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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Children and Young People (Safety)
Bill 2017
A BILL FOR
An Act to protect children and young people from harm; to provide for
children and young people who are in care; and for other purposes.
Contents
3Act to bind, and impose criminal liability on,
the Crown
Chapter 2—Guiding
principles for the purposes of this Act
Part 1—The importance to the State of
children and young people
5Duty to safeguard and promote the welfare of
children and young people
Part 2—Priorities in the operation of
this Act
7Safety of children and
young people paramount
8Other needs of children and
young people
Part 3—Principles to be applied in
operation of this Act
11Aboriginal and Torres
Strait Islander Child Placement Principle
Part 4—Charter of Rights for Children
and Young People in Care
12Charter of Rights for
Children and Young People in Care
16Minister may publish
policies
Chapter 4—Managing risks without
removing child or young person from their home
Part 1—Child and Family Assessment
and Referral Networks
17Minister may establish Child and Family
Assessment and Referral Networks
Part 2—Family group
conferences
18Purpose of family group
conferences
19Chief Executive or
Court may convene family group conference
20Who may attend a family
group conference
21Procedures at family group
conference
23Chief Executive etc to give effect to
decisions of family group conference
24Statements made at family group conference not
admissible
25Chief Executive to
prepare case plan in respect of certain children and young people
26Chief Executive etc to give effect to case
plan
Chapter 5—Children
and young people at risk
Part 1—Reporting
of suspicion that child or young person may be at risk
28Reporting of suspicion that
child or young person may be at risk
Part 2—Assessment
of risk to child or young person
29Chief Executive must assess
and may refer matter
30Chief Executive may investigate circumstances
of a child or young person
31Chief Executive may direct that child or young
person be examined and assessed
Part 3—Removal of
child or young person
32Removal of child or young
person
33Action following removal of
child or young person
34Custody of removed child or young
person
36Temporary instruments
of guardianship
39Certain information to be provided to Chief
Executive
Chapter 6—Court
orders relating to children and young people
Part 1—Applications
for Court orders
40Who may make
application for Court orders
41When application can be
made for Court orders
43Copy of application to be served on
parties
Part 2—Orders that can be made by
Court
44Orders that may be made
by Court
46Variation, revocation
or discharge of orders
48Court not bound by rules of
evidence
50Onus on objector to prove order should not be
made
Part 3—Child or young people to be
heard in proceedings
53Views of child or young person to be
heard
Part 4—Representation of children
and young people
54Legal practitioners to comply with this
section when representing child or young person
55Limitations on orders that may be made if
child or young person unrepresented
57Right of other interested persons to be
heard
58Court may refer a matter to a family group
conference
59Effect of guardianship order
Chapter 7—Children
and young people in care
61Chief Executive may establish different
categories of approved carers
62Out of home care only to be
provided by approved carers
64Ongoing reviews of approved
carers
66Certain information to be provided to Chief
Executive
67Delegation of certain powers to approved
carer
Division 3—Temporary placement of
child or young person where approved carer not available
68Temporary placement of
child or young person where approved carer not available
Division 4—Information and
involvement in decision-making
70Approved carers to be provided with certain
information prior to placement
71Children and young people to be provided with
certain information prior to placement
72Approved carers to be
provided with certain information
73Approved carers entitled to
participate in decision-making process
74Non-compliance with Division not to
invalidate placement
Part 2—Children and young people in
Chief Executive's custody or guardianship
76Review of circumstances
of child or young person under long-term guardianship of Chief
Executive
77Direction not to communicate with, harbour or
conceal child or young person
78Offence of harbouring or concealing absent
child or young person
79Unlawful taking of child or young
person
Part 3—Transition
to long-term guardianship
80Certain approved carers
may apply to Chief Executive to seek long-term guardianship order
81Long-term care plan to be
prepared
Part 4—Contact
arrangements in respect of children and young people
84Contact arrangements to
be determined by Chief Executive
85Contact Arrangements Review
Panel
86Review by Contact Arrangements Review
Panel
Part 5—Voluntary custody
agreements
87Voluntary custody agreements
89Foster care agencies to
be licensed
90Licence to carry on
business as foster care agency
93Ongoing reviews of approved carers by
agency
Part 7—Licensed
children's residential facilities
95Children's residential facilities to be
licensed
96Licence to operate
children's residential facility
99Child protection officer may inspect licensed
children's residential facility
100Chief Executive to
hear complaints
Part 8—Provision of assistance to
care leavers
101Chief Executive to assist persons leaving
care
102Minister to arrange assistance for eligible
care leavers
103Agreement for funeral arrangements of
children and young people in care
Chapter 8—Providing safe
environments for children and young people
104Certain organisations to
ensure environment is safe for children and young people etc
105Policies and procedures to be
reviewed
Chapter 9—Child
and Young Person's Visitor scheme
107Child and Young Person's
Visitor
Part 2—Administrative transfer of
child protection order
112When Chief Executive
may transfer order
113Persons whose consent
is required
114Chief Executive to have regard to certain
matters
115Notification to child, parents and
guardians
116Limited period for review of
decision
Part 3—Judicial transfer of child
protection order
117When Court may make order under this
Part
119Court to have regard to certain
matters
120Duty of Chief
Executive to inform the Court of certain matters
Part 4—Transfer of child protection
proceedings
121When Court may make order under this
Part
122Court to have regard to certain
matters
Part 5—Registration of interstate
orders and proceedings
124Filing and
registration of interstate documents
129Effect of registration of transferred
order
131Hearing and determination of transferred
proceeding
133Discretion of Chief Executive to consent to
transfer
134Evidence of consent of relevant interstate
officer
Chapter 11—Administrative
matters
Part 1—Functions of Chief Executive
etc
135Functions of the Chief
Executive
Part 2—Child protection
officers
138Primary function of child protection
officers
139Powers of child protection
officers
140Child protection officer may require
information etc
Part 3—Information gathering and
sharing
141Chief Executive may require State authority
to provide report
142Sharing of information between certain
persons and bodies
143Certain persons to be
provided with documents and information held by the Department
144Internal Review by
Chief Executive
145Interaction with Public Sector (Data
Sharing) Act 2016
Part 4—Additional reporting
obligations of Chief Executive
146Additional annual reporting
obligations
Chapter 12—Reviews of decisions
under Act
Part 2—Review of decisions by South
Australian Civil and Administrative Tribunal
148Review of decisions by South Australian
Civil and Administrative Tribunal
149Views of child or young person to be
heard
150Hindering or obstructing a person in
execution of duty
151Payment of money to Chief Executive on
behalf of child or young person
152Restrictions on publication of certain
information
153Protection of identity of persons who report
to or notify Department
156Protections, privileges and
immunities
Schedule 1—Repeal and related
amendment
Part 2—Repeal of Children's
Protection Act 1993
2Repeal of Children's Protection
Act 1993
Part 3—Amendment of Commonwealth
Powers (Family Law) Act 1986
3Amendment of section 3—Reference of
certain matters relating to children
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Children and Young People (Safety)
Act 2017.
(1) This Act will come into operation on a day to be fixed by
proclamation.
(2) Section 7(5) of the
Acts
Interpretation Act 1915
does not apply to this Act or to a provision of this Act.
3—Act
to bind, and impose criminal liability on, the Crown
(1) This Act binds
the Crown in right of this jurisdiction and, in so far as the legislative power
of the Parliament permits, the Crown in all its other capacities.
(2) The Crown is liable for an offence against this Act.
(3) If the Crown is guilty of an offence against this Act, the penalty
that may be imposed on the Crown is the penalty that may be imposed on a body
corporate.
Chapter 2—Guiding
principles for the purposes of this Act
Part 1—The
importance to the State of children and young people
(1) The Parliament of South Australia recognises and acknowledges
that—
(a) children and young people are valued citizens of the State;
and
(b) the future of the State is inextricably bound to the wellbeing of all
its children and young people; and
(c) it is of vital importance to the State, and all of its citizens, that
all children and young people are given the opportunity to thrive.
(2) The Parliament of
South Australia recognises that, as a State, we want each child and young person
to benefit from (at least) the following outcomes:
(a) to be safe from harm;
(b) to do well at all levels of learning and to have skills for
life;
(c) to enjoy a healthy lifestyle;
(d) to be active citizens who have a voice and influence,
and the Parliament of South Australia accordingly commits to promoting
these outcomes.
(3) The Parliament of South Australia acknowledges that outcomes for
Aboriginal and Torres Strait Islander children and young people in care have
traditionally been poor, and that it is unacceptable for outcomes for those
children and young people to be any different to those for children and young
people in care generally.
(4) It is the
intention of the Parliament of South Australia that the performance of functions
in the administration and operation of this Act be done in collaboration with,
and with the cooperation of, children and young people and their families rather
than simply being done to or for them.
5—Duty
to safeguard and promote the welfare of children and young
people
The Parliament of South Australia recognises that—
(a) it is the duty of every person in the State to safeguard and promote
the outcomes set out in
section 4(2)
; and
(b) the provisions of this Act, and compliance with its provisions, form
only a small part of the way in which the State, the agencies of the State, the
Commonwealth and every citizen of the State discharge that duty.
(1) This Act is to work in conjunction with all of the laws of the State,
and, in particular, the
Child
Safety (Prohibited Persons) Act 2016
and the
Children
and Young People (Oversight and Advocacy Bodies) Act 2016
, to further and achieve the aims set out in this Chapter.
(2) This Act is in addition to, and does not derogate from, any other Act
or law.
Part 2—Priorities
in the operation of this Act
7—Safety
of children and young people paramount
The paramount consideration in the administration, operation and
enforcement of this Act must always be to ensure that children and young people
are, so far as is reasonably practicable, protected from harm.
8—Other
needs of children and young people
(1) In addition to the paramount consideration set out in
section 7
, and without derogating from that section, the following needs of children
and young people are also to be considered in the administration, operation and
enforcement of this Act:
(a) the need to be heard and have their views considered;
(b) the need for love and attachment;
(c) the need for self-esteem;
(d) the need to achieve their full potential.
(2) To avoid doubt, the requirement under this section applies to the
Court.
Part 3—Principles
to be applied in operation of this Act
(1) The
principles of intervention are as follows:
(a) decisions and actions (if any) under this Act should be taken in a
timely manner (and, in particular, should be made as early as possible in the
case of young children in order to promote permanence and stability);
(b) if a child or young person is able to form their own views on a matter
concerning their care, the child or young person should be given an opportunity
to express those views freely and those views are to be given due weight in the
operation of this Act in accordance with the developmental capacity of the child
or young person and the circumstances;
(c) account should be taken of the culture, disability, language and
religion of children or young people and, if relevant, those in whose care
children and young people are placed;
(d) in each case, consideration should be given to making arrangements for
the care of a child or young person by way of a family group conference if
possible and appropriate.
(2) Each person or body engaged in the administration, operation or
enforcement of this Act must exercise their powers and perform their functions
so as to give effect to the principles of intervention.
(3) However, this section and the principles of intervention do not
displace, and cannot be used to justify the displacement of,
section 7
.
(4) To avoid doubt, the requirement under this section applies to the
Court.
(1) The
placement principles are as follows:
(a) all children
and young people who have been removed from the care of a person under this Act
should be placed in a safe, nurturing, stable and secure environment;
(b) the preferred option in relation to such placement of a child or young
person is to place the child or young person with a person with whom they have
an existing relationship;
(c) approved carers are entitled to be, and should be, involved in
decision-making relating to children and young people in their care.
(2) Each person or body engaged in the administration, operation or
enforcement of this Act must exercise their powers and perform their functions
so as to give effect to the placement principles.
(3) However, this section and the placement principles do not displace,
and cannot be used to justify the displacement of,
section 7
.
(4) To avoid doubt, the requirement under this section applies to the
Court.
11—Aboriginal
and Torres Strait Islander Child Placement Principle
(1) Subject to the placement principles, the objects and principles set
out in this section apply to the placement of Aboriginal and Torres Strait
Islander children and young people under this Act.
(2) The objects of this section include—
(a) maintaining the connection of Aboriginal and Torres Strait Islander
children and young people with their family and culture; and
(b) enabling Aboriginal and Torres Strait Islander people to participate
in the care and protection of their children and young people with as much
self-determination as is reasonable in the circumstances.
(3) The Aboriginal and Torres Strait Islander Child Placement
Principle is as follows:
(a) if an
Aboriginal or Torres Strait Islander child or young person is to be placed in
care under this Act, the child or young person should, if reasonably
practicable, be placed with 1 of the following persons (in order of
priority):
(i) a member of the child or young person's family;
(ii) a member of the child or young person's community who has a
relationship of responsibility for the child or young person;
(iii) a member of the child or young person's community;
(iv) a person of Aboriginal or Torres Strait Islander cultural background
(as the case requires),
(determined in accordance with Aboriginal or Torres Strait Islander
traditional practice or custom);
(b) if an Aboriginal or Torres Strait Islander child or young person is
unable to be placed with a person referred to in
paragraph (a)
, or it is not in the best interests of the child or young person to do so,
the child or young person should be given the opportunity for continuing contact
with their family, community or communities and culture (determined in
accordance with Aboriginal or Torres Strait Islander traditional practice or
custom);
(c) before placing an Aboriginal or Torres Strait Islander child or young
person under this Act, the Chief Executive or the Court (as the case requires)
must, where reasonably practicable, consult with, and have regard to any
submissions of, a recognised Aboriginal or Torres Strait Islander
organisation.
(4) This section and the Aboriginal and Torres Strait Islander Child
Placement Principle do not displace, and cannot be used to justify the
displacement of,
section 7
.
(5) This section will be taken not to apply to a particular Aboriginal or
Torres Strait Islander child or young person if that child or young person has
made an informed decision not to identify as Aboriginal or Torres Strait
Islander.
(6) The Minister may, by notice in the Gazette, after consulting with the
relevant community or a section of the relevant community, vary or revoke a
declaration relating to a recognised Aboriginal or Torres Strait Islander
organisation.
(7) The regulations may make further provision in relation to the
placement of Aboriginal children and Torres Strait Islander children under this
Act.
(8) To avoid doubt, the requirements under this section apply to the
Court.
(9) In this section—
recognised Aboriginal or Torres Strait Islander organisation
means—
(a) in relation to the placement of an Aboriginal child or young
person—an organisation that the Minister, after consulting with the
Aboriginal community or a section of the Aboriginal community, declares by
notice in the Gazette to be a recognised Aboriginal organisation for the
purposes of this section; or
(b) in relation to the placement a Torres Strait Islander child or young
person—an organisation that the Minister, after consulting with the Torres
Strait Islander community or a section of the Torres Strait Islander community,
declares by notice in the Gazette to be a recognised Torres Strait Islander
organisation for the purposes of this section.
Part 4—Charter
of Rights for Children and Young People in Care
12—Charter
of Rights for Children and Young People in Care
(1) The Guardian for Children and Young People must prepare and maintain a
Charter of Rights for Children and Young People in Care.
(2) The Guardian for Children and Young People—
(a) may vary the Charter at any time; and
(b) must review the Charter at least every 5 years.
(3) In preparing, varying or reviewing the Charter, the Guardian for
Children and Young People must invite submissions from, and consult with, to
such extent as may be reasonable, interested persons (including persons who are,
or have been, under the guardianship, or in the custody, of the Minister or the
Chief Executive) with a view to obtaining a wide range of views in relation to
the matters under consideration.
(4) The Guardian for Children and Young People must submit the Charter or
variation to the Minister for approval.
(5) The Minister may—
(a) approve the Charter or variation; or
(b) require an alteration to the Charter or variation, after consultation
with the Guardian for Children and Young People, and then approve the Charter or
variation as altered.
(6) The Charter, and any variation, has effect from the day on which it is
approved by the Minister.
(7) The Minister must cause the Charter to be published on a website
determined by the Minister.
(8) The Minister must, within 6 sitting days after approving the Charter
or variation, cause a copy of the Charter, or the Charter as varied, (as the
case requires) to be laid before both Houses of Parliament.
(9) Each person or body engaged in the administration, operation or
enforcement of a relevant law must, to the extent that it is consistent with
section 7
to do so in a particular case, exercise their powers and perform their
functions so as to give effect to the Charter.
(10) However, the Charter does not create legally enforceable rights or
entitlements.
(11) To avoid doubt, the requirements under this section apply to the
Court.
(12) For the purposes of this section, a reference to a variation of the
Charter will be taken to include a reference to the substitution of the
Charter.
(13) In this section—
relevant law means—
(a) this Act; and
(b) the
Family
and Community Services Act 1972
; and
(c) any Act relating to the detention of a youth in a training centre;
and
(d) any other Act declared by the regulations to be included in the ambit
of this definition.
(1) In this Act, unless the contrary intention appears—
Aboriginal child or young person means a child or young
person who—
(a) is a descendant of the indigenous inhabitants of Australia;
and
(b) regards themself as Aboriginal or, if they are a young child, is
regarded as Aboriginal by at least 1 of their parents;
approved carer means a person who is the subject of an
approval under
section 63
that is in force;
business day means any day other than a Saturday or a Sunday
or other public holiday;
case plan, in respect of a child or young person—see
section 25
;
Chief Executive means the Chief Executive of the
Department;
Child and Young Person's Visitor means the Child and Young
Person's Visitor established under
Chapter 9
;
child or young person means a person who is under 18 years of
age;
child protection officer—see
section 137
;
contact arrangements, in respect of a child or young person,
means contact arrangements determined by the Chief Executive under
section 84
in respect of the child or young person, as in force from time to
time;
Court means the Youth Court of South Australia;
dentist means a person who is registered as a dental
practitioner under the
Health
Practitioner Regulation National Law (South Australia)
;
Department means the administrative unit of the Public
Service specified by the Minister by notice in the Gazette for the purposes of
this definition;
family, in relation to a child or young person,
includes—
(a) the child or young person's extended family; and
(b) members of child or young person's family who are not biologically
related to the child or young person; and
(c) in relation to an Aboriginal or Torres Strait Islander child or young
person—any person related to the child or young person in accordance with
Aboriginal or Torres Strait Islander traditional practice or custom (as the case
requires);
family group conference means a family group conference
convened in accordance with
section 19
;
guardian, of a child or young person, means the guardian or
guardians of the child or young person pursuant to an order of the Court under
this Act;
instrument of guardianship means an instrument of
guardianship issued under
section 36
;
legal practitioner has the same meaning as in the
Legal
Practitioners Act 1981
;
legal profession rules has the same meaning as in the
Legal
Practitioners Act 1981
;
licensed children's residential facility means a children's
residential facility in respect of which a licence is in force under
Chapter 7
Part 7
;
licensed foster care agency means a foster care agency
carried on pursuant to a licence under
Chapter 7
Part 6
that is in force;
medical practitioner means a person who is registered as a
medical practitioner under the
Health
Practitioner Regulation National Law (South Australia)
;
out of home care—see
section 60
;
parent, of a child or young person, includes—
(a) a step-parent of the child or young person; and
(b) a person who stands in loco parentis to the child or young
person;
pharmacist means a person who is registered as a pharmacist
under the
Health
Practitioner Regulation National Law (South Australia)
;
placement principles—see
section 10
;
principles of intervention—see
section 9
;
psychologist means a person who is registered as a
psychologist under the
Health
Practitioner Regulation National Law (South Australia)
;
registered or enrolled nurse means a person who is registered
or enrolled as a nurse under the
Health
Practitioner Regulation National Law (South Australia)
;
restraining notice means a restraining notice issued under
section 37
;
reunification, in relation to a child or young person, means
a reunification of the child or young person and a person or persons from whom
the child is removed under this Act;
State authority means—
(a) a person who holds an office established by an Act; or
(b) a public sector agency; or
(c) South Australia Police; or
(d) a local council constituted under the
Local
Government Act 1999
; or
(e) any incorporated or unincorporated body—
(i) established for a public purpose by an Act; or
(ii) established for a public purpose under an Act (other than an Act
providing for the incorporation of companies or associations, co-operatives,
societies or other voluntary organisations); or
(iii) established, or subject to control or direction, by the Governor, a
Minister of the Crown or any instrumentality or agency of the Crown or a local
council (whether or not established by or under an Act or an enactment);
or
(f) any other person or body declared by the regulations to be a State
authority,
but does not include a person or body declared by the regulations to be
excluded from the ambit of this definition;
Torres Strait Islander child or young person means a child or
young person who—
(a) is a descendant of the indigenous inhabitants of the Torres Strait
Islands; and
(b) regards themself as Torres Strait Islander or, if they are a young
child, is regarded as Torres Strait Islander by at least 1 of their
parents;
working with children check means a working with children
check under the
Child
Safety (Prohibited Persons) Act 2016
.
