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CHILDREN AND YOUNG PEOPLE BILL 2008
2008
LEGISLATIVE
ASSEMBLY FOR THE
AUSTRALIAN CAPITAL
TERRITORY
CHILDREN
AND YOUNG PEOPLE BILL
2008
EXPLANATORY STATEMENT
Circulated by authority
of
Katy Gallagher
MLA
Minister for Children and Young
People
Simon Corbell
MLA
Attorney General
Children and Young People Bill
2008
Explanatory
Statement
Table of
Contents
Outline
The Children and Young People Bill 2008 once
enacted will become the primary law in the ACT which provides for the
protection, care and wellbeing of children and young people in the Australian
Capital Territory. The Bill addresses a range of areas that impact upon the
daily lives of children and young people in the Territory, such as children and
young people using childcare services, children and young people in employment,
children and young people involved in the criminal justice system and children
and young people for whom there are care and protection concerns.
The ACT Government intends that the Bill
will replace the Children and Young People Act 1999. The Children and
Young People Act provided for an operational review within three years of the
Act’s commencement. The review commenced in 2002 and has involved
extensive community consultation, leading to the development of amendments to
the Act as follows:
Children and Young
People Amendment Act 2005 – This Act, which was passed by the
ACT Legislative Assembly on 2 July 2005, provided for the making of Standing
Orders for places of detention, expanded the regulation making power under the
Act, and gave retrospective statutory effect for a number of instruments made
under the Act.
Children and Young
People Amendment Act 2006 – This Act, which was passed by the ACT
Legislative Assembly on 9 March 2006, introduced a new principle to help
families understand care and protection procedures; cultural plans for
Aboriginal and Torres Strait Islander children and young people; an exception
for mandated reporters in the same setting to report identical concerns for a
child or young person; the introduction of a new concept of a child or young
person being at risk of abuse or neglect; clarification of persons required by
law to report child abuse; and a new framework for the protection and release of
information under the Act.
Children
and Young People Amendment Act 2006 (No.2) – This Act, which was
passed by the ACT Legislative Assembly in November 2006, removed two sunset
clauses relating to the exemption of work experience from the employment chapter
and the power to make standing orders for the Quamby Youth Detention
Centre.
Children and Young People
Amendment Act 2007 – This Act, which was passed on 8 March 2007,
introduced prenatal reporting and a revised search and seizure scheme for the
Quamby Youth Detention Centre.
The
development of the Bill has been influenced by a number of factors, including
the Human Rights Act 2004, extensive community consultation and
government responses to reviews and inquiries during this time,
including:
• Inquiry into the Rights,
Interests and Wellbeing of Children and Young People, by the Standing
Committee on Community Services and Social Equity, reported in August
2003;
• The Territory as Parent:
Review of the Safety of Children in Care in the ACT and of ACT Child Protection
Management, by the Commissioner for Public Administration, reported in May
2004 (The Vardon Report);
• The
Forgotten Victims Of Crime: Families Of Offenders And Their Silent Sentence,
by the Standing Committee On Community Services And Social Equity, reported in
June 2004;
• The Territory's
Children: Ensuring safety and quality care for children and young people, Report
on the Audit and Case Review, by the Independent Review for the Commissioner
for Public Administration, reported in July 2004 (The Murray Report);
• The Rights System for Rights
Protection – An ACT Government Position Paper on the System of Statutory
Oversight in the ACT, by the ACT Government, released August
2004;
• One Way Roads out of Quamby:
Transition Options for Young People Exiting Juvenile Detention in the ACT,
by the Standing Committee on Community Services and Social Equity, reported in
August 2004;
• Human Rights Audit of
Quamby Youth Detention Centre, by the Human Rights and Discrimination
Commissioner, reported in June 2005 (the Human Rights
Audit).
An overview of the Bill, including
key changes, is as follows:
Chapter 1
Preliminary
Chapter 1 outlines the objects, principles and
considerations for the Bill. The best interests of the child or young person
must be regarded as the paramount consideration for decisions and action taken
under the Act. The general principles applying across the Bill are also
included in this chapter and these principles emphasise individual consideration
of a child or young person’s age, maturity, developmental capacity, sex,
background and other relevant characteristics. An additional principle applying
to Aboriginal and Torres Strait Islander children and young people is included
to recognise the connection of the child or young person to their community and
the need to involve their community in decisions being made. This chapter also
introduces a new requirement that decision-makers exercising functions under the
Bill have qualifications, experience or skills to apply the principles, where
practicable and appropriate.
Important
concepts outlined in this chapter include new definitions of family member and
significant person for a child or young
person.
New terms to describe daily care
responsibility and long-term care responsibility are outlined in this chapter.
Chapter 2
Administration
Chapter 2 establishes
the administrative framework for the Bill, including the Chief Executive’s
functions. The chapter introduces a new power allowing the Chief Executive to
make instructions for administrative functions being exercised under the new Act
and allows the Chief Executive to ask for assistance, facilities or services
relevant to the physical or emotional wellbeing of a child or young person. The
Bill enables the Minister to give written directions to the Chief Executive
about the exercise of functions under the new Act. It also describes the roles
of other entities created by the Bill such as the Official Visitor and the
Children and Youth Services Council (formerly the Childrens Services Council in
the 1999 Act) which is a body that advises the Minister responsible for
administering the Act on issues relating to the Act and services for children
and young people in the Territory.
Official Visitors have oversight and
inspectorate functions conferred by this chapter in relation to detention
places, therapeutic protection places and places of care. The Bill contemplates
the Minister making guidelines (by way of notifiable instrument) that outline
complaints handling by the Official Visitor. The chapter creates a clear
pathway for the referral of a complaint by the Official Visitor to an
investigative entity and resolution of a complaint by the Official Visitor with
the operating entity for the place (which may be the Chief Executive or an
entity administering the place).
