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This is a Bill, not an Act. For current law, see the Acts databases.


CHILD WELFARE AMENDMENT BILL 1998

                           Western Australia



                     LEGISLATIVE ASSEMBLY

                      (As amended in Committee)


     Child Welfare Amendment Bill 1998
                               A Bill for


An Act to amend the Child Welfare Act 1947 and to consequentially
amend the --
    •       Freedom of Information Act 1992;
    •       Spent Convictions Act 1988; and
    •       Young Offenders Act 1994.



The Parliament of Western Australia enacts as follows:




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     Child Welfare Amendment Bill 1998


     s. 1




     1.        Short title
               This Act may be cited as the Child Welfare Amendment
               Act 1998.

     2.        Commencement
 5             This Act comes into operation on such day as is fixed by
               proclamation.

     3.        Principal Act
               In this Act the Child Welfare Act 1947* is referred to as the
               principal Act.
10             [* Reprinted as at 12 July 1995.
                  For subsequent amendments see 1997 Index to Legislation of
                  Western Australia, Table 1, pp. 32-4.]

     4.        Part VIIIA inserted
               After Part VIII of the principal Act the following Part is
15             inserted --
     "
                       Part VIIIA -- Child Protection
                             Services Register
                             Division 1 -- Interpretation
20          120A.    Interpretation
            In this Part, unless the contrary intention appears --
                     "approved person", in relation to a reporting agency,
                        means a person who holds an office or position in
                        the reporting agency that is prescribed, or belongs


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                             Child Welfare Amendment Bill 1998


                                                              s. 4



         to a class that is prescribed, for the purposes of this
         definition;
     "Judge" means a Judge as defined in section 3 of the
         Children's Court of Western Australia Act 1988;
 5   "maltreatment" means --
         (a) an act or course of conduct that results, or is
                likely to result, in significant physical or
                psychological harm to a child;
         (b) without limiting paragraph (a), an assault
10              (including a sexual assault) of a child; or
         (c) neglect of a child to an extent that results, or
                is likely to result, in significant physical or
                psychological harm to the child,
         and "maltreated" has a corresponding meaning;
15   "manager" means the person for the time being
         designated as the manager of the register under
         section 120B;
     "register" means the register referred to in
         section 120C;
20   "report" means a report made under section 120F(1);
     "reporting agency" means --
         (a) the Department;
         (b) the Police Force of Western Australia;
         (c) the department of the Public Service
25              principally assisting with the administration
                of the Education Act 1928, or an Act that
                replaces that Act, in relation to government
                schools;




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     Child Welfare Amendment Bill 1998


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                        (d)         the department of the Public Service
                                    principally assisting with the administration
                                    of the Health Act 1911;
                        (e)         the department of the Public Service
 5                                  principally assisting with the administration
                                    of the Young Offenders Act 1994;
                            (f)     the Disability Services Commission
                                    continued by the Disability Services Act
                                    1993;
10                      (g)         the Western Australian Alcohol and Drug
                                    Authority established under the Alcohol and
                                    Drug Authority Act 1974; or
                        (h)         a public hospital or private hospital (as those
                                    terms are defined in the Hospitals and
15                                  Health Services Act 1927) that is prescribed
                                    for the purposes of this definition.

                              Division 2 -- Administration
            120B.   The manager
              (1)   The Minister shall, in writing, designate an officer of
20                  the Department as the manager of the register.
              (2)   The functions of the manager are --
                      (a)         the functions conferred by this Part in relation
                                  to the register;
                     (b)          to provide advice to the Minister on matters
25                                relating to the operation of the register;
                      (c)         to ensure that reporting agencies are aware of
                                  the requirements of this Part;




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                                     Child Welfare Amendment Bill 1998


                                                                      s. 4



              (d)    to facilitate and coordinate the provision of
                     counselling, support and other services by
                     reporting agencies in cases of maltreatment or
                     suspected maltreatment; and
 5             (e)   to formulate guidelines for the purposes of
                     section 120R.

     120C.   Register to be kept
       (1)   The manager shall compile and maintain a register
             containing the information described in section 120D.
10     (2)   The register is to be known as the Child Protection
             Services Register or by such other name as the Minister
             approves.
       (3)   The register may be kept on computer or in such other
             form or medium as the Minister approves.