(2) For the purposes of this Act, a reference to a person being
found guilty of an offence will be taken to include a reference
to—
(a) a finding of a
court under Part 8A of the
Criminal
Law Consolidation Act 1935
that the objective elements of an offence are established (whether or not
the person was found not guilty of the offence, or was found to be mentally
unfit to stand trial, pursuant to Division 2 or 3 of that Part);
or
(b) any finding of a court of another jurisdiction that corresponds to a
finding referred to in
paragraph (a)
.
(3) For the purposes of this Act, a reference to care being residential in
nature, or being provided on a residential basis, will be taken to include a
reference to such care provided to a child or young person for a limited period
only.
(4) For the purposes of this Act, a reference to the Chief
Executive in their capacity as guardian of a child or young person will
be taken to be a reference to the person for the time being holding or acting in
the office of Chief Executive.
(1) For the purposes of this Act, a reference to harm will
be taken to be a reference to physical harm or psychological harm (whether
caused by an act or omission) and, without limiting the generality of this
subsection, includes such harm caused by sexual, physical, mental or emotional
abuse or neglect.
(2) In this section—
psychological harm does not include emotional reactions such
as distress, grief, fear or anger that are a response to the ordinary
vicissitudes of life.
(1) For the
purposes of this Act, a child or young person will be taken to be at
risk if—
(a) the child or young person has suffered harm (being harm of a kind
against which a child or young person is ordinarily protected); or
(b) there is a likelihood that the child or young person will suffer harm
(being harm of a kind against which a child or young person is ordinarily
protected); or
(c) the parents or guardians of the child or young person—
(i) are unable or unwilling to care for the child or young person;
or
(ii) have abandoned the child or young person, or cannot, after reasonable
inquiry, be found; or
(iii) are dead; or
(d) the child or young person is of compulsory school age but has been
persistently absent from school without satisfactory explanation of the absence;
or
(e) the child or young person is under 15 years of age and is of no fixed
address; or
(f) any other circumstances of a kind prescribed by the regulations exist
in relation to the child or young person.
(2) It is immaterial for the purposes of this Act that any conduct
referred to in
subsection (1)
took place wholly or partly outside this State.
(3) In assessing whether there is a likelihood that a child or young
person will suffer harm, regard must be had to not only the current
circumstances of their care but also the history of their care and the likely
cumulative effect on the child or young person of that history.
16—Minister
may publish policies
(1) The Minister
may, by notice in the Gazette, publish policies for the purposes of this
Act.
(2) The Minister may, by subsequent notice in the Gazette, vary,
substitute or revoke a policy published under
subsection (1)
.
(3) A policy published under
subsection (1)
must be kept available for public inspection, without charge and during
ordinary office hours, at an office or offices specified by the
Minister.
(4) Each person or body engaged in the administration, operation or
enforcement of this Act must, to the extent that it is consistent with
sections 7
to do so in a particular case, comply with any relevant policy published
under
subsection (1)
.
Chapter 4—Managing
risks without removing child or young person from their
home
Part 1—Child
and Family Assessment and Referral Networks
17—Minister
may establish Child and Family Assessment and Referral
Networks
(1) The Minister may, in the Minister's absolute discretion, establish
such Child and Family Assessment and Referral Networks as the Minister thinks
fit.
(2) A Child and Family Assessment and Referral Network consists of such
persons or bodies (whether State authorities or otherwise) as may be specified
by the Minister.
(3) A Child and Family Assessment and Referral Network has the functions
assigned to it under this Act or by the Minister.
(4) The members of a Child and Family Assessment and Referral Network may,
despite any other Act or law, collaborate with each other without restriction in
the course of performing its functions.
(5) The regulations may make further provision relating to Child and
Family Assessment and Referral Networks.
Part 2—Family
group conferences
18—Purpose
of family group conferences
(1) The purpose of a family group conference is to provide an opportunity
for a child or young person and their family, in accordance with this
Part—
(a) to make informed decisions as to the arrangements for the care of the
child or young person; and
(b) to make voluntary arrangements for the care of the child or young
person that are consistent with
sections 7
and
8
, as well as this Act generally; and
(c) to review those arrangements from time to time.
(2) To avoid doubt, a failure to hold a family group conference does not,
of itself, invalidate an application for an order of the Court under this Act,
nor any such order.
19—Chief
Executive or Court may convene family group conference
(1) If the Chief
Executive or the Court suspects that—
(a) a child or young person is at risk and that arrangements should be
made in relation to their care; and
(b) it would be appropriate in all of the circumstances to make those
arrangements by means of a family group conference,
then the Chief Executive or the Court (as the case requires) may convene a
family group conference in respect of the child or young person.
(2) A family group
conference is to be conducted by a family group conference co-ordinator (the
co-ordinator) nominated by—
(a) if the conference is convened by the Chief Executive—the Chief
Executive; or
(b) if the conference is convened by the Court—the Judge of the
Court.
20—Who
may attend a family group conference
(1) Subject to this
Part, the following people are entitled to attend a family group conference
convened in respect of a child or young person:
(a) the child or young
person;
(b) the parents and guardians of the child or young person;
(c) members of the child or young person's family;
(d) persons who have a
close association with the child or young person and who should, in the opinion
of the co-ordinator, attend the conference;
(e) a person who, in accordance with
subsection (4)(c)
, is arranged to act as advocate for the child or young person at the
conference;
(f) a person authorised by the Chief Executive for the purposes of this
section;
(g) if an investigation into the child or young person's circumstances has
been carried out under this Act—a person nominated by the co-ordinator who
has examined, assessed, counselled or treated the child or young person in the
course of the investigation;
(h) if the child or young person is an Aboriginal or Torres Strait
Islander child or young person—a person nominated by an Aboriginal
organisation or Torres Strait Islander organisation (as the case requires) of a
kind that is, in the opinion of the co-ordinator, relevant to the subject of the
conference;
(i) if persistent absenteeism from school is involved—
(i) if the child or young person is enrolled at a Government
school—an employee of the administrative unit of the Public Service
assisting a Minister with the administration of the
Education
Act 1972
nominated by the Chief Executive of that administrative unit; or
(ii) if the child or young person is enrolled at a non-Government
school—a person nominated by the head teacher of the school;
(j) any other person (not being a legal practitioner) who the child or
young person, or their parents or guardians, wish to support them at the
conference and who, in the opinion of the co-ordinator, would be of assistance
in that role;
(k) any other person, or person of a class, prescribed by the regulations
for the purposes of this paragraph.
(2) However, the co-ordinator of a family group conference may exclude a
person referred to
subsection (1)
(including, to avoid doubt, the child or young person to whom the
conference relates) from attending a family group conference if the co-ordinator
is satisfied that to do so would be in the best interests of the child or young
person.
(3) The co-ordinator of a family group conference must, as far as is
reasonably practicable, consult with the child or young person and their parents
and guardians as to the attendees at, or persons to be excluded from attending,
the conference.
(4) The co-ordinator of
a family group conference must, as far as is reasonably practicable, ensure
that—
(a) the conference is held at a time and place that is suitable to the
child or young person and their parents and guardians; and
(b) a person who is entitled to be at the conference is given notice in
accordance with the regulations of the time and place at which the conference is
to be held; and
(c) a suitable person
(who, to avoid doubt, need not be a legal practitioner) is arranged to act as
advocate for the child or young person at the conference.
(5) However, the co-ordinator of a family group conference need not comply
with
subsection (4)(c)
if they are satisfied that the child or young person has made an informed
and independent decision to waive their right to be so represented.
21—Procedures
at family group conference
(1) The co-ordinator of a family group conference must ensure that
information as to the child or young person's circumstances, and any grounds for
suspecting the child or young person may be at risk, is presented to the
conference.
(2) The co-ordinator of a family group conference must allow the child or
young person's parents, guardians and family members present at the conference,
and the child or young person if the co-ordinator thinks it appropriate to do
so, an opportunity to hold discussions in private for the purpose of formulating
recommendations as to the arrangements for the care of the child or young
person.
(3) If a person
referred to in
section 20(1)
is excluded from, or is unable to attend, a family group conference, the
co-ordinator of the conference must take reasonable steps to ascertain the views
of the person and present those views to the conference.
(4) The following provisions relate to the making of decisions in respect
of a family group conference:
(a) decisions should, if possible, be made by consensus of the persons
present at the conference (and, in particular, by that of the child or young
person and their parents, guardians and family members);
(b) a written record must be prepared of the decisions made at the
conference;
(c) a decision will only be valid for the purposes of this Act if the
child or young person, their parents and guardians and the Chief Executive each
accept the decision in accordance with any requirements set out in the
regulations;
(d) the making of decisions must comply with any other requirements set
out in the regulations.
(5) The
co-ordinator of the family group conference—
(a) must cause a copy of the written record of the decisions to be
provided to each person present at the conference (and may provide a copy of the
written record to any other person the co-ordinator thinks fit); and
(b) must cause a copy of the written record of the decisions to be
included as part of the case plan for the child or young person to whom the
conference relates.
(6) Subject to this Act, the co-ordinator of a family group conference may
determine the procedures of the conference.
A family group conference co-ordinator (whether or not they were the
co-ordinator of the original family group conference) must convene a family
group conference for the purpose of reviewing the arrangements made for the care
of a child or young person at a previous conference if—
(a) they are required to do so pursuant to a valid decision made at the
previous conference; or
(b) 2 or more members of the child or young person's family who attended
the previous conference request such a conference,
and may convene such a conference at any other time the co-ordinator thinks
necessary or desirable.
23—Chief
Executive etc to give effect to decisions of family group
conference
(1) Subject to this Act, the Chief Executive and State authorities should,
to the extent that it is consistent with
section 7
to do so, exercise their powers and perform their functions so as to give
effect to valid decisions made at a family group conference.
(2) However, if valid decisions are made at a family group conference but
not implemented or complied with, the Chief Executive may apply for such orders
of the Court under
section 44
in relation to the care of the child or young person as the Chief
Executive considers appropriate.
(3) Nothing in this section—
(a) requires or authorises the Chief Executive or any other person to do
something that is unlawful; or
(b) requires or authorises the Chief Executive or any other person to not
do something that is required to be done under another Act or law; or
(c) creates legally enforceable rights or obligations on the part of the
Crown, the Chief Executive, the child or young person or any other
person.
24—Statements
made at family group conference not admissible
(1) Subject to
subsection (2)
, evidence of any statement made at a family group conference is not
admissible in any proceedings.
(2) The written
record of the decisions made at a family group conference is admissible in any
proceedings for the purpose of establishing that those decisions were
made.
25—Chief
Executive to prepare case plan in respect of certain children and young
people
(1) The Chief Executive must cause a plan (a case plan) to
be prepared and maintained in respect of each prescribed child or young
person.
(2) Without limiting the matters that may be included in a case plan, each
case plan must include such of the following parts as may be relevant to the
prescribed child or young person's circumstances:
(a) a part setting out decisions made at a family group
conference;
(b) a part setting out a cultural maintenance plan;
(c) a part setting out a reunification plan;
(d) a part setting out contact arrangements in respect of the child or
young person;
(e) a part setting out how disputes as to the matters included in the
child or young person's case plan are to be resolved;
(f) any other part required by any other provision of this Act or the
regulations.
(3) The Chief Executive may from time to time vary, substitute or revoke a
case plan.
(4) The regulations may make further provision in relation to the
preparation of case plans (including, to avoid doubt, provisions requiring the
Chief Executive to take certain steps in the course of preparing a case
plan).
(5) In this section—
prescribed child or young person—each of the following
is a prescribed child or young person:
(a) a child or young person who is under the guardianship of the Chief
Executive pursuant to this Act;
(b) a child or young person who is under the guardianship of a person
other than the Chief Executive pursuant to this Act;
(c) a child or young person who is in the custody of the Chief Executive
or another person pursuant to this Act;
(d) a child or young person who is in the care of an approved carer
pursuant to this Act;
(e) any other child or young person prescribed by the regulations for the
purposes of this definition.
26—Chief
Executive etc to give effect to case plan
(1) Each person or body engaged in the administration, operation or
enforcement of this Act must, to the extent that it is consistent with
section 7
to do so, exercise their powers and perform their functions so as to give
effect to a prescribed child or young person's case plan.
(2) However, a case plan does not create legally enforceable rights or
obligations on the part of the Crown, the Chief Executive, a child or young
person or any other person.
Chapter 5—Children
and young people at risk
Part 1—Reporting
of suspicion that child or young person may be at risk
(1) The requirements under this Part are in addition to the duty of every
person to safeguard and promote the outcomes set out in
section 4(2)
, and in particular the outcome that children and young people be kept safe
from harm.
(2) To avoid doubt, compliance with the requirements of this Part does not
necessarily exhaust a duty of care that may be owed to a child or young person
by a person to whom this Part applies.
(3) This Part applies to the following persons:
(a) prescribed health practitioners;
(b) police officers;
(c) community corrections officers under the
Correctional
Services Act 1982
;
(d) social workers;
(e) ministers of religion;
(f) employees of, or volunteers in, an organisation formed for religious
or spiritual purposes;
(g) teachers employed as such in a school (within the meaning of the
Education
and Early Childhood Services (Registration and Standards)
Act 2011
) or a pre-school or kindergarten;
(h) employees of, or volunteers in, an organisation that provides health,
welfare, education, sporting or recreational, child care or residential services
wholly or partly for children and young people, being a person
who—
(i) provides such services directly to children and young people;
or
(ii) holds a management position in the organisation the duties of which
include direct responsibility for, or direct supervision of, the provision of
those services to children and young people;
(i) any other person of a class prescribed by the regulations for the
purposes of this subsection.
(4) For the purposes of this Part, a reference to a person being
employed will be taken to include a reference to a person
who—
(a) is a self-employed person; or
(b) carries out work under a contract for services; or
(c) carries out work as a minister of religion or as part of the duties of
a religious or spiritual vocation; or
(d) undertakes practical training as part of an educational or vocational
course; or
(e) carries out work as a volunteer,
and a reference to something occurring in the course of the person's
employment is to be construed accordingly.
(5) In this section—
prescribed health practitioners means—
(a) medical practitioners; and
(b) pharmacists; and
(c) registered or enrolled nurses; and
(d) dentists; and
(e) psychologists; and
(f) any other person prescribed by the regulations for the purposes of
this definition.
28—Reporting
of suspicion that child or young person may be at risk
(1) A person to
whom this Part applies must, if—
(a) the person suspects on reasonable grounds that a child or young person
is, or may be, at risk; and
(b) that suspicion was formed in the course of the person's
employment,
report that suspicion, in a manner specified by the Minister by notice in
the Gazette, as soon as is reasonably practicable after forming the
suspicion.
Maximum penalty: $10 000.
(2) However, a person need not report a suspicion under
subsection (1)
—
(a) if the person believes on reasonable grounds that another person has
reported the matter in accordance with that subsection; or
(b) if the person's suspicion was due solely to having been informed of
the circumstances that gave rise to the suspicion by a police officer or child
protection officer acting in the course of their official duties; or
(c) in any other circumstances prescribed by the regulations for the
purposes of this subsection.
(3) A person to whom this Part applies may (but need not),
if—
(a) the person suspects on reasonable grounds that the physical or
psychological development of an unborn child is at risk (whether due to an act
or omission of the mother or otherwise); and
(b) that suspicion was formed in the course of the person's
employment,
report that suspicion in a manner specified by the Minister for the
purposes of
subsection (1)
.
(4) Nothing in this section prevents a person from also reporting or
referring a matter to any other appropriate person or body under any other
Act.
(5) This section
does not limit or derogate from any other provision of this or any other
Act.
Part 2—Assessment
of risk to child or young person
29—Chief
Executive must assess and may refer matter
(1) The Chief Executive
must cause—
(a) each report under
section 28
; and
(b) any other report or notification made to the Department that a child
or young person may be at risk (however described and whether or not received
under this Act),
to be assessed in accordance with this section.
(2) In assessing a
matter under
subsection (1)
, the Chief Executive—
(a) must determine which State authority (if any) is the most appropriate
to deal with the matter; and
(b) must comply with any requirements set out in the regulations for the
purposes of this paragraph.
(3) Without limiting
the ways in which the Chief Executive may assess a matter under
subsection (1)
, the Chief Executive may, in the course of an assessment, make use of or
rely on such systems of information gathering, collating or reporting as the
Chief Executive thinks fit (whether or not the system is operated or provided by
a State authority).
(4) If, in the course of assessing a matter, the Chief Executive decides
that—
(a) the matter has previously been dealt with under this or any other Act
and there is no reason to reexamine the matter; or
(b) the matter is trivial, vexatious or frivolous; or
(c) there is good reason why no action should be taken in respect of the
matter,
no further action need be taken under this Act in respect of the
matter.
(5) If the Chief Executive determines that it is appropriate that a State
authority other than the Department deal with the matter, or with a particular
aspect of the matter, the Chief Executive must refer the matter to that State
authority.
(6) To avoid doubt—
(a) a matter may be referred to more than 1 State authority; and
(b) a matter may be dealt with under this section even if it is referred
to a State authority under another Act.
(7) The Chief Executive may, if the Chief Executive considers it
appropriate, give directions or guidance in relation to a matter to a State
authority to which the matter is referred.
(8) Without limiting this section or any other Act or law, a State
authority to which a matter is referred must deal with the matter in a timely
manner, having regard to the need to ensure that children and young people are
protected from harm.
