Children's Court New South Wales Medium Neutral Citation: Secretary of the Department of Communities and Justice v Julian Minster [2020] NSWChC 10 Hearing dates: 25 November 2020 Decision date: 25 November 2020 Jurisdiction: Criminal Before: Judge Johnstone Decision: The Children's Court has an implied power in respect of the Children (Detention Centres) Act 1987 to rescind revocations of parole Catchwords: YOUTH PAROLE – Children's Court Parole jurisdiction – implied power rescission of a parole revocation Legislation Cited: Children (Detention Centres) Act 1987 Children's Court Act 1987 Crimes (Administration of Sentences) Act 1999 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Grassby v R (1989) 168 CLR 1 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) NSWLR 512 Pelechowski v Registrar, Court of Appeal (NSW) 198 CLR 453 Category: Principal judgment Parties: The Secretary of the Department of Communities and Justice The child Representation: Counsel: Ms Manuell, Deputy Senior Public Defender for the child Ms Wright for the Secretary of the Department of Communities and Justice Solicitors: Ms Hopgood of the Aboriginal Legal Service for the child Ms Najjar of the Crown Solicitor's Office for the Secretary of the Department of Communities and Justice File Number(s): 2020/00000132 Publication restriction: Pseudonyms have been used in order to anonymise the child Judgment 1. The young person was sentenced in the Children's Court on the 14th of February 2020 for offences of larceny and break and enter of a dwelling house in company, to a control order for a term commencing 4 February 2020 to 3 February 2021, being a period of 12 months, in respect of which the court ordered that he be eligible for parole after six months; that is, from the 3rd of August 2020. 2. He served six months' detention in respect of that parole order, and was released to parole on 3 August 2020. 3. However, subsequent to that release to parole, the young person committed a fresh offence of larceny on the 12th of August 2021. He was arrested for that offence on that day, but granted bail by the police again on the same day. In respect of that offence, he has pleaded guilty, and is to be sentenced, but the sentence has been stood over for hearing on the 8th of December 2020, because there may be an application under s 32 of the Mental Health (Forensic Provisions) Act 1990. 4. On the 7th of October 2020, the Children's Court in its parole jurisdiction revoked (in chambers) the parole order, and determined that the revocation should take effect from the 12th of August 2020. Pursuant to its processes and forms then obtaining, the Children's Court sent an advice to the young person dated the 7th of October 2020, including a notification in respect of a hearing on the 28th of October 2020, to consider what should occur in respect of the future of the young person so far as the parole issue was concerned. 5. On the 8th of October 2020, the young person was again arrested in respect of another fresh offence, which is said to have occurred on the 5th of October 2020, and to which he also pleaded guilty. I am informed that, in respect of that offence, the young person received a fine only. 6. The result is therefore that the young person has not spent any time in custody in respect of the sentence for all of the offences to which the parole order applied, since his release to parole on the 3rd of August 2020. 7. It is submitted, on behalf of the young person, against that background, that the best course to be adopted by the court is for the revocation of the parole to be rescinded; it being the position of the Secretary that it does not oppose the young person continuing to remain on parole, and the Secretary also agreeing that an order to permit him to do so could be made today. 8. That course of action would require the court to exercise a power which is not provided for expressly in the relevant legislation, being the Children (Detention Centres) Act 1987. 9. Interestingly enough, the equivalent provision in the legislation relating to adult parole contains an express power to revoke or vary, but for some reason a similar power is not given expressly to the Children's Court in the Children (Detention Centres) Act 1987. There may be a number of reasons for that, including the possibility of an oversight. Nevertheless, the question for this court is whether or not that power can be implied. Considerations and Conclusions 1. I am satisfied that the power to rescind a parole revocation does exist in the Children's Court in its parole jurisdiction, and I note and quote and adopt the reasons set out in the submissions of Ms Georgina Wright of counsel on the 24th of November 2020 in these proceedings: "53. Notwithstanding the above uncertainty about the proper construction of s 68(3) of the Children (Detention Centres) Act, it is submitted that the court has an implied order to either rescind or vary the date of effect of a revocation order so as to 'regularise' the parole order and avoid the addition of unnecessarily street time to the term of detention of a parolee. 54. As noted above, there is no express power in the Children (Detention Centres) Act to rescind or vary a revocation order (unlike s 175 of the Crimes (Administration of Sentences) Act 1999.) Nor does there appear to be any general power conferred in the Children's Court Act 1987 (or rules or regulations) for the court to rescind or vary its own orders. 55. As a court of limited jurisdiction, the Children's Court has only those powers which are expressly provided for or are necessary to enable it to act effectively within such jurisdictions. In Grassby v R (1989) 168 CLR 1 Dawson J said (with whom Mason CJ, Brennan, and Toohey JJ agreed) at [23]: 'It would be unprofitable to attempt to generalise in speaking of powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be "derived by implication from statutory provisions conferring particular jurisdiction." There is, in my view, no reason why, where appropriate, they may not extend to ordering a stay of proceedings: cf R v Hush; ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487, at p 515.' 56. The test of 'necessary implication' was said by the majority in Pelechowski v Registrar, Court of Appeal (NSW) 198 CLR 453 to be understood as follows at [51]: 'The term "necessary" is such a setting as this is to be understood in the sense given to it by Pollock CB in Attorney General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term "necessary" does not have the meaning of essential; rather, it is to be "subjected to the touchstone of reasonableness." {Emphasis added] ' 57. In John Fairfax Publications Pty Ltd v Ryde Local Court (2005) NSWLR 512 the Court of Appeal observed at [40] that such a test could be applied with "varying orders of strictness" according to the circumstances of each case, with the limit being that 'what is reasonably necessary cannot be stretched to encompass what is merely desirable or useful. It remains a test of necessity.' 58. Whether it is reasonably necessary to imply powers to rescind and/or to vary a revocation order under the Children (Detention Centres) Act falls for consideration. 59. The Children (Detention Centres) Act does not prohibit the making of an order to rescind or vary a revocation order, and the Court has an express obligation to review a decision to revoke parole. It would be surprising if the Court did not have the power to vary its own order in the interests of justice (particular where a revocation order is made in chambers, ex parte). Circumstances may have changed since the revocation took effect, pending the hearing, which warrant variation to the revocation decision." 1. I am satisfied that the implication of a power in this Court in its parole jurisdiction to rescind an order for revocation is necessary for the purposes of avoiding any injustice to young people and to achieve the objects of the Children (Detention Centres) Act 1987, and also to further the objects of all of the relevant legislation in the Children's Court and principles that apply in terms of prioritising rehabilitation of children. 2. I note that the Secretary supports the implication of the power to revoke, as does the young person. 3. I am therefore satisfied that in the exercise of that implied power, the previous order for revocation should be rescinded. The result is that the original order of parole continues. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 July 2021