the morning;
(b)a break of 45 minutes for lunch; and
(c)a break of 15 minutes in the afternoon.
(2)The period of a break taken by an offender under subregulation (1) is to be taken to be a period of work in computing the number of hours of work performed by the offender.
17.Offender not required to work if supervising officer or overseer fails to arrive unless alternative arrangements made
(1)If —
(a)an offender attends to perform work at a time and place specified in a direction given to the offender by the supervising officer; and
(b)neither the supervising officer nor overseer arrives at the specified place within one hour after the specified time,
the offender is not required to perform work on that day unless other arrangements are made for an appropriate person to oversee the work to be performed by the offender at the specified place or another place.
(2)If an offender does not perform work because of circumstances referred to in subregulation (1), the period that the offender would have worked if not for those circumstances is to be taken to be a period of work in computing the number of hours of work performed by the offender.
18.Certain substances prohibited
An offender is not to bring to, or possess at, the place where the offender is performing work any alcohol, drug, toluene or any other substance capable of influencing a person’s fitness to perform work.
19.Offender under the influence of alcohol etc.
(1)If the overseer considers that an offender is unfit to perform work because the offender is under the influence of alcohol, a drug, toluene or any other substance capable of influencing a person’s fitness to perform work, the overseer —
(a)is to direct the offender not to work; and
(b)is to report the matter to the supervising officer.
(2)Any period during which an offender is directed not to work under subregulation (1) is not to be taken to be a period of work in computing the number of hours of work performed by the offender.
20.Offender not to possess weapon, and confiscation
(1)An offender is not to bring a weapon to, or possess a weapon at, the place where the offender is performing work.
(2)During the period that the work is being performed, the supervising officer or overseer may take possession of a weapon that an offender brings to, or possesses at, the place where the offender is performing work.
21.Offender not to drive vehicle unless authorised
An offender is not to drive or ride in or on a vehicle at the place where the offender is performing work unless authorised to do so by the supervising officer or overseer.
22.Offender may be excused from work
(1)The supervising officer or, with the approval of the supervising officer, the overseer may excuse an offender from performing work if the supervising officer or overseer, as the case requires, is satisfied that there are reasonable grounds for doing so.
(2)Any period during which an offender is excused from work under subregulation (1) is not to be taken to be a period of work in computing the number of hours of work performed by the offender.
23.Offender ill or injured while performing work
(1)If an offender becomes ill or is injured while performing work, the overseer —
(a)is immediately to notify the supervising officer of the illness or injury; and
(b)in the case of injury, is within 24 hours to provide to the supervising officer a written report of the circumstances in which the injury occurred.
(2)The overseer may excuse an offender who becomes ill or is injured while performing work from working for any period during the remainder of the day.
(3)Any period during which an offender is excused from performing work under subregulation (1) is to be taken to be a period of work in computing the number of hours of work performed by the offender.
24.Supervising officer to notify responsible adult
If an offender is excused from performing work under regulation 22 or 23, the supervising officer is to take reasonable steps to notify a responsible adult accordingly.
25.Offender unable to attend to perform work because of illness
(1)If, because of illness, an offender is unable to attend to perform work at a time and place specified in a direction given to the offender by the supervising officer, the offender is to notify the supervising officer as soon as practicable within 48 hours after the specified time.
(2)An offender —
(a)who notifies the supervising officer under subregulation (1); and
(b)who, within 3 days after the specified time, provides to the supervising officer a certificate signed by a medical practitioner certifying that, because of illness, the offender was unable to perform work for a period specified in the certificate that includes the specified time,
is to be taken to have been excused from attending to perform work as required by the direction referred to in subregulation (1).
(3)Any period during which an offender is unable to attend to perform work because of illness is not to be taken to be a period of work in computing the number of hours of work performed by the offender.
Division 5 — Supervision conditions
26.Limits on the reporting requirements of supervision conditions
Supervision conditions imposed on an offender by way of an order made under section 73(1)(c) of the Act are not to require the offender to report more than once each week.
27.Requirement to report for offender who lives in remote area of the State
If —
(a)the court is considering making an order under section 73(1)(c) that imposes supervision conditions on an offender who lives in a remote area of the State; and
(b)the conditions being considered include a requirement for the offender to report,
the court is to take into account the fact that the offender lives in a remote area of the State in determining the appropriate requirement to report.
Division 6 — Intensive youth supervision orders without detention
In this Division, supervision order means an intensive youth supervision order made by a court without imposing a sentence of detention.
29.Application of Divisions 3, 4 and 5 to supervision orders
Without limiting section 100 of the Act and unless otherwise provided in this Division, Divisions 3, 4 and 5 apply, with necessary modifications, to conditions imposed by way of a supervision order as if it were a youth community based order.
30.Limits on the reporting requirements of supervision conditions
Supervision conditions imposed on an offender under section 73(1)(c) of the Act (as read with section 100 of the Act) by way of a supervision order are not to require the offender to report more than 3 times each week.
31.Offender to inform supervising officer of change in address within 48 hours
An offender who changes address while subject to a supervision order is to comply with section 78(c) of the Act (as read with section 100 of the Act) within 48 hours after the change in the offender’s address.
Division 7 — Conditional release orders
32.Application of Division 4 to offender released under conditional release order
Division 4 (other than regulation 25) applies, with necessary modifications, to an offender released under a conditional release order, within the meaning of section 101 of the Act, as if a reference in the Division to the performance of work included a reference to the performance of work, or to complying with any other obligation, in accordance with conditions imposed on an offender by way of a conditional release order.
33.Offender unable to attend to perform work because of illness
(1)If, because of illness, an offender is unable to attend to perform work at a time and place specified in a direction given to the offender by the supervising officer, the offender is to notify the supervising officer as soon as practicable within 24 hours after the specified time.
(2)An offender —
(a)who notifies the supervising officer under subregulation (1);
(b)who, within 3 days after the specified time, provides to the supervising officer a certificate signed by a medical practitioner certifying that, because of illness, the offender was unable to perform work for a period specified in the certificate that includes the specified time; and
(c)who, if so required by the chief executive officer under subregulation (3), is examined by a medical practitioner who verifies that the offender was ill at the specified time,
is to be taken to have been excused from attending to perform work as required by the direction referred to in subregulation (1).
(3)If an offender notifies the supervising officer under subregulation (1), the chief executive officer may require the offender to be examined by a medical practitioner, nominated by the chief executive officer, to verify that the offender was ill at the specified time.
(4)Any period during which an offender is unable to attend to perform work because of illness is not to be taken to be a period of work in computing the number of hours of work performed by the offender.
(5)In this regulation, work means work required to be performed, or any other obligation required to be complied with, in accordance with conditions imposed by way of a conditional release order.
Part 4 — Special detention centres
34.Detention centres established and operated as special detention centres
(1)Detention centres to be known as special detention centres may be established and operated where detainees are required to undertake designated work and other developmental programmes in a structured and disciplined environment in order to attain predetermined goals.
(2)In attaining predetermined goals, detainees in special detention centres are required to undertake activities that demonstrate progress in their self‑discipline, work performance and capacity to participate in developmental programmes.
[Part 5 (r. 35) deleted in Gazette 27 Jun 2005 p. 2851.]
Part 6 — Hearing and determination of detention offences
In this Part, superintendent or visiting justice means the superintendent or visiting justice hearing and determining a charge of a detention offence.
37.Charge of detention offence
(1)If a charge of a detention offence is made under section 171 of the Act, the charge is to be made in writing and is to contain —
(a)the name of the detainee alleged to have committed the offence;
(b)the date, time and place of the alleged offence;
(c)the details of any person assaulted or any property broken, damaged or destroyed in the commission of the alleged offence;
(d)a description of any injury or damage resulting from the alleged offence; and
(e)a brief summary of the alleged circumstances of the offence.