(9) The regulations may make further provision in relation to an
assessment under this section (including provisions relating to a system
referred to in
subsection (3)
and the disclosure and confidentiality of information gathered, collated
or provided under the system).
30—Chief
Executive may investigate circumstances of a child or young
person
(1) Subject to this
Act, the Chief Executive may cause an investigation into the circumstances of a
child or young person to be carried out if—
(a) a report is made under
section 28
and the Chief Executive suspects on reasonable grounds that the child or
young person may be at risk; or
(b) in any other circumstances that the Chief Executive thinks
appropriate.
(2) The Chief Executive must cause an investigation into the circumstances
of a child or young person to be carried out if the Chief Executive issues an
instrument of guardianship or a restraining notice in relation to a child or
young person.
(3) The regulations may make further provisions in relation to an
investigation under this section.
31—Chief
Executive may direct that child or young person be examined and
assessed
(1) This section applies to a child or young person—
(a) who is, having been removed under
section 32
, in the custody of the Chief Executive; or
(b) in relation to whom an order of the Court under
section 44
authorising examination or assessment is in force; or
(c) in relation to whom an instrument of guardianship or a restraining
notice is in force; or
(d) in any other circumstances prescribed by the regulations.
(2) If the Chief
Executive is of the opinion that it is necessary or desirable that a child or
young person to whom this section applies be professionally examined or
assessed, the Chief Executive may, by notice in writing, direct the child or
young person to undergo such examination or assessment as may be specified in
the notice.
(3) If the Chief executive gives a direction under
subsection (2)
, an employee of the Department may take the child or young person to such
persons or places (including admitting the child or young person to hospital) as
may be specified in the notice for the purpose of having the child or young
person professionally examined, assessed or treated.
(4) Without otherwise limiting any Act or law regulating a particular
health profession, a person to whom a child or young person is taken under this
section may give such treatment to the child or young person as the person
thinks necessary for alleviating any immediate injury or suffering of the child
or young person.
(5) Without otherwise limiting the
Consent
to Medical Treatment and Palliative Care Act 1995
, a person who is to examine, assess or treat a child or young person in
accordance with this section may do so despite the absence or refusal of the
consent of the child or young person's parents or guardians.
(6) A person who
examines, assesses or treats a child or young person in accordance with this
section must, as soon as practicable after doing so, provide to the Chief
Executive a written report on the examination, assessment or
treatment.
Maximum penalty: $10 000.
Part 3—Removal
of child or young person
32—Removal
of child or young person
(1) Subject to this
section, if a child protection officer believes on reasonable grounds
that—
(a) a child or young
person has suffered, or there is a significant possibility that a child or young
person will suffer, serious harm; and
(b) it is necessary to remove the child or young person from that
situation in order to protect them from suffering serious harm or further
serious harm; and
(c) there is no
reasonably practicable alternative to removing the child or young person in the
circumstances,
the child protection officer may remove the child or young person from any
premises, place, vehicle or vessel using such force (including breaking into the
premises, place, vehicle or vessel) as is reasonably necessary for the
purpose.
(2) Without limiting the generality of
subsection (1)
, the regulations may set out circumstances in which 1 or more of the
requirements under that subsection will be taken to have been
satisfied.
(3) A child protection
officer who is a police officer below the rank of inspector may only remove a
child or young person under this section with the prior approval of a police
officer of or above the rank of inspector.
(4) A child protection
officer who is an employee of the Department may only remove a child or young
person from the custody of a parent or guardian of the child or young person
with the Chief Executive's prior approval.
(5)
Subsections (3)
and
(4)
do not apply if the child protection officer believes on reasonable
grounds that the delay involved in seeking prior approval would significantly
increase the risk of serious harm, or further serious harm, being caused to the
child or young person.
33—Action
following removal of child or young person
A child protection officer who removes a child or young person under
section 32
must return them to the custody of a parent or guardian
unless—
(a) the child or young person is already under the guardianship, or in the
custody, of the Chief Executive; or
(b) the child protection officer reasonably suspects that, if they were
returned to the custody of a parent or guardian, the child or young person would
be at risk,
in which case the child protection officer must deliver the child or young
person into the care of a person or persons determined by the Chief
Executive.
34—Custody
of removed child or young person
If the Chief Executive does not already have custody of a child or young
person who is removed under
section 32
, the Chief Executive, by force of this section, has custody of the child
or young person until—
(a) the child or young person is returned home under
section 33
; or
(b) the end of the fifth business day following the day on which the child
or young person was removed,
(whichever is the earlier).
Part 4—Chief
Executive to assume guardianship of child or young person where parent found
guilty of certain offences
In this Part—
guardianship period means the period commencing at the time
an instrument of guardianship—
(a) is served on the offender in accordance with
section 36(4)(a)
; or
(b) is lodged with the Court in accordance with
section 36(4)(b)
,
whichever occurs first, and ending 60 days later (or such longer
period as may be allowed by the Court on an application under
section 38
);
instrument of guardianship—see
section 36(1)
;
parent, of a child or young person, does not include a
step-parent of the child or young person;
qualifying offence means any of the following offences
(whether committed before or after the commencement of this Division) where the
victim was a child or young person and the offender was a parent or guardian of
the child or young person:
(a) murder;
(b) manslaughter;
(c) an offence against section 14 of the
Criminal
Law Consolidation Act 1935
(criminal neglect);
(d) an offence against section 23 of the
Criminal
Law Consolidation Act 1935
(causing serious harm);
(e) an offence against section 29(1) or (2) of the
Criminal
Law Consolidation Act 1935
(acts endangering life or creating risk of serious harm);
(f) an offence constituted of an attempt to commit an offence referred to
in a preceding paragraph;
(g) an offence prescribed by the regulations for the purposes of this
paragraph;
(h) an offence under the law of another jurisdiction that corresponds to
an offence referred to in a preceding paragraph;
restraining notice—see
section 37(1)
;
restraining notice period means the period commencing at the
time at which the restraining notice is served on the offender in accordance
with
section 37(4)(a)
and ending 60 days later (or such longer period as may be allowed by
the Court on an application under
section 38
).
36—Temporary
instruments of guardianship
(1) The Chief
Executive must, if the Chief Executive becomes aware that a child or young
person born after the commencement of this subsection is residing with a parent
of the child or young person who has been found guilty of a qualifying offence
(the offender), issue an instrument under this section (an
instrument of guardianship) in respect of the child or young
person.
(2) If the Chief
Executive issues an instrument of guardianship, the child or young person
specified in the instrument will, for all purposes, be under the guardianship of
the Chief Executive during the guardianship period.
(3)
Subsection (2)
applies subject to an order of the Court under this Act to the
contrary.
(4) An instrument
of guardianship issued in relation to an offender—
(a) must be served
on the offender as soon as practicable after it has been issued; and
(b) must be lodged
with the Court in accordance with the rules of the Court (and may be so lodged
whether or not it has been served in accordance with
paragraph (a)
).
(5) Subject to
subsection (6)
, this Act applies to an instrument of guardianship, while it remains in
force, as if it were an order of the Court under
section 44
and as if the parties to that order were—
(a) the parents of the child or young person to whom the instrument
relates; and
(b) the child or young person to whom the instrument relates;
and
(c) a person who would, but for the instrument, have had custody or
guardianship of the child or young person to whom the instrument relates;
and
(d) the Chief Executive.
(6) Until the
application required under
section 41(1)
in relation to an instrument of guardianship is made to the Court, any
application to the Court under
section 46
in relation to the instrument may only seek to vary arrangements for the
care of the child or young person.
(7) For the purposes of this section, a newborn child who has not yet been
discharged from hospital will be taken to be residing with a person if the child
is likely to reside with the person on being discharged.
(1) The Chief
Executive must, if the Chief Executive becomes aware that a child or young
person is residing, or is about to reside, with a person (not being a parent of
the child or young person) who has been found guilty of a qualifying offence
(the offender), issue a notice under this section (a
restraining notice) to the offender, unless the Chief Executive is
of the opinion that it is inappropriate to do so in the circumstances.
(2) A restraining
notice may prohibit the offender from doing 1 or more of the
following:
(a) residing in the same premises as the child or young person;
(b) coming within a specified distance of the residence of the child or
young person;
(c) having any contact with the child or young person (except in the
presence of a specified person or class of person);
(d) having any contact at all with the child or young person,
during the restraining notice period.
(3)
Subsection (2)
applies subject to an order of the Court under this Act to the
contrary.
(4) A restraining
notice issued in relation to an offender—
(a) must be served
on the offender as soon as practicable after it has been issued; and
(b) must be lodged
with the Court in accordance with the rules of the Court (and may be so lodged
whether or not it has been served in accordance with
paragraph (a)
).
(5) A person who
contravenes or fails to comply with a restraining notice is guilty of an
offence.
Maximum penalty: Imprisonment for 2 years.
(6) A person does not commit an offence against
subsection (5)
in respect of an act or omission unless the person knew that the act or
omission constituted a contravention of, or failure to comply with, the notice
or was reckless as to that fact.
(7) For the purposes of this section, a newborn child who has not yet been
discharged from hospital will be taken to be residing with a person if the child
is likely to reside with the person on being discharged.
The Court may, on application by the Chief Executive, extend the
guardianship period or the restraining notice period if satisfied that it is
appropriate to do so.
39—Certain
information to be provided to Chief Executive
A court that finds a person guilty of a qualifying offence must ensure that
the prescribed information relating to the finding of guilt is provided to the
Chief Executive as soon as practicable after the person is found
guilty.
Chapter 6—Court
orders relating to children and young people
Part 1—Applications
for Court orders
40—Who
may make application for Court orders
An application for an order under
section 44
may be made by—
(a) the Minister; or
(b) the Chief Executive; or
(c) a person authorised by the Chief Executive to apply for such
orders.
41—When
application can be made for Court orders
(1) An application
for an order under
section 44
must be made if an instrument of guardianship or a restraining notice in
relation to a child or young person has been issued.
(2) An application under
subsection (1)
must be made as soon as is practicable after the issue of the instrument
of guardianship or restraining notice (and in any case within the applicable
guardianship period or restraining notice period).
(3) An application
for an order under
section 44
may be made—
(a) if the applicant—
(i) reasonably suspects that a child or young person is at risk;
and
(ii) is of the opinion that the making of such orders is necessary or
appropriate to protect the child or young person from harm, or to allow the
exercise of powers or the performance of functions under this Act in respect of
the child or young person; or
(b) if the applicant is of the opinion that—
(i) proper arrangements exist for the care and protection of a child or
young person (whether pursuant to a decision of a family group conference or an
exercise of administrative powers under the
Family
and Community Services Act 1972
); and
(ii) the child or young person would be likely to suffer psychological
harm if the arrangements were to be disturbed; and
(iii) it would be in the best interests of the child or young person for
the arrangements to be the subject of such orders; or
(c) if the applicant is acting in accordance with
Chapter 7
Part 3
; or
(d) if the order is to be made with the consent of the parties to the
proceeding; or
(e) in any other circumstances with the permission of the Court.
(4) Before applying for
a prescribed Court order in relation to a child or young person removed from a
person under this Act, the Chief Executive must assess the likelihood of a
reunification occurring and, if reunification is likely, the period within which
reunification is likely to occur.
(5) In this section—
prescribed Court order means an order of the Court under
section 44
—
(a) placing a child or young person under the guardianship of the Chief
Executive; or
(b) placing a child or young person under the guardianship of a person
other than the Chief Executive; or
(c) granting custody of a child or young person to the Chief Executive or
another person; or
(d) of a kind specified by the regulations for the purposes of this
definition.
(1) The following persons are parties to an application for an order under
section 44
, or for the variation, extension or revocation of such an order:
(a) the applicant;
(b) the child or young person who is the subject of the
application;
(c) each parent or guardian of the child or young person.
(2) If the Court is
satisfied in any proceedings that it should make an order under
section 44
binding on a person who is not a party to the proceedings, the
Court—
(a) may join that person as a party to the proceedings; and
(b) must allow the person a reasonable opportunity to make representations
to the Court as to why such an order should not be made.
(3) Without limiting
subsection (2)
, the Court should, unless the Court is of the opinion that it would not be
in the interests of the child to do so, allow—
(a) in the case of an application for the placement of a child or young
person under the guardianship of a person or persons other than the Chief
Executive—the person or persons; or
(b) if the child or young person is in the care of an approved
carer—the approved carer,
a reasonable opportunity to make representations to the Court in any
relevant proceedings.
43—Copy
of application to be served on parties
(1) A copy of an application for an order under
section 44
, or for the variation, extension or revocation of such an order, must be
served personally on—
(a) if the child or young person who is the subject of the application is
of or above the age of 10 years—the child or young person; and
(b) each other party to the application.
(2) A copy of an application must be endorsed with a notification of the
place, date and time for the hearing of the application.
(3) If it is not
reasonably practicable to serve a copy of an application personally on a party,
or the whereabouts of such a party cannot, after reasonable enquiries, be
ascertained, the copy of the application may be served on that person in
accordance with
section 158
or in any other manner authorised by the Court.
(4) The Court must not proceed to hear an application for an order under
section 44
unless each party served with the application has had at least 3 business
days of notice of the hearing.
(5) The Court may, for any proper reason, dispense with service under this
section, or reduce the period between service and the time for the hearing of
the application.
Part 2—Orders
that can be made by Court
44—Orders
that may be made by Court
(1) If, on an
application under this Act, the Court is satisfied that it is appropriate to do
so, the Court may make 1 or more of the following orders in relation to a child
or young person:
(a) an order requiring—
(i) the child or young person; or
(ii) a parent or guardian of the child or young person; or
(iii) any other person who has the care of the child or young
person,
to enter into a written undertaking (for a specified period not exceeding
12 months) to do a specified thing, or to refrain from doing a specified
thing, and, if the Court thinks fit, requiring the child or young person to be
under the supervision of the Chief Executive or some other specified person or
body during the period of the undertaking;
(b) an order
authorising or requiring examination and assessment of the child or young
person;
(c) an order
authorising or directing the assessment, by such person as the Court may
specify, of a parent, guardian or other person who has, or is responsible for,
the care of the child or young person to determine the capacity of that person
to care for the child or young person (including, to avoid doubt, a drug and
alcohol assessment);
(d) an order placing the child or young person, for a specified period not
exceeding 12 months, under the guardianship of the Chief
Executive;
(e) an order placing the child or young person, for a specified period not
exceeding 12 months, under the guardianship of a specified person or
persons (not exceeding 2);
(f) an order
placing the child or young person under the guardianship of the Chief Executive
until they attain 18 years of age;
(g) an order
placing the child or young person under the guardianship of a specified person
or persons (not exceeding 2) until they attain 18 years of age;
(h) an order granting custody of the child or young person, for a
specified period not exceeding 12 months, to—
(i) a parent or guardian of the child or young person; or
(ii) a member of the child or young person's family; or
(iii) any other person that the Court thinks appropriate in the
circumstances of the case;
(i) an order granting custody of the child or young person to the Chief
Executive;
(j) an order
directing a person to do 1 or more of the following:
(i) to cease or refrain from residing in the same premises as the child or
young person;
(ii) to refrain from coming within a specified distance of a specified
place;
(iii) to do any specified thing, or to refrain from doing any specified
thing, in order to minimise the risk of harm to the child or young
person;
(k) an order revoking an instrument of guardianship or a restraining
notice;
(l) such consequential or ancillary orders as the Court thinks fit,
including (without limiting the generality of this paragraph) an
order—
(i) requiring a person who has guardianship or custody of the child or
young person under an order of the Court to care for the child or young person
in a specified way; or
(ii) requiring a parent, guardian or other person who has the care of a
child or young person to undertake specified courses of instruction, or
programmed activities, in order to increase their capacity to care for the child
or young person.
(2) The Court may
make such interim orders in relation to an application under this Act as the
Court thinks fit.
(3) Subject to this
section, an order under this section has effect for the period specified in the
order.
(4) An order under this section ceases to have effect when the child or
young person to whom the order relates turns 18 years of age.
(1) The Court may, in proceedings under this Act, make an order under
section 44
with the consent of the parties to the proceeding.
(2) An order may be made without consideration of the matters that the
Court must otherwise consider in the proceeding.
46—Variation,
revocation or discharge of orders
(1) The Court may, on an application by a party to the proceedings, vary
or revoke an order under
section 44
.
(2) The Court may, on an application by the Chief Executive, discharge an
order under
section 44
.
(1) All proceedings
under this Act must be dealt with expeditiously, with due regard to the degree
of urgency of each particular case.
(2) Without limiting
subsection (1)
, once a trial under this Act commences—
(a) it should, as far as is practicable, continue without adjournment
until all evidence has been presented; and
(b) judgement should be delivered as soon as is practicable after all
evidence has been presented.
(3) The Court may, on an adjournment, make such of the orders it is
empowered to make under
section 44
as it thinks appropriate (and such an order will have effect for the
period of the adjournment).
(4) A person who, having been served personally with an order made under
this section, contravenes or fails to comply with the order is guilty of an
offence.
Maximum penalty: Imprisonment for 2 years.
48—Court
not bound by rules of evidence
Subject to this Act, in any proceedings under this Act the
Court—
(a) is not bound by the rules of evidence but may inform itself as it
thinks fit; and
(b) must act according to equity, good conscience and the substantial
merits of the case without regard to technicalities and legal forms.
A fact to be proved in proceedings under this Act (other than proceedings
for an offence) is to be proved on the balance of probabilities.
50—Onus
on objector to prove order should not be made
(1) If in
proceedings under this Act a person objects to the making of an order by the
Court, the onus is on the person to prove to the Court that the order should not
be made.
(2)
Subsection (1)
does not apply to the child or young person to whom the proceedings relate
or the Crown.
If the Court dismisses an application for an order under
section 44
(not being an application for a variation or revocation of an order), the
Court may make such order for costs against the Crown in favour of any other
party to the proceedings as the Court thinks fit.
A person who, having been personally served with an order made by the Court
under
section 44
, contravenes or fails to comply with the order is guilty of an
offence.
Maximum penalty: Imprisonment for 2 years.
Part 3—Child
or young people to be heard in proceedings
53—Views
of child or young person to be heard
(1) In any
proceedings under this Act, a child or young person to whom the proceedings
relate must be given a reasonable opportunity to personally present to the Court
their views related to their ongoing care and protection.
(2) However,
subsection (1)
does not apply if the Court is satisfied that—
(a) the child or young person is not capable of doing so; or
(b) to do so would not be in the best interests of the child or young
person.
(3)
Subsection (1)
applies whether or not the child or young person is represented by a legal
practitioner in the proceedings.
