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Part IB of the Crimes Act 1914 (Cth)
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Last Updated: 8 February 2008
List of subheadings:
Crimes
Act 1914 (Cth)
- Section 20C
Scope
s 20C
- Definition
- Exercise of Federal Judicial Power
- Not to
be Sentenced to Death
Related links:
Rehabilitation
Sentencing Options: Pt IB
Commentary on Children or Young Persons under the Crimes Act 1914 (Cth)
There is no separate federal juvenile justice system.
Section 20C of the Crimes Act 1914 (Cth) allows a child or young person who commits a federal offence to be dealt with as if the offence were a State or Territory offence.
Children or young persons 'may be tried, punished or otherwise dealt with' under the law of the State or Territory in which they were 'charged or convicted': Crimes Act 1914 (Cth) s 20C (see below).
A court does not have to operate under State or Territory law, s 20C is permissive. A court may decide to sentence a child or young person charged with or convicted of a federal offence under Part IB of the Crimes Act 1914 (Cth).
However, the ALRC has expressed a preference for courts to operate under State and Territory laws when sentencing young federal offenders as this will ensure specific sentencing principles applicable to juvenile justice are picked up and applied: Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [27.31, 27.37].
The common law principle that rehabilitation is a dominant consideration in sentencing children or young persons is applicable to federal sentencing: see further Rehabilitation.
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SECTION 20C 1) A child or young person who, in a State or Territory, is charged with or convicted of an offence against a law of the Commonwealth may be tried, punished or otherwise dealt with as if the offence were an offence against a law of the State or Territory. (2) Where a person under the age of 18 years is convicted of an offence against a law of the Commonwealth that is punishable by death, he shall not be sentenced to death but the court shall impose such other punishment as the court thinks fit. |
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Scope of s20C
The effect of s 20C of the Crimes Act 1914 (Cth) is that sentencing options which are not otherwise picked up by Commonwealth sentencing provisions may be available to children and young persons who commit federal offences. For example, a Victorian court sentencing a federal offender who is a child or young person may set a youth supervision order. [1]
Section 20C operates after a child or young person has been 'charged with or convicted of' a federal offence. Therefore, juvenile justice provisions which operate prior to an offender being charged are not picked up by the operation of s 20C.
Section 20C permits a child or young person to be 'tried, punished or otherwise dealt with...' Diversionary juvenile justice schemes could fall within the phrase 'otherwise dealt with' but the constitutional requirement that federal judicial power be exercised by a court may prohibit the use of some state and territory diversionary juvenile justice provisions for federal offenders (see below).
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The terms 'child' and 'young person' s 20C of the Crimes Act 1914 (Cth) are not defined in Part IB of the Act.
Section 20C(2) refers to persons under the age of 18 years. This upper limit is consistent with the definitions of a 'child' provided in the Crimes Act 1914 (Cth) for the purposes of Pt IAD (as a person under the age of 18) and for the purposes of Pt ID (as a person who is at least 10 years of age but under the age of 18). [2] It is also consistent with the definitions adopted in the States and Territories. The ALRC report notes that:
...since 1 July 2005 all states and territories, with the exception of Queensland, have adopted a common definition of child or young person for the purposes of their juvenile justice legislation - namely, a person who is at least 10 years of age but under the age of 18. In Queensland the relevant definition applies to a person who is at least 10 years of age but under the age of 17. [3]
The practice of the CDPP is to adopt the definition of the relevant State or Territory. [4]
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Exercise of federal judicial power
Care should be taken to ensure that State or Territory juvenile justice provisions are applicable to young federal offenders.
Diversionary juvenile justice schemes may not be applicable to young federal offenders where the exercise of federal judicial power is not exercised by a court. The exercise of federal judicial power is governed by s 71 Australian Constitution and is vested in courts (ss 71 and 77(iii) Australian Constitution). This may restrict the ability of a state or territory court to refer a child or young person through diversionary non-judicial juvenile justice processes. [5]
In its report, Seen and Heard: Priority for Children in the Legal Process, the ALRC noted that,
...on the face of it [s 20C], matters relating to young federal offenders can be disposed of in the same way as those relating to young people who break State and Territory laws. However, young people do not seem to have access to diversionary schemes once they have been charged with a federal offence. Under the Judiciary Act 1903 (Cth), only courts have jurisdiction to deal with and dispose of federal matters. This means that only State or Territory judicial officers have jurisdiction to deal with young federal offenders. Many diversionary schemes are administered by people who are not judicial officers. Therefore young federal offenders do not have lawful access to these schemes. [6]
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A person under the age of 18 convicted of a federal offence shall not be sentenced to death: Crimes Act 1914 (Cth) s 20C(2).
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Footnotes
[1] Children and Young Persons Act 1989 (VIC) s 163.
[2] Crimes Act 1914 (Cth) ss 15YA [Pt IAD] and 23WA [Pt ID].
[3] Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [27.25].
[4] Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [27.24].
[5] In Newman v A (a child) (1992) 67 A Crim R 342, 348, the court held that s 20C does not authorise the court to direct a young person to a non-judicial body. Murray J (White and Wallwork JJ agreeing) said:
It follows that when the Children's Court was exercising its exclusive jurisdiction to hear and determine the complaint of federal offences against the respondent, it was bound by the provisions of the Judiciary Act (Cth), s 39(2)(d) [now repealed], to exercise the jurisdiction itself. Having regard to the provisions to which I have referred above, the Children's Court clearly had the power to do so and it had to proceed, in my opinion, upon the basis that although the provisions of the Child Welfare Act (WA) Pt V on their face authorised and required it to refer the complaint for determination by a children's panel, it was not authorised by law to take that course and it should proceed upon the basis that Pt V did not apply to a child charged with various federal offences (emphasis added).
In 2006, Parliament repealed paragraph 39(2)(d) and subsection 68(3) of the Judiciary Act 1903 (Cth), however, constitutional difficulties regarding the use of non-judicial bodies remain.
[6] Australian Law Reform Commission, Seen and Heard: Priority for Children in the Legal Process, Report No 84 (1997) [18.56].
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