15   120D.   Content of register
       (1)   The register is to contain --
              (a) any relevant information, as determined by the
                    manager, held in the Department immediately
                    before the commencement of the Child Welfare
20                  Amendment Act 1998 concerning --
                       (i) the maltreatment or suspected
                             maltreatment of a child, excluding
                             information that identifies or is likely to
                             identify a person as a person suspected
25                           of being responsible for the
                             maltreatment or suspected
                             maltreatment; or
                      (ii) the conviction of a person for an offence
                             involving maltreatment of a child;


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     Child Welfare Amendment Bill 1998


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                     (b)    the information contained in a report; and
                     (c)    the following information in respect of a child
                            who has been the subject of a report --
                               (i) the name of any person convicted of an
 5                                  offence involving the maltreatment
                                    described in the report;
                              (ii) details of the offence; and
                             (iii) the relationship (if any) of the person to
                                    the child.
10            (2)   Subject to section 120O, information referred to in
                    subsection (1)(a)(i) or (b) is to remain in the register
                    until the child concerned reaches the age of 18 years
                    and is then to be removed.
              (3)   Subject to subsection (4)(b) and section 120O,
15                  information referred to in subsection (1)(a)(ii) or (c) is
                    to remain in the register until the expiry of 60 years
                    after the date of the conviction and is then to be
                    removed.
              (4)   Where a person referred to in subsection (1)(a)(ii) or
20                  (c)(i) was under the age of 18 years when the person
                    committed the offence, a Judge may --
                      (a) on the application of the person; and
                      (b) having regard to --
                               (i) the person's age when the person
25                                 committed the offence; and
                              (ii) the nature and seriousness of the
                                   offence,
                    order the removal of the information relating to the
                    offence from the register; and the manager shall
30                  comply with any such order.

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       (5)   For the purposes of subsection (1), a person is
             convicted of an offence if the person is found guilty of
             the offence and notwithstanding that --
               (a) a spent conviction order is made under
 5                   section 39 of the Sentencing Act 1995 in respect
                     of the conviction; or
               (b) having been found guilty of the offence, a
                     conviction is not recorded under section 55 of
                     the Young Offenders Act 1994.

10   120E.   Register to include information in respect of spent
             convictions
             Information referred to in section 120D(1)(a)(ii) or (c)
             in respect of a particular conviction is to remain in the
             register despite the fact that the conviction becomes --
15             (a) a spent conviction under the Spent Convictions
                     Act 1988; or
               (b) a conviction to which section 189 of the Young
                     Offenders Act 1994 applies.

              Division 3 -- Reports and notification
20   120F.   Duty of approved person to provide report of
             maltreatment
       (1)   If an approved person in a reporting agency is satisfied,
             following an assessment or investigation carried out by
             that person or any other person, that a child has been
25           maltreated or is at serious risk of maltreatment, the
             approved person shall make a report to the manager
             containing the following information --
               (a) the name, sex, date of birth and address of the
                     child;


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                     (b)   details of the maltreatment or risk of
                           maltreatment, excluding details that identify or
                           are likely to identify a person as a person
                           suspected of being responsible for the
 5                         maltreatment or of posing the risk of
                           maltreatment;
                     (c)   details of counselling, support or other services
                           provided, or to be provided, to the child or to
                           members of the child's family (whether by the
10                         approved person, another officer or employee
                           of the reporting agency or another person or
                           body); and
                     (d)   such other information as may be prescribed.
              (2)   The making of a report as required by subsection (1) is
15                  not to be regarded as a breach of any duty of
                    confidentiality or secrecy imposed by law or as a
                    breach of any professional ethics or standards.
              (3)   Subject to any guidelines issued under section 120R,
                    the report is to be made in such manner and form as the
20                  manager determines.

            120G.   Notification of report
              (1)   If a report is made under section 120F(1), the manager
                    shall cause notification to be given to --
                      (a) a parent, guardian or other person responsible
25                          for the day to day care, welfare and
                            development of the child; and
                      (b) the child, if the child has reached the age of
                            12 years,
                    that the report has been made and that the information
30                  it contains has been recorded in the register.