Part 4—Representation
of children and young people
54—Legal
practitioners to comply with this section when representing child or young
person
(1) In acting for a child or young person under this Act, a legal
practitioner must comply with the following provisions:
(a) the legal practitioner must, as far as is reasonably practicable, act
in accordance with any instructions given by the child or young
person;
(b) to the extent that the child or young person has not given, or is not
capable of giving, instructions, the legal practitioner must act in accordance
with the legal practitioner's own view of the best interests of the child or
young person;
(c) the legal practitioner must, in a manner appropriate to the capacity
of the child or young person to understand, explain to the child or young person
the nature of the legal practitioner's role in relation to the child or young
person (including any limitations on the legal practitioner's ability to act in
accordance with their instructions);
(d) in any proceedings before the Court, the legal practitioner must
explain to the Court the basis on which submissions are made, having regard to
the preceding paragraphs.
(2) This section applies—
(a) whether the legal practitioner is representing the child or young
person in proceedings before the Court or otherwise; and
(b) despite a provision of the
Legal
Practitioners Act 1981
or any legal profession rules.
(3) A legal practitioner cannot, in complying with this section, be held
to have breached any code of professional etiquette or ethics, or to have
departed from any accepted form of professional conduct.
55—Limitations
on orders that may be made if child or young person
unrepresented
(1) Subject to this
section, the Court must not hear an application under this Act
unless—
(a) the child or young person to whom the application relates is
represented in the proceedings by a legal practitioner; or
(b) the Court is satisfied that the child or young person has made an
informed and independent decision not to be so represented.
(2) However, the
Court may proceed to hear an application under this Act in the absence of legal
representation if the Court is satisfied that the application should be heard as
a matter of urgency (however in such a case the Court should make interim orders
in respect of the application and then adjourn the proceedings so as to enable
the child or young person to be represented by a properly instructed legal
practitioner if they so wish).
(3) The Court may, in interim orders under
subsection (2)
, make any order the Court could have made under
section 44
(however the interim orders will only have effect for the period of the
adjournment).
(4) A person who, having been served personally with an interim order made
under
subsection (2)
, contravenes or fails to comply with the order is guilty of an
offence.
Maximum penalty: Imprisonment for 2 years.
(1) If the Court considers it desirable to do so, the Court may, before or
during the hearing of proceedings, convene a conference between the parties to
the proceedings for the purpose of determining what matters are in dispute, or
resolving any matters in dispute.
(2) A judicial officer of the Court, other than the one who is hearing or
is to hear the proceedings, will preside over such a conference.
(3) Counsel for parties to the proceedings are to be admitted to such a
conference.
(4) Evidence of anything said or done at such a conference is
inadmissible, except by consent of all parties to the proceedings, in the
proceedings.
57—Right
of other interested persons to be heard
In any proceedings under this Act relating to a child or young person, the
Court may, on the application of—
(a) a member of the child or young person's family; or
(b) a person who has at any time had the care of the child or young
person; or
(c) a person who has counselled, advised or aided the child or young
person,
hear submissions the applicant wishes to make in respect of the child or
young person, despite the fact that the applicant is not a party to the
proceedings.
58—Court
may refer a matter to a family group conference
Without limiting the reasons for which the Court may adjourn proceedings
under this Act, the Court may adjourn the hearing of an application for the
purpose of referring specified matters to a family group conference for
consideration and report to the Court by the conference.
59—Effect
of guardianship order
If the Court places a child or young person under the guardianship of the
Chief Executive or any other person or persons under
section 44
, the Chief Executive or the other person or persons is, or are, the lawful
guardian, or guardians, of the child or young person to the exclusion of the
rights of any other person.
Chapter 7—Children
and young people in care
In this Chapter—
out of home care means—
(a) care provided to a child or young person where—
(i) the child or young person is under the guardianship or custody of the
Chief Executive; and
(ii) the care is provided by a person with whom the child or young person
is placed pursuant to
section 75
; and
(iii) the care is provided on a residential basis in premises other than
the child's home; and
(iv) the provider of the care receives, or may receive, payment, or
financial or other assistance, in relation to the care provided; or
(b) any other care of a kind declared by the regulations to be included in
the ambit of this definition,
but does not include care of a kind declared by the regulations to be
excluded from the ambit of this definition.
61—Chief
Executive may establish different categories of approved
carers
(1) The Chief
Executive may establish such categories of approved carer as the Chief Executive
from time to time considers appropriate.
(2) Subject to this Act, the Chief Executive may determine the
circumstances in which children or young people are to be placed with a
particular category of approved carer.
(3) To avoid doubt, a determination under this section must be consistent
with any relevant policies published under
section 16
.
62—Out
of home care only to be provided by approved carers
Subject to this Act, a person must not provide out of home care unless the
person is an approved carer.
Maximum penalty: Imprisonment for 2 years.
(1) The Chief
Executive may, on an application under this section and by notice in writing,
approve a person as an approved carer for the purposes of this Act.
(2) An application for approval—
(a) must be made in a manner and form determined by the Chief Executive;
and
(b) must be accompanied by any information or documents as may be required
by the Chief Executive.
(3) In determining an application for approval, the Chief Executive
must—
(a) act in accordance with any relevant policies published under
section 16
; and
(b) have regard to—
(i) the operation of the
Child
Safety (Prohibited Persons) Act 2017
; and
(ii) whether the person is willing and able to care for each child or
young person placed in their care in a manner consistent with
Chapter 2
and this Act generally; and
(iii) if relevant, whether the person will, where
appropriate—
(A) provide opportunities for the child or young person to maintain or
recover their identity as a member of their own family and will allow the child
or young person reasonable access to their own family; and
(B) assist the child or young person to return to their own family;
and
(iv) any other matter prescribed by the regulations for the purposes of
this paragraph,
however, the Chief Executive may refuse to approve a person for any reason
the Chief Executive thinks fit.
(4) The Chief Executive must impose on each approval—
(a) a condition setting out the kind of out of home care that can be
provided by the approved carer; and
(b) the maximum number of children and young people that the approved
carer is permitted to have in their care,
and may impose such other conditions as the Chief Executive thinks
appropriate.
(5) The Chief Executive may, by notice in writing, vary, substitute or
revoke a condition of an approval.
(6) An approved carer must not refuse or fail to comply with a condition
of an approval.
Maximum penalty: Imprisonment for 12 months.
64—Ongoing
reviews of approved carers
The Chief Executive must, in relation to each approved carer, ensure
that—
(a) regular assessments are undertaken of the provision of care by the
approved carer under this Act; and
(b) relevant courses of training are made available to the approved carer;
and
(c) ongoing support and guidance are provided to the approved carer;
and
(d) proper assessments are made of any requirement of the approved carer
for financial or other assistance.
(1) The Chief
Executive may, by notice in writing, cancel the approval of an approved carer if
the Chief Executive reasonably suspects that—
(a) a child or young person in the care of the approved carer is not being
adequately cared for; or
(b) the approved carer has contravened a provision of this Act;
or
(c) the approved
carer has refused or failed to comply with a condition of their approval;
or
(d) the person is a
prohibited person under the
Child
Safety (Prohibited Persons) Act 2016
; or
(e) a working with children check has not been conducted in relation to
the person within the preceding 5 years; or
(f) it is otherwise appropriate that the approval be cancelled.
(2) The Chief Executive must (except in relation to a cancellation arising
out of the fact that the person is a prohibited person under the
Child
Safety (Prohibited Persons) Act 2016
) give an approved carer at least 28 days' notice in writing of the Chief
Executive's intention to cancel the person's approval.
66—Certain
information to be provided to Chief Executive
(1) An approved carer must, as soon as is reasonably practicable, advise
the Chief Executive if any of the following occurs:
(a) there is a change in the approved carer's address;
(b) any other person comes to reside with the approved carer;
(c) the approved carer, or any person residing with the approved carer, is
charged with an offence punishable by imprisonment;
(d) the approved carer, or any person residing with the approved carer,
becomes a prohibited person under the
Child
Safety (Prohibited Persons) Act 2016
.
Maximum penalty: $50 000.
(2) Nothing in this section limits any other power of the Chief Executive
or a child protection officer to require a person to produce
information.
67—Delegation
of certain powers to approved carer
(1) The Chief
Executive may, in relation to a child or young person who is under the
guardianship of the Chief Executive, delegate such of the Chief Executive's
powers as guardian of the child or young person as the Chief Executive thinks
fit to an approved carer in whose care the child or young person is
placed.
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the Chief Executive to act in
any matter; and
(d) may be varied or revoked at will.
(3) Nothing in this section limits the Chief Executive's power to delegate
a function or power under
section 136
.
Division 3—Temporary
placement of child or young person where approved carer not
available
68—Temporary
placement of child or young person where approved carer not
available
(1) Despite a provision
of
Division 2
, but subject to this section, the Chief Executive may place a child or
young person who is removed under this Act, or who is in the custody or under
the guardianship of the Chief Executive, in the care of a person who is not an
approved carer if the Chief Executive is satisfied that—
(a) it is a matter of urgency that the child or young person be placed in
the care of a person other than a person with whom the child or young person is
residing; and
(b) it is not, in the circumstances, reasonably practicable to place the
child or young person in the care of an approved carer; and
(c) the risk of harm being caused to the child or young person if they are
not placed in the care of a person under this section exceeds the risk that the
person will cause harm to the child or young person.
(2) Despite any other provision of this Act, the placement of a child or
young person under
subsection (1)
—
(a) must be of a temporary nature; and
(b) must be brought to an end as soon as it is reasonably practicable to
place the child in the care of an approved carer; and
(c) must comply with any relevant policy published under
section 16
.
(3) If a child or young person is placed in the care of a person under
this section—
(a)
section 62
will be taken not to apply to the person;
(b)
sections 64
,
72
and
73
are to be construed as if the person were an approved carer (but, to avoid
doubt, the person will not otherwise be taken to be an approved
carer).
(4) The regulations may make further provisions in relation to the
placement of a child or young person in the care of a person under this section
(including by modifying the operation of a specified provision or provisions of
this Act relating to the placement of children and young people).
Division 4—Information
and involvement in decision-making
In this Division—
placement agency, in relation to a child or young person,
means—
(a) if the child or young person was, or is to be, placed with an approved
carer by a licensed foster care agency—the licensed foster care agency;
or
(b) if the child or young person was, or is to be, placed with an approved
carer other than by licensed foster care agency—the Chief
Executive.
70—Approved
carers to be provided with certain information prior to
placement
(1) Subject to this section, if a placement agency is considering placing
a child or young person with an approved carer under this Act, the agency must,
before so placing the child or young person, provide to each proposed approved
carer any information in the possession of the agency that may be relevant to
the person's decision whether or not to accept the placement.
(2) In determining whether to provide particular information to an
approved carer, a placement agency must have regard, and may give effect, to any
wishes expressed by the child or young person relating to the disclosure of such
information.
71—Children
and young people to be provided with certain information prior to
placement
If a placement agency is considering placing a child or young person with
an approved carer under this Act, the agency must, before so placing the child
or young person, provide to the child or young person the prescribed information
in relation to the approved carer.
72—Approved
carers to be provided with certain information
(1) A placement agency must provide to each approved carer with whom a
child or young person is placed any information (including, to avoid doubt, any
medical reports) held by the agency that is reasonably necessary to
ensure—
(a) that the approved carer is able to provide appropriate care to the
child or young person in all of their circumstances; and
(b) the safety of the approved carer and any other member of the approved
carer's household.
(2) An approved carer who is provided with information under this section,
and any other person who becomes aware of the information, must not disclose the
information except—
(a) to a health professional for a purpose related to the examination,
assessment or treatment of the child or young person; or
(b) to a child protection officer performing a function under this Act;
or
(c) to a member of the approved carer's household; or
(d) with the consent of the child or young person; or
(e) in any other circumstances prescribed by the regulations.
Maximum penalty: $10 000.
73—Approved
carers entitled to participate in decision-making process
(1) Without
limiting
Chapter 2
, but despite any other provision of this Act or any other Act, an approved
carer in whose care a child or young person is placed is entitled to participate
in any decision-making process relating to the health, safety, welfare or
wellbeing of the child or young person.
(2)
Subsection (1)
does not apply in relation to a particular decision if the decision-maker
is satisfied that the participation of the approved carer would not be in the
best interests of the child or young person.
(3) This section applies whether the decision is made under this or any
other Act or law.
74—Non-compliance
with Division not to invalidate placement
A refusal or failure to comply with a requirement under this Division does
not, of itself, invalidate a placement of a child or young person with an
approved carer.
Part 2—Children
and young people in Chief Executive's custody or
guardianship
75—Chief
Executive's powers in relation to children and young people in Chief Executive's
custody or guardianship
(1) Subject to this
Act, the Chief Executive may, in relation to a child or young person who is in
the custody, or under the guardianship, of the Chief Executive, from time to
time do 1 or more of the following:
(a) place the child or young person, or permit the child or young person
to remain, in the care of a member of their family;
(b) place the child or young person in the care of any other suitable
person;
(c) place the child or young person in a licensed children's residential
facility, or a residential facility (not being a training centre) established or
licensed under the
Family
and Community Services Act 1972
, or in any other suitable place;
(d) give such directions relating to the care of a child or young person
referred to in a preceding paragraph as the Chief Executive thinks
fit;
(e) make arrangements for the education of the child or young
person;
(f) make arrangements (including admission to hospital) for the
professional examination, assessment or treatment of the child or young
person;
(g) make such other provision for the care of the child or young person as
the circumstances of the case may require.
(2) To avoid doubt, nothing in this section limits the operation of
sections 62
or
68
.
(3) In exercising a power under this section, the Chief
Executive—
(a) must have regard to the principles of intervention, the placement
principles and, if relevant, the Aboriginal and Torres Strait Islander Child
Placement Principle; and
(b) must keep in mind that leaving the child or young person under the
guardianship, or in the custody of, the Chief Executive is the least preferred
option; and
(c) should exercise the power in a manner that is consistent with this Act
and any relevant policy published under
section 16
.
(4) To the extent that the child or young person is willing and able to do
so, a child or young person who is affected by a decision of the Chief Executive
under this section should be involved in the decision-making process (and, in
particular, their views should be given due weight in making the decision, in
accordance with their developmental capacity and the circumstances of the
case).
(5) The Chief Executive must keep each parent and guardian (if the Chief
Executive is not the guardian) of a child or young person informed about where
the child or young person is placed and how the child or young person is being
cared for, unless the Chief Executive is of the opinion that it would not be in
the best interests of the child or young person to do so.
76—Review
of circumstances of child or young person under long-term guardianship of Chief
Executive
(1) Subject to this section, the Chief Executive must cause a review of
the circumstances of each prescribed child or young person to be carried out at
least once in each 12 month period.
(2) A review must
comply with the following provisions:
(a) the review must be carried out by a panel appointed by the Chief
Executive for the purpose;
(b) in carrying out a review, the panel must—
(i) having regard to
Chapter 2
, consider whether the existing arrangements for the care of the prescribed
child or young person—
(A) continue to be in the best interests of the child or young person;
and
(B) provide the support necessary to meet the needs of the child or young
person; and
(ii) notify each
person who has care of the prescribed child or young person of the review and
give them a reasonable opportunity to make submissions to the panel for the
purposes of the review; and
(iii) notify the
prescribed child or young person of the review and give them a reasonable
opportunity to make submissions (in whatever manner the child or young person
thinks fit including, if they so wish, in the absence of a person who has care
of them) to the panel for the purposes of the review; and
(iv) have regard to any submissions made under
subparagraph (ii)
or
(iii)
; and
(v) comply with any other requirement set out in the
regulations;
(c) on completing a
review, the panel must prepare and provide to the Chief Executive a written
report on the review setting out—
(i) the conclusions
of the panel in respect of the existing arrangements for the care of the
prescribed child or young person; and
(ii) if the panel
wishes to make recommendations in relation to the care of the prescribed child
or young person—those recommendations.
(3) The Chief Executive must appoint a member of a panel appointed to
carry out a review (being a member who has not previously been involved with the
prescribed child or young person's case) to be the presiding member of the
panel.
(4) Subject to this Act, and to any directions of the Chief Executive, a
panel may determine its own procedures.
(5) Except where the Chief Executive is of the opinion that it is
inappropriate to do so, the Chief Executive must cause a copy of a report under
subsection (2)(c)
to be given to—
(a) the prescribed child or young person; and
(b) each person who has care of the prescribed child or young
person,
and may give a copy of the report to any other person the Chief Executive
thinks fit.
(6) The regulations may make further provision in relation to reviews
under this section (including, to avoid doubt, provisions relating to the
appointment of members to a panel).
(7) In this section—
prescribed child or young person means—
(a) a child or young person placed under the guardianship of the Chief
Executive until they attain 18 years of age; or
(b) a child or young person of a class prescribed by the regulations for
the purposes of this definition.
77—Direction
not to communicate with, harbour or conceal child or young
person
(1) The Chief
Executive may, by notice in writing, direct a specified person not to
communicate, or attempt to communicate, (whether in any way or in a way
specified in the notice) with a specified child or young person who is in the
custody, or under the guardianship, of the Chief Executive during the period
specified in the notice.
(2) The Chief
Executive may, by notice in writing, direct a person not to harbour or conceal,
or assist another person to harbour or conceal, a specified child or young
person who is in the custody, or under the guardianship, of the Chief Executive
during the period in the notice.
(3) However, the
Chief Executive may only give a direction under this section if the Chief
Executive believes it is reasonably necessary to—
(a) prevent harm to the child or young person; or
(b) prevent the child or young person from engaging in, or being exposed
to, conduct of a criminal nature.
(4) A person who, without reasonable excuse, refuses or fails to comply
with a direction under this section is guilty of an offence.
Maximum penalty: Imprisonment for 12 months.
(5) A notice under this section must be served personally on the person to
whom the notice is directed (however, if it is not reasonably practicable to
serve a notice personally on a person, or the whereabouts of the person cannot,
after reasonable enquiries, be ascertained, the notice may be served on that
person in accordance with
section 158
).
78—Offence
of harbouring or concealing absent child or young person
(1) A person must not—
(a) harbour or conceal, or assist another person to harbour or conceal, a
child or young person; or
(b) prevent, or assist another person to prevent, the return of a child or
young person to a State care placement,
if the person knows that the child or young person is absent from a State
care placement without lawful authority.
Maximum penalty: Imprisonment for 12 months.
(2) In this section—
State care placement, in relation to a child or young person,
means the placement of the child or young person in the care of a person, or in
a place, by the Chief Executive pursuant to
section 75(1)
.
79—Unlawful
taking of child or young person
(1) This section applies to a child or young person placed in the care of
a person under this Act.
(2) A person who, without lawful excuse—
(a) induces or encourages a child or young person to whom this section
applies to leave a place in which the child or young person has been placed
under this Act; or
(b) takes a child or young person to whom this section applies from a
place in which the child or young person has been placed under this Act;
or
(c) harbours or conceals a child or young person contemplated by a
preceding subsection,
is guilty of an offence.
Maximum penalty: Imprisonment for 12 months.
Part 3—Transition
to long-term guardianship
80—Certain
approved carers may apply to Chief Executive to seek long-term guardianship
order
(1) An approved
carer in whose care a child or young person has been for a period of at least 2
years (or such shorter period as the Chief Executive may determine) (the
proposed guardian) may apply to the Chief Executive for an
application to be made in accordance with
section 82
for a Court order placing the child or young person under the approved
carer's guardianship.