(2)A copy of the charge is to be made available to the detainee alleged to have committed the offence a reasonable time before the hearing of the charge.
(1)If —
(a)a detainee is charged with a detention offence; and
(b)a date is set for the hearing of the charge,
the superintendent is to take reasonable steps to notify a responsible adult of the date set for the hearing and of the right of the responsible adult to be present at the hearing.
(2)It is sufficient compliance with subregulation (1) if the superintendent causes written notification of the hearing to be forwarded to the last address recorded at the detention centre for the responsible adult.
(1)The superintendent or visiting justice is to permit a suitable person, other than a legal practitioner, nominated or agreed to by the detainee charged to assist and represent the detainee at the hearing of the charge.
(2)It is for the superintendent or visiting justice to determine whether a person nominated or agreed to under subregulation (1) is a suitable person for the purposes of that subregulation.
(1)Subject to subregulation (2), the procedure that applies to the hearing and determination of a charge of a detention offence is —
(a)the prosecuting officer is to state the case against the detainee and call any witnesses in support of the charge;
(b)the superintendent or visiting justice may take evidence on oath, affirmation or otherwise at his or her discretion;
(c)the prosecuting officer is to conduct the examination in chief of each witness and the detainee or the detainee’s representative may cross‑examine each witness;
(d)the prosecuting officer may re‑examine each witness on matters arising out of cross‑examination;
(e)the prosecuting officer is then to close his or her case; and
(f)the detainee is then to give evidence on his or her own behalf and call any witnesses, and paragraphs (c), (d) and (e) are to apply with necessary modifications.
(2)The superintendent or visiting justice may at the request of the detainee or the detainee’s representative adjourn the hearing of the charge to permit the detainee to consider the charge more properly and prepare a defence to it.
(3)The superintendent or visiting justice —
(a)is to conduct proceedings expeditiously and without undue adjournment or delay;
(b)is to keep or cause to be kept an accurate record of proceedings;
(c)may question a witness called; and
(d)may direct that a particular witness be called or call and question a witness.
(4)The prosecuting officer and the detainee or the detainee’s representative may question a witness called and questioned under subregulation (3)(d).
[Heading inserted in Gazette 9 Jan 1996 p. 54.]
40A.Calculation of period of detention by reference to unpaid amount (s. 65C(2))
For the purposes of section 65C(2) of the Act, the period of detention in a detention order (expressed in days) is to be calculated by dividing the unpaid amount by $250 and rounding the result down to the nearest whole number.
[Regulation 40A inserted in Gazette 9 Jan 1996 p. 54; amended in Gazette 25 Jul 2000 p. 3909; 19 Jun 2009 p. 2233.]
40B.Restriction of access to exchange information (s. 16(8)(b))
(1)A person must not publish information disclosed under section 16(5) of the Act without the written approval of the chief executive officer.
Penalty: a fine of $1 000.
(2)The chief executive officer must not give approval under subregulation (1) unless the chief executive officer is satisfied that —
(a)the research for which the information was disclosed was conducted in a methodologically sound manner; and
(b)the report based on that research is factually correct; and
(c)the publication does not identify individuals, reveal confidential departmental information or otherwise pose a security risk to the operations of the Department.
[Regulation 40B inserted in Gazette 3 Apr 2007 p. 1509-10.]
[Heading amended in Gazette 27 Jun 2005 p. 2852.]
Division 1 — Special detention centres
41.Classification of activities undertaken by detainees in special detention centres
(1)For the purpose of crediting gratuities to detainees in special detention centres, the activities undertaken by detainees are to be classified by the chief executive officer as —
(a)level 1 activities, in respect of activities that are at times undertaken without supervision and activities that are undertaken in the local community and require special aptitude and diligence;
(b)level 2 activities, in respect of activities that are at times undertaken under general supervision in the local community and activities that require above average aptitude and diligence; or
(c)level 3 activities, in respect of activities that are undertaken under direct supervision and activities that require average aptitude and diligence.
(2)The level at which activities are classified is as the chief executive officer considers appropriate, having regard to the matters set out in subregulation (1)(a), (b) and (c).
42.Gratuities credited to a detainee in special detention centre
The gratuities that may be credited to a detainee in a special detention centre are —
(a)for undertaking level 1 activities, $50.11 each week;
(b)for undertaking level 2 activities, $35.80 each week; or
(c)for undertaking level 3 activities, $21.48 each week.
[Regulation 42 amended in Gazette 19 Jun 2009 p. 2233.]
Division 2 — Detention centres other than special detention centres
43.Gratuities credited to a detainee in detention centre that is not a special detention centre
(1)Subject to subregulations (2A), (2) and (3), the gratuities that may be credited to a detainee in a detention centre other than a special detention centre are $21.48 each week.
(2A)The rate of gratuities to be credited under subregulation (1) is to be varied each year according to the variation in the previous year of the Consumer Price Index (all groups) Perth as issued by the Australian Bureau of Statistics under the authority of the Census and Statistics Act 1905 (Commonwealth) and the date from which any such variation is to be credited is to be determined by the chief executive officer.
(2)The superintendent may direct that, because of the nature of the activities that a detainee is required to undertake, the gratuities credited to the detainee be increased, as the superintendent considers appropriate, for the period during which the detainee undertakes those activities.
(3)Gratuities are not to be credited to a detainee who is detained for less than 3 days.
(4)In this regulation, detainee means a detainee detained in a detention centre other than a special detention centre.
[Regulation 43 amended in Gazette 19 Jun 2009 p. 2233.]
44.Superintendent may direct gratuities be withheld or reduced
(1)If a detainee refuses to undertake activities as directed, the superintendent may direct that no gratuities be credited to the detainee for the period during which the detainee refuses to undertake those activities.
(2)If the performance of activities undertaken by a detainee at a detention centre is, in the opinion of the superintendent, unsatisfactory, the superintendent may direct that the gratuities credited to the detainee be reduced, as the superintendent considers appropriate, for the period during which the performance of those activities is unsatisfactory.
(3)If the superintendent gives a direction under subregulation (1) or (2), the superintendent is to maintain a record of the reasons for giving the direction.
45.Superintendent may direct deductions from gratuities
If a detainee causes any property of the State in a detention centre to be lost, broken, damaged or destroyed, the superintendent may direct that an amount that the superintendent considers appropriate —
(a)be deducted from the gratuities that are credited to the detainee; and
(b)be paid towards the repair or replacement of the property.
46.Superintendent may direct when gratuities are to be credited
The superintendent may direct that gratuities be credited to detainees at times that the superintendent considers appropriate.
[Heading inserted in Gazette 27 Jun 2005 p. 2852.]
46A.Granting and withdrawing of privileges
(1)In this Part —
authorised means authorised by the superintendent;
privilege means a concession or luxury extended to a detainee in addition to any rights provided by statutory or common law.
(2)A privilege may be extended to a detainee at the discretion of an authorised officer.
(3)An authorised officer may withdraw a privilege from any detainee at any time satisfied that —
(a)the privilege is being misused;
(b)the detainee has been involved in a breach of a rule made under section 181 of the Act;
(c)continued provision of that privilege constitutes a threat to, or a breach of, the security of the detention centre; or
(d)the detainee has use or possession of an article and that use or possession has not been approved or granted by an authorised person.
(4)An authorised officer must withdraw a privilege from a detainee when requested to do so by the Director of Juvenile Custodial Services.
(5)If a privilege is withdrawn by an authorised officer, the detainee may seek a review of the decision to withdraw that privilege by the superintendent.
[Regulation 46A inserted in Gazette 27 Jun 2005 p. 2852-3.]
