Young Offenders Act 1997 No 54

An Act to establish procedures for dealing with children who commit certain offences through the use of youth justice conferences, cautions and warnings instead of court proceedings; and for other purposes.

This Act is the Young Offenders Act 1997 .

This Act commences on a day or days to be appointed by proclamation.

The objects of this Act are—

(a) to establish a scheme that provides an alternative process to court proceedings for dealing with children who commit certain offences through the use of youth justice conferences, cautions and warnings, and

(b) to establish a scheme for the purpose of providing an efficient and direct response to the commission by children of certain offences, and

(c) to establish and use youth justice conferences to deal with alleged offenders in a way that—

(i) enables a community based negotiated response to offences involving all the affected parties, and

(ii) emphasizes restitution by the offender and the acceptance of responsibility by the offender for his or her behaviour, and

(iii) meets the needs of victims and offenders, and

(d) to address the over representation of Aboriginal and Torres Strait Islander children in the criminal justice system through the use of youth justice conferences, cautions and warnings.

In this Act—

conference administrator means a person appointed as a conference administrator as referred to in section 61.

(b) a person appointed by or under an Act and whose functions include functions in respect of the prevention or investigation of offences, prescribed by the regulations for the purposes of this definition.

on-line service means a service provided by or through the facilities of a computer communication system and accessed through a telecommunications network that allows for—

(a) the input, output or examination of computer data or computer programs, or

(b) the transmission of computer data.

(a) a guardian of the child, and

(b) a person who has the lawful custody of the child,

but does not include the father or mother of the child if the father or mother, as the case may be, has neither guardianship nor custody of the child.

(a) a parent of the child, or

(b) a person who has the care of the child (whether or not the person has the custody of the child).

relevant conference administrator , in relation to a conference, means the conference administrator who appointed the conference convenor for the conference.

specialist youth officer means a member of the NSW Police Force appointed as a specialist youth officer for the purposes of this Act by the Commissioner of Police.

youth liaison officer means a member of the NSW Police Force appointed as a youth liaison officer for the purposes of this Act by the Commissioner of Police.

s 4: Am 1998 No 51, Sch 1 [1]; 2002 No 112, Sch 2.26; 2007 No 73, Sch 4 [2]–[4]; 2009 No 96, Sch 31 [1]; 2012 No 57, Sch 1.7 [1]; 2012 No 67, Sch 3.5 [1]; 2015 No 58, Sch 3.97 [1]; 2020 No 30, Sch 3.43[1].

(1) For the purposes of this Act, a victim means a person who suffers harm as a direct result of an act committed, or apparently committed, by a child in the course of a criminal offence.

(2) A person suffers harm if, as a result of such an act—

(a) the person suffers physical harm or suffers mental illness, nervous shock or other psychological harm (including fear, humiliation, shame or stress), or

(b) the person’s property is deliberately taken, destroyed or damaged or the person suffers financial loss.

(3) For the purposes of this Act, a victim that is an organisation or a Government authority may be represented by an officer of, or other person nominated by, the organisation or authority.

Notes in the text of this Act do not form part of this Act.

The principles that are to guide the operation of this Act, and persons exercising functions under this Act, are as follows—

(a) The principle that the least restrictive form of sanction is to be applied against a child who is alleged to have committed an offence, having regard to matters required to be considered under this Act.

(b) The principle that children who are alleged to have committed an offence are entitled to be informed about their right to obtain legal advice and to have an opportunity to obtain that advice.

(c) The principle that criminal proceedings are not to be instituted against a child if there is an alternative and appropriate means of dealing with the matter.

(d) The principle that criminal proceedings are not to be instituted against a child solely in order to provide any assistance or services needed to advance the welfare of the child or his or her family or family group.

(e) The principle that, if it is appropriate in the circumstances, children who are alleged to have committed an offence should be dealt with in their communities in order to assist their reintegration and to sustain family and community ties.

(f) The principle that parents are to be recognised and included in justice processes involving children and that parents are to be recognised as being primarily responsible for the development of children.

(g) The principle that victims are entitled to receive information about their potential involvement in, and the progress of, action taken under this Act.