(2) An application under
subsection (1)
—
(a) must be made in a manner and form determined by the Chief Executive;
and
(b) may be made on behalf of a proposed guardian; and
(c) must be accompanied by such information and documents as the Chief
Executive may reasonably require.
(3) The Chief
Executive must, as soon as is reasonably practicable after receiving an
application, cause an assessment to be undertaken as to whether the proposed
guardian is suitable to be the guardian of the child or young person to whom the
application relates.
81—Long-term
care plan to be prepared
(1) If, following an assessment referred to in
section 80(3)
, the Chief Executive is satisfied that a proposed guardian is suitable to
be the guardian of a particular child or young person, the Chief Executive must
cause a plan (a long-term care plan) to be prepared in respect of
the child or young person.
(2) A long-term care plan must contain the information required by the
regulations (and may contain any other information the Chief Executive thinks
fit).
(3) The Chief Executive must cause a copy of a long-term care
plan—
(a) to be provided to the Court in any application contemplated by
section 82
; and
(b) to be included as part of the case plan for the child or young
person.
82—Chief
Executive to apply to Court for order to place child or young person under
long-term guardianship
(1) Subject to this
Act, the Chief Executive must, on completion of the preparation of a long-term
care plan in respect of a child or young person, apply to the Court for such
orders under
section 44
as the Chief Executive considers necessary or appropriate to place the
child or young person under the long-term guardianship of the proposed guardian.
(2) An application to the Court under
subsection (1)
must be made without undue delay.
(3) The regulations may make further provision in relation to an
application under this section (including, to avoid doubt, by prescribing
circumstances in which the Chief Executive need not comply with
subsection (1)
).
Part 4—Contact
arrangements in respect of children and young people
This Part applies to the following children and young people:
(a) a child or young person who is under the guardianship, or in the
custody, of the Chief Executive pursuant to this Act (including, to avoid doubt,
a child or young person who is placed in the care of an approved
carer);
(b) a child or young person who is placed under the guardianship, or in
the custody of, a person other than the Chief Executive pursuant to this
Act;
(c) any other child or young person declared by the regulations to be
included in the ambit of this section.
84—Contact
arrangements to be determined by Chief Executive
(1) For the purposes of this Act, contact arrangements in respect of a
child or young person to whom this Part applies are to be determined by the
Chief Executive.
(2) To avoid doubt, the Chief Executive may, for any reason the Chief
Executive thinks fit, determine that there is to be no contact between a
specified child or young person and a specified person.
(3) In making a determination under this section, the Chief Executive must
have regard to the following provisions:
(a) if the Chief Executive is satisfied that a reunification is likely,
the primary aim of the contact arrangements should be to establish or maintain
attachment relationships between the child or young person and the person or
persons with whom the child or young person is to be reunited;
(b) if the Chief Executive is not satisfied that a reunification is
likely, or is satisfied that a reunification is unlikely, particular
consideration must be given to the need to not undermine or compromise the
ability of the child or young person to establish or maintain attachment
relationships with their guardian or guardians.
(4) Nothing in this Part authorises or requires contact arrangements to be
made in favour of a particular person if, in the opinion of the Chief
Executive—
(a) there is a significant possibility that a child or young person would
be at risk in the course of contact with the person; or
(b) such contact arrangements would not be consistent with a provision of
Chapter 2
; or
(c) it would otherwise not be in the child or young person's best interest
to have contact with the person.
(5) A determination under this section—
(a) must be by notice in writing; and
(b) must set out—
(i) the frequency of contact visits in a specified period; and
(ii) the duration of each contact visit; and
(iii) the venue or venues at which contact visits are to take place; and
(iv) the persons who may be present during contact visits; and
(v) whether contact visits are to take place under the supervision of a
person or persons determined by the Chief Executive,
and may make any other provision the Chief Executive thinks appropriate;
and
(c) must comply with any other requirements set out in the regulations for
the purposes of this paragraph,
however a failure to comply with this subsection does not, of itself,
invalidate a determination.
(6) The Chief
Executive may, from time to time and by notice in writing, vary, substitute or
revoke the contact arrangements in respect of a child or young person.
(7) The Chief Executive must cause a copy of each determination under this
section, and any variation, substitution or revocation of the determination, to
be included as part of the case plan for the child or young person.
(8) The regulations may make further provision in respect of contact
arrangements (including by prohibiting contact arrangements being made in
specified circumstances and prescribing or limiting the kinds of conduct or
activities that can be the subject of contact arrangements).
85—Contact
Arrangements Review Panel
(1) The Minister must, in accordance with the regulations, establish a
panel (the Contact Arrangements Review Panel) for the purposes of
reviewing contact arrangements under this Part.
(2) The Contact Arrangements Review Panel has the functions and powers
conferred on it by the regulations.
(3) The regulations may make further provisions in relation to the Contact
Arrangements Review Panel (including by limiting the jurisdiction of the Contact
Arrangements Review Panel to review matters of a specified kind).
86—Review
by Contact Arrangements Review Panel
(1) Subject to this
Part, a person allowed contact with a child or young person pursuant to contact
arrangements determined by the Chief Executive under
section 84
may apply to the Contact Arrangements Review Panel for a review of those
arrangements.
(2) An application
under
subsection (1)
—
(a) must be made within
14 days after the Chief Executive's determination (or such longer period as the
Contact Arrangements Review Panel may allow); and
(b) must be made in a manner and form determined by the Contact
Arrangements Review Panel.
(3) However, the Contact Arrangements Review Panel may only allow an
extension of time under
subsection (2)(a)
if satisfied that special circumstances exist.
(4) The Contact Arrangements Review Panel need not conduct a review under
this section if the Contact Arrangements Review Panel believes that the
application—
(a) is frivolous, vexatious, misconceived or lacking in substance;
or
(b) is being used for an improper purpose; or
(c) is otherwise an abuse of process,
and, in such a case, a further application relating to the same matter may
only be made with the permission of the Contact Arrangements Review
Panel.
(5) The Contact
Arrangements Review Panel may, on a review under this section—
(a) affirm the determination that is being reviewed; or
(b) vary the determination that is being reviewed; or
(c) set aside the
determination being reviewed and—
(i) substitute its own determination; or
(ii) send the
matter back to the Chief Executive for determination in accordance with any
directions or recommendations that the Contact Arrangements Review Panel
considers appropriate.
(6) The Chief
Executive's determination as affirmed, varied or substituted by the Contact
Arrangements Review Panel—
(a) will be taken
to be a determination of contact arrangements in respect of the relevant child
or young person; and
(b) has effect from the time specified by the Contact Arrangements Review
Panel.
(7) A determination that has been affirmed, varied or substituted under
this section cannot be the subject of a further review by the Contact
Arrangements Review Panel.
(8) Subject to this Act, the Contact Arrangements Review Panel may
determine its own procedures.
(9) The regulations may make further provision in relation to reviews
under this section.
Part 5—Voluntary
custody agreements
87—Voluntary
custody agreements
(1) Subject to this
section, the parents or guardians of a child or young person and the Chief
Executive may enter into an agreement (a voluntary custody
agreement) under which the Chief Executive will have the custody of the
child or young person while the agreement has effect.
(2) If—
(a) the whereabouts of a particular parent or guardian of a child or young
person cannot, after reasonable enquiries, be ascertained; or
(b) a particular parent or guardian of a child or young person has failed
to respond within a reasonable period of time to a request that they enter into
a voluntary custody agreement; or
(c) it is not, in all the circumstances of the case, reasonably
practicable to request a particular parent or guardian of a child or young
person to enter into a voluntary custody agreement,
the remaining parent or guardian (as the case requires) may enter into a
voluntary custody agreement in respect of the child or young person.
(3) Negotiations for a voluntary custody agreement may be initiated by a
parent or guardian of a child or young person, or by a child or young person of
or above the age of 16 years.
(4) A voluntary custody agreement in relation to a child or young person
of or above the age of 16 years can only be entered into, or extended, with the
consent of the child or young person.
(5) If the Chief Executive is satisfied that a child or young person under
the age of 16 years has a sufficient understanding of the consequences of a
voluntary custody agreement, the child or young person must be consulted before
a voluntary custody agreement relating to them can be entered into or
extended.
(6) A voluntary
custody agreement—
(a) must be in writing; and
(b) may be
terminated at any time—
(i) by a parent or
guardian who is a party to the agreement; or
(ii) by agreement between the parties to the agreement; and
(c) will be taken to have been terminated on any order being made under
this Act or any other Act or law placing the child or young person under the
guardianship or in the custody of a person.
(7) A termination of a voluntary custody agreement under
subsection (6)(b)(i)
must be by notice in writing to the Chief Executive.
(8) If a voluntary
custody agreement relates to a child or young person of or above the age of 16
years, the Chief Executive must, if the Chief Executive is satisfied that proper
arrangements exist for the care of the child or young person, terminate the
agreement on the request of the child or young person.
(9) Unless the agreement is terminated earlier under this section, a
voluntary custody agreement—
(a) has effect for the period (not exceeding 3 months) specified in the
agreement; and
(b) may, on its expiration, be extended by the parties to the agreement
(but not so that the agreement will operate for a total period of more than 6
months).
For the purposes of this Part, a reference to the business of a
foster care agency will be taken to be a reference to the placement of
children and young people in the care of approved carers (whether on a
commercial basis or otherwise).
89—Foster
care agencies to be licensed
A person must not carry on the business of a foster care agency unless the
person is the holder of a licence under this Part.
Maximum penalty:
(a) in the case of a natural person—Imprisonment for 2 years;
or
(b) in the case of a body corporate—$120 000.
90—Licence
to carry on business as foster care agency
(1) The Chief
Executive may, on an application under this section and by notice in writing,
grant a licence to a person to carry on the business of a foster care
agency.
(2) An application for a licence—
(a) must be made in a manner and form determined by the Chief Executive;
and
(b) must be accompanied by any information or documents as may be required
by the Chief Executive.
(3) The Chief
Executive must not grant a licence to a person unless satisfied
that—
(a) the person is a fit and proper person to hold a licence (including by
having regard to the qualifications and experience in the field of foster care,
or any other related field, of the persons who will be carrying on or managing
the business, and of any employees of the business); and
(b) the person (or, in the case of a body corporate, each director of the
body corporate) is not a prohibited person under the
Child
Safety (Prohibited Persons) Act 2016
; and
(c) a working with children check has been conducted in relation to the
person (or, in the case of a body corporate, in relation to each director of the
body corporate) within the preceding 5 years; and
(d) the system of management within the agency is appropriate;
and
(e) the procedures proposed by the agency for the selection, approval,
training and support of approved carers are appropriate; and
(f) the procedures proposed by the agency for the placement and
supervision of children and young people are appropriate,
and may refuse to grant a licence for any reason the Chief Executive thinks
fit.
(4) A licence may be conditional or unconditional.
(5) The Chief Executive may, by notice in writing, vary, substitute or
revoke a condition of a licence.
(6) The holder of a licence under this Part must not refuse or fail to
comply with a condition of the licence.
Maximum penalty:
(a) in the case of a natural person—Imprisonment for 1 year;
or
(b) in the case of a body corporate—$50 000.
(7) Subject to this Act, a licence remains in force for a period of 12
months from the day on which it was issued, and may be renewed in accordance
with the regulations for successive periods of 12 months.
(1) The Chief
Executive may, by notice in writing, cancel a licence under this Part if the
Chief Executive reasonably suspects that—
(a) a child or young person placed in the care of an approved carer
pursuant to the licence is not being adequately cared for; or
(b) the provisions of this Act are not being complied with by the licensed
foster care agency to which the licence relates; or
(c) the holder of
the licence no longer meets a requirement for granting the licence under
section 90(3)
; or
(d) the holder of the
licence has refused or failed to comply with a condition of the licence;
or
(e) the holder of
the licence (or, if the holder of the licence is body corporate, a director of
the body corporate) is a prohibited person under the
Child
Safety (Prohibited Persons) Act 2016
; or
(f) a working with children check has been not conducted in relation to
the holder of the licence (or, if the holder of the licence is a body corporate,
in relation to a director of the body corporate) within the preceding
5 years; or
(g) it is otherwise appropriate that the licence be cancelled.
(2) The Chief Executive must (except in relation to a cancellation for a
reason referred to in
subsection (1)(d)
or
(e)
) give the holder of a licence under this Part at least 28 days' notice in
writing of the Chief Executive's intention to cancel the licence.
(1) The holder of a
licence under this Part must make such records as may be required by the
regulations.
Maximum penalty: $50 000.
(2) The holder of a licence under this Part must keep the records referred
to in
subsection (1)
in accordance with the requirements set out in the regulations.
Maximum penalty: $50 000.
93—Ongoing
reviews of approved carers by agency
The holder of a licence under this Part must, in relation to each approved
carer in whose care the foster care agency places children and young people
pursuant the licence—
(a) undertake regular assessments of the provision of care by the approved
carer under this Act; and
(b) assess any requirement of the approved carer for financial or other
assistance.
Maximum penalty: $50 000.
Part 7—Licensed
children's residential facilities
In this Part—
children's residential facility means—
(a) a place where 3 or more children or young people are, for monetary or
other consideration, cared for on a residential basis apart from their parents
or guardians; or
(b) any other place in which children or young people are cared for on a
residential basis declared by the regulations to be included in the ambit of
this definition,
but does not include—
(c) the residence of an approved carer in whose care a child or young
person is placed under this Act; or
(d) a residential facility or a training centre established by the
Minister under the
Family
and Community Services Act 1972
; or
(e) residential premises that are attached to a school or a tertiary
education institution, or that are used solely for the purposes of caring for
tertiary students; or
(f) any other facility or place, or class of facility or place, declared
by the regulations not to be included in the ambit of this definition.
95—Children's
residential facilities to be licensed
A person must not operate a children's residential facility unless the
person is the holder of a licence under this Part in respect of the
facility.
Maximum penalty:
(a) in the case of a natural person—Imprisonment for 2 years;
or
(b) in the case of a body corporate—$120 000.
96—Licence
to operate children's residential facility
(1) The Chief
Executive may, on an application under this section and by notice in writing,
grant a licence to a person to operate a children's residential
facility.
(2) An application for a licence—
(a) must be made in a manner and form determined by the Chief Executive;
and
(b) must be accompanied by such information or documents as may be
reasonably required by the Chief Executive.
(3) The Chief
Executive must not grant a licence to a person unless satisfied
that—
(a) the person is a fit and proper person to hold a licence (including by
having regard to the suitability, qualifications and experience of the persons
who will be operating the children's residential facility and of any persons who
will be employed in the facility); and
(b) the person (or, in the case of a body corporate, each director of the
body corporate) is not a prohibited person under the
Child
Safety (Prohibited Persons) Act 2016
; and
(c) a working with children check has been conducted in relation to the
person (or, in the case of a body corporate, in relation to each director of the
body corporate) within the preceding 5 years; and
(d) the premises proposed to be used as a children's residential facility
are suitable for that purpose; and
(e) the system of management within the children's residential facility is
appropriate.
(4) The Chief Executive must impose on each licence a condition setting
out the maximum number (not exceeding the prescribed number) of children and
young people that may reside in the licensed children's residential facility at
any time (and may impose such other conditions as the Chief Executive thinks
appropriate).
(5) The Chief Executive may, by notice in writing, vary, substitute or
revoke a condition of a licence.
(6) The holder of a licence under this Part must not refuse or fail to
comply with a condition of the licence.
Maximum penalty:
(a) in the case of a natural person—Imprisonment for 1 year;
or
(b) in the case of a body corporate—$50 000.
(7) Subject to this Act, a licence remains in force for the period
specified in the licence (not exceeding 3 years) and may be renewed in
accordance with the regulations.
(8) In this section—
prescribed number means—
(a) if the regulations prescribe a number for the purposes of this
definition—that number; or
(b) if the regulations do not prescribe a number for the purposes of this
definition—4.
(1) The Chief
Executive may, by notice in writing, cancel a licence under this Part if the
Chief Executive reasonably suspects that—
(a) a child or young person in the licensed children's residential
facility is not being adequately cared for; or
(b) the provisions of this Act are not being complied with in respect of
the licensed children's residential facility to which the licence relates;
or
(c) the holder of
the licence has refused or failed to comply with a condition of the licence;
or
(d) the holder of
the licence (or, if the holder of the licence is a body corporate, a director of
the body corporate) is a prohibited person under the
Child
Safety (Prohibited Persons) Act 2016
; or
(e) a working with children check has not been conducted in relation to
the holder of the licence (or, if the holder of the licence is a body corporate,
in relation to a director of the body corporate) within the preceding
5 years; or
(f) it is otherwise appropriate that the licence be cancelled.
(2) The Chief Executive must (except in relation to a cancellation for a
reason referred to in
subsection (1)(c)
or
(d)
) give the holder of a licence at least 28 days notice in writing of the
Chief Executive's intention to cancel the licence.
(1) The holder of a
licence under this Part must make such records as may be required by the
regulations.
Maximum penalty: $50 000.
(2) The holder of a licence under this Part must keep the records referred
to in
subsection (1)
in accordance with the requirements set out in the regulations.
Maximum penalty: $50 000.
99—Child
protection officer may inspect licensed children's residential
facility
(1) Without limiting any other provision of this Act, a child protection
officer may, at any reasonable time, enter and inspect a licensed children's
residential facility.
(2) A child
protection officer may give to the holder of a licence in respect of a licensed
children's residential facility, or any person present at the facility, such
directions as the child protection officer thinks necessary or appropriate to
enable the child protection officer to properly inspect the facility.
(3) A person must not refuse or fail to comply with a direction under
subsection (2)
.
Maximum penalty:
(a) in the case of a natural person—Imprisonment for 1 year;
or
(b) in the case of a body corporate—$50 000.
(4) To avoid doubt, a child protection officer need not suspect that a
child or young person residing in the licensed children's residential facility
is at risk, or that the holder of a licence in respect of the facility has
contravened this Act, in order to exercise a power under this section.
100—Chief
Executive to hear complaints
(1) A child or
young person being cared for in a prescribed facility, or a parent or guardian
of such a child or young person, may make a complaint to the Chief Executive
with respect to the care that the child or young person is receiving in the
facility.
(2) A complaint under
subsection (1)
must be made in a manner and form determined by the Chief
Executive.
(3) The Chief Executive must cause a complaint made under this section to
be investigated in accordance with the regulations.
(4) However, the Chief Executive need not investigate a complaint that is,
in the opinion of the Chief Executive, frivolous or vexatious or not made in
good faith.
(5) In this section—
prescribed facility means—
(a) a licensed children's residential facility; and
(b) any other facility prescribed by the regulations for the purposes of
this paragraph.
Part 8—Provision
of assistance to care leavers
101—Chief
Executive to assist persons leaving care
(1) The Chief Executive must, at the request of a child or young person
who is lawfully leaving the care of a person in whose guardianship or custody
they have been placed under this Act, and in consultation with the child or
young person, prepare a plan setting out steps to assist the child or young
person in making their transition from care.