(1)The privileges that may be extended to a detainee may include access to —
(a)the canteen;
(b)recreation and sporting facilities;
(c)a television set, radio, cassette player, compact disc player or computer game;
(d)musical instruments;
(e)items of personal property approved by the superintendent;
(f)the library for recreational purposes;
(g)special visits.
(2)The superintendent may approve other items as privileges.
[Regulation 46B inserted in Gazette 27 Jun 2005 p. 2853.]
[Heading inserted in Gazette 21 Aug 2015 p. 3325.]
[Heading inserted in Gazette 27 Jun 2005 p. 2853.]
47.Term used: miscellaneous employee
In this Part —
miscellaneous employee means an officer or employee appointed under section 11(1a)(b) of the Act.
[Regulation 47 inserted in Gazette 27 Jun 2005 p. 2853-4; amended in Gazette 19 Jun 2009 p. 2233.]
Division 2 — Employment generally
[Heading inserted in Gazette 27 Jun 2005 p. 2854.]
In this Division —
remove, in relation to a person appointed under section 11(1a) of the Act, means terminate the employment of the person.
[Regulation 48A inserted in Gazette 21 Aug 2015 p. 3325.]
(1)The “employment” provisions in this Division apply to juvenile custodial officers and miscellaneous employees but do not apply to persons appointed under section 11(1) of the Act.
(2)This Division applies in addition to, and does not limit, the provisions in Divisions 3 and 4A.
[Regulation 48 inserted in Gazette 27 Jun 2005 p. 2854; amended in Gazette 19 Jun 2009 p. 2234; 21 Aug 2015 p. 3325.]
49.Officers and employees of particular classes prescribed (section 11(1a)(b))
(1)The following descriptions of classes of officers and employees are prescribed for the purposes of section 11(1a)(b) of the Act —
(a)medical staff;
(b)teaching staff;
(c)program support staff;
(d)detention centre support staff.
(2)The following officers and employees are included in those classes —
(a)medical staff — persons who have undergone medical, nursing or health training and hold qualifications indicating successful completion of that training;
(b)teaching staff — persons who provide recreation or sports supervision, teachers, vocational trainers and social trainers;
(c)program support staff — counsellors, program facilitators and librarians;
(d)detention centre support staff — cleaning staff, laundry staff, gardening staff, vehicle driving staff, maintenance staff and hairdressers.
[Regulation 49 inserted in Gazette 27 Jun 2005 p. 2854-5.]
50.Functions of officers and employees of particular classes prescribed (section 11(2))
The functions of miscellaneous employees are —
(a)those set out in their contracts of employment;
(b)the duties described in section 11A of the Act for all employees;
(c)to obey all lawful orders given to them by the superintendent and any other officer having authority or control over them.
[Regulation 50 inserted in Gazette 27 Jun 2005 p. 2855.]
51.Circumstances of removal for physical or mental health reasons (section 11(1a))
(1)A juvenile custodial officer or miscellaneous employee who is, in the opinion of the chief executive officer, unable to perform his or her duties properly by reason of his or her physical or mental health may be required by the chief executive officer to submit to a medical examination by a board consisting of a medical practitioner nominated by that juvenile custodial officer or miscellaneous employee, and 2 medical practitioners appointed by the Executive Director, Public Health.
(2)If, 7 days prior to the day of examination, the juvenile custodial officer or miscellaneous employee has not nominated a medical practitioner who has consented to attend the medical examination, the Executive Director, Public Health may appoint all 3 medical practitioners to constitute the board.
(3)If a board, or the majority of the members of a board, reports to the chief executive officer that a juvenile custodial officer or miscellaneous employee is unable to perform his or her duties properly by reason of his or her physical or mental health, the chief executive officer may remove the juvenile custodial officer or miscellaneous employee.
[(4)-(6)deleted]
[Regulation 51 inserted in Gazette 27 Jun 2005 p. 2855-6; amended in Gazette 19 Jun 2009 p. 2234; 21 Aug 2015 p. 3326.]
52A.Circumstances of removal for other reasons (section 11(1a))
(1)A juvenile custodial officer or miscellaneous employee who provides false, incomplete or misleading information in or with respect to an application for engagement as a juvenile custodial officer or miscellaneous employee may be removed by the chief executive officer.
(2)Where the chief executive officer is of the opinion during, or at the end of, the period of probation of a juvenile custodial officer or miscellaneous employee that the juvenile custodial officer or miscellaneous employee is unsatisfactory in the performance of his or her duties, or unsuitable to be a juvenile custodial officer or miscellaneous employee, the chief executive officer may remove that juvenile custodial officer or miscellaneous employee.
(3)The chief executive officer may extend the period of probation for a juvenile custodial officer or miscellaneous employee.
[Regulation 52A inserted in Gazette 21 Aug 2015 p. 3326.]
52.Notice prior to removal (section 11(1a))
(1)A juvenile custodial officer or miscellaneous employee who is removed under regulation 51(3) is entitled to one month’s notice from the chief executive officer or to one month’s pay in lieu of notice.
(2)A juvenile custodial officer or miscellaneous employee who leaves his or her employment of his or her own accord must give one month’s notice in writing or must forfeit one month’s pay.
(3)A juvenile custodial officer or miscellaneous employee on probation must give 2 weeks’ notice of an intention to leave the employment, or must forfeit 2 weeks’ pay.
(4)If a juvenile custodial officer or miscellaneous employee on probation is removed, other than under regulation 52A(1) or section 11CC of the Act, the juvenile custodial officer or miscellaneous employee must be given 2 weeks’ notice by the chief executive officer or 2 weeks’ pay in lieu of notice.
(5)Where a period of notice is required to be given under this regulation, the chief executive officer may, without prejudice to the entitlement of the juvenile custodial officer or miscellaneous employee to pay, abridge or dispense with such notice.
[Regulation 52 inserted in Gazette 27 Jun 2005 p. 2856-7; amended in Gazette 19 Jun 2009 p. 2234; 21 Aug 2015 p. 3326‑7.]
Division 3 — Discipline of custodial officers
[Heading inserted in Gazette 21 Aug 2015 p. 3327.]
53.Application of Public Sector Management Act 1994 Part 5
For the purposes of section 11(1C) of the Act custodial officers are prescribed for the purposes of the Public Sector Management Act 1994 section 76(1)(b).
[Regulation 53 inserted in Gazette 21 Aug 2015 p. 3327.]
Division 4A — Removal of custodial officer due to loss of confidence
[Heading inserted in Gazette 21 Aug 2015 p. 3327.]
In this Division, unless the contrary intention appears —
inspection list means a written list of relevant material gathered by a review officer for the purpose of an investigation under regulation 57;
notice means a notice given under section 11CD(1) of the Act;
privilege means —
(a)a privilege that would attach to a document prepared for the purpose of pending or contemplated legal proceedings or in connection with the obtaining or giving of legal advice; or
(b)immunity from production of a document or any material where the production would be against the public interest; or
(c)immunity from production of a document or any material under a written law;
relevant material means any material relevant to any issue identified in a summary of investigation concerning the custodial officer referred to in regulation 56(1);
removal action, in relation to a custodial officer, means the removal of the custodial officer under section 11CC of the Act;
review officer means a person appointed under regulation 56;
submission period has the meaning given in section 11CD(2) of the Act;
suitability to continue as a custodial officer has the meaning given in section 11CA of the Act;
summary of investigation means a written report that includes reference to relevant material gathered by the review officer for the purpose of an investigation under regulation 57.
[Regulation 54 inserted in Gazette 21 Aug 2015 p. 3327‑8.]
55.Application of this Division
This Division applies if, under Part 3 Division 3 of the Act, the chief executive officer —
(a)is contemplating taking removal action; or
(b)has decided to take removal action; or
(c)has taken removal action.