This
chapter also includes an expanded suitability test for people providing services
or exercising functions under the Act. The test will consider information about
the conviction or finding of guilt of a person for a sexual offence, an offence
involving violence or an offence against an animal. It will also consider
whether a child concern report has been received about the entity and any action
taken in response. Suitable entities will have a new ongoing duty to report
certain changes to suitability
information.
Chapter 3 Family Group
Conferences
Chapter 3 expands the
family group conferencing model to enable a family group conference to be
arranged to promote the wellbeing and best interests of a child or young person
who is subject to care and protection or youth justice interventions under the
new Act, not only those children and young people who are in need of care and
protection. The chapter introduces new mechanisms that strengthen the
participation of children and young people in family group conferences,
particularly those under school leaving
age.
Family group conference standards
will be established to provide for more flexible delivery of family group
conferences, with some of the detail currently existing in legislation to be
moved to standards.
Chapters 4 to 9 Criminal
Matters – Youth Justice
Chapter 4 provides a conceptual overview of the
criminal matters chapters which are chapters 4 to 9 inclusive. Chapter 4 also
includes the youth justice principles to guide decision-makers in deciding what
is in the best interests of a child or young person for these chapters. The
youth justice principles give greater recognition to involving children and
young people and Aboriginal and Torres Strait Islander communities in decision
making, timely access to legal assistance and expeditious legal proceedings,
ensuring detention is used only as a measure of last resort and for the shortest
appropriate period of time, and promoting the young offender’s
rehabilitation, while balancing the rights of victims and the community’s
interests. The principles are intended to be interpreted consistently with
relevant human rights instruments and jurisprudence, including for example the
Convention on the Rights of the Child. The chapter also includes
important definitions for the Act and schedule 1, such as young detainee and
youth detention officer. The dictionary includes a definition of young offender
as a person who has been convicted or found guilty of an offence by a Court and
who was under 18 years old when the offence was committed, and additionally for
the interstate transfer scheme, the person must have been sentenced for the
offence to facilitate the interstate transfer of
sentences.
Chapter 5 deals with transfers
within the ACT of young detainees, including to and from health facilities and
from the detention place to a correctional centre after a young detainee becomes
an adult. This chapter also provides for escorts of children and young people
in custody between places in the Territory, for example, between Courts and the
detention place. Part 5.2 provides for a nationally consistent interstate
transfer scheme for the transfer of community-based sentences and custodial
sentences between jurisdictions.
Chapter
6 relates to the Chief Executive’s powers and responsibilities in
administering a place of detention for young detainees. Powers and obligations
currently existing in standing orders have been elevated to this chapter of the
Bill. The chapter is modelled on the Corrections Management Act 2007 for
adult detainees in a correctional centre with appropriate modifications for
young detainees. The chapter includes minimum standards and entitlements for
young detainees, in addition to necessary measures to ensure safety, security
and good order at the detention place, such as the use of force, segregation
(including safe room segregation directions) and monitoring certain
communications within the detention place. The chapter also introduces new
offences in the youth detention context for a young detainee to possess a
prohibited thing and for a person to take a prohibited thing into a detention
place. It also includes a new requirement that adults who work or provide
services in the detention place must report to the Chief Executive any
significant threats to security or good order. The chapter provides for young
detainees who are parents to continue caring for or having contact with their
young child (under 6 years old and not enrolled in school) in the detention
place, where this is in the best interests of the young
child.
Chapter 7 relates to powers of
search and seizure at the detention place in order to ensure a safe detention
place. It provides for low-level personal searches (scanning, frisk and
ordinary searches) and high-level personal searches of young detainees (strip
and body searches), including the use of force in exceptional circumstances.
Premises and property may also be searched. The chapter also provides for
scanning, frisk or ordinary searches of other persons at the detention place in
certain circumstances.
Chapters 8 and 9
outline a framework for responding to behaviour breaches by young detainees in
the detention place. The chapter creates a distinction between low-level
breaches (minor behaviour breaches) and breaches which are of a persistent or
serious nature (behaviour breaches). Minor behaviour breaches may be dealt with
through the behaviour management framework and this could lead to the imposition
of behaviour management consequences prescribed by the Bill. Behaviour breaches
may be dealt with through the discipline process of administrative charging and
hearing, leading to the imposition of behaviour management consequences. The
Bill also contemplates a behaviour management framework being established to
promote positive behaviour in reflection of the age and developmental maturity
of young detainees, and not only respond to negative, undesirable
behaviour.
Schedule 1 of the Bill provides
for modern criminal justice laws that apply to children and young people. The
amendments focus on rehabilitation, flexibility and consistency in sentencing.
Further detail is provided in the outline to Schedule 1.
Chapters 10 to 19 Care and Protection
Chapter 10 includes general matters
relating to care and protection such as principles, considerations and
overarching concepts. The chapter contains a new principle for decision-makers
making a decision under the care and protection chapters to address how
decision-makers inform themselves of views expressed by children and young
people. The test of what is in a child or young person’s best interests
for decisions made under the care and protection chapters includes a greater
emphasis on stability for children and young people in out of home care through
early decision-making for a safe, supportive and stable placement, and
protecting and promoting the cultural and spiritual identity of Aboriginal or
Torres Strait Islander children and young people through connections to family
and community. A new principle for the care and protection chapters has been
included to emphasise that the safety and wellbeing of children and young people
who have been removed from their parents is paramount over the interests of
their parents.
Chapter 11 outlines the
reporting and assessing of abuse and neglect of children and young people at
risk. The chapter provides for voluntary reporting of a person’s
suspicion or belief that a child or young person is being abused or neglected or
is at risk of abuse or neglect. It also requires certain persons to report to
the Chief Executive their reasonable work-related belief of sexual abuse or
non-accidental physical injury to a child or young person. A new exception to
the requirement to report is included in this chapter, namely if the mandated
reporter reasonably believes that the child or young person has experienced, or
is experiencing, non-accidental physical injury caused by another child or young
person and the subject child or young person has a person with parental
responsibility who is willing and able to protect them from further
injury.