(2) The Department, and any other State authority specified by the Chief
Executive in a plan under this section, is to take reasonable steps to implement
the plan.
(3) However, a plan under this section does not create legally enforceable
rights or entitlements.
102—Minister
to arrange assistance for eligible care leavers
(1) The Minister must
cause such assistance as the Minister thinks appropriate to be offered to each
eligible care leaver for the purposes of making their transition from care as
easy as is reasonably practicable.
(2) Without limiting the kinds of assistance that may be offered to an
eligible care leaver, such assistance may include 1 or more of the
following:
(a) the provision of information about Government and other resources and
services available to the eligible care leaver;
(b) the provision of education and training services;
(c) assistance in finding accommodation;
(d) assistance in finding employment;
(e) assistance in accessing legal advice and health services;
(f) counselling and support services.
(3) If an eligible care leaver accepts an offer of assistance, the
Minister must take reasonable steps to provide such assistance, or cause such
assistance to be provided, to the eligible care leaver.
(4) To avoid doubt, assistance may, at the discretion of the Minister, be
provided for a specified period or until a person ceases to be an eligible care
leaver.
(5) However, an offer of assistance under this section does not create
legally enforceable rights or entitlements.
(6) In this section—
eligible care leaver—a person is an eligible care
leaver if the person—
(a) is more than 16, but less than 26, years of age; and
(b) was, at any stage, under the guardianship or custody of the Chief
Executive or another person pursuant to this Act or the
Children's
Protection Act 1993
for a period of 6 months or more (or such lesser period as may be allowed
by the Minister).
103—Agreement
for funeral arrangements of children and young people in
care
(1) This section applies to a child or young person who—
(a) is under the guardianship or custody of the Chief Executive or another
person pursuant to this Act; or
(b) is otherwise placed in the care of an approved carer pursuant to this
Act.
(2) If—
(a) a child or young person to whom this section applies dies;
and
(b) the person in whose care the child or young person was at the time of
their death and the person who is responsible for arranging the funeral and the
disposal of the deceased's remains disagree about those arrangements,
the Chief Executive may, at the request of 1 or both of the parties,
endeavour to assist the parties to reach an agreement about those
arrangements.
Chapter 8—Providing
safe environments for children and young people
104—Certain
organisations to ensure environment is safe for children and young people
etc
(1) A prescribed
organisation must, in accordance with any requirement set out in the
regulations, prepare or adopt policies and procedures of the following
kinds:
(a) policies and procedures that ensure that the requirements under
Chapter 5
Part 1
are satisfied;
(b) policies and procedures designed to ensure that safe environments for
children and young people are established and maintained in respect of the
services or activities provided or undertaken by the prescribed
organisation;
(c) such other policies and procedures as may be required by the
regulations for the purposes of this section.
(2) A prescribed organisation may, in accordance with any requirement set
out in the regulations, from time to time vary or substitute a policy or
guideline required under
subsection (1)
.
(3) A prescribed
organisation must, as soon as is reasonably practicable after preparing or
adopting, or varying or substituting, the policies and procedures required under
subsection (1)
, provide to the Chief Executive a statement—
(a) certifying that the prescribed organisation has in place policies and
procedures as required under that subsection; and
(b) setting out any information required by the regulations for the
purposes of this paragraph.
(4) A statement required under
subsection (3)
—
(a) must be provided in a manner and form determined by the Chief
Executive; and
(b) must, if the Chief Executive so requires, be accompanied by a copy of
each policy and procedure prepared or adopted under
subsection (1)
as varied or substituted from time to time; and
(c) must comply with any other requirements set out in the regulations for
the purposes of this paragraph.
(5) A prescribed organisation must, at the request of a person in relation
to whom the prescribed organisation provides, or is to provide, a service,
produce for inspection a copy of the policies and procedures prepared or adopted
under
subsection (1)
, as in force at the relevant time.
(6) A prescribed organisation must not refuse or fail to comply with a
requirement under this section.
Maximum penalty: $10 000.
(7) In this section—
prescribed organisation means—
(a) State authorities; or
(b) persons or bodies who provide a service or undertake an activity that
constitutes child-related work under the
Child
Safety (Prohibited Persons) Act 2016
; or
(c) any other person or body, or person or body of a class, declared by
the regulations to be included in the ambit of this paragraph.
105—Policies
and procedures to be reviewed
(1) A prescribed organisation must, in accordance with any requirement set
out in the regulations, review the policies and procedures prepared or adopted
under
section 104(1)
at least once in every 5 year period.
Maximum penalty: $10 000.
(2) In this section—
prescribed organisation has the same meaning as in
section 104
.
Chapter 9—Child
and Young Person's Visitor scheme
In this Chapter—
prescribed facility means—
(a) a licensed children's residential facility; and
(b) any other facility prescribed by the regulations.
107—Child
and Young Person's Visitor
(1) The Minister may establish a Child and Young Person's
Visitor.
(2) The Child and Young Person's Visitor is to be independent of direction
or control by the Crown or any Minister or officer of the Crown.
(3) The regulations may make further provision in relation to the
establishment and appointment of the Child and Young Person's Visitor.
(1) The functions
of the Child and Young Person's Visitor are—
(a) to conduct visits to, and inspections of, prescribed facilities as
required or authorised under this Part; and
(b) to communicate with children and young people resident in prescribed
facilities; and
(c) to promote the best interests of the children and young people
resident in prescribed facilities; and
(d) to act as an advocate for children and young people resident in
prescribed facilities and to promote the proper resolution of issues relating to
their care; and
(e) to inquire into, and provide advice to the Minister relating to, any
systemic reform necessary to improve—
(i) the quality of care, treatment or control of children and young people
resident in prescribed facilities; or
(ii) the management of prescribed facilities; and
(f) any other functions assigned to the Child and Young Person's Visitor
under this or any other Act.
(2) In performing functions under this Act, the Child and Young Person's
Visitor—
(a) must encourage children and young people resident in prescribed
facilities to express their own views and give proper weight to those views;
and
(b) must pay particular attention to the needs and circumstances
of—
(i) Aboriginal or Torres Strait Islander children or young people;
or
(ii) children and young people who have a physical, psychological or
intellectual disability; and
(c) may receive and consider any information, reports and materials that
may be relevant to performing the Child and Young Person's Visitor's
functions.
(3) On a visit to a prescribed facility under this Part, the Child and
Young Person's Visitor may—
(a) inspect any part of the prescribed facility; and
(b) make inquiries about the care, treatment and control of each child or
young person resident in the prescribed facility; and
(c) take such other action as may be reasonably required to perform the
Child and Young Person's Visitor's functions under this Act.
(4) Subject to
subsection (5)
, a visit to a prescribed facility—
(a) may be made by the Child and Young Person's Visitor on the Child and
Young Person's Visitor's own initiative or at the request of a child or young
person who is or was resident in the prescribed facility; and
(b) may be made at any reasonable time; and
(c) may be of such duration as the Child and Young Person's Visitor thinks
appropriate.
(5) The Child and
Young Person's Visitor must—
(a) except in
exceptional circumstances, give the person in charge of a prescribed facility
reasonable notice of a visit; and
(b) take steps to ensure that the safe administration of the prescribed
facility is not compromised by a visit; and
(c) obey the reasonable directions of the person in charge of the
prescribed facility in relation to any genuine concerns the person may have in
connection with the safe management of the prescribed facility.
(6) If the person
in charge of a prescribed facility refuses to allow the Child and Young Person's
Visitor to visit the prescribed facility because of genuine concerns the person
may have in connection with the safety of the Child and Young Person's Visitor
(whether related to a security risk, a health related risk or some other
reason), the person must, as soon as reasonably practicable, provide the Child
and Young Person's Visitor with written advice as to why entry to the prescribed
facility was refused.
(7) The Child and Young Person's Visitor has such other powers as may be
necessary or expedient for, or incidental to, the performance of the Child and
Young Person's Visitor's functions.
(1) The Child and
Young Person's Visitor must, on or before 30 September in every year,
prepare and provide to the Minister a report on the work of the Child and Young
Person's Visitor during the financial year ending on the preceding
30 June.
(2) The Minister must, within 6 sitting days after receiving a report
under
subsection (1)
, have copies of the report laid before both Houses of
Parliament.
(3) The Child and Young Person's Visitor may, at any time, prepare a
special report to the Minister on any matter arising out of the performance of
the Child and Young Person's Visitor's functions.
(4) The Minister
must, within 6 sitting days after receiving a special report, have copies of the
report laid before both Houses of Parliament.
Chapter 10—Transfer
of certain orders and proceedings between South Australia and other
jurisdictions
The purpose of this Chapter is to provide for the transfer of certain child
protection orders and proceedings between South Australia and another State or a
Territory of Australia or between South Australia and New
Zealand—
(a) so that children who are in need of protection may be protected
despite moving from one jurisdiction to another; and
(b) so as to facilitate the timely and expeditious determination of court
proceedings relating to the protection of a child.
(1) In this Chapter—
appropriate court, in relation to a participating State,
means the court in that State that has jurisdiction to hear and determine child
protection proceedings at first instance;
child protection order means an order (not being an interim
order (see definition) or any other order made on an interim basis) made under a
child welfare law that gives—
(a) a minister of the Crown; or
(b) a person who is the chief executive of a government department or
statutory authority or otherwise holds an office or position in, or is employed
in, a government department or statutory authority; or
(c) the chief executive of a licensed children's residential facility or
any other organisation or its chief executive,
responsibility in relation to the guardianship, custody or supervision of
the child, however that responsibility is described;
child protection proceeding means any proceeding brought in a
court under a child welfare law for—
(a) the making of a finding that a child is in need of protection or any
other finding (however described) the making of which is a prerequisite under
the child welfare law to the exercise by the court of a power to make a child
protection order; or
(b) the making of a child protection order or an interim order or for the
variation or revocation or the extension of the period of such an
order;
child welfare law means—
(a) this Act; or
(b) a law of another State that is declared by proclamation under
subsection (2)
to be a child welfare law for the purposes of this Chapter;
interim order means—
(a) an order made under
section 123
; or
(b) an equivalent order made under an interstate law;
interstate law means a law of another State that is declared
by proclamation under
subsection (3)
to be an interstate law for the purposes of this Chapter;
interstate officer, in relation to a State other than South
Australia, means—
(a) the holder of an office or position that is declared by proclamation
under
subsection (4)
to be an office or position the holder of which is the interstate officer
in relation to that State for the purposes of this Chapter; or
(b) the person holding the office or position to which there is given by
or under the child welfare law of that State principal responsibility for the
protection of children in that State;
participating State means a State in which an interstate law
is in force;
Registrar means the Registrar of the Youth Court;
sending State means the State from which a child protection
order or proceeding is transferred under this Chapter or an interstate
law;
State means—
(a) a State or a Territory of Australia; or
(b) New Zealand.
(2) The Governor
may, by proclamation, declare a law of a State (other than South Australia) to
be a child welfare law for the purposes of this Chapter if satisfied that the
law substantially corresponds to this Act.
(3) The Governor
may, by proclamation, declare a law of a State (other than South Australia) to
be an interstate law for the purposes of this Chapter if satisfied that the law
substantially corresponds to this Chapter.
(4) The Governor
may, by proclamation, declare an office or position in a State (other than South
Australia) to be an office or position the holder of which is the interstate
officer in relation to that State for the purposes of this Act.
(5) The Governor may, by proclamation, vary or revoke a proclamation made
under this section.
(6) For the purposes of this Chapter, a decision or order is not subject
to review or appeal if—
(a) the time for instituting a review of or appeal against the decision or
order has expired; or
(b) where a review or appeal was instituted, the decision or order was
confirmed on the review or appeal or the review or appeal was
discontinued.
(7) The following persons are parties to proceedings before the Court on
an application for the transfer of a child protection order or a child
protection proceeding under this Chapter:
(a) the applicant;
(b) the child the subject of the application;
(c) each parent and guardian of the child.
Part 2—Administrative
transfer of child protection order
112—When
Chief Executive may transfer order
(1) The Chief
Executive may transfer a child protection order (the home order)
to a participating State if—
(a) in the Chief Executive's opinion a child protection order to the same
or a similar effect as the home order could be made under the child welfare law
of that State; and
(b) the home order is not subject to an appeal; and
(c) the relevant interstate officer has consented in writing to the
transfer and to any proposed variation of the terms of the order pursuant to
subsection (3)
; and
(d) the persons
whose consent to the transfer is required under
section 113
have so consented.
(2) In determining whether a child protection order to the same or a
similar effect as the home order could be made under the child welfare law of
the participating State, the Chief Executive must not take into account the
period for which it is possible under that law for such an order to be in
force.
(3) For the
purposes of transferring a child protection order to a participating State, the
Chief Executive may vary the terms of the order so that it makes provision for
any matter in terms that could be included in a child protection order of that
type made in the participating State.
(4) The Chief Executive must specify in the transferred order the period
for which it is to remain in force.
(5) That period must be—
(a) if the same period as that of the home order is possible for the
transferred order under the child welfare law of the participating State
commencing on and including the date of the registration of the order in that
State—that period; or
(b) in any other case—as similar a period as is possible under that
law but in no case longer than the period of the home order.
113—Persons
whose consent is required
(1) For the
purposes of
section 112(1)(d)
—
(a) if the home order grants custody (but not guardianship) of the child
to the Minister or the Chief Executive, consent to the transfer is required from
the child's parents;
(b) if the home order grants custody of the child to the chief executive
of a licensed children's residential facility or to any other organisation or
its chief executive, consent to the transfer is required from the child's
parents and the chief executive of the facility or organisation;
(c) if the home order requires the child to be under the supervision of
the Chief Executive or some other specified person or authority, consent to the
transfer is required from the child's parents and guardians;
(d) if the home order or any ancillary order grants a person access to the
child, consent to the transfer is required from that person.
(2) However, if a person whose consent would normally be required is
residing in, or is intending to reside in, the relevant participating State, the
consent of that person to the transfer is not required.
(3) Despite
subsection (1)
, if a person whose consent is required—
(a) cannot, after reasonable enquiries, be found; or
(b) fails to respond within a reasonable period of time to a request for
consent,
the consent of that person to the transfer is not required.
114—Chief
Executive to have regard to certain matters
In determining whether to transfer a child protection order to a
participating State under this Part, the Chief Executive must have regard
to—
(a) any sentencing order (other than a fine) in force in respect of the
child, or criminal proceeding pending against the child in a court, of which the
Chief Executive is aware; and
(b) whether the Chief Executive or an interstate officer is in the better
position to exercise the powers and responsibilities under the order;
and
(c) the desirability of the order being an order under the child welfare
law of the State where the child resides.
115—Notification
to child, parents and guardians
(1) If the Chief
Executive has decided to transfer a child protection order to a participating
State under this Part, the Chief Executive must cause—
(a) the parents and guardians of the child who is the subject of the order
and any other person who is granted access to the child under the order (or an
ancillary order); and
(b) if the child is of or above the age of 10 years, the child,
to be served with a notice of the decision as soon as practicable but in
any event no later than 3 business days after making it.
(2) A notice under
subsection (1)
must, in addition to providing notice of the decision, give particulars of
the rights of review of the decision and of how and when an application for such
a review may be made.
(3) The notice of the decision must be served personally,
but—
(a) if it is not practicable to serve the notice personally on a person
(not being the child); or
(b) if the whereabouts of such a person cannot, after reasonable
enquiries, be ascertained,
the notice of the decision may be served on that person by post addressed
to the person at their last known place of residence or employment or in any
other manner authorised by the Court.
116—Limited
period for review of decision
(1) Any person who is required to be notified of a decision of the Chief
Executive to transfer a child protection order to a participating State under
this Part may apply to the Court for a review of the decision.
(2) An application
for review must be lodged with the Court and served on the Chief Executive
within 13 business days after the day on which the decision is
made.
(3) Subject to
subsection (2)
, an application for review must be brought in accordance with the rules of
the Court.
(4) The lodgment and service of an application in accordance with
subsections (2)
and
(3)
operate as a stay of the decision pending the determination of the
review.
(5) A review is to be conducted by way of a hearing and for that purpose
the Court may receive evidence, including, if the Court so determines, evidence
given by affidavit.
(6) The Court must, on a review, give due weight to the decision being
reviewed and the reasons for it and not depart from the decision except for
cogent reasons.
(7) On a review, the Court may—
(a) affirm the decision the subject of the review; or
(b) rescind the decision; or
(c) rescind the decision and substitute a decision that the Court
considers appropriate; or
(d) remit the subject matter of the review to the Chief Executive for
reconsideration in accordance with any directions or recommendations of the
Court,
and may make any ancillary or consequential order that the Court considers
appropriate.
(8) Each party to the proceedings is to bear their own costs unless the
Court considers that some other order should be made to do justice between the
parties.
Part 3—Judicial
transfer of child protection order
117—When
Court may make order under this Part
The Court may make an order under this Part transferring a child protection
order to a participating State if—
(a) an application for the making of the order is made by the Chief
Executive; and
(b) the child protection order is not subject to an appeal; and
(c) the relevant interstate officer has consented in writing to the
transfer and to the proposed terms of the order.
(1) If the Court determines to transfer a child protection order (the
home order) under this Part, the Court may, for the purpose of the
transfer, vary the terms of the order so that it makes provision for any matter
in terms that could be included in a child protection order made under the child
welfare law of the participating State and that the Court believes to
be—
(a) to the same or a similar effect as the terms of the home order;
or
(b) otherwise in the best interests of the child.
(2) In determining whether an order to the same or a similar effect as the
home order could be made under the child welfare law of the participating State,
the Court must not take into account the period for which it is possible under
that law for such an order to be in force.
(3) The Court must specify in the transferred order the period for which
it is to remain in force.
(4) The period must be any period that is possible for a child protection
order of the type of the transferred order under the child welfare law of the
participating State commencing from the date of its registration in that State
and that the Court considers appropriate.
119—Court
to have regard to certain matters
In determining an application under this Part, the Court must have regard
to—
(a) whether the Chief Executive or an interstate officer is in the better
position to exercise the powers and responsibilities under a child protection
order relating to the child; and
(b) the desirability of a child protection order being an order under the
child welfare law of the State where the child resides; and
(c) any information given to the Court by the Chief Executive under
section 120
.
120—Duty
of Chief Executive to inform the Court of certain matters
If the Chief Executive is aware that—
(a) a sentencing order, other than a fine, is in force in respect of the
child who is the subject of an application under this Part; or
(b) a criminal proceeding is pending against that child in any
court,
the Chief Executive must, as soon as possible, inform the Court of that
fact and of the details of the sentencing order or pending criminal
proceeding.
Part 4—Transfer
of child protection proceedings
121—When
Court may make order under this Part
(1) The Court may make an order under this Part transferring a child
protection proceeding pending in the Court to the appropriate court in a
participating State if—
(a) an application for the order is made by the Chief Executive;
and
(b) the relevant interstate officer has consented in writing to the
transfer.