[Regulation 55 inserted in Gazette 21 Aug 2015 p. 3328.]
56.Appointment of review officer
(1)If the chief executive officer is contemplating taking removal action in relation to a custodial officer, the chief executive officer may appoint a review officer in relation to that custodial officer.
(2)A person must not be appointed as a review officer in relation to a custodial officer if that person has been directly involved in —
(a)a previous investigation that resulted in information being supplied to the chief executive officer regarding that custodial officer’s suitability to continue as a custodial officer; or
(b)a previous investigation of a suspected breach of discipline by that custodial officer that resulted in —
(i)a decision under the Public Sector Management Act 1994 section 81(1)(a); and
(ii)disciplinary action as defined in section 80A of that Act;
or
(c)a previous investigation that resulted in a charge being laid against that custodial officer under regulation 55 or 56 as those provisions were in force immediately before the commencement of the Young Offenders Amendment Regulations 2015 regulation 10; or
(d)any decision‑making relating to an investigation referred to in paragraph (a), (b) or (c).
[Regulation 56 inserted in Gazette 21 Aug 2015 p. 3328‑9.]
(1)The review officer must conduct an investigation into the custodial officer referred to in regulation 56(1) and prepare —
(a)a summary of investigation; and
(b)an inspection list.
(2)The review officer must identify in the inspection list any document in respect of which privilege is claimed and state in that inspection list each ground on which the privilege is claimed.
(3)The review officer is subject to the direction of the chief executive officer in conducting the investigation and preparing the summary of investigation and inspection list.
[Regulation 57 inserted in Gazette 21 Aug 2015 p. 3329.]
58.Provision of material to chief executive officer
(1)When the review officer completes the investigation, the review officer must provide the chief executive officer with —
(a)the summary of investigation; and
(b)the inspection list; and
(c)any material referred to in the inspection list that the review officer considers appropriate.
(2)Before the chief executive officer decides whether or not to give a notice, the chief executive officer may cause further material, including written reports, to be provided to the chief executive officer.
(3)The chief executive officer may direct the review officer to —
(a)conduct a further investigation in accordance with regulation 57 and subregulation (1); and
(b)prepare and submit to the chief executive officer —
(i)a supplementary summary of investigation; and
(ii)a supplementary inspection list.
(4)The chief executive officer’s direction may include a direction as to the matters to be investigated and included in the supplementary summary of investigation.
[Regulation 58 inserted in Gazette 21 Aug 2015 p. 3329.]
59.Notice of loss of confidence
(1)In addition to the grounds to be set out under section 11CD(1) of the Act, a notice must —
(a)set out the particular conduct or behaviour on which the chief executive officer’s loss of confidence is based; and
(b)advise the custodial officer that during the submission period the custodial officer may make written submissions to the chief executive officer in respect of the grounds on which the chief executive officer has lost confidence in the custodial officer’s suitability to continue as a custodial officer.
(2)When the chief executive officer gives the notice to a custodial officer, the chief executive officer must also provide to the custodial officer a copy of the following documents relating to the decision to give the notice —
(a)any summary of investigation and any supplementary summary of investigation;
(b)any inspection list and any supplementary inspection list;
(c)any document examined and taken into account in deciding to give the notice.
(3)As soon as practicable after the chief executive officer gives the notice to a custodial officer, the chief executive officer must make available to the custodial officer for inspection any other material examined and taken into account in deciding to give the notice.
(4)Subregulations (2) and (3) do not apply to any document or material that is privileged.
(5)If the chief executive officer does not provide the custodial officer with a copy of a document or make available to the custodial officer for inspection any other material because it is privileged, the chief executive officer must advise the custodial officer of each ground on which the document or material is privileged.
[Regulation 59 inserted in Gazette 21 Aug 2015 p. 3330.]
(1)During the submission period the chief executive officer must permit a custodial officer who has been given a notice or the custodial officer’s legal representative to inspect any material referred to in the inspection list or any supplementary inspection list that is not privileged.
(2)A custodial officer who has been given a notice may make a request in writing to the chief executive officer for permission to inspect any material, other than material provided to the custodial officer under these regulations, that —
(a)the custodial officer has seen or created in the course of his or her duties as a custodial officer; and
(b)is relevant to any issue concerning the custodial officer referred to in the notice.
(3)The request must be made as soon as practicable after, and in any event within 14 days after, the day on which the custodial officer was given the notice.
(4)During the submission period the chief executive officer must as far as practicable permit the custodial officer or the custodial officer’s legal representative to inspect the material the subject of a request under subregulation (2).
[Regulation 60 inserted in Gazette 21 Aug 2015 p. 3330‑1.]
61.Chief executive officer’s assessment of custodial officer’s submissions
(1)If the chief executive officer receives submissions from a custodial officer under section 11CD(2) of the Act, the chief executive officer may cause further material, including written reports, to be provided to the chief executive officer.
(2)The chief executive officer must where practicable within 21 days, and in any event within 42 days, after the end of the submission period, decide whether or not a period for further investigation or analysis of any submissions of the custodial officer is necessary.
(3)If the chief executive officer decides that a further period for investigation or analysis is required, the chief executive officer must endeavour to cause that investigation or analysis to be completed within 7 weeks after receiving the custodial officer’s submissions.
(4)If the further investigation or analysis cannot be completed within the period referred to in subregulation (3), the chief executive officer must give the custodial officer a notice stating —
(a)the reason for the further investigation or analysis; and
(b)the time period required to complete the further investigation or analysis; and
(c)the reason for the need for that time period.
(5)Despite deciding under section 11CD(3)(a) of the Act not to take removal action, the chief executive officer may decide that the custodial officer’s performance or conduct warrants other action being taken in relation to the custodial officer under the Act or these regulations.
[Regulation 61 inserted in Gazette 21 Aug 2015 p. 3331‑2.]
(1)If the chief executive officer concludes that he or she has lost confidence in the custodial officer’s suitability to continue as a custodial officer on a ground other than a ground set out in the notice the chief executive officer must —
(a)give the custodial officer notice in writing of the further ground; and
(b)provide to the custodial officer a copy of any document and make available for inspection any other material that has been examined and taken into account by the chief executive officer under this Division with the exception of —
(i)a copy of a document already given to the custodial officer or any material already made available for inspection by the custodial officer under this Division; and
(ii)a privileged document or material;
and
(c)allow the custodial officer a specified period to provide a response to the further ground.
(2)For the purpose of subregulation (1)(c), the specified period is —
(a)a period of 21 days beginning on the later of the following days —
(i)the day on which the custodial officer is given the notice of the further ground;
(ii)the day on which the custodial officer is provided with copies of all of the documents required to be provided under subregulation (1)(b);
(iii)the day on which all material required to be made available has been made available to the custodial officer for inspection under subregulation (1)(b);
or
(b)any longer period approved by the chief executive officer before the end of the period referred to in paragraph (a), on —
(i)an application made by the custodial officer; or
(ii)the initiative of the chief executive officer.
(3)If the chief executive officer does not provide the custodial officer with a copy of a document or make available for inspection any other material that was examined and taken into account by the chief executive officer under this Division because it is privileged, the chief executive officer must advise the custodial officer of each ground on which the document or material is privileged.
(4)Subregulation (3) does not apply if the chief executive officer has already advised the custodial officer under this Division of each ground on which the document or material is privileged.
[Regulation 62 inserted in Gazette 21 Aug 2015 p. 3332‑3.]
63.Notice of chief executive officer’s decision on removal action and material relied on
(1)As far as practicable, a decision notice as defined in section 11CD(3)(b) of the Act must be given to the custodial officer within 7 days after the chief executive officer has decided to take removal action.
(2)The chief executive officer is not required to comply with section 11CD(6) of the Act to the extent that —
(a)the chief executive officer has already provided the custodial officer with a copy of the document or made available to the custodial officer for inspection any other material under this Division; or
(b)the document or material is privileged.
(3)If the chief executive officer does not comply with section 11CD(6) of the Act because the document or material is privileged the chief executive officer must advise the custodial officer of each ground on which the document or material is privileged.
(4)Subregulation (3) does not apply if the chief executive officer has already advised the custodial officer under this Division of each ground on which the document or material is privileged.
[Regulation 63 inserted in Gazette 21 Aug 2015 p. 3333.]
64.Service of notices or documents
(1)If a notice or document is required to be given to a custodial officer under Part 3 Division 3 of the Act or this Division, service may be effected on the custodial officer —
(a)by delivering it to the custodial officer personally; or
(b)by properly addressing and posting it (by prepaid post) as a letter to the usual or last known residential address of the custodial officer or address for service given by the custodial officer in writing to the chief executive officer; or
(c)by leaving it for the custodial officer at the custodial officer’s usual or last known residential address; or
(d)by leaving it for the custodial officer at an address for service given by the custodial officer in writing to the chief executive officer.
(2)Service under subregulation (1) is to be taken to be effected —
(a)in the case of service under subregulation (1)(a), at the time of delivery to the custodial officer; or
(b)in the case of service under subregulation (1)(b), at the time when the letter would have been delivered in the ordinary course of post; or
(c)in the case of service under subregulation (1)(c), at the time it is left at the residential address; or
(d)in the case of service under subregulation (1)(d), at the time it is left at the address given to the chief executive officer.
[Regulation 64 inserted in Gazette 21 Aug 2015 p. 3333‑4.]
Regulations 55 to 63 do not apply where a custodial officer is removed under regulation 51 or 52A.
[Regulation 65 inserted in Gazette 21 Aug 2015 p. 3334.]
66.Restriction on suspending custodial officer’s pay
During any period in which consideration is being given to a custodial officer’s suitability to continue as a custodial officer, the chief executive officer cannot suspend the custodial officer’s pay.
[Regulation 66 inserted in Gazette 21 Aug 2015 p. 3334.]
[67-69.Deleted in Gazette 21 Aug 2015 p. 3327.]
[Heading inserted in Gazette 27 Jun 2005 p. 2867.]
(1)The “use of force” provisions in this Division apply to persons appointed under section 11(1) of the Act and juvenile custodial officers but do not apply to miscellaneous employees.
[(2)deleted]
[Regulation 70 inserted in Gazette 27 Jun 2005 p. 2867; amended in Gazette 19 Jun 2009 p. 2234; 21 Aug 2015 p. 3334.]
71.Prescribed force (section 11C(1))
(1)For the purposes of section 11C(1) of the Act —
prescribed force means the degree of physical force which is the minimum required to control a detainee’s behaviour in the circumstances.
(2)A person cannot use a physical restraint hold when applying prescribed force unless —
(a)that person has received instruction in the proper use of that hold; and
(b)the use of that type of hold has been authorised by the superintendent.
[Regulation 71 inserted in Gazette 27 Jun 2005 p. 2868.]
72.Prescribed circumstances for use of force (section 11C(2))
(1)For the purposes of section 11C(2) of the Act —
prescribed circumstances means an immediate period when a detainee is imminently presenting a risk of physical injury to himself or herself, other detainees or staff.
(2)As soon as the imminent risk has passed and the detainee has been stabilised then prescribed circumstances for the use of force no longer exist.
(3)If prescribed force or another similar physical restraint is used on a detainee, whether in prescribed circumstances or not, the detainee must be examined by the medical staff as soon as is practicable after the incident.
(4A)A member of the medical staff who conducts the examination must ensure that a written report of the examination is prepared and forwarded to the superintendent.
(4)The superintendent must ensure that photographs are taken immediately of any injury sustained either by the detainee or staff.
(5)A written report of any incident involving the use of prescribed force or another similar physical restraint must be provided to the superintendent by the staff member involved with respect to each detainee.
[Regulation 72 inserted in Gazette 27 Jun 2005 p. 2868-9; amended in Gazette 19 Jun 2009 p. 2235.]
Part 9 — Confinement of detainees
[Heading inserted in Gazette 27 Jun 2005 p. 2869.]
[Heading inserted in Gazette 27 Jun 2005 p. 2869.]
In this Part —
unlock hours means the period during which detainees who are not subject to confinement or restraint are able to leave their sleeping quarters.
[Regulation 73 inserted in Gazette 27 Jun 2005 p. 2869.]
(1)A superintendent or a visiting justice may order that a detainee be confined to that detainee’s sleeping quarters or to a designated room as a way of dealing with a detainee who has been found to have committed a detention offence.
(2)A superintendent may order that a detainee be confined to that detainee’s sleeping quarters or to a designated room in order to maintain good government, good order or security in a detention centre.
[Regulation 74 inserted in Gazette 27 Jun 2005 p. 2869.]
Division 2 — Detention offence confinement
[Heading inserted in Gazette 27 Jun 2005 p. 2869.]
This Division applies to an order by a superintendent or a visiting justice that a detainee be confined to that detainee’s sleeping quarters or to a designated room as a way of dealing with a detainee who has been found to have committed a detention offence.
[Regulation 75 inserted in Gazette 27 Jun 2005 p. 2869.]
(1)A superintendent must make and maintain a record of an order to confine a detainee.
(2)Where the confinement is ordered to take place in a designated room, the room used for the confinement must be assessed by the superintendent to be of an appropriate size and sufficiently ventilated and lit that the detainee can be confined in that room without injury to health.
(3)A detainee confined under this Division is entitled to fresh air, exercise and staff company for a period of at least 30 minutes every 3 hours during unlock hours.
[Regulation 76 inserted in Gazette 27 Jun 2005 p. 2870.]
77.Confinement monitoring, searches etc.
(1)A detainee placed in confinement must be subject to continuous monitoring for the first 30 minutes of that confinement.
(2)After the first 30 minutes of confinement, a confined detainee must be subject to regular monitoring carried out in accordance with a written management regime that has been endorsed by the superintendent.
(3)The confinement of a detainee is subject to the usual regimen of searches, checks, observation, notification, record‑keeping, reporting and other requirements that are imposed under administrative rules and instructions.
[Regulation 77 inserted in Gazette 27 Jun 2005 p. 2870.]
Division 3 — Good government, good order or security confinement
[Heading inserted in Gazette 27 Jun 2005 p. 2870.]
(1)This Division applies to an order by a superintendent that a detainee be confined to that detainee’s sleeping quarters or to a designated room as a way of maintaining good government, good order or security.
(2)A superintendent may order that a combined period of separate confinement and a period of work time be imposed on a detainee for the purpose of this Division but, in that case, the period of work time is to be counted as confinement time for the purposes of section 196(2)(e) of the Act.
[Regulation 78 inserted in Gazette 27 Jun 2005 p. 2870-1.]
(1)A superintendent must make and maintain a record of an order to confine a detainee.
(2)The superintendent that ordered confinement must inform the detainee of the reason for the confinement.
(3)Where the confinement is ordered to take place in a designated room, the room used for the confinement must be assessed by the superintendent to be of an appropriate size and sufficiently ventilated and lit that the detainee can be confined in that room without injury to health.
(4)A detainee whose confinement is for 12 hours or longer is entitled to at least one hour of exercise each 6 hours during unlock hours.
(5)The superintendent may at any time cut short a period of confinement or a period of work time that has been ordered and return the detainee to the appropriate program area.
[Regulation 79 inserted in Gazette 27 Jun 2005 p. 2871.]