The chapter introduces new
concepts of a child concern report (which includes both mandatory and voluntary
reports) and a child protection report (where the Chief Executive suspects a
child or young person is in need of care and protection and deems that a child
concern report should be treated as a child protection report). The chapter
also introduces a requirement for the Chief Executive to undertake an initial
assessment of matters raised in a child concern report to assess whether the
child or young person may be in need of care and protection and take action
considered appropriate in response to the report.
This chapter also allows a person to
report to the Chief Executive if they suspect or believe, during a woman’s
pregnancy, that a child who may be born as a result of the pregnancy could be in
need of care and protection. The chapter allows the Chief Executive to take any
action considered appropriate with the consent of the pregnant woman to reduce
the future risk to a child who may be born as a result of the pregnancy,
including referrals to support services or information sharing with relevant
persons and agencies. The chapter also allows prenatal information to be shared
between the Chief Executive and prenatal information sharing entities in certain
circumstances where the consent of the pregnant woman has been sought, but not
obtained.
In response to a child
protection report, the chapter introduces new powers for the Chief Executive to
undertake an appraisal involving a visual examination or interview of a child or
young person if seeking the agreement of a parent or other person with daily
care responsibility would put the child or young person at significant risk of
abuse or neglect or jeopardise a criminal investigation. Otherwise the Chief
Executive may conduct an appraisal of a child or young person by making
reasonable endeavours to seek the agreement of each person with daily care
responsibility for the child or young person to the appraisal (unless it is not
practicable or not in the best interests of the child or young person to do so)
and where the agreement of at least one parent or person with parental
responsibility has been obtained; or by seeking and obtaining an appraisal
order.
This chapter also introduces
appraisal orders that authorise the Chief Executive to undertake an appraisal of
a child or young person. An appraisal order may also authorise the Chief
Executive having daily care responsibility for the child or young person, if the
child or young person is at an unacceptable level of risk remaining in their
usual care arrangements during the period of the appraisal. The length of an
appraisal order is 4 weeks, with the possibility of an extension to 8 weeks if
the extension is necessary for the appraisal to be completed.
Chapter 12 outlines the ways in which
parental responsibility can be voluntarily transferred or shared between a
person or persons with parental responsibility for a child or young person and
another person or persons through the registration of family group conference
agreements and voluntary care
agreements.
Chapter 13 provides when a
child or young person is in need of emergency care and protection or emergency
therapeutic protection and confers powers on the Chief Executive and police
officers to take action to ensure the child or young person’s safety in
emergency circumstances. A child (over 10 years) or young person in need of
emergency therapeutic protection may be placed in a therapeutic protection place
pending the making of an interim or final therapeutic protection order by the
Childrens Court.
Chapter 14 outlines
assessment orders and care and protection orders, including interim care and
protection orders to protect children and young people who are, or who may be,
in need of care and protection. Assessment orders authorise the Chief Executive
to arrange a care and protection assessment of a person (for example, a parent)
in relation to a child or young person’s care and protection. The Bill
introduces new procedures in order to streamline the process for arranging
assessments through the Chief Executive deciding terms of reference for the
assessment and arranging for an authorised assessor to undertake the assessment,
unless otherwise ordered by the Court. The Bill also introduces new criteria
for the making of an assessment order to ensure that children and young people
are not subjected to repeated assessments that are not in their best interests.
The chapter also outlines care plans for
a child or young person who is, or is proposed to be, subject to a care and
protection order. A care plan is a written document outlining the Chief
Executive’s proposals for the care and protection of the child or young
person. In order to improve stability for children and young people, the
chapter allows the Chief Executive to include a proposal in a care plan about
how the Chief Executive proposes to ensure the living arrangements for the child
or young person are as stable as possible over the longer term in a safe,
nurturing and secure environment. The chapter also introduces proposals in care
plans which address planning and services for when a child or young person
leaves out of home care, for example, to transition to independent living
arrangements when approaching or attaining adulthood. For children and young
people who are Aboriginal or Torres Strait Islander, the chapter introduces
proposals in care plans that address the preservation and enhancement of the
identity of the child or young person as an Aboriginal or Torres Strait Islander
person.
A care and protection order may
include provisions such as an enduring parental responsibility provision,
short-term parental responsibility provision, long-term parental responsibility
provision, residence provision, contact provision, drug use provision,
supervision provision, mental health tribunal provision or a specific issues
provision. Drug use provisions in care and protection orders are introduced in
the Bill. These provisions are intended to address a child or young
person’s protective needs while the child or young person remains in the
care of, or having contact with, a parent or primary caregiver whose parenting
capacity is impacted by their use of a substance.
Again, in order to emphasise stability
for children and young people, this chapter introduces short-term parental
responsibility provisions (not longer than 2 years) and long-term parental
responsibility provisions (until the child or young person is 18 years). The
Bill includes a rebuttable presumption in favour of the child or young person
being subject to a long-term parental responsibility provision after being in
out of home care for the 2 year period of a short term parental responsibility
provision when an application is made to extend the order.
The Bill introduces new provisions to
allow the Childrens Court to make interim and final DVPO protection orders for
children and young people who are exposed to domestic violence in their home
when care and protection proceedings are also before the Court for the child or
young person.
This chapter includes
requirements for the Chief Executive to report annually on the progress of a
child or young person subject to the parental or supervisory responsibility of
the Chief Executive. It introduces a new obligation for the Chief Executive to
consult with the child or young person and other relevant people, such as the
child or young person’s carer, to discuss the report prior to its
finalisation.