(2) The proceeding is discontinued in the Court on the registration of the
order in the appropriate court in the participating State in accordance with the
interstate law.
122—Court
to have regard to certain matters
(1) In determining an application to transfer a proceeding under this
Part, the Court must have regard to—
(a) whether any other proceedings relating to the child are pending, or
have previously been heard and determined, under the child welfare law in the
participating State; and
(b) the place where any of the matters giving rise to the proceeding in
the Court arose; and
(c) the place of residence, or likely place of residence, of the child,
their parents or guardians and any other people who are significant to the
child; and
(d) whether the Chief Executive or an interstate officer is in the better
position to exercise the powers and responsibilities under a child protection
order relating to the child; and
(e) the desirability of a child protection order being an order under the
child welfare law of the State where the child resides; and
(f) any information given to the Court by the Chief Executive under
subsection (2)
.
(2) If the Chief
Executive is aware that—
(a) a sentencing order, other than a fine, is in force in respect of the
child who is the subject of an application under this Part; or
(b) a criminal proceeding is pending against that child in any
court,
the Chief Executive must, as soon as possible, inform the Court of that
fact and of the details of the sentencing order or pending criminal
proceeding.
(1) If the Court makes an order transferring a proceeding under this Part,
the Court may also make an interim order.
(2) An interim order—
(a) may make provision for the guardianship, custody or care of the child
in such terms as the Court considers to be appropriate; and
(b) may give responsibility for the supervision of the child to the
interstate officer in the participating State or any other person in that State
to whom responsibility for the supervision of a child could be given under the
child welfare law of that State; and
(c) remains in force for the period (not exceeding 30 days) specified in
the order.
(3) The appropriate court in the participating State may vary or revoke,
or extend the period of, an interim order in accordance with the relevant
interstate law.
Part 5—Registration
of interstate orders and proceedings
124—Filing
and registration of interstate documents
(1) Subject to
subsection (3)
, the Chief Executive must, as soon as possible, file in the Court for
registration a copy of a child protection order transferred to South Australia
under an interstate law.
(2) Subject to
subsection (3)
, the Chief Executive must, as soon as possible, file in the Court for
registration a copy of an order under an interstate law to transfer a child
protection proceeding to South Australia, together with a copy of any interim
order made at the same time.
(3) The Chief
Executive must not file in the Court a copy of a child protection order or of an
order to transfer a child protection proceeding if—
(a) the decision or order to transfer the child protection order or the
order to transfer the child protection proceeding (as the case requires) is
subject to review or appeal or a stay; or
(b) the time for instituting a review or appeal has not expired,
under the interstate law.
The Registrar must immediately notify the appropriate officer of the
appropriate court in the sending State and the interstate officer in that State
of—
(a) the registration of any document filed under
section 124
; or
(b) the revocation under
section 127
of the registration of any document so filed.
(1) A child protection order registered in the Court under this Part will
be taken for all purposes (except for the purposes of appeal) to be a care and
protection order of the relevant type made by the Court on the day on which it
is registered and it may be varied or revoked, or the period of the order
extended, or a breach of it dealt with, under this Act accordingly.
(2) An interim order registered in the Court under this Part will be taken
for all purposes (except for the purposes of appeal) to be an order made by the
Court under this Act on the day on which it is registered and it may be varied,
or the period of the order extended, or a breach of it dealt with,
accordingly.
(3) If an order under an interstate law to transfer a child protection
proceeding to South Australia is registered under this Part, the proceeding will
be taken to have been commenced in the Court on the day on which the order is so
registered.
127—Revocation
of registration
(1) An application
for the revocation of the registration of any document filed under
section 124
may be made to the Court by—
(a) the Chief Executive; or
(b) the child concerned; or
(c) a parent or guardian of the child concerned; or
(d) a party to the proceeding in the appropriate court in the sending
State in which the decision to transfer the order or proceeding (as the case
requires) was made.
(2) The Registrar must cause a copy of an application under
subsection (1)
to be given personally or by post as soon as possible to—
(a) the relevant interstate officer; and
(b) each person (other than the applicant) by whom such an application
could have been made.
(3) The Court may only revoke the registration of a document filed under
section 124
if satisfied that it was inappropriately registered
because—
(a) the decision or order to transfer the child protection order or the
order to transfer the child protection proceeding (as the case requires) was at
the time of registration subject to review or appeal or a stay; or
(b) the time for instituting a review or appeal had not expired,
under the relevant interstate law.
(4) The Registrar must cause any document filed in the Court under
section 124
to be sent to the appropriate court in the sending State if the
registration of the document is revoked under this section.
(5) The revocation of the registration of a document does not prevent the
later re-registration of that document.
(1) An appeal against a final order of the Court—
(a) if made in a proceeding to transfer a child protection order to a
participating State, must be lodged within 10 business days after the day on
which the order was made; or
(b) if made in a proceeding to transfer a child protection proceeding to
the appropriate court in a participating State, must be lodged within 3 business
days after the day on which the order was made.
(2) An appeal operates as a stay of the order.
129—Effect
of registration of transferred order
(1) On a child
protection order being registered in a participating State under an interstate
law, the child protection order made by the Court under this Act ceases to have
effect.
(2) Despite
subsection (1)
, an order that has ceased to have effect by force of that subsection is
revived if the registration of the transferred order is revoked in the
participating State under the interstate law.
(3) The period for which a child protection order is revived is the
balance of the period for which it would have remained in force but for the
registration of the transferred order.
The Registrar must cause all documents filed in the Court in connection
with a child protection proceeding to be sent to the appropriate court in a
participating State if—
(a) the child protection order or proceeding is transferred to the
participating State; and
(b) the decision or order to transfer the child protection order or the
order to transfer the child protection proceeding (as the case requires) is not
subject to review or appeal or a stay.
131—Hearing
and determination of transferred proceeding
In hearing and determining a child protection proceeding transferred to the
Court under an interstate law, the Court—
(a) is not bound by
any finding of fact made in the proceeding in the appropriate court in the
sending State before its transfer; but
(b) may have regard to the transcript of, or any evidence adduced in, the
proceeding referred to in
paragraph (a)
.
Despite anything to the contrary in this Act, the Chief Executive may
disclose to an interstate officer any information that has come to the Chief
Executive's notice in the performance of duties or exercise of powers under this
Act if the Chief Executive considers that it is necessary to do so to enable the
interstate officer to perform duties or exercise powers under a child welfare
law or an interstate law.
133—Discretion
of Chief Executive to consent to transfer
(1) If, under an interstate law, there is a proposal to transfer a child
protection order to South Australia, the Chief Executive may consent or refuse
to consent to the transfer and the proposed terms of the child protection order
to be transferred.
(2) If, under an interstate law, there is a proposal to transfer a child
protection proceeding to the Court, the Chief Executive may consent or refuse to
consent to the transfer.
134—Evidence
of consent of relevant interstate officer
A document or a copy of a document—
(a) purporting to be the written consent of the relevant interstate
officer to—
(i) the transfer of a child protection order to a participating State and
to the proposed terms of the child protection order to be transferred;
or
(ii) the transfer of a child protection proceeding pending in the Court to
the appropriate court in a participating State; and
(b) purporting to be signed by the relevant interstate officer or their
delegate,
is admissible in evidence in any proceeding under this Chapter and, in the
absence of evidence to the contrary, is proof that consent in the terms
appearing in the document was duly given by the relevant interstate
officer.
Chapter 11—Administrative
matters
Part 1—Functions
of Chief Executive etc
135—Functions
of the Chief Executive
The functions of the Chief Executive under this Act
include—
(a) developing codes of conduct and principles of good practice for caring
for, or working with, children and young people; and
(b) providing guidance on matters relating to the protection of children
and young people, including—
(i) appropriate standards of conduct for adults in dealing with children
and young people; and
(ii) how to deal with cases involving the bullying or harassment of a
child or young person; and
(iii) how to deal with cases involving the suspected harming of a child or
young person; and
(iv) recruitment and supervision of staff of government and non-government
organisations who may have contact with children and young people in the course
of their employment; and
(c) defining appropriate standards of care for ensuring the safety of
children and young people; and
(d) disseminating information about ways in which children and young
people may be at risk of harm so that such cases are more readily recognised and
more promptly dealt with; and
(e) ensuring, as far as practicable, that procedures for making complaints
relating to children and young people who may be at risk are accessible and
responsive to the needs of children and young people in care; and
(f) developing channels of communication and information sharing between
the Department or State authorities and children and young people; and
(g) contributing to public discourse on issues relating to the protection
of children and young people as part of a wider engagement to promote the
message that the protection of children and young people is everyone's
responsibility; and
(h) providing and overseeing the training and ongoing education of child
protection officers; and
(i) developing standard operating procedures governing the exercise of
powers under this Act; and
(j) to monitor the operation of this Act as it relates to the provision of
safe environments for children and young people (including by monitoring
progress in the government and non-government sectors towards achieving that
goal) and to report regularly to the Minister on that subject;
(k) any other function conferred on the Chief Executive under this or any
other Act or by the Minister.
(1) The Minister or
the Chief Executive may delegate a function or power (other than a prescribed
function or power) under this Act to a specified person or body (including a
person for the time being holding or acting in a specified office or position,
or a person or body located in another State or Territory).
(2) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the Minister or Chief Executive
(as the case requires) to act in any matter; and
(d) is revocable at will.
(3) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
Part 2—Child
protection officers
(1) The following
persons are child protection officers for the purposes of this
Act:
(a) the Chief Executive;
(c) an employee of
the Department authorised by the Chief Executive by instrument in writing as a
child protection officer.
(2) An authorisation under
subsection (1)(c)
may be made subject to conditions or limitations specified in the
instrument of authorisation.
(3) A child protection officer authorised under
subsection (1)(c)
must be issued with an identity card—
(a) containing the person's name and a photograph of the person;
and
(b) stating that the person is a child protection officer under this Act;
and
(c) if the powers of a child protection officer have been limited by
conditions—stating those limitations.
(4) A child protection officer (other than a police officer in uniform)
must, at the request of a person in relation to whom the officer intends to
exercise powers under this Act, produce for inspection their identity card or
other evidence of their authority.
(5) The Chief Executive may, by notice in writing to a child protection
officer authorised under
subsection (1)(c)
, vary or revoke the authorisation, or a condition or limitation of the
authorisation, on any grounds the Chief Executive thinks fit.
138—Primary
function of child protection officers
Without limiting any other functions or powers of child protection officers
under this or any other Act, the primary function of child protection officers
under this Act is to exercise their powers for the purpose of removing children
and young people from situations in which they are at risk of harm.
139—Powers
of child protection officers
(1) Subject to this
Act, a child protection officer may, as may reasonably be required in the
administration, operation or enforcement of this Act, do 1 or more of the
following:
(a) enter and remain on any premises, place, vehicle or vessel (and for
that purpose require a vehicle or vessel to stop);
(b) inspect any premises or place, vehicle or vessel;
(c) use reasonable force to break into or open any part of, or anything in
or on, any premises, place, vehicle or vessel;
(d) take photographs, films, audio, video or other recordings;
(e) seize and
retain anything that the officer reasonably suspects has been used in, or may
constitute evidence of, a contravention of this Act;
(f) require a person who the officer reasonably suspects has committed, is
committing or is about to commit, a contravention of this Act to state their
full name and usual place of residence and to produce evidence of their
identity;
(g) give such directions as may be reasonably required in connection with
the exercise of a power conferred by a preceding paragraph or otherwise for a
purpose related to the administration, operation or enforcement of this
Act.
(2) Without
limiting
subsection (1)
, a child protection officer may, for the purposes of enforcing any order
of the Court, without warrant, remove from any premises, place, vehicle or
vessel a child or young person using such force (including breaking into the
premises, place, vehicle or vessel) as is reasonably necessary for that
purpose.
(3) Except as is
provided for in
subsection (2)
, a child protection officer may only use force to enter any premises,
place, vehicle or vessel—
(a) on the authority of a warrant issued by a magistrate; or
(b) if—
(i) entry to the premises, place, vehicle or vessel has been refused or
cannot be gained; and
(ii) the child protection officer believes on reasonable grounds that the
delay that would ensue as a result of applying for a warrant would significantly
increase the risk of harm, or further harm, being caused to a child or young
person.
(4) A magistrate must not issue a warrant under this section unless
satisfied on information given on oath, personally or by affidavit, that there
are reasonable grounds for the issue of a warrant.
(5) An application for the issue of a warrant under this
section—
(a) may be made either personally or by telephone; and
(b) must be made in accordance with any procedures prescribed by the
regulations.
(6) A magistrate by whom a warrant is issued under this section must file
the warrant, or a copy of it, and any supporting affidavit in the
Court.
(7) Without
limiting
subsection (1)
, a child protection officer may exercise a power under this section for
the purpose of determining whether an order of the Court, or a direction or
requirement of the Chief Executive, is being, or has been, complied with in
respect of a child or young person who is under the guardianship, or in the
custody, of the Chief Executive.
(8) A child protection officer may, in exercising powers under this Act,
be accompanied by such assistants as are reasonably required in the
circumstances.
(9) A person must not, without reasonable excuse, refuse or fail to comply
with a requirement or direction under this section.
Maximum penalty: Imprisonment for 1 year.
(10) To avoid doubt, this section does not limit any other powers
conferred by any other provision of this Act.
140—Child
protection officer may require information etc
(1) A child
protection officer, may, by notice in writing, require a specified person or
body (whether or not the person or body is a State authority, or an officer or
employee of a State authority) to provide to them such information, or such
documents, as may be specified in the notice (being information or a document in
the possession of the person or body that is reasonably required in the
administration, operation or enforcement of this Act).
(2) To avoid doubt, a requirement under
subsection (1)
may include a requirement to provide copies of medical, financial or other
records in respect of a person.
(3) A child protection officer may, by notice in writing, require a
specified person to—
(a) answer, to the best of the person's knowledge or belief, questions put
by the child protection officer or an employee of the Department authorised by
the Chief Executive for the purposes of this subsection; and
(b) in the case of a person who has examined, assessed or treated a person
under this Act—provide to the child protection officer or the Chief
Executive a written report of that examination, assessment or
treatment.
(4) A person or body of whom a requirement is made under this section must
provide the specified information, documents, answers or reports in the manner
and form, and within the period, specified in the notice.
(5) A person or body who refuses or fails to comply with a notice under
this section is guilty of an offence.
Maximum penalty:
(a) in the case of a natural person—Imprisonment for 1 year;
or
(b) in the case of a body corporate—$50 000.
(6) If a State authority refuses or fails to comply with a notice under
subsection (1)
, the Chief Executive may, after consultation with the State
authority—
(a) report the refusal or failure to the Minister and to the Minister
responsible for the State authority; and
(b) include details of the refusal or failure in the annual report of the
Department.
Part 3—Information
gathering and sharing
141—Chief
Executive may require State authority to provide report
(1) The Chief
Executive may, if the Chief Executive is of the opinion that it is necessary or
would otherwise assist in the performance of functions under this Act, require a
State authority to prepare and provide a report to the Chief Executive in
relation to the matters, and in accordance with any requirements, specified in
the notice.
(2) If a State
authority refuses or fails to comply with a requirement under
subsection (1)
, the Chief Executive may require the State authority to provide to the
Chief Executive within a specified period a report setting out the reasons for
non-compliance.
(3) The Chief
Executive may, on receiving a report under
subsection (2)
, submit a copy of the report to the Minister setting out the views of the
Chief Executive in respect of the State authority's non-compliance.
(4) The Minister
must, on receiving a report under
subsection (3)
, prepare a report to Parliament setting out—
(a) the Minister's response to the Chief Executive's report; and
(b) any other information required by the regulations.
(5) The Minister must, within 6 sitting days after completing a
report under
subsection (4)
, cause a copy of both the report and the Chief Executive's report under
subsection (3)
to be laid before both Houses of Parliament.
142—Sharing
of information between certain persons and bodies
(1) This section applies to the following persons and bodies:
(a) the Department;
(b) the Commissioner for Children and Young People;
(c) the Guardian for Children and Young People;
(d) the Child Death and Serious Injury Committee;
(e) the Child and Young Person's Visitor;
(f) a State authority;
(g) a Child and Family Assessment and Referral Network and its constituent
members;
(h) any other person or body prescribed by the regulations.
(2) Despite any
other Act or law, a person or body to whom this section applies (the
provider) may, in accordance with any requirement set out in the
regulations, provide prescribed information and documents to another person or
body to whom this section applies (the recipient) if the provider
reasonably believes that the provision of the information or documents would
assist the recipient—
(a) to perform functions relating to children and young people;
or
(b) to manage any risk to a child or young person, or class of children or
young people, that might arise in the recipient’s capacity as an employer
or provider of services.
(3) Subject to this
section, but despite any other Act or law, information or documents that do not
directly or indirectly disclose the identity of any person may be provided by
one person or body to whom this section applies to another without
restriction.
(4)
Subsection (3)
applies—
(a) whether or not the information or documents consist of or include
prescribed information and documents; and
(b) whether or not the information or document ever disclosed the identity
of a person, or has been redacted so as to de-identify it.
(5) Information may be provided under this section whether or not the
provider has been requested to provide the information.
(6) Despite
section 154
, the recipient of information or documents under this section must not
disclose information or documents received under this section
except—
(a) to another person or body to whom this section applies; or
(b) as may be authorised by the regulations.
(7) In this section—
prescribed information and documents means—
(a) information or documents relating to the health, safety, welfare or
wellbeing of a particular child or young person, or class of children or young
people; or
(b) any other information or document of a kind prescribed by the
regulations for the purposes of this definition.
143—Certain
persons to be provided with documents and information held by the
Department
(1) An eligible
applicant in respect of a prescribed person may apply to the Chief Executive for
the provision of documents and information relating to the prescribed person
being held by the Department.
(2) An application
made under this section must be made in the manner and form determined by the
Chief Executive.
(3) Subject to this
section, the Department must, on an application under
subsection (1)
, provide to the eligible applicant—
(a) such of the
following documents relating to the prescribed person as may be held by the
Department:
(i) birth certificate;
(ii) religious certificates;
(iii) certificates of achievement;
(iv) education and training reports;
(v) correspondence addressed to the prescribed person;
(vi) passport;
(vii) photographs;
(viii) any other documents of a kind prescribed by the regulations;
and
(b) such information relating to the prescribed person of a kind specified
in the application as may be held by the Department.
(4) If the
Department holds an original of a document referred to in
subsection (3)(a)
, the Department must give the original to the eligible applicant and must
ensure that a copy of the document is retained for the purposes of the laws of
the State.
(5) For the purposes of the
State
Records Act 1997
, the disclosure or provision of an official record (within the meaning of
that Act) is authorised under this Part.
(6) The Department
may, in accordance with any guidelines published by the Department for the
purposes of this section—
(a) refuse to provide a document or information; or
(b) provide a document in redacted form.
(7) If the Department refuses to provide a document or information, or
provides a document in redacted form, the Department must give the eligible
applicant a written notice that sets out—
(a) the reasons for the decision; and
(b) the eligible applicant's right to seek a review of the decision under
section 144
; and
(c) any other matter prescribed by the regulations.