80.Confinement monitoring, searches etc.
(1)A confined detainee must be subject to the regimen of searches, checks, observation, notification and other requirements (if any) set out in juvenile custodial rules made for this purpose and approved by the chief executive officer.
(2)The confinement of a detainee is subject to the usual regimen of searches, checks, observation, notification, record‑keeping, reporting and other requirements that are imposed under administrative rules and instructions.
[Regulation 80 inserted in Gazette 27 Jun 2005 p. 2871-2.]
[Heading inserted in Gazette 27 Jun 2005 p. 2872.]
[Heading inserted in Gazette 27 Jun 2005 p. 2872.]
81.Terms used in this Part and application
(1)In this Part —
illegal, in relation to things, means an article or substance, the possession of which is unlawful;
illegal thing means an article or substance that a person conducting a search suspects is illegal;
substance includes any narcotic drug to which the Misuse of Drugs Act 1981 applies, any drug that may be obtained by prescription, any solvent that might be abused and alcohol;
unauthorised, in relation to things, means an article or substance —
(a)that a detainee cannot have or retain without a prescription or the approval of the superintendent;
(b)that are not available to detainees generally, to prevent harm or self‑harm; or
(c)that appear to a person conducting an authorised search to constitute a threat to or breach of the security or good order of the detention centre;
unauthorised thing means an article or substance that a person conducting a search suspects is unauthorised.
(2)If a superintendent is uncertain as to the gender of a person to be searched under this Part —
(a)the superintendent must ask the person to advise whether a male or female should carry out the search and must act in accordance with the answer; and
(b)in the absence of an answer, the person is to be treated as if of the gender that the person outwardly appears to the superintendent to be.
(3)In this Part, the manner in which a person can be searched is limited to either a “pat down” search or a “strip” search or both.
(4)In this Part, if the superintendent is empowered to search a detainee, officer or other employee, or a person to whom Division 4 applies, the superintendent is empowered to direct an officer to undertake that search on his or her behalf.
[Regulation 81 inserted in Gazette 27 Jun 2005 p. 2872-3.]
82.Superintendent empowered to search
(1)A superintendent is authorised to search any detainee in accordance with this Part and take from him or her any illegal or unauthorised thing found on his or her person.
(2)A superintendent is authorised to search any officer or other employee in accordance with this Part in order to ascertain whether any illegal or unauthorised thing is in his or her possession.
(3)A superintendent is authorised to search any person in the circumstances set out in regulation 91, including a child, in accordance with this Part in order to ascertain whether any illegal or unauthorised thing is in his or her possession.
(4)A superintendent is authorised to search any person or vehicle outside but near a detention centre in accordance with this Part, where in the opinion of the superintendent that search is necessary for the security or good order of the detention centre, in order to ascertain whether any illegal or unauthorised thing is present.
[Regulation 82 inserted in Gazette 27 Jun 2005 p. 2873-4.]
83.Superintendent empowered to search with assistance of trained dog
A superintendent is authorised to use a trained dog to assist in carrying out a search in accordance with this Part.
[Regulation 83 inserted in Gazette 27 Jun 2005 p. 2874.]
84.Superintendent empowered to use force when searching detainees
A superintendent is authorised to use such force as is reasonably necessary —
(a)to perform a search; and
(b)to take from a detainee in, entering or leaving a detention centre any illegal or unauthorised thing found during a search.
[Regulation 84 inserted in Gazette 27 Jun 2005 p. 2874.]
Division 2 — Searching detainees
[Heading inserted in Gazette 27 Jun 2005 p. 2874.]
(1)A detainee should be searched —
(a)on admission to the detention centre;
(b)immediately before discharge from the detention centre;
(c)on leaving or returning to a detention centre; and
(d)when transferring from one detention centre to another.
(2)A detainee may be searched at any time, and in such a manner, as is considered necessary at the time by the superintendent.
[Regulation 85 inserted in Gazette 27 Jun 2005 p. 2874-5.]
(1)A detainee may be searched using either a “pat” or “strip” search depending on the circumstances surrounding the requirement of the search.
(2)A detainee should be “strip” searched if there are circumstances giving rise to a reasonable suspicion that the detainee may be in possession of an item that could —
(a)jeopardise the safety, good order or security of the detention centre; or
(b)be used for self harm.
(3)At least 2 officers must be present during a search of a detainee.
(4)A detainee must not be “strip” searched in the sight or immediate presence of a person of the opposite gender.
(5)Where practicable, a detainee should not be “strip” searched in the immediate presence of another detainee.
(6)Any search of a detainee must be conducted with due regard to the decency and self‑respect of the detainee.
(7)Despite subregulation (4), a superintendent may direct that a search is to be carried out in the presence of a medical practitioner or a nurse.
(8)Whenever a detainee is “strip” searched, each officer taking a role in that search must forward a written report of the search to the superintendent.
[Regulation 86 inserted in Gazette 27 Jun 2005 p. 2875.]
87.If illegal or unauthorised things are found
(1)If an illegal or an unauthorised thing is found on a detainee then the matter may be dealt with as a detention offence committed by the detainee under section 170 of the Act.
(2)An illegal or unauthorised thing is to be dealt with in accordance with Division 6.
(3)If an illegal thing is found on a detainee, the parent or the caregiver of the detainee is to be notified (where practicable) of the circumstances of that discovery by the superintendent.
[Regulation 87 inserted in Gazette 27 Jun 2005 p. 2876.]
Division 3 — Searching officers or other employees
[Heading inserted in Gazette 27 Jun 2005 p. 2876.]
An officer or other employee may be searched —
(a)on entering or leaving a detention centre; and
(b)at such a time as is considered necessary at the time by the superintendent.
[Regulation 88 inserted in Gazette 27 Jun 2005 p. 2876.]
(1)An officer or other employee may be searched using a “pat” search.
(2)The search of an officer or other employee may include a search of any article or thing carried on them or under their control.
[(3)deleted]
(4)The search of an officer or other employee must be conducted —
(a)by an officer who has been appointed by the superintendent and who is of the same gender as the person being searched;
(b)in the presence of another staff member;
(c)out of sight of other persons unless the person being searched requests the presence of another person; and
(d)with due regard to the decency and self‑respect of the person being searched.
(5)The officers involved in the search must submit a written report to the superintendent.
[Regulation 89 inserted in Gazette 27 Jun 2005 p. 2876-7; amended in Gazette 21 Aug 2015 p. 3334.]
90.If illegal or unauthorised things are found
(1)If a search under this Division leads to the discovery of an illegal or unauthorised thing, the officers conducting the search are to inform the superintendent immediately.
(2)An illegal or unauthorised thing is to be dealt with in accordance with Division 6.
[Regulation 90 inserted in Gazette 27 Jun 2005 p. 2877.]
Division 4 — Searching other persons
[Heading inserted in Gazette 27 Jun 2005 p. 2877.]
(1)A person who is not a detainee, or an officer or other employee, may be searched in the following circumstances —
(a)on seeking to enter a detention centre;
(b)on entering a detention centre;
(c)while in a detention centre;
(d)on seeking to leave a detention centre;
(e)immediately before leaving a detention centre;
(f)having just left a detention centre;
(g)subject to subregulation (2), when outside but near a detention centre.
(2)If the superintendent is of the opinion that a search of a person, article or vehicle outside but near a detention centre is necessary for the security or good order of the detention centre, the superintendent may search any or all of the following —
(a)that person;
(b)a person with that person, who is under the person’s care and control;
(c)an article in the possession or control of that person or a person with them;
(d)a vehicle in the possession or control of the person.
[Regulation 91 inserted in Gazette 27 Jun 2005 p. 2877-8.]
(1)A person described in regulation 91 may be searched using a “pat” search.
(2)The search of a person described in regulation 91 is to include a request to voluntarily produce any thing that may jeopardise the safety, good order or security of the detention centre if taken inside, or which may be used by a detainee for self harm.
(3)A person described in regulation 91 who —
(a)does not submit to a search ordered under this Division; or
(b)is in possession or control of anything requested for surrender under subregulation (2) of this regulation and does not produce it,
may be refused entry to the detention centre on that occasion and on subsequent occasions and may be removed from the detention centre forthwith.
(4)Subject to subregulation (5), the search of a person described in regulation 91 must be —
(a)conducted by an officer, who has been appointed by the superintendent, of the same gender as the person being searched and in the presence of another staff member;
(b)conducted out of sight of other persons unless the person being searched requests the presence of another person; and
(c)conducted expeditiously with due regard to the decency and self‑respect of the person being searched.
(5)If the person to be searched is a child that has not (or apparently has not) attained 10 years of age, the search is to be carried out —
(a)expeditiously;
(b)by a female employee accompanied by at least one other female employee;
(c)in the presence of the person accompanying the child unless that person refuses to remain; and
(d)in the absence of any male employees.
(6)All officers and employees conducting a search must submit a written report to the superintendent.
[Regulation 92 inserted in Gazette 27 Jun 2005 p. 2878-9.]
93.If illegal or unauthorised things are found
(1)If a search under this Division leads to the discovery of an illegal or unauthorised thing, the officers conducting the search are to inform the superintendent immediately and —
(a)if the thing is an illegal thing or an unauthorised thing and the search is conducted immediately prior to entering — ensure that the circumstances under which it was found are noted and prevent that person from entering the detention centre while the thing is in his or her possession;
(b)if the thing is an illegal thing or an unauthorised thing and the search is conducted whilst inside or before leaving the detention centre — ensure that the circumstances under which it was found are noted and ensure that the person is removed from the detention centre before returning the thing to the person;
(c)if the thing is an unauthorised thing and the search is conducted on a person who has just left a detention centre or is outside but near a detention centre — ensure that the circumstances under which it was found are noted before returning the thing to the person.
(2)If an illegal thing is surrendered, it is to be dealt with in accordance with Division 6.
(3)If a search reveals an illegal thing, the police may be informed of that discovery by the superintendent, and the person in apparent possession or control of that thing is to be requested, by the officer performing the search, to wait for the arrival of the police.
(4)A person who is searched under this Division and who is in possession or control of an illegal or unauthorised thing —
(a)may be refused entry to the detention centre on that occasion and on subsequent occasions; and
(b)may be removed from the detention centre forthwith.
[Regulation 93 inserted in Gazette 27 Jun 2005 p. 2879-80.]
[Heading inserted in Gazette 27 Jun 2005 p. 2881.]
94.Dogs can be used to search for drugs
(1)A superintendent may authorise the use of a trained dog to assist in carrying out a search if the purpose of a search is to detect whether illegal or unauthorised substances are or have been present.
(2)The trained dog used must be a “prison dog” within the meaning of the Prisons Act 1981 section 49A.
(3)The superintendent may require a trained dog to be used to search a detainee while in detention, and a person, an officer or other employee, or property —
(a)on seeking to enter a detention centre;
(b)on entering a detention centre;
(c)while in a detention centre;
(d)on seeking to leave a detention centre;
(e)immediately before leaving a detention centre;
(f)having just left a detention centre; or
(g)when outside but near a detention centre, if the superintendent is of the opinion that it is necessary for the security or good order of the detention centre.
[Regulation 94 inserted in Gazette 27 Jun 2005 p. 2881.]
95.Dogs to be under the control of a dog handler
If the use of a trained dog to assist a search is authorised or required under regulation 94, the trained dog must be accompanied by, and under the control of, a “dog handler” within the meaning of the Prisons Regulations 1982 regulation 81A.
[Regulation 95 inserted in Gazette 27 Jun 2005 p. 2881.]
96.Dogs to be used in authorised manner
For a trained dog to be used appropriately by a dog handler in a search —
(a)the dog handler must be the dog handler who has been allocated responsibility for the dog;
(b)the dog must be under the control of the dog handler; and
(c)the use of the dog must be in accordance with these regulations and any relevant rules.
[Regulation 96 inserted in Gazette 27 Jun 2005 p. 2882.]
(1)A person who —
(a)assaults; or
(b)hinders or obstructs,
a trained dog under the control of a dog handler carrying out a search under this Division is to be deemed to have assaulted, or to have hindered or obstructed, the dog handler.
(2)A trained dog under the control of a dog handler may enter, and be in, any place that an officer may lawfully enter or be in while carrying out a search for illegal or unauthorised substances, and no liability arises by reason only that the dog entered or was in that place, notwithstanding any other law.
(3)Without limiting the generality of section 182 of the Act, an officer or a dog handler is not personally liable for injury or damage caused by the use of a trained dog under the control of a dog handler in carrying out a search for illegal or unauthorised substances, if that use was in accordance with this Part.
(4)Subregulation (3) does not apply if injury or damage occurs as a result of anything commanded or permitted by the dog handler without reasonable and probable cause.
[Regulation 97 inserted in Gazette 27 Jun 2005 p. 2882-3.]
Division 6 — Securing illegal or unauthorised things
[Heading inserted in Gazette 27 Jun 2005 p. 2883.]
98.Securing illegal or unauthorised things
(1)An illegal or unauthorised thing is to be placed in a heat‑sealed, clear polythene evidence bag with a label showing —
(a)the name of the person who was in apparent possession or control of the thing;
(b)the place of discovery and the signature of the officer that made the discovery; and
(c)the time and date of discovery,
and the superintendent is to take and have custody of the thing.
(2)When an illegal thing has been found and the police are called, the superintendent is to retain custody of that thing and ensure that police take custody of the illegal thing.
(3)When an unauthorised thing has been found on a detainee, the superintendent is to retain custody of that unauthorised thing until the determination of any detention offence against the detainee related to that thing.
(4)Subject to subregulation (3), where the superintendent has custody of an unauthorised thing the superintendent may —
(a)return it to the detainee on his or her release;
(b)return it to the person believed by the superintendent to be the rightful owner;
(c)order that the thing be destroyed or otherwise dealt with.
(5)If an illegal thing that is a substance is found, the existence and movement of the substance is to be recorded by means of entries made in an “Unlawful Drugs Register” maintained at the detention centre.
(6)If an illegal or unauthorised thing requires analysis to confirm its composition, the superintendent may authorise the delivery of a sample taken under this Part to an approved analysis agent to be analysed in the manner set out in Part 11.
[Regulation 98 inserted in Gazette 27 Jun 2005 p. 2883-4.]
[Heading inserted in Gazette 27 Jun 2005 p. 2884.]
Division 1 — Taking body samples
[Heading inserted in Gazette 27 Jun 2005 p. 2884.]
99.Officer who suspects unauthorised or illegal substance use to inform superintendent
An officer who has reasonable grounds for suspecting that a detainee has used or ingested an unauthorised or illegal substance must inform the superintendent.
[Regulation 99 inserted in Gazette 27 Jun 2005 p. 2884.]
100.Circumstances that may prompt requirement for body samples
(1)The superintendent may require a body sample from a detainee in the following circumstances —
(a)if the superintendent has been informed of an officer’s suspicion under regulation 99;
(b)if the superintendent has reasonable grounds for suspecting that the detainee has used or ingested an unauthorised or illegal substance;
(c)if a random process of sampling has been instituted in the detention centre and the detainee is selected at random.
(2)The superintendent is to direct, either generally or in respect of the particular case, whether a body sample is to be taken in the form of blood, breath or urine.