Chapter 15 outlines
arrangements for the Chief Executive’s exercise of parental responsibility
for a child or young person under an order (for example, a care and protection
order with a parental responsibility provision) or other authority (for example,
voluntary care agreement) under the Bill. This chapter provides for the
authorisation of foster carers, foster care services, and residential care
services to provide care for children and young people and revocation of these
authorisations in certain circumstances. It also allows a family member or
significant person for a child or young person to be authorised as a kinship
carer. The term ‘place of care’ replaces the former terminology of
‘shelter’ under the 1999 Act and this chapter enables the Minister
to approve places of care for the placement of children and young people under
the care and protection chapters. Out-of-home care standards will also be
developed. This chapter also requires personal history information for children
and young people in out-of-home care to be kept by foster carers, foster care
services and residential care services and for this information to be given to
the child or young person where it is in their best interests. The chapter also
requires the Chief Executive to report to the Public Advocate on actions taken
following a child protection report resulting in an appraisal for children and
young people in out-of-home care or on approved contact visits. The placement
principle for Aboriginal and Torres Strait Islander children and young people in
out-of-home care is also included in this chapter.
Chapter 16 addresses therapeutic
protection orders which enable the Chief Executive to confine a child or young
person at a place declared by the Minister as a therapeutic protection place in
circumstances where the child or young person poses a significant risk of
significant harm to themselves or others. This chapter introduces new criteria
for the making of these orders, requires regular reviews of any orders in force
by the Chief Executive and sets an absolute upper limit of 6 months for
extensions of orders. It introduces a revised search and seizure scheme for
children and young people in therapeutic protection and authorises the use of
force in certain limited circumstances. It also allows the Minister to declare
a place as a therapeutic protection place and allows the Chief Executive to
authorise an entity to be an operating entity for the place, including the power
to suspend or revoke the authorisation. The Bill contemplates the development
of therapeutic protection standards. The chapter provides for increased
oversight of therapeutic protection, through access to the therapeutic
protection place by accredited persons, a requirement for the operating entity
to maintain a register of intrusive action such as certain searches and
provision of a therapeutic protection plan to the Official Visitor or Public
Advocate at their request. The register must be available for inspection by
accredited persons and must be inspected regularly by the Public Advocate.
Chapter 17 gives effect to a uniform
national scheme for the transfer of care and protection orders and proceedings
between participating states (including the Northern Territory and New Zealand).
It includes a new object and criterion for the administrative and judicial
transfer of care and protection orders to recognise the desirability of orders
relating to the care and protection of a child or young person having effect,
and being enforced, in the jurisdiction where the child or young person lives.
This chapter no longer contains provisions relating to the transfer of care and
protection orders and proceedings to non-participating states to reflect that
all states are now participating in the uniform national scheme.
Chapter 18 confers powers on police
officers to provide assistance to the Chief Executive for certain actions under
the care and protection chapters. The chapter also includes provisions for a
safe custody warrant to be issued by a Magistrate in circumstances where a child
or young person is in danger as a result of a person contravening an order in
force for the child or young person under the care and protection chapters.
Chapter 19 outlines procedures applying
to proceedings arising under the care and protection chapters. The chapter
outlines the form and content of applications, including cross applications and
the burden of proof for proceedings under the care and protection chapters. It
also outlines who the parties to an application are, procedures for joining and
removing parties, hearing applications in a party’s absence, service of
material and representation of parties. It includes procedures for summonsing
witnesses to give evidence in a proceeding under the care and protection
chapters and provides for orders about costs.
Chapter 20 Childcare
Services
Chapter 20 provides a regulatory framework for
childcare centres and family day care schemes in the Territory. Childcare
service proprietors will no longer be required to hold an approval in principle
prior to holding a childcare service licence. Childcare services standards will
be established to replace licence conditions and these will be enforceable
through an offence for non-compliance. Compliance with standards will be
assessed at a minimum of once during the period of a licence for each service.
For each financial year, the Chief Executive is required to prepare a report
regarding compliance of services with the childcare services standards. This
will be publicly notified on the Legislation Register by way of notifiable
instrument, excluding information identifying a child, a childcare worker or a
reporter.
Chapter 21 Employment of
children and young people
Chapter 21 regulates employment for children
and young people aged under 18 years in the Territory. The Bill provides for
the establishment of standards aimed at protecting children and young people in
employment and children and young people in work experience under school leaving
age.
The chapter includes a new
definition of light work, to ensure that children and young people under school
leaving age can engage in and benefit from light work that is deemed by
employers (within the meaning set out by the Bill) to be in the child or young
person’s best interests.
There will
also be a new power for the Minister to declare an industry, occupation or
activity to be high risk employment, if it is likely to harm the health, safety,
personal or social development of a child or young person under school leaving
age.
This chapter also establishes a
framework to exempt a work experience program for under school leaving age
children and young people arranged by an educational institution from the
operation of chapter 21 if the program complies with work experience
standards.
Chapter 22 Research
involving children and young
people
Chapter 22 introduces new
provisions for the Chief Executive to approve certain research projects. The
Bill contemplates the development of research standards and these will be
enforceable through an offence for non-compliance. Research projects that
require the approval of the Chief Executive are those that involve the
participation of certain children and young people in the research project
(including those in the custody and care of the Chief Executive) or require the
Chief Executive to give the researcher access to protected or sensitive
information about children and young people. They also include projects that
involve the participation of a person who exercises a function under the Act and
those that involve research being conducted at a place of care, detention place,
or therapeutic protection place.
Chapter 23
Enforcement
Chapter 23 outlines
enforcement powers for functions exercised under the new Act. The chapter
allows entry to premises with the consent of the occupier of the premises or
with a search warrant issued by a Magistrate. The chapter also authorises entry
to premises without the consent of the occupier and without a warrant in certain
limited circumstances, namely to ensure the protection of a child or young
person at risk of immediate and significant harm or to fulfil the Chief
Executive’s duty of care to children and young people for whom the Chief
Executive has parental responsibility or to fulfil an inspectorate role for
licensed childcare services.