(a) a document that must be provided to an eligible applicant under this
section contains information of a medical nature concerning the prescribed
person; and
(b) the Department is of the opinion that disclosure of the information
may have an adverse effect on the physical or mental health, or the emotional
state, of the prescribed person,
the Department—
(c) is not required to give access to the document directly to the
eligible applicant; and
(d) may instead give access to the document to—
(i) a medical practitioner nominated by the prescribed person or the
eligible applicant; or
(ii) a person or body nominated by the prescribed person or the eligible
applicant and approved by the Department.
(9) In this section—
eligible applicant, in respect of a prescribed person,
means—
(a) the prescribed person; or
(b) a person authorised by the prescribed person to make an application
under this section; or
(c) in the case of a prescribed person who has died—a grandparent,
parent, child or grandchild of the prescribed person;
prescribed person means a person of or above the age of
18 years who was, while the person was a child or young person, provided
with out of home care or care of a corresponding kind provided under an earlier
Act of the State.
144—Internal
Review by Chief Executive
(1) An eligible applicant under
section 143
may apply to the Chief Executive for a review of a decision to refuse to
provide a document or information, or to provide a document in redacted form,
within 30 days of the making of the decision.
(2) On a review
under this section, the Chief Executive may confirm, vary or reverse the
decision.
(3) If the Chief
Executive fails to determine an application made under this section within
14 days after it is received, the Chief Executive will be taken to have
confirmed the decision in respect of which review is sought.
145—Interaction
with Public Sector (Data Sharing)
Act 2016
Nothing in this Part affects the operation of the
Public
Sector (Data Sharing) Act 2016
.
Part 4—Additional
reporting obligations of Chief Executive
146—Additional
annual reporting obligations
(1) The Chief Executive must, not later than 30 September in each year,
submit to the Minister a report setting out—
(a) the following information in respect of the Aboriginal and Torres
Strait Islander children and young people:
(i) the extent to which case planning in relation to such children and
young people includes the development of cultural maintenance plans with input
from local Aboriginal and Torres Strait Islander communities and
organisations;
(ii) the extent to which agreements made in case planning relating to
supporting the cultural needs of such children and young people are being met
(being support such as transport to cultural events, respect for religious laws,
attendance at funerals, providing appropriate food and access to religious
celebrations);
(iii) the extent to which such children and young people have access to a
caseworker, community, relative or other person from the same Aboriginal or
Torres Strait Islander community as the child or young person; and
(b) the following information relating to case workers and children and
young people in care:
(i) whether a caseworker has been allocated to each child and young person
in care;
(ii) whether each child and young person in care has had face to face
contact with their allocated case worker at least once in each month,
and, if not, the extent to which those targets have been achieved;
and
(c) whether each child or young person under the guardianship of the Chief
Executive until they are 18 years of age has a case plan that is developed,
monitored and reviewed as part of a regular 6 monthly planning cycle and, if
not, the extent to which that target has been achieved; and
(d) the emergence of any recurring themes in the matters referred to in a
preceding paragraph; and
(e) the following information relating to recommendations of the Child
Protection Systems Royal Commission (being information relating to the preceding
financial year):
(i) the extent to which any outstanding recommendations of have been
implemented;
(ii) if a decision was made to implement a particular recommendation that
the government, or the Minister or Chief Executive, had previously indicated
would not be implemented—the reasons for that decision and the manner in
which the recommendation is to be implemented;
(iii) if a decision was made not to implement a particular recommendation
that the government, or the Minister or Chief Executive, had previously
indicated would be implemented—the reasons for that decision;
and
(f) the number, and general nature, of placements of children and young
people under
section 68
; and
(g) any other matter prescribed by the regulations for the purposes of
this paragraph.
(2) The Minister must, as soon as is reasonably practicable after receipt
of a report under this section, cause a copy of the report to be published on a
website determined by the Minister.
(3) The Minister must, within 6 sitting days after receipt of a report
under this section, cause a copy of the report to be laid before each House of
Parliament.
(4) The requirements of this section are in addition to any other
reporting obligation of the Chief Executive (however, a report under this
section may be included in the annual report of the Chief Executive under the
Public
Sector Act 2009
).
Chapter 12—Reviews
of decisions under Act
(1) A person who is aggrieved by a decision of the Chief Executive or a
child protection officer under this Act is entitled to a review of the decision
under this section.
(2) An application for review—
(a) must be made in a manner and form determined by the Chief Executive;
and
(b) must be made within 30 days after the day on which notice of the
decision was given to the applicant (or such longer time as the Chief Executive
may allow).
(3) On an application for review under this section the Chief Executive
may confirm, vary or reverse the decision under review.
(4) The regulations may make further provision in respect of a review
under this section (including, to avoid doubt, by limiting the kinds of
decisions that may be the subject of an application or review).
Part 2—Review
of decisions by South Australian Civil and Administrative
Tribunal
148—Review
of decisions by South Australian Civil and Administrative
Tribunal
(1) Subject to this
section, the South Australian Civil and Administrative Tribunal is, by force of
this section, conferred with jurisdiction to deal with matters consisting of the
review of the following decisions (reviewable
decisions):
(a) a decision of the Chief Executive under
section 63
,
65
,
90
,
91
,
96
or
97
;
(b) a decision of the
Chief executive under
Chapter 7
Part 3
(being a decision related to or following an assessment of the suitability
of an applicant to be the guardian of child or young person under
section 80
);
(c) any other decision under this Act declared by the regulations to be a
reviewable decision.
(a) a decision referred to in
subsection (1)
that comprises a prescribed child protection complaint (within the meaning
of section 28A of the
Health
and Community Services Complaints Act 2004
) will be taken not to be a reviewable decision; and
(b) a decision referred to in
subsection (1)
will only be taken to be a reviewable decision if a review under
section 147
has been conducted in respect of the decision.
(3) An application
for review of a reviewable decision may be made to the South Australian Civil
and Administrative Tribunal by—
(a) in the case of a decision under
section 63
,
90
or
96
—the applicant in relation to the relevant decision; or
(b) in the case of a decision under
section 65
,
91
or
97
—the person, foster care agency or children's residential facility to
which the relevant decision relates (as the case requires); or
(c) in the case of a decision referred to in
subsection (1)(b)
—the approved carer to whom the assessment relates; or
(d) in the case of any other decision—a person or persons prescribed
by the regulations for the purposes of this paragraph.
(4) An application must
be made within 14 days after the applicant receives notice of the results of the
relevant review under
section 147
(or such longer period as the Tribunal may allow).
(5) However, the South Australian Civil and Administrative Tribunal may
only allow an extension of time under
subsection (4)
if satisfied that—
(a) special circumstances exist; and
(b) another party will not be unreasonably disadvantaged because of the
delay in commencing the proceedings.
149—Views
of child or young person to be heard
(1) In any
proceedings under this Part, a child or young person to whom the proceedings
relate must be given a reasonable opportunity to personally present to the South
Australian Civil and Administrative Tribunal their views related to their
ongoing care and protection.
(2) However,
subsection (1)
does not apply if the South Australian Civil and Administrative Tribunal
is satisfied that—
(a) the child or young person is not capable of doing so; or
(b) to do so would not be in the best interests of the child or young
person.
(3)
Subsection (1)
applies whether or not the child or young person is represented by a legal
practitioner in the proceedings.
150—Hindering
or obstructing a person in execution of duty
A person who hinders or obstructs the Chief Executive, a child protection
officer or any other person in the performance of a function, or exercise of a
power, under this Act is guilty of an offence.
Maximum penalty: $10 000.
151—Payment
of money to Chief Executive on behalf of child or young
person
(1) The Chief Executive may receive money on behalf of a child or young
person.
(2) The Chief Executive must cause any money received on behalf of a child
or young person to be deposited in the Treasury in the name of the Chief
Executive on account of the child or young person or in any ADI account in the
name of the child or young person.
(3) All such money deposited in the Treasury will bear interest at a rate
determined by the Treasurer.
(4) The whole, or any portion, of the money deposited in the Treasury on
behalf of a child or young person pursuant to this section, and any interest on
that money, may be expended for the benefit of the child or young person by the
Chief Executive at such times, and for such purposes, as the Chief Executive
thinks fit.
(5) Any money held on behalf of a child or young person pursuant to this
section is payable to the child or young person on the Chief Executive ceasing
to have any direct responsibility for the affairs of the child or young
person.
152—Restrictions
on publication of certain information
(1) A person must not publish a report of a family group conference, or of
any statement made or thing done at a family group conference.
Maximum penalty:
(a) in the case of a natural person—$50 000; or
(b) in the case of a body corporate—$120 000.
(2) Except as may
be permitted under
subsection (3)
, a person must not publish a report of proceedings before any court or
tribunal in which a child or young person is alleged to be at risk or in need of
care or protection if—
(a) the court or tribunal prohibits publication of any report of the
proceedings; or
(i) identifies, or contains information tending to identify, the child or
young person; or
(ii) reveals the name, address or school, or includes any particulars,
picture or film that may lead to the identification, of any child or young
person who is concerned in the proceedings, either as a party or a
witness.
Maximum penalty:
(a) in the case of a natural person—$50 000; or
(b) in the case of a body corporate—$120 000.
(3) The court or
tribunal before which proceedings referred to in
subsection (2)
are heard may, on such conditions as it thinks fit, permit the publication
of information or images that would otherwise be suppressed from publication
under
subsection (2)(b)
.
153—Protection
of identity of persons who report to or notify Department
(1) A person who, in
the course of the administration, operation or enforcement of this Act, receives
a report or notification that a child or young person may be at risk, or who
otherwise becomes aware of the identity of a person who has made such a report
or notification, must not disclose the identity of the person who made the
report or notification to any other person unless the
disclosure—
(a) is made with the consent of the person who gave the notification;
or
(b) is made by way of evidence adduced in accordance with
subsections (2)
and
(3)
; or
(c) is otherwise authorised by the regulations.
Maximum penalty: $10 000
(2) In proceedings
before a court or tribunal—
(a) evidence that directly or indirectly discloses the identity of a
person who made a report or notification referred to in
subsection (1)
cannot be adduced without the permission of the court or tribunal;
and
(b) a party or witness must not, without the permission of the court or
tribunal, be asked, nor required to answer, any question that cannot be answered
without directly or indirectly disclosing the identity of a person who made a
report or notification referred to in
subsection (1)
.
(3) A court or
tribunal cannot grant permission under
subsection (2)
unless—
(a) the court or tribunal is satisfied that the evidence is of critical
importance in the proceedings and that failure to admit it would prejudice the
proper administration of justice; or
(b) the person who made the relevant report or notification consents to
the admission of the evidence in the proceedings.
(4) An application for permission under
subsection (2)
—
(a) must not, except as authorised by the court or tribunal, be heard and
determined in public; and
(b) must be conducted in such a manner as to protect, so far as may be
practicable, the identity of the person who made the relevant report or
notification pending the determination of the application.
(1) Subject to this
Act, a person engaged or formerly engaged in the administration, operation or
enforcement of this Act must not disclose personal information obtained (whether
by that person or otherwise) in the course of performing functions or exercising
powers under this Act except—
(a) as required or authorised by or under this Act or any other Act or
law; or
(b) with the consent of the person to whom the information relates;
or
(c) in connection with the administration or enforcement of this or any
other Act; or
(d) for the purposes of referring the matter to a law enforcement agency,
or a person or agency exercising official duties under an Act relating to the
care or protection of children and young people; or
(e) to an agency or instrumentality of this State, the Commonwealth or
another State or a Territory of the Commonwealth for the purposes of the proper
performance of its functions; or
(f) if the
disclosure is reasonably necessary for the protection of the lawful interests of
that person.
Maximum penalty: $10 000.
(2)
Subsection (1)
does not prevent disclosure of statistical or other data that could not
reasonably be expected to lead to the identification of any person to whom it
relates.
(3) Information that has been disclosed under
subsection (1)
for a particular purpose must not be used for any other purpose
by—
(a) the person to whom the information was disclosed; or
(b) any other person who gains access to the information (whether properly
or improperly and whether directly or indirectly) as a result of that
disclosure.
Maximum penalty: $10 000.
(4) The regulations may make further provision in respect of the
disclosure of information obtained in the course of the administration of this
Act.
(1) A person who causes detriment to another on the ground, or
substantially on the ground, that the other person or a third person has
provided, or intends to provide, information under this Act commits an act of
victimisation.
(2) However, causing detriment on the ground that a
person—
(a) has made a false allegation; or
(b) has not acted in good faith,
does not constitute an act of victimisation.
(3) An act of victimisation under this Act may be dealt
with—
(a) as a tort; or
(b) as if it were an act of victimisation under the
Equal
Opportunity Act 1984
,
but, if the victim commences proceedings in a court seeking a remedy in
tort, the victim cannot subsequently lodge a complaint under the
Equal
Opportunity Act 1984
and, conversely, if the victim lodges a complaint under that Act, the
victim cannot subsequently commence proceedings in a court seeking a remedy in
tort.
(4) If a complaint alleging an act of victimisation under this Act has
been lodged with the Commissioner for Equal Opportunity and the Commissioner is
of the opinion that the subject matter of the complaint has already been
adequately dealt with by a competent authority, the Commissioner may decline to
act on the complaint or to proceed further with action on the
complaint.
(5) In proceedings against a person seeking a remedy in tort for an act of
victimisation committed by an employee or agent of the person, it is a defence
to prove that the person exercised all reasonable diligence to ensure that the
employee or agent would not commit an act of victimisation.
(6) A person who
personally commits an act of victimisation under this Act is guilty of an
offence.
Maximum penalty: $10 000.
(7) Proceedings for an offence against
subsection (6)
may only be commenced by a police officer or a person approved by either
the Commissioner of Police or the Director of Public Prosecutions.
(8) In this section—
detriment includes—
(a) injury, damage or loss; or
(b) intimidation or harassment; or
(c) discrimination, disadvantage or adverse treatment in relation to a
person's employment; or
(d) threats of reprisal.
156—Protections,
privileges and immunities
(1) No civil liability attaches to the Crown, the Minister, the Chief
Executive, a child protection officer or any other person for an act or omission
in good faith in the performance or exercise, or purported performance or
exercise, of functions or powers under this Act.
(2) Nothing in this
Act affects any rule or principle of law relating to—
(a) legal professional privilege; or
(b) "without prejudice" privilege; or
(c) public interest immunity.
(3) A person is excused from answering a question or producing a document
or other material in connection with an inquiry if the person could not be
compelled to answer the question or produce the document or material in
proceedings in the Supreme Court.
(4) A person who provides information or a document to an inquiry under
this Act has the same protection, privileges and immunities as a witness in
proceedings before the Supreme Court.
(5) A person who does anything in accordance with this Act, or as required
or authorised by or under this Act, cannot by so doing be held to have breached
any code of professional etiquette or ethics, or to have departed from any
acceptable form of professional conduct.
(1) In proceedings for an offence against this Act, an allegation in an
information—
(a) that a working with children check relating to a specified person had,
or had not, been conducted on a specified day or within a specified period;
or
(b) that a prohibition notice had, or had not, been issued to a specified
person; or
(c) that a specified person had, or had not, been issued with a specified
unique identifier; or
(d) that a specified person was, or was not, a child protection officer at
a specified time; or
(e) that a specified person was, or was not, an approved carer at a
specified time; or
(f) that specified premises were, or were not, a licensed children's
residential facility,
must be accepted as proved in the absence of evidence to the
contrary.
(2) In this section—
prohibition notice and unique identifier have
the same meanings as in the
Child
Safety (Prohibited Persons) Act 2016
Except where this Act requires otherwise, a notice or other document
required or authorised to be given to or served on a person under this Act
may—
(a) be given to the person personally; or
(b) be left for the person at the person's place of residence or business
with someone apparently over the age of 16 years; or
(c) be posted to the person at the person's last known place of residence
or business; or
(d) be transmitted by fax or email to a fax number or email address
provided by the person (in which case the notice or other document will be taken
to have been given or served at the time of transmission); or
(e) if the person is a company or registered body within the meaning of
the Corporations Act 2001 of the Commonwealth, be served in
accordance with that Act.
(1) The Minister
must cause a review of the operation of this Act to be conducted and a report on
the review to be prepared and submitted to the Minister.
(2) The review and the report must be completed after the fourth, but
before the fifth, anniversary of the commencement of this Act.
(3) The Minister must cause a copy of the report submitted under
subsection (1)
to be laid before both Houses of Parliament within 6 sitting days
after receiving the report.
(1) The Governor
may make such regulations as are contemplated by, or necessary or expedient for
the purposes of, this Act.
(2) Without limiting the generality of
subsection (1)
, the regulations may provide for—
(a) the exemption of a person, or a class of persons, from the operation
of a specified provision or provisions of this Act; and
(b) fees or charges in respect of any matter under this Act and their
payment, recovery or waiver; and
(c) fines, not exceeding $10 000, for offences against the
regulations; and
(d) facilitation of proof of the commission of offences against the
regulations.
(3) The regulations may—
(a) be of general or limited application; and
(b) make different provision according to the matters or circumstances to
which they are expressed to apply; and
(c) make provisions of a saving or transitional nature consequent on the
enactment of this Act or on the commencement of specified provisions of this Act
or on the making of regulations under this Act;
(d) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Minister, the Chief
Executive or any other specified person or body; and
(e) apply or incorporate, wholly or partially and with or without
modification, a code, standard, policy or other document prepared or published
by the Minister or another specified person or body.
(4) If a code, standard or other document is referred to or incorporated
in the regulations—
(a) a copy of the code, standard or other document must be kept available
for public inspection, without charge and during ordinary office hours, at an
office or offices specified in the regulations; and
(b) evidence of the contents of the code, standard or other document may
be given in any legal proceedings by production of a document apparently
certified by the Minister to be a true copy of the code, standard or other
document.
Schedule 1—Repeal
and related amendment
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the amendment of
a specified Act amends the Act so specified.
Part 2—Repeal of Children's Protection
Act 1993
2—Repeal
of Children's Protection
Act 1993
The
Children's
Protection Act 1993
is repealed.
Part 3—Amendment of Commonwealth Powers
(Family Law) Act 1986
3—Amendment
of section 3—Reference of certain matters relating to
children
(1) Section 3(2)—delete "The" and substitute:
Subject to subsection (2a), the
(2) Section 3—after subsection (2) insert:
(2a) The matters referred by subsection (1) include the matter of the
taking, or the making of provision for or in relation to authorising the taking,
of action that would prevent or interfere with a matter referred to in
subsection (2) if—
(a) the Minister of the Crown responsible for the administration of the
relevant provision specified in Schedule 1; or
(b) a person authorised, in writing, by that Minister of the Crown to act
on their behalf for the purposes of Part VII of the Family Law
Act 1975 of the Commonwealth, as amended and in force for the time
being, consents, in writing, to the taking of such action by way of instituting,
or continuing, proceedings under that Act in a court having jurisdiction under
that Act.