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       (2)   Notification under subsection (1) is to --
              (a) include a summary of the contents of the report;
                     and
              (b) be given in such manner as the manager
 5                   determines is appropriate to protect the interests
                     of the child.
       (3)   The manager may --
              (a) defer notification under subsection (1)(a) or (b)
                   for such period as the manager considers
10                 appropriate; or
              (b) d ispense wit h not ificat io n under
                   subsection (1)(a) or (b),
             if the manager is satisfied that it is in the best interests
             of the child to do so.
15     (4)   Without limiting subsection (3), the manager may
             exercise a power given by that subsection in relation to
             notification of a child if the manager is satisfied that
             the child does not have sufficient maturity to
             understand the content of the report or the
20           circumstances to which it relates.

     120H.   Notification of information recorded under
             s. 120D(1)(c)
       (1)   The manager shall, as soon as practicable after
             information relating to the conviction of a person is
25           recorded in the register under section 120D(1)(c), take
             all reasonable steps to notify the person that the
             information has been so recorded.
       (2)   Notification under subsection (1) is to include a
             summary of the information recorded.


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               (3)   Where the person was under the age of 18 years when
                     the person committed the offence, notification under
                     subsection (1) is to include a statement of the person's
                     right to apply for the removal of the information under
 5                   section 120D(4).

            Division 4 -- Access to register and related information
            120I.    Circumstances in which access permitted
                     The manager is only to permit access to information in
                     the register or any other information provided or
10                   obtained for the purposes of this Part --
                       (a) in the circumstances set out in sections 120J
                             and 120K;
                       (b) if the information is required by a Judge for the
                             purposes of determining an appeal under
15                           section 120L; or
                       (c) in accordance with a decision of a Judge on an
                             appeal under section 120L.

            120J.    Access for approved persons
               (1)   On receiving a report in respect of a child, the manager
20                   shall, if the manager is satisfied that it is in the best
                     interests of the child to do so --
                       (a) notify the approved person who made the report
                              of the existence of any other information in the
                              register in respect of the child and permit the
25                            approved person to have access to that
                              information; and
                       (b) permit any other approved person to have
                              access to --
                                 (i) the information in the report; and

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                      (ii)   any other information in the register in
                             respect of the child.
       (2)   Where the manager receives an inquiry from an
             approved person as to whether the name of a particular
 5           person ("the suspected person") is recorded in the
             register under section 120D(1)(a)(ii) or (c), the
             manager shall in the best interests of the child
             concerned --
               (a) advise the approved person whether or not the
10                   suspected person's name is so recorded; and
               (b) if it is so recorded, permit the approved person
                     to have access to the information in the register
                     in respect of the suspected person.

     120K.   Access for children, parents, etc.
15     (1)   Subject to subsection (3), the manager shall, at the
             request of a parent, guardian or other person
             responsible for the day to day care, welfare and
             development of the child, permit the person to have
             access to the information in the register in respect of
20           the child.
       (2)   Subject to subsections (3) and (4), the manager shall, at
             the request of a child who has reached the age of
             12 years, permit the child to have access to the
             information in the register in respect of the child.
25     (3)   The manager may refuse access under subsection (1) or
             (2) if the manager is satisfied that it is in the best
             interests of the child to do so.
       (4)   Without limiting subsection (3), the manager may
             refuse access under subsection (2) if the manager is
30           satisfied that the child does not have sufficient maturity

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     Child Welfare Amendment Bill 1998


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                     to understand the information or the circumstances to
                     which it relates.
               (5)   If the manager decides to refuse access, the manager
                     shall give written notice of the decision to the person
 5                   who requested access within 14 days after the decision
                     is made.
               (6)   A notice under subsection (5) is to include a statement
                     of the person's right of appeal under section 120L.

            120L.    Appeals
10             (1)   A person who is refused access under section 120K
                     may appeal against the decision to a Judge.
               (2)   An appeal is to be made by lodging a notice of appeal
                     within one month after the appellant receives written
                     notice of the decision or such further period as a Judge
15                   may, in a particular case, direct.
               (3)   A notice of appeal is to give details of the decision
                     which is appealed against and set out the grounds of
                     appeal.
               (4)   The proceedings on an appeal are to be conducted in
20                   the manner prescribed by the rules of court or as a
                     Judge otherwise directs.
               (5)   On an appeal, a Judge may --
                      (a) confirm, vary or reverse the decision the
                            subject of the appeal; and
25                    (b) make any incidental or ancillary order.
               (6)   The decision of a Judge on an appeal is final and effect
                     is to be given to that decision.