Chapter 24
Appeals and review
Chapter 24 deals
with appeals and reviews of decisions under the Bill. Restrictions in the 1999
Act on the right to appeal decisions under the care and protection chapters have
been removed and the Bill has been drafted to allow appeals in accordance with
the rules of the Magistrates Court Act 1930. Certain new administrative
decisions being made by the Chief Executive under the Bill are also reviewable
by the Administrative Appeals Tribunal.
Chapter 25 Information
Secrecy and Sharing
Chapter 25 outlines an information secrecy and
sharing framework for the Bill. The framework includes new powers for members
of a child or young person’s care team, who are persons and entities
declared by the Chief Executive, to share information with each other relevant
to the safety and wellbeing of the child or young person. It also expands
section 29 of the 1999 Act to allow the sharing of information about a child or
young person’s health, safety and wellbeing between certain persons and
agencies to better support collaborative, multi-agency responses to children and
young people. The chapter includes an expanded power for the Chief Executive to
give information to a person who is exercising a function under, or
administering, a corresponding law of another State. It also includes explicit
authorisation for out-of-home carers and foster care services to release certain
information about a child or young person if this is necessary for the exercise
of their care responsibilities for the child or young person. It also enables
the Chief Executive to give a researcher certain information for an approved
research project. It includes new rules for information holders giving
information to Courts and investigative entities.
Chapter 26
Miscellaneous
Chapter 26 contains miscellaneous provisions.
The chapter allows for a person to make a confidential report of their suspicion
that a provision of the Act is being contravened or has been contravened. It
remakes the offence for tattooing a child or young person without the written
agreement of a person with parental responsibility for the child or young
person. It also includes a power for the Minister to make standards for the Act
and a power for the Executive to make regulations for the Act.
DETAIL
Chapter
1 — Preliminary
This chapter sets out general objects, principles,
considerations and concepts (including the concept of parental responsibility),
which apply across the Bill.
Part 1.1 —
Introduction
This part sets out the technical clauses of the
Bill.
Clause 1 — Name of
Act
This is a technical clause and sets out the name of the
new Act as the Children and Young People Act 2008.
Clause 2 —
Commencement
This clause enables the new Act to commence on a day
nominated by the Minister in a commencement
notice.
The default 6 month commencement under
the Legislation Act 2001 is displaced, however, if the Act is not
commenced within 12 months, it will commence automatically the next day after
that period.
Clause 3 —
Dictionary
This is a technical clause identifying the dictionary
and explaining conventions used to define words and terms for the purposes of
the Act.
Clause 4 —
Notes
This is a technical clause explaining the status of
notes in the Act.
Clause 5 — Offences
against Act – application of Criminal Code etc
This clause makes it clear that the Criminal Code
2002 applies to all offences against the Act. The Act should also be read in
conjunction with the Legislation Act 2001, which provides for
interpretation, common definitions, and legislative machinery for the
Act.
Under section 133 of the Legislation
Act 2001, the current value of a penalty unit is $100 if the person charged
is an individual or $500 if the person charged is a
corporation.
Clause 6 — Application
of Act to children and young people etc
This clause specifies that the Act will apply to
children, young people, young offenders and young detainees who ordinarily live
in, or are present in, the ACT or are subject to an event occurring in the ACT
that leads to a voluntary or mandatory report about their care and protection.
It also specifies that the Act will apply to prenatal reports about a
child’s future care and protection.
The
Act applies to young offenders and young detainees, which includes adults aged
under 21 years who are alleged to, or have committed an offence under the age of
18 years. See chapter 4 and the dictionary for definitions relating to young
offenders and young detainees.
Part 1.2 — Objects,
principles and considerations
This part specifies the objects and principles of the
Act, including the Aboriginal and Torres Strait Islander principle. The objects
and principles are underpinned by the paramount consideration of the best
interests of children and young people.
Clause 7 — Main
objects of Act
This clause sets out the objects that underpin the Bill
in relation to all aspects of the protection and wellbeing of children and young
people. The objects summarise the overarching tasks of the relevant Minister
and Chief Executive when administering the new
Act.
The objects provide greater recognition
of:
• the importance of a whole of government
and community approach to supporting children and young people (sub-clauses (a),
(c) and (f));
• the right to inclusion and
participation of Aboriginal or Torres Strait Islander people in providing
support and care to Aboriginal or Torres Strait Islander children and young
people and young offenders (sub-clause
(d)).
Sub-clause (e) expands an existing object
from the 1999 Act to ensure that services provided by, or for, government for
the wellbeing, care and protection of children and young
people:
• are centred on the needs of
children and young people; and
• take into
account the views and wishes of children and young people;
and
• foster and promote the health,
education, developmental needs, spirituality, self-respect, self-reliance and
dignity of children and young people;
and
• respect the individual race, ethnicity,
religion, disability, sexuality and culture of children and young
people.
In order to reflect the aims of the
employment chapter, a new object has been included at sub-clause (h) to reflect
the objective of protecting children and young people in employment.
Clause 8 — Best
interests of children and young people paramount consideration
This clause enshrines the best interests principle as
the paramount consideration for persons making decisions or taking action under
the Act.
For the care and protection
chapters, clause 348 sets out the matters decision-makers must take into account
in deciding what is in the best interests of a child or young
person.
For the criminal matters, clause 94
sets out the matters decision-makers must take into account in deciding what is
in the best interests of a young offender or young
detainee.
This best interests principle as a
paramount consideration reflects the Convention on the Rights of the
Child (Article 3) which
states:
“In all actions concerning
children, whether undertaken by public or private social welfare institutions,
Courts of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration”.
Clause 9 — Principles
applying to Act
This clause sets out the general principles and provides
that they are to be considered where relevant to the decision being made in
relation to a child or young person, except when this would be in conflict with
the best interests of the child or young person. The general principles in this
clause are to guide all decisions and actions made or taken under the Act,
whether by the Chief Executive, a Court, an authorised person or someone else.
The best interests principle will limit the operation of these principles to the
extent of any inconsistency.