(h) The principle that the over representation of Aboriginal and Torres Strait Islander children in the criminal justice system should be addressed by the use of youth justice conferences, cautions and warnings.

(1) This Act applies in relation to a person who—

(a) is or was a child when an offence covered by this Act is or was committed or alleged to have been committed, and

(b) is under the age of 21 years when being dealt with under this Act.

(2) Subject to subsection (3), if a person in relation to whom this Act applies is no longer a child when he or she is being dealt with under this Act, a reference to a child in another provision of this Act concerning how a child is to be, or may be, dealt with is to be read as including, where appropriate, a reference to an individual who is of or under the person’s age.

(3) The following provisions of this Act do not apply to a person in relation to whom this Act applies if the person is no longer a child—

(a) section 10 (which relates to who is to be present with a child when he or she makes admissions for the purposes of this Act),

(b) section 22 (2) (which relates to who is to be present with a child when an explanation concerning a caution is given),

(c) section 29 (3) (which relates to who is to be present with a child when a caution is given),

(d) section 39 (2) (which relates to who is to be present with a child when an explanation concerning a conference is given),

(e) any other provision that requires the presence or consent of, or consultation with, a person responsible for a child,

(f) any provision (or any provision belonging to a class of provisions) prescribed by the regulations.

(1) The offences covered by this Act are, except as provided by this Act—

(b) indictable offences that may be dealt with summarily under Chapter 5 of the Criminal Procedure Act 1986 or another prescribed law,

(2) Despite subsection (1), an offence is not covered by this Act if—

(a) the principal person who investigates the offence is not an investigating official within the meaning of this Act, or

(b) the offence is a traffic offence committed by a child who was, when the alleged offence occurred, old enough to obtain a learner licence under the Road Transport Act 2013 to drive the motor vehicle to which the offence relates, or

(c) the offence results in the death of any person, or

(d) the offence is an offence under section 61E, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O (1), (1A) or (2), 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 80, 81A or 81B of the Crimes Act 1900 , or

(e) the offence is an offence under the Crimes (Domestic and Personal Violence) Act 2007 , or

(e1) the offence is an offence under Division 1 of Part 2 of the Drug Misuse and Trafficking Act 1985 other than an offence to which subsection (2A) applies, or

(f) the offence is an offence under Division 2 of Part 2 of the Drug Misuse and Trafficking Act 1985 other than—

(ii) an offence under section 27 or 28 of that Act of aiding, abetting, counselling, procuring, soliciting or inciting the commission of an offence under section 23 (1) (a) or (c) to which subsection (3) applies, or

(g) the offence is prescribed by the regulations for the purposes of this section.

(2A) An offence under Division 1 of Part 2 of the Drug Misuse and Trafficking Act 1985 is covered by this Act if in the opinion of the investigating official or prosecuting authority—

(a) in relation to an offence relating to a prohibited drug other than cannabis leaf within the meaning of the Drug Misuse and Trafficking Act 1985 —the offence involves not more than the small quantity applicable to that drug under that Act, or

(b) in relation to an offence relating to cannabis leaf—

(i) the offence involves not more than half the small quantity of cannabis leaf within the meaning of the Drug Misuse and Trafficking Act 1985 , or

(ii) there are exceptional circumstances in that—

(A) the offence involves more than half, but not more than the total, small quantity of cannabis leaf within the meaning of that Act, and

(B) it would be in the interests of rehabilitation, and appropriate in all the circumstances, to deal with the matter under this Act.

(3) An offence under section 23 (1) (a) or (c) of the Drug Misuse and Trafficking Act 1985 is covered by this Act if in the opinion of the investigating official or prosecuting authority—

(a) the offence involves not more than half the small quantity applicable to the prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985 , or

(b) there are exceptional circumstances in that—

(i) the offence involves more than half, but not more than the total, small quantity applicable to the prohibited plant within the meaning of the Drug Misuse and Trafficking Act 1985 , and

(ii) it would be in the interests of rehabilitation, and appropriate in all the circumstances, to deal with the matter under this Act.

s 8: Am 1998 No 99, Sch 1.15; 1999 No 67, Sch 3.3 [1] [2]; 1999 No 94, Sch 4.65; 2001 No 117, Sch 13 [1] [2]; 2001 No 121, Sch 2.204 [1]; 2003 No 9, Sch 2.2; 2006 No 39, Sch 2.1 [1] [2]; 2007 No 80, Sch 2.20; 2013 No 19, Sch 3; 2019 No 10, Sch 1.21 [1] [2]; 2019 No 14, Sch 2.26.

(1) The procedures available for dealing with children who have committed, or are alleged to have committed, offences covered by this Act are as follows—

(b) a caution may be given, but only if it is a caution given in accordance with Part 4,

(c) a conference may be held, but only if it is a youth justice conference held in accordance with Part 5.

(2) An investigating official dealing with a child who has committed, or is alleged to have committed, an offence must, before issuing a summons or attendance notice or otherwise commencing criminal proceedings against the child, determine—

(b) in the case of such an offence, whether the child should be dealt with under Part 3 or 4 or the matter should be referred to a specialist youth officer under Part 5 to determine whether a youth justice conference should be held.

(2A) In the case of an offence prescribed by the regulations, an investigating official must also determine the matters referred to in subsection (2) (a) and (b) before issuing a penalty notice for the offence.

(2B) In determining whether a child should be dealt with under Part 3 or 4 or referred to a specialist youth officer under Part 5, an investigating official is (if the official considers it practicable) to make that determination within the period of 14 days after the official becomes aware of the offence or alleged offence.

(2C) A failure of an investigating official to comply with subsection (2B)—

(b) invalidate any action taken under this Act.

(3) An investigating official may, at any time after commencing proceedings and before the proceedings are heard, decide to deal with a child alleged to have committed an offence under Part 4 or consider whether the matter should be referred to a specialist youth officer under Part 5, if the investigating official forms the opinion that the child is entitled to be dealt with under Part 4 or Part 5.

An admission by a child of an offence is not an admission for the purposes of this Act unless it takes place in the presence of—

(b) an adult (other than an investigating official) who is present with the consent of a person responsible for the child, or

(c) if the child is 14 years or over, an adult chosen by the child, or

(d) an Australian legal practitioner chosen by the child.

(1) This Act does not affect any jurisdiction conferred on the Children’s Court under the Children (Criminal Proceedings) Act 1987 or on any other court under any other law.

(2) This Act is in addition to, and does not limit, the requirements of any law relating to evidence.

This Act does not affect the functions of any person dealing with an offence or alleged offence, to give a warning for, or take any other action in relation to, an offence or alleged offence if—

(b) the offence is not an offence covered by this Act, whether or not the person is an investigating official.

A warning may be given for a summary offence covered by this Act, other than a graffiti offence or any other offence prescribed by the regulations for the purposes of this section.

(1) A child who has committed or is alleged to have committed an offence in respect of which a warning may be given is entitled to be dealt with by warning.

(2) Despite subsection (1), the child is not entitled to be dealt with by warning if—

(b) in the opinion of the investigating official, it is more appropriate to deal with it by another means because it is not in the interests of justice for the matter to be dealt with by warning.

(3) A child is not precluded from being given a warning merely because the child has previously committed offences or been dealt with under this Act.

(4) If an investigating official is of the opinion that it is not in the interests of justice to deal with a matter by warning a child and that it is appropriate to deal with it by other means, the investigating official must consider whether to deal with the matter under Part 4 or to refer it to a specialist youth officer under section 21 (2) for consideration of whether action should be taken under Part 5.

(1) A warning is to be given by the investigating official and may be given at any place, including a place where the child is found.

(2) An investigating official who gives a warning to a child must not—

(b) impose any additional sanctions on a child to whom a warning is given.

(3) A warning may be given to more than one child at the same time.

An investigating official who gives a warning to a child must take steps to ensure that the child understands the purpose, nature and effect of the warning.

(1) An investigating official who gives a warning to a child, or a youth liaison officer, may notify the parents of the child (whether in writing, verbally or in person) that a warning has been given to the child in respect of an offence committed by the child.

(2) However, an investigating official or youth liaison officer may not notify a parent of a child under subsection (1) if the official or officer is of the opinion that the disclosure of the giving of the warning would pose an unacceptable risk to the safety, welfare or well-being of the child.