[Regulation 100 inserted in Gazette 27 Jun 2005 p. 2884-5.]
(1)If the body sample to be taken is breath, the breath sample is to be tested by means of an apparatus of a kind approved by the Director of Juvenile Custodial Services, and that apparatus is to be operated by a person approved by the superintendent.
(2)If the body sample to be taken is blood or urine, the blood or urine taken is to be labelled with —
(a)the name of the person from whom the sample was taken;
(b)the type of the sample;
(c)the name of the person who took the sample; and
(d)the date and time that the sample was taken.
(3)A body sample that is to be taken in the form of blood is to be taken by a medical practitioner or a registered nurse.
(4)A body sample that is to be taken in the form of urine is to be taken by —
(a)a medical practitioner; or
(b)a registered nurse; or
(c)a juvenile custodial officer authorised by the chief executive officer to take urine samples.
[Regulation 101 inserted in Gazette 27 Jun 2005 p. 2885; amended in Gazette 19 Jun 2009 p. 2235.]
[Heading inserted in Gazette 27 Jun 2005 p. 2885.]
102.Approval of analysis agent
(1)Subject to subregulation (4), the chief executive officer is to approve at least one organisation, in respect of each type of body sample authorised to be taken under this Part, as the organisation whose employees are to carry out analysis of samples of that type.
(2)Subject to subregulation (4), the chief executive officer is to approve at least one organisation, in respect of illegal or unauthorised things seized under Part 10, as an organisation whose employees are authorised to carry out analysis of things seized under that Part.
(3)The chief executive officer may, at any time, cancel the approval of an organisation and approve another organisation under subregulation (1) or (2).
(4)If the chief executive officer does not approve a particular organisation under subregulation (1) or (2), the Chemistry Centre (WA) is the relevant approved analysis agent.
(5)For the purposes of these regulations, an analyst is a person appointed as an analyst under the Health Act 1911 and employed by an approved analysis agent.
[Regulation 102 inserted in Gazette 27 Jun 2005 p. 2885-6.]
103.Analyst to give certificate
(1)If a sample has been delivered under this Part to an organisation which is, at the time of delivery, the relevant approved analysis agent —
(a)that organisation must ensure that the analysis of the sample is completed;
(b)an analyst employed by that organisation who carries out the analysis must complete a certificate in a form approved by the chief executive officer; and
(c)the analyst must forward that certificate to the superintendent of the detention centre in which the detainee is kept.
(2)Subregulation (1) applies even if, after delivery of the sample, the approval of the organisation as the relevant approved analysis agent is cancelled.
(3)The superintendent must give a copy of the certificate referred to in subregulation (1) to the detainee from whom the sample was taken or obtained.
[Regulation 103 inserted in Gazette 27 Jun 2005 p. 2886-7.]
104.Admissibility of analyst’s certificate
The analyst’s certificate is admissible as evidence against a detainee charged with a detention offence and is prima facie evidence of the matters certified in the certificate.
[Regulation 104 inserted in Gazette 27 Jun 2005 p. 2887.]
Part 12 — Savings and transitional provisions
[Heading inserted in Gazette 21 Aug 2015 p. 3335.]
105.Discipline before commencement day
(1)In this regulation —
commencement day means the day on which the Young Offenders Amendment Regulations 2015 regulation 10 comes into operation;
former disciplinary provisions means Part 8 Division 3 as in force immediately before the commencement day;
misconduct, by a custodial officer, means conduct by the custodial officer that is or is reasonably suspected to be —
(a)substandard performance or a breach of discipline, as those terms are defined in the Public Sector Management Act 1994; or
(b)conduct that may result in the chief executive officer taking removal action, as defined in section 11CA of the Act, in relation to the custodial officer;
penalty includes any action against a custodial officer taken under the Public Sector Management Act 1994 Part 5.
(2)Proceedings for a breach of discipline instituted under the former disciplinary provisions that are pending immediately before the commencement day are to be dealt with and determined under those provisions as if the Young Offenders Amendment Regulations 2015 had not come into operation.
(3)Part 8 applies to misconduct committed, or suspected of having been committed, by a custodial officer before the commencement day but in relation to which proceedings for a breach of discipline have not been instituted under the former disciplinary provisions.
(4)However, if misconduct occurring before the commencement day would have constituted a breach of discipline under the former disciplinary provisions, a penalty cannot be imposed under Part 8 Division 3 in relation to the misconduct unless that penalty would also have been able to be imposed for the breach of discipline under the former disciplinary provisions.
[Regulation 105 inserted in Gazette 21 Aug 2015 p. 3335.]
[Regulation 3]
WRITTEN STATEMENT TO BE GIVEN BY THE COURT TO A YOUNG PERSON NOT REPRESENTED BY A LEGAL PRACTITIONER
WHAT TO DO IF YOU DON’T HAVE A LAWYER
1.It is your right to have a lawyer represent you in court.
2.There may be a free lawyer in the courthouse, known as the “duty lawyer” or “duty counsel”. You may seek their assistance if you wish.
3.If there is no lawyer for you at the court, you may ask to have your case put off (“adjourned”) to another day so that you can get legal advice.
4.The Legal Aid Commission and the Aboriginal Legal Service provide free legal services to young people. There may also be other free legal services in your area. To get their address and telephone number, ask the court staff for help.
1This is a compilation of the Young Offenders Regulations 1995 and includes the amendments made by the other written laws referred to in the following table. The table also contains information about any reprint.
|
Citation |
Gazettal |
Commencement |
|
Young Offenders Regulations 1995 |
3 Mar 1995 p. 853‑76 |
13 Mar 1995 (see Gazette 10 Mar 1995 p. 895) |
|
Young Offenders Amendment Regulations 1995 |
9 Jan 1996 p. 53‑4 |
9 Jan 1996 |
|
Young Offenders Amendment Regulations 2000 |
25 Jul 2000 p. 3909‑10 |
25 Jul 2000 |
|
Reprint 1: The Young Offenders Regulations 1995 as at 21 Nov 2003 (includes amendments listed above) |
||
|
Young Offenders Amendment Regulations 2005 |
27 Jun 2005 p. 2849-87 |
1 Jul 2005 (see r. 2) |
|
Young Offenders Amendment Regulations 2007 |
3 Apr 2007 p. 1509-10 |
4 Apr 2007 (see r. 2 and Gazette 3 Apr 2007 p. 1491) |
|
Reprint 2: The Young Offenders Regulations 1995 as at 20 Jul 2007 (includes amendments listed above) |
||
|
Young Offenders Amendment Regulations 2009 |
19 Jun 2009 p. 2232-5 |
r. 1 and 2: 19 Jun 2009 (see r. 2(a)); Regulations other than r. 1 and 2: 1 Jul 2009 (see r. 2(b)) |
|
Young Offenders Amendment Regulations 2015 |
21 Aug 2015 p. 3325‑35 |
r. 1 and 2: 21 Aug 2015 (see r. 2(a)); |
Defined terms
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
Defined termProvision(s)
analyst102(5)
approved9(4)
authorised46A(1)
commencement day105(1)
detainee43(4)
drug11
former disciplinary provisions105(1)
illegal81(1)
illegal thing81(1)
inspection list54
juvenile custodial officer2
medical practitioner2
miscellaneous employee47
misconduct105(1)
notice54
penalty105(1)
prescribed circumstances72(1)
prescribed force71(1)
privilege46A(1), 54
relevant material54
removal action54
remove48A
review officer54
special detention centre2
submission period54
substance81(1)
suitability to continue as a custodial officer54
summary of investigation54
superintendent or visiting justice36
supervising officer2
supervision order28
the overseer2
unauthorised81(1)
unauthorised thing81(1)
unlock hours73
work11, 33(5)