Other principles
and requirements of the Act are additional to these principles and are not
intended to limit the operation of these
principles.
Sub-clause (1) clause re-enacts
parts of section 12 of the 1999 Act which set out general principles that
applied across the Act. Other parts of section 12 from the 1999 Act that
related specifically to care and protection matters have been relocated to part
10.3 of the Bill that outlines principles and considerations for the care and
protection chapters.
Sub-clause (2)
introduces a new requirement for a decision-maker exercising a function under
the new Act to, where practicable and appropriate, have qualifications,
experience or skills suitable to apply the principles in sub-clause (1) in
making decisions in relation to children and young people. This requirement
reflects the need for persons working with children and young people to have
professionalism or appropriate training or skills reflected in international
human rights law (see Committee on the Rights of the Child General Comment No. 5
(2003) General measures of implementation of the Convention on the Rights of
the Child (commentary 53 – 55) and the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice ("The Beijing
Rules") rule 22).
Clause 10 — Aboriginal
and Torres Strait Islander children and young people principle
The clause re-enacts and expands the Indigenous children
and young people principle at section 14 of the 1999 Act. This clause outlines
the additional matters that decision makers must consider when making decisions
or taking action under the Act in relation to Aboriginal or Torres Strait
Islander children and young people:
• the
need for the child or young person to maintain a connection with the lifestyle,
culture and traditions of the child’s or young person’s Aboriginal
or Torres Strait Islander
community;
• submissions about the child or
young person, made by or on behalf of any Aboriginal or Torres Strait Islander
people or organisations identified by the Chief Executive as providing ongoing
support services to the child or young person or their family;
and
• Aboriginal or Torres Strait Islander
traditions and cultural values (including kinship rules) as identified by
reference to the child or young person’s family, kinship relationships and
the community with which the child or young person has the strongest
affiliation.
This principle recognises that
the ACT Aboriginal and Torres Strait Islander community is diverse and there is
no single set of traditions and/or culture.
The
Indigenous Placement Principle at section 15 of the 1999 Act has been relocated
to chapter 15 of the Bill as it relates to when the Chief Executive has daily
care or long-term care responsibility for an Aboriginal or Torres Strait
Islander child or young person.
This principle
engages the right to equal protection of the law without discrimination, at
section 8(3) of the Human Rights Act 2004. However it is justifiable
under section 28 of the Human Rights Act 2004 because the proposed
positive discriminatory measures recognise the needs of Aboriginal and Torres
Strait Islander children, their families and their communities in the light of
their history as Indigenous Australians and their over-representation in the
child protection and criminal justice systems.
Part 1.3 — Important
concepts
This part sets out concepts that apply across the
Bill.
Division 1.3.1 —
Definitions
This division sets out definitions of the terms
‘child’, ‘young person’, ‘family member of a child
or young person’ and ‘significant person for a child or young
person’.
Clause 11 — Who is a
child?
This clause defines a child for the Act as a person aged
under 12 years old.
Clause 12 — Who is a
young person?
This clause defines a young person for the Act as a
person who is aged 12 years to 18 years. A person becomes an adult when they
turn 18 years.
Clause 13 — Who is a
family member of a child or young person?
This clause introduces a new definition of a family
member of a child or young person to clarify concepts and references to family
members across the Bill.
A family member of a
child or young person means the child or young
person’s:
• parent, grandparent or
stepparent; or
• son, daughter, stepson,
stepdaughter; or
• sibling;
or
• uncle, aunt;
or
• nephew, niece or
cousin.
The meaning of parent in the
Legislation Act 2001 applies to define parent in this Bill and includes the
child or young person’s mother, father or someone else who is presumed
under the Parentage Act 2004, part 2 to be a parent of the
child.
A definition of sibling is included in
the dictionary and includes a stepbrother, stepsister, half brother or half
sister of a child or young person.
The
definition of family member also incorporates Aboriginal or Torres Strait
Islander customary parenting practices to include a person who has
responsibility for the child or young person in accordances with those
practices.
Clause 14 — Who is a
significant person for a child or young person?
This clause introduces a new definition of a significant
person for a child or young person. The concept of a significant person for a
child or young person was included in the 1999 Act, but was not
defined.
This clause clarifies that a
significant person for a child or young person is a person that the child or
young person identifies as significant to them. For most children and young
people, it is not intended that the Chief Executive needs to be satisfied there
is a significant relationship between the child or young person and the
significant person. It will be sufficient that the child or young person
identifies the person as a significant person in their lives.
However, in cases of very young children who
are not sufficiently mature to identify a person as a significant person, or in
cases of children and young people who are not able to do this for other reasons
(for example, intellectual disability), this clause also allows the Chief
Executive or a family member to identify a person as a significant person in the
child or young person’s life.
As family
members for a child or young person are now defined in clause 13, it is not
intended that a significant person would include any of the family members
identified in that clause.
Examples of
significant persons are included in this clause to give guidance about who is
considered to be a significant person for a child or young person. One example
of a significant person is “a person who has responsibility for the child
or young person in accordance with the cultural traditions and customs of the
child’s or young person’s community”. This example is intended
to reflect the needs of children and young people from culturally diverse
communities.
An example of a significant person
is as follows. Billy is 14 months old and is subject to care and protection
intervention under the Act. The Chief Executive undertakes a comprehensive
family assessment and identifies that Billy’s mother was in a relationship
before Billy’s birth with Henry and that Henry has cared for Billy
intermittently since his birth. The Chief Executive consults with Billy’s
mother and Billy’s mother states that Henry has been a parental figure to
Billy and Billy seems happy to see and spend time with Henry. The Chief
Executive forms the view that Henry is a significant person for Billy.
Division 1.3.2 — Parental
responsibility
This division includes new provisions relating to
parental responsibility in order to clarify what parental responsibility
encompasses and how it can be transferred and shared between people under the
Bill. This division establishes the basic conceptual framework for parental
responsibility and this is expanded upon in the care and protection
chapters.