(1) An investigating official must make a record of any warnings given by the official under this Part.

(2) The record is to contain the matters prescribed by the regulations for the purposes of this section.

(3) Despite anything to the contrary in the State Records Act 1998 or any other law, the Commissioner of Police is to ensure that any record made under this section of a warning is destroyed or expunged (as the case requires) as soon as is reasonably practicable after the person to whom the record relates reaches the age of 21 years.

(4) This section does not require that a record made under this section be destroyed or expunged if the record is held by one of the following—

(b) the Australian Institute of Criminology,

(c) the Bureau of Crime Statistics and Research,

(d) the Ombudsman.

s 17: Am 1998 No 149, Sch 2.12 [1] [2]; 2007 No 73, Sch 4 [11]; 2012 No 67, Sch 3.5 [2]; 2013 No 35, Sch 6 [1] [2]; 2013 No 80, Sch 15 [1].

A caution may be given for an offence covered by this Act, other than a graffiti offence or any other offence prescribed by the regulations for the purposes of this section.

Section 8 sets out offences covered by this Act. Under section 31, a court may give a caution for a graffiti offence.

A formal police caution against further offending may be arranged and given in relation to an offence to a child who is alleged to have committed the offence, if—

(b) the child admits the offence, and

(c) the child consents to the giving of the caution, and

(d) the child is entitled to be given a caution.

(1) A child who is alleged to have committed an offence for which a caution may be given is entitled to be dealt with by caution if the investigating official determines that the matter is not appropriate for a warning or the offence is one for which a warning may not be given.

(2) Despite subsection (1), the child is not entitled to be dealt with by caution if, in the opinion of the investigating official, it is more appropriate to deal with it by other means because it is not in the interests of justice for the matter to be dealt with by giving a caution.

(3) In considering whether it is appropriate to deal with a matter by caution, an investigating official is to consider the following—

(b) the degree of violence involved in the offence,

(c) the harm caused to any victim,

(d) the number and nature of any offences committed by the child and the number of times the child has been dealt with under this Act,

(e) any other matter the official thinks appropriate in the circumstances.

(4) Despite subsection (1), an investigating official may, if of the opinion that the victim has suffered substantial harm or that the circumstances of the victim are such that it is appropriate to do so, refer the matter to a specialist youth officer to determine whether the matter should be dealt with under this Part or Part 5 even though the offence does not involve any degree of violence or is not of a serious nature.

(5) A specialist youth officer to whom a matter is referred under subsection (4) may arrange for a caution to be given under this Part or take action under Part 5 and, in determining whether to do so, may take into account the fact that the victim has suffered substantial harm or the circumstances of the victim.

(6) A child is not precluded from being given a caution merely because the child has previously committed offences or been dealt with under this Act.

(7) Despite any other provision of this section, a child is not entitled to be dealt with by caution in relation to an offence if the child has been dealt with by caution on 3 or more occasions—

(a) whether by or at the request of a police officer or specialist youth officer under section 29 or by a court under section 31, and

(b) whether for offences of the same or of a different kind.

(1) If an investigating official determines that a child should be dealt with under this Part, the investigating official must arrange for a caution to be given.

(2) If an investigating official is of the opinion that it is not in the interests of justice for a matter to be dealt with by way of a caution, the investigating official must refer the matter to a specialist youth officer to consider whether the child should be dealt with under Part 5.

(1) Before an investigating official proceeds to arrange for a caution to be given under this Part, the investigating official must explain the following matters to the child concerned—

(b) that the child is entitled to obtain legal advice and where that advice may be obtained,

(c) that the child is entitled to elect that the matter be dealt with by a court,

(d) the purpose, nature and effect of the caution.

(2) An investigating official must, if practicable, ensure that an explanation takes place in the presence of—

(b) an adult (other than an investigating official) who is present with the consent of a person responsible for the child, or

(c) if the child is 14 years or over, an adult chosen by the child, or

(d) an Australian legal practitioner chosen by the child.

(1) A child may be referred for a caution under this Part by the Director of Public Prosecutions if—

(b) the child admits the offence, and

(c) the child consents to the giving of the caution.

(2) In determining whether to refer a matter for a caution, the Director of Public Prosecutions is to take into account the following matters—

(b) the degree of violence involved in the offence,

(c) the harm caused to any victim,

(d) the number and nature of any offences committed by the child and the number of times the child has been dealt with under this Act,

(e) any other matter the Director thinks appropriate in the circumstances.

(3) The referral is to be made to a person authorised in writing by the Commissioner of Police for the purposes of this section.

(4) The authorised person must arrange for a caution to be given to the child under this Part.

(5) Despite any other provision of this section, the Director of Public Prosecutions may not refer a child for a caution in relation to an offence if the child has been dealt with by caution on 3 or more occasions—

(a) whether by or at the request of a police officer or specialist youth officer under section 29 or by a court under section 31, and

(b) whether for offences of the same or of a different kind.

(1) Before a caution is given to a child, the person arranging for the caution to be given must give a written notice to the child.

(2) The notice must contain the following information—

(b) the persons who may be present when the caution is given,

(c) the purpose, nature and effect of the caution,

(d) the date, time and place at which the caution is to be given,

(e) the name of a police officer who is a contact officer concerning the caution,

(f) the consequences of failure to attend the giving of the caution,

(g) the right of the child to obtain legal advice and where that advice may be obtained,

(h) the right of the child to elect that the matter be dealt with by a court if the child does not wish to proceed with the caution.

(3) The notice must be given in a form approved by the Commissioner of Police and be expressed in language readily capable of being understood by children.

(1) Before a caution is given to a child, the person arranging for the caution to be given may—

(a) seek a written statement from any victim of the offence concerned that describes the harm occasioned to the victim by the offence, and

(b) give guidance to any such victim as to the kind of matters that are appropriate for inclusion in the statement, and

(c) provide any such statement received by the person to the person giving the caution to the child.

(2) The regulations may make provision for or with respect to the content and form of written statements under subsection (1).

(1) A child may, at any time before a caution is given to the child, decide not to proceed with the caution and elect that the matter be dealt with by a court.

(2) An investigating official who arranges for a caution to be given may, at any time before the caution is given, determine that it is not in the interests of justice for the matter to be dealt with by way of a caution and refer the matter to a specialist youth officer for consideration of whether action should be taken under Part 5.

(3) The Director of Public Prosecutions may, at any time before a caution is given in respect of an offence referred by the Director under this Part, determine that it is not in the interests of justice for the matter to be dealt with by way of a caution and refer the matter to a conference administrator under Part 5 or commence proceedings.

(4) An investigating official or the Director of Public Prosecutions must give written notice to the child concerned of any determination by the official or Director under this section.

(1) A caution must, if practicable, be given not less than 10 days, and not more than 21 days, after notice of the caution is given under this Part.

(2) A caution is to be given at a police station.

(3) Despite subsection (2), a caution may be given at a place other than a police station, if the person giving the caution is of the opinion that it is appropriate in the circumstances to do so.

(1) A caution is to be given by a police officer or specialist youth officer authorised in writing by the Commissioner of Police to give cautions under this Act.

(2) Despite subsection (1), a caution may be given by a respected member of the community at the request of any such officer, if the officer is of the opinion that it is appropriate in the circumstances to do so. For example, a caution may be given by a respected member of the Aboriginal community if the child is a member of that community.

The following persons, but no other persons, may be present when a caution is given to a child—

(b) a person responsible for the child,

(c) members of the child’s family or extended family,

(d) an adult chosen by the child,

(e) a respected member of the community chosen by the child, if the person arranging the caution is of the opinion that it is appropriate in the circumstances to do so,

(f) an interpreter,

(g) if the child has a communication or cognitive disability, an appropriately skilled person,

(h) if the child is under care, a social worker or other health professional,

(i) if the child is subject to probation or a community service order, the child’s supervising officer,

(j) if the investigating official is not giving the caution, the investigating official,

(k) if the child and (if present) a person of the kind referred to in paragraph (b)–(d) who is an adult consent, one student or probationary police officer for the purpose of training the officer.

(1) A person who gives a caution to a child must take steps to ensure that the child understands the purpose, nature and effect of the caution.