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     120M. Offence
             A person who gains access to the register or to any
             information provided or obtained for the purposes of
             this Part without the permission of the manager
 5           commits an offence.
             Penalty: $20 000 and imprisonment for 2 years.

                        Division 5 -- General
     120N.   Commissioner of Police to provide assistance
       (1)   The Commissioner is to provide such assistance to the
10           manager, including access to criminal records, as is
             reasonably required for the purpose of obtaining the
             information referred to in section 120D(1)(c).
       (2)   In subsection (1) --
             "Commissioner" means the Commissioner of Police
15                appointed under the Police Act 1892.

     120O.   Alteration of register
       (1)   The manager shall cause such amendments, alterations
             or corrections to the register to be made as are
             necessary to ensure that it is and continues to be an
20           accurate record.
       (2)   Without limiting subsection (1), the manager shall
             cause to be removed from the register information
             referred to in section 120D(1)(a)(ii) or (c) if the
             conviction is set aside or quashed on appeal.

25   120P.   Manager to report annually to Minister
             The Manager, on or before 30 September in each year,
             is to prepare and present to the Minister a report on the

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     Child Welfare Amendment Bill 1998


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                     operation and effectiveness of this Part during the
                     period of 12 months ending on the preceding 30 June,
                     containing such information as is prescribed.

            120Q.    Confidentiality
 5             (1)   A person to whom this section applies shall not,
                     directly or indirectly, record, disclose, or make use of
                     any information in the register or any other information
                     provided or obtained for the purposes of this Part
                     except --
10                     (a) for the purpose of performing functions under
                             this Act or another written law;
                       (b) as required or allowed by this Act or under
                             another written law; or
                       (c) in prescribed circumstances.
15                   Penalty: $20 000 and imprisonment for 2 years.
               (2)   This section applies to any person who is or has
                     been --
                       (a) the manager;
                       (b) any other officer of the Department; or
20                     (c) an officer or employee of a reporting agency.
               (3)   Nothing in this section prevents the disclosure of
                     statistical or other information in a form that could not
                     reasonably be expected to lead to the identification of
                     any person to whom it relates.




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          120R.     Guidelines
            (1)     The manager may, after consultation with the reporting
                    agencies, issue guidelines to those agencies
                    concerning --
 5                    (a) the procedures to be followed, and criteria to be
                           applied, by an approved person in assessing
                           whether a report is required to be made under
                           section 120F;
                      (b) the manner and form in which a report is to be
10                         made for the purposes of section 120F;
                      (c) the ways in which access is to be given to an
                           approved person under section 120J; and
                      (d) any other matter relating to the operation of the
                           register in respect of which the manager
15                         considers guidelines to be necessary or
                           desirable.
            (2)     To the extent that a provision of the guidelines
                    conflicts or is inconsistent with a provision of this Part,
                    it is of no effect.
20                                                                                ".

     5.     Section 142 amended
            Section 142 (1) of the principal Act is amended by deleting "the
            provisions of this Act, other than section 107A (1), (2) or (4) or
            section 107B (2) or (4)," and inserting the following --
25          "     section 60, 61, 66B (1) or (2) or 117 (1), (2) or (3)   ".




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     s. 6



     6.         Consequential amendments
          (1)   Schedule 1 to the Freedom of Information Act 1992* is
                amended in clause 14(1) by inserting before paragraph (a) the
                following paragraph --
 5              "   (aa) section 120P(1) of the Child Welfare Act 1947;   ".
                [* Reprinted as at 8 July 1997.
                   For subsequent amendments see 1997 Index to Legislation of
                   Western Australia, Table 1, pp. 89-90.]
          (2)   After section 15 of the Spent Convictions Act 1988* the
10              following section is inserted --
     "
            15A.      Part VIIIA of the Child Welfare Act 1947
                      Section 25(1) and (2) do not apply to Part VIIIA of the
                      Child Welfare Act 1947.
15                                                                              ".
                [* Reprinted as at 19 November 1996.
                  For subsequent amendments see 1997 Index to Legislation of
                  Western Australia, Table 1, p. 217 and Act No. 10 of 1998.]
          (3)   Section 190(2) of the Young Offenders Act 1994* is amended by
20              inserting after "this Act" the following --
                " or Part VIIIA of the Child Welfare Act 1947     ".
                [* Reprinted as at 26 November 1996.
                   For subsequent amendments see 1997 Index to Legislation of
                   Western Australia, Table 1, p. 259.]




 


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