Clause 15 — What is
parental responsibility?
This clause provides that parental responsibility means
all the duties, powers, responsibilities and authority that parents have by law
in relation to their children. Parental responsibility includes the following
two aspects:
• Daily care responsibility
– this was formerly called parental responsibility for day-to-day care,
welfare and development of a child or young person under the 1999 Act;
and
• Long-term care responsibility –
this was formerly called parental responsibility for long-term care, welfare and
development of a child or young person under the 1999
Act.
The concept of parental responsibility was
introduced in the 1999 Act at section 17 in line with the Family Law Act
1975 and the Children Act 1989 (UK), replacing traditional concepts
of custody and guardianship.
Clause 16 — Parents
have parental responsibility
This clause codifies the common law position that each
parent of a child or young person has all aspects of parental responsibility for
the child or young person. However, aspects of parental responsibility may be
transferred or shared as outlined at clauses 17 and 18 respectively. Sub-clause
(2) clarifies that a parent who is not yet 18 years has parental
responsibility.
The Bill does not intend to
affect who is a parent under the Parentage Act 2004.
Clause 17 — Aspects of
parental responsibility may be transferred
This clause clarifies that aspects of parental
responsibility may be transferred to a person under this Act in certain ways
such as through a family group conference agreement, an appraisal order with a
temporary parental responsibility provision, emergency action or a care and
protection order with a parental responsibility
provision.
Further, aspects of parental
responsibility may be transferred by way of a Court order under another law in
force in the Territory (for example, the Family Law Act 1975 (Cth)), or a
provision of another law in force in the Territory.
The clause makes clear that a person’s
parental responsibility is not diminished except for those aspects of parental
responsibility that are explicitly transferred in one of the ways outlined
above. For example, if daily care responsibility for a child or young person
is transferred from a parent to another person, then the parent retains
long-term care responsibility for that child or young person. If daily care
responsibility and long-term care responsibility for a child or young person are
transferred from a parent to another person under a Court order, then the parent
does not have any aspect of parental responsibility for the child or young
person while the order remains in force. While the parent may not have parental
responsibility, it does not extinguish their status as parent.
Clause 18 — Aspects of
parental responsibility may be shared
This clause clarifies that aspects of parental
responsibility may be shared under the Act between two or more people in certain
ways such as through a family group conference agreement, a voluntary care
agreement or a care and protection order with a parental responsibility
provision.
Further, aspects of parental
responsibility may be shared by way of a Court order under this Act or another
law in force in the Territory, or a provision of another law in force in the
Territory (for example, the Family Law Act 1975 (Cth)).
Just as one parent can act independently of
another in making decisions for a child or young person, this clause clarifies
that those who are given shared parental responsibility by a Court order or an
agreement under the new Act can act independently of each other. The exercise of
this responsibility is subject to part 14.6 and part 15.2 which outlines when
one person’s responsibility takes precedence and when those persons who
share responsibility must consult with each other.
Clause 19 — Daily care
responsibility for children and young people
This clause introduces a new term of ‘daily care
responsibility’ to describe what was formerly called parental
responsibility for day-to-day care, welfare and development of a child or young
person under the 1999 Act.
A person with daily
care responsibility for a child or young person has authority to make decisions
about matters concerning a child or young person’s daily care, wellbeing
and development.
This clause includes examples
to indicate the range of matters (subject to a Court order and care plan) that
comprise daily care responsibility. It is intended to include all the practical
arrangements associated with matters such as bedtime, pocket-money, clothing,
hair-cuts, whether make-up may be worn, baby-sitting, short trips away, routine
visits to and treatment by health professionals or services, who a child
associates with (and how, when and where they do it), providing school lunches
and uniforms and consenting to school excursions. The list is not intended to
be exhaustive.
A person who has daily care
responsibility for a child or young person also has authority for making
decisions about:
• assessment of the child or
young person’s physical or mental wellbeing;
and
• whether the child or young person may
undergo health care treatment (that does not involve surgery) on the advice of a
health professional, or dental treatment (including minor dental
surgery).
Sub-clause (5) clarifies that the
rights of a child or young person at common law or by statute to consent to
their own health care treatment are not affected by the operation of this
clause.
A person’s daily care
responsibility for a child or young person is subject to order in force or the
child or young person’s care plan.
The
daily care responsibility of an out-of-home carer, who is authorised to have
daily care responsibility by the Chief Executive, is also subject to any
authorisation and directions of the Chief Executive under Division 15.4.2.
Under that division, the Chief Executive may authorise the out-of-home carer to
exercise all or part of the Chief Executive’s daily care responsibilities
for a child or young person.
The formulation of
parental responsibility in this clause is intended to reflect the position at
common law. Sub-clause (4) provides that the matters for which a person with
daily care responsibility has authority to make decisions is subject to any
Court order in force. A care and protection order with a residence provision
would be an example of an order which would limit the decision making authority
of a person with daily care responsibility. For example, Adam is subject to a
care and protection order that includes a parental responsibility provision
(which transfers daily care responsibility to his aunt) and a residence
provision (which gives authority for decisions about Adam’s residence to
the Chief Executive). In this circumstance, the Chief Executive (not
Adam’s aunt) has the authority to make decisions about Adam’s
residence.
Clause 20 — Long-term
care responsibility for children and young people
This clause introduces a new term of long-term care
responsibility to describe what was formerly called parental responsibility for
long-term care, welfare and development of a child or young person under the
1999 Act.
A person with long-term care
responsibility has authority to make decisions about the long-term care,
protection and development of the child, including (but not limited to) matters
relating to managing financial affairs, determining the religious faith or the
type of schooling or employment to be followed by the child or young person and
arranging a passport for international
travel.