(2) If a child who is to be cautioned has a communication or cognitive disability, it is the duty of the person giving the caution, so far as practicable, to give the caution in the presence of an interpreter or other appropriately skilled person and, if necessary, to obtain the assistance of such a person in giving the caution.

(2A) A person proposing to give a caution to a child may defer giving the caution—

(a) if a person responsible for the child or the adult chosen by the child is not present—until a person responsible for the child or an adult chosen by the child is present, or

(b) if it appears to the person that the child is so affected by alcohol or another drug (or a combination of drugs) that the child’s capacity to understand the purpose, nature or effect of the caution is impaired—until the person considers that the child has regained that capacity.

(2B) A person who gives a caution to a child may, if the person considers it appropriate, read out some or all of a written statement from a victim that is provided to the person under section 24A when giving the caution.

(3) It is the duty of the person giving the caution to ensure, so far as practicable, that a person responsible for the child or an adult chosen by the child is present when the caution is given.

(4) A person who gives a caution to a child may request the child being cautioned to provide a written apology to any victim of the alleged offence.

(5) A person who gives a caution to a child must not—

(b) impose any additional sanctions on the child, other than a request of the kind referred to in subsection (4).

(6) A caution may be given to more than one child at the same time and in respect of more than one offence alleged to have been committed by a child.

(1) A caution notice containing the following information must be given to a child after the child is cautioned and must be signed by the child—

(b) the name and rank (if any) of the person who gave the caution,

(c) details of the offence concerned,

(d) the place, date and time of the caution,

(e) the persons present when the caution was given,

(f) the purpose, nature and effect of the caution.

(2) The caution notice must be expressed in language readily capable of being understood by children.

(1) A child may be given a caution by a court if—

(a) the offence is one for which a caution may be given under Division 1 or is a graffiti offence, and

(b) the child admits the offence.

(1A) If a court gives a caution under this section, the court must dismiss the proceedings for the offence in respect of which the caution is given.

(1B) A court giving a caution may—

(a) allow any victim of the offence concerned to prepare a written statement that describes the harm occasioned to the victim by the offence, and

(b) if it considers it appropriate to do so, may permit all or part of the statement to be read to the child when giving the caution.

(1C) The regulations may make provision for or with respect to the content and form of written statements under subsection (1B).

(2) This Part (other than this section and sections 32 and 33) does not apply to a caution given by a court.

(3) Nothing in this Part affects the power of a court to give a caution under section 33 of the Children (Criminal Proceedings) Act 1987 .

(4) A court that gives a caution under this section must notify, in writing, the Area Commander of the local police area in which the offence occurred of its decision to give the caution and must include the reasons why the caution was given.

(5) Despite any other provision of this section, a court may not give a caution to a child in relation to an offence if the child has been dealt with by caution on 3 or more occasions—

(a) whether by or at the request of a police officer or specialist youth officer under section 29 or by a court under this section, and

(b) whether for offences of the same or of a different kind.

s 31: Am 1998 No 51, Sch 1 [2]; 2002 No 69, Sch 1 [3]; 2007 No 73, Sch 4 [15]; 2012 No 57, Sch 1.7 [5].

If a caution is given to a child under this Part, no further proceedings may be taken against the child for the offence in respect of which the caution is given or for any other offence in respect of which proceedings could not be commenced if the child had been convicted of the offence for which the caution was given.

(1) A police officer, specialist youth officer or a court must make a record of any cautions given by the officer or court under this Part.

(2) The record is to contain the matters prescribed by the regulations for the purposes of this section.

(1) If a child is given a caution under this Part, the Commissioner of Police is to ensure that any finger prints or palm prints obtained from, or photographs taken of, the child in connection with the offence for which the caution is given (and any copies of them) are destroyed.

(2) This section applies despite anything to the contrary in the State Records Act 1998 or any other law.

(1) The principles that are to guide the operation of this Part and persons exercising functions under this Part, are as follows—

(a) The principle that measures for dealing with children who are alleged to have committed offences are to be designed so as—

(ii) to strengthen the family or family group of the child concerned, and

(iii) to provide the child concerned with developmental and support services that will enable the child to overcome the offending behaviour and become a fully autonomous individual, and

(iv) to enhance the rights and place of victims in the juvenile justice process, and

(v) to be culturally appropriate, wherever possible, and

(vi) to have due regard to the interests of any victim.

(b) The principle that sanctions imposed on children who commit offences are—

(i) to be of a kind most likely to promote the development of such children within their family or family group, and

(ii) to take the least restrictive form that is appropriate in the circumstances, and

(iii) to assist children to accept responsibility for offences.

(c) The principle that any measures for dealing with, or sanctions imposed on, children who are alleged to have committed offences take into account—

(ii) the needs of any children who are disadvantaged or who are disconnected from their families, and

(iii) the needs of any children with disabilities, especially those with communication and cognitive difficulties, and

(iv) the gender, race and sexuality of any such children.

(2) The purpose of a conference is to make decisions and recommendations about, and to determine an outcome plan in respect of, the child who is the subject of the conference.

(3) In reaching decisions at a conference, the participants are to have regard to the principles set out in this section and the following matters—

(a) the need to deal with children in a way that reflects their rights, needs and abilities and provides opportunities for development,

(b) the need to hold children accountable for offending behaviour,

(c) the need to encourage children to accept responsibility for offending behaviour,

(d) the need to empower families and victims in making decisions about a child’s offending behaviour,

(e) the need to make reparation to any victim.

A conference may be held for an offence covered by this Act, other than an offence prescribed by the regulations for the purposes of this section.

A conference may be arranged and held in respect of a child who is alleged to have committed an offence, if—

(b) the child admits the offence, and

(c) the child consents to the holding of the conference, and

(d) the child is entitled to be dealt with by holding a conference.

(1) A child who is alleged to have committed an offence (other than a graffiti offence) for which a conference may be held is entitled to be dealt with by holding a conference if the investigating official determines that the matter is not appropriate for a caution.

(2) Despite subsection (1), the child is not entitled to be dealt with by holding a conference if, in the opinion of the specialist youth officer to whom the matter is referred, it is more appropriate to deal with it by commencing proceedings against the child or by giving a caution because it is not in the interests of justice for the matter to be dealt with by holding a conference.

A matter is referred to a specialist youth officer by an investigating official if the investigating official is of the opinion that it is not in the interests of justice that a warning or caution be given (see sections 14 (4) and 21).

(3) In considering whether it is appropriate to deal with a matter by conference, a specialist youth officer is to consider the following—

(b) the degree of violence involved in the offence,

(c) the harm caused to any victim,

(d) the number and nature of any offences committed by the child and the number of times the child has been dealt with under this Act,

(e) any other matter the official thinks appropriate in the circumstances.

(4) A specialist youth officer must, not later than 14 days after receiving a referral under section 14 (4) or 21 (2), determine whether or not the child concerned is entitled to have the matter dealt with by holding a conference.

(5) A child is not precluded from being dealt with by a conference merely because the child has previously committed offences or been dealt with under this Act in relation to other matters.

(6) Despite any other provision of this section, it is not appropriate for a child to be dealt with by caution in relation to an offence if the child has been dealt with by caution on 3 or more occasions—

(a) whether by or at the request of a police officer or specialist youth officer under section 29 or by a court under section 31, and

(b) whether for offences of the same or of a different kind.

(1) If a specialist youth officer determines that a conference should be held in respect of an alleged offence (other than a graffiti offence) committed by a child, the specialist youth officer must refer the matter to a conference administrator for a conference.

(2) If a specialist youth officer is of the opinion that a matter can and should be dealt with by giving a caution and need not be dealt with by holding a conference, the specialist youth officer must refer the matter to a person authorised for the purposes of section 27 for a caution to be given under Part 4.

(3) If a specialist youth officer is of the opinion that a matter should be dealt with by commencing proceedings against the child, the specialist youth officer must refer the matter to an investigating official or other appropriate authority for the commencement of proceedings.

(4) Unless it is impracticable to do so, a specialist youth officer must consult with the investigating official before making any decision as to whom the matter is to be referred.

(5) Despite any other provision of this section, a specialist youth officer may not refer a child for a caution in relation to an offence if the child has been dealt with by way of caution on 3 or more occasions—

(a) whether by or at the request of a police officer or specialist youth officer under section 29 or by a court under section 31, and

(b) whether for offences of the same or of a different kind.

(1) Before a specialist youth officer proceeds to refer a matter for a conference under this Part, the specialist youth officer must explain the following matters to the child concerned—

(b) that the child is entitled to obtain legal advice and where that advice may be obtained,

(c) that the child is entitled to elect that the matter be dealt with by a court,

(d) what a conference is and the effect of the conference.

(2) A specialist youth officer must, if practicable, ensure that an explanation takes place in the presence of—

(b) an adult (other than an investigating official) who is present with the consent of a person responsible for the child, or

(c) if the child is 14 years or over, an adult chosen by the child, or

(d) an Australian legal practitioner chosen by the child.

(1) The Director of Public Prosecutions may refer a matter involving a child who is alleged to have committed an offence to a conference administrator for a conference if—

(b) the child admits the offence, and

(c) the child consents to the holding of the conference, and

(d) the Director is of the opinion that a conference should be held under this Part.

(1A) A court may refer a matter involving a child who is alleged to have committed an offence to a conference administrator for a conference if—

(b) the child admits the offence, and

(c) the court is of the opinion that a conference should be held under this Part.

(2) An offence may be referred under this section even though the offence was not dealt with by an investigating official.

(3) A court may refer a matter at any stage in proceedings, including after a finding that a child is guilty of an offence.

(4) The Director of Public Prosecutions or a court must notify the Commissioner of Police in writing of the particulars of any referral after making a referral under this section.

(5) In determining whether to refer a matter for the holding of a conference, the Director of Public Prosecutions or a court is to take into account the following matters—

(b) the degree of violence involved in the offence,

(c) the harm caused to any victim,

(d) the number and nature of any offences committed by the child and the number of times the child has been dealt with under this Act,

(e) any other matter the Director or court thinks appropriate in the circumstances.

(6) Unless it is impracticable to do so, the Director of Public Prosecutions must consult with the investigating official (if any) before making any decision as to whom the matter is to be referred.

(1) Unless it is impracticable to do so, a conference administrator must, on referral of a matter by a specialist youth officer for a conference under this Part, consult with both the specialist youth officer and the investigating official as to whether the matter should be dealt with by holding a conference if of the opinion that the matter should not be so dealt with, having regard to the following matters—

(b) the degree of violence involved in the offence,

(c) the harm caused to any victim,

(d) the number and nature of any offences committed by the child and the number of times the child has been dealt with under this Act.

(2) If the conference administrator, specialist youth officer and investigating official, after consultation, fail to agree as to how a matter should be dealt with, the conference administrator must refer it to the Director of Public Prosecutions.

(3) On referral of a matter, the Director of Public Prosecutions must, having regard to the matters set out in section 40 (5), determine whether the matter should be dealt with by giving a caution, by holding a conference or by commencing proceedings.

(4) The Director of Public Prosecutions must, not later than 14 days after receiving a referral under this section, determine whether or not the child concerned is entitled to have the matter dealt with by holding a conference.

(5) The Director of Public Prosecutions must notify the conference administrator of the Director’s determination.

(6) If the conference administrator, specialist youth officer and investigating official agree, or the Director of Public Prosecutions determines, that a matter should be dealt with by giving a caution, the conference administrator must refer the matter to a person authorised for the purposes of section 27 for a caution to be given under Part 4.

(7) If the conference administrator, specialist youth officer and investigating official agree, or the Director of Public Prosecutions determines, that a matter should be dealt with by holding a conference, the conference administrator must appoint a conference convenor for the conference.

(8) If the conference administrator, specialist youth officer and investigating official agree, or the Director of Public Prosecutions determines, that proceedings should be commenced, the conference administrator must refer the matter back to the specialist youth officer or other appropriate authority for the commencement of proceedings.

(9) Despite any other provision of this section, a child may not be referred for a caution in relation to an offence if the child has been dealt with by caution on 3 or more occasions—

(a) whether by or at the request of a police officer or specialist youth officer under section 29 or by a court under section 31, and