Subject to a Court order or care plan,
a person who has long-term care responsibility also has authority to make
decisions about whether the child or young person should undergo health care
treatment involving surgery. The rights of a child or young person to consent to
their own health care treatment at common law or under statute are not affected
by the operation of this clause.
A
person’s long-term care responsibility for a child or young person is
subject to any order in force or the child or young person’s care
plan.
Under Division
15.4.2, the Chief Executive may authorise an out-of-home carer to exercise all
or part of the Chief Executive’s long-term care responsibilities for a
child or young person. The exercise of long-term care responsibilities by the
out-of-home carer is also subject to any directions of the Chief Executive under
Division 15.4.2.
Clause 21 — Parents or
people with parental responsibility who cannot be found
The Bill requires certain persons such as the Chief
Executive or a Court, to act in relation to a parent or person with parental
responsibility. Actions include serving notices, seeking consent or inviting
parents or people with parental responsibility to family group conferences. If
the person cannot be found after reasonable inquiry, this clause allows the
action to be taken.
This clause applied to
persons with parental responsibility in relation to Family Group Conferences
under section 179 of the 1999 Act, but has been extended to apply to all
relevant actions under the Bill.
Chapter
2 — Administration
This chapter establishes the administrative framework
for the new Act, including the Chief Executive’s functions. It also
describes the roles of other entities constituted under the Bill, such as the
Official Visitor and the Children and Youth Services Council (formerly the
Childrens Services Council under the 1999 Act).
Part 2.1 — Chief
Executive
Clause 22 — Chief
Executive’s functions
The Chief Executive for the new Act is the Chief
Executive responsible for the administrative unit of the ACT Public Service with
administrative responsibility under the Administrative Arrangements issued under
the Public Sector Management Act 1994, from time to time.
This clause outlines the broad functions of
the Chief Executive responsible for administering the new Act. These functions
include:
• the provision of services,
supports and assistance for children and young people and their families, which
may be provided directly by the Chief Executive or indirectly (for example, by
funding non-government agencies);
• providing
community education and assistance to persons who report abuse and neglect of
children and young people, as mandatory or voluntary
reporters;
• promoting a whole of government
and whole of community approach to supporting the care, protection and
well-being of children and young people in the Territory;
• providing support to children and young
people who have left the Chief Executive’s
care.
A new function for the Chief Executive is
included at sub-clause(1)(f) for exercising aspects of parental responsibility
for children and young people. As this function is unlike any other
administrative function, it is now explicitly
detailed.
Sub-clause (2) clarifies that any
functions explicitly conferred on authorised persons throughout the Bill are
conferred also on the Chief Executive. The note clarifies that this includes
the power to exercise the function.
Clause 23 — Chief
Executive instructions
This clause allows the Chief Executive to make
instructions, consistent with the new Act, for the management or operation of
any function under the new Act.
This clause
requires persons exercising administrative functions under the new Act to comply
with the instructions.
Clause 24 —
Ministerial directions to Chief Executive
This clause allows the Minister to give written
directions to the Chief Exercise about the exercise of functions under the Act.
This new power is included to enable the
Government to act without delay to, for example, decisions of the Supreme Court,
or recommendations from any inquiry or royal
commission.
Any direction must be publicly
notified in accord with the Legislation Act 2001.
Clause 25 — Chief
Executive may ask for assistance, etc
This clause allows the Chief Executive to ask a
Territory entity or an ACT Education provider to give the Chief Executive
assistance, facilities or services relevant to the physical or emotional
wellbeing of a child or young person.
Physical
and emotional wellbeing is intended to be construed broadly to encompass all
aspects of the health, development, protection and care of a child or young
person. It is intended to apply to a child or young person, or children or
young people. Section 145 of the Legislation Act 2001 provides that in
an Act or instrument words in the singular number include the plural and words
in the plural number include the singular.
A
Territory entity means an administrative unit, a Territory authority, a
Territory instrumentality, a public employee, or police officer. It does not
include the Legal Aid Commission, the Human Rights Commission or a Judge or
Magistrate as this could give rise to a conflict of
interest.
Public employee is defined under
the Legislation Act 2001 as a public servant, a person employed by a
Territory instrumentality or a statutory office-holder or a person employed by a
statutory office-holder.
Sub-clause (2)
requires a Territory entity or government school or school related institution
to comply with the request in a timely manner.
A school related institution under the
Education Act 2004 means school-related educational institutions and
services established by the Minister.
This
requirement to comply with the Chief Executive’s request for assistance
does not apply to a non-government or private
school.
This clause re-enacts part of section
28 of the 1999 Act relating to assistance, facilities or services, but extends
the ability of the Chief Executive to request assistance from non-government or
private schools and school related institutions. Section 28 of the 1999 Act
also provided the Chief Executive with the power to request information, advice
and guidance. This power has been expanded and is located at clause 861.
Clause 26 — Chief
Executive must give identity cards
This clause clarifies that a person is an authorised
person for the new Act if the Chief Executive delegates a power under the Act or
another Territory law, to the person. An example of another Territory law is
the Crimes (Sentence Administration) Act
2005.
This clause requires the Chief
Executive to provide an identity card for authorised persons exercising
functions under the Act or another Territory law. It is an offence for an
authorised person to fail to return their identity card to the Chief Executive
after they stop being an authorised person.
The identity card must show a reasonably
recent photograph of the person (for example, a photograph of the person that is
up to 5 years old), the card’s date of issue and expiry and anything else
prescribed by regulation.
Part 2.2 — Children and
Youth Services Council
This part relates to the Children and Youth Services
Council (‘the Council’), formerly the Childrens Services Council
under the 1999 Act, which is a body that advises the Minister responsible for
administering the Act on issues relating to the Act, and services for children
and young people in the Territory.
Clause 27 —
Establishment of council
This clause establishes the Children and Youth Services
Council.
This replaces the Childrens Services
Council established under the 1999 Act. The change reflects a broadened
membership base that represents the interests of children and young
people.
Clause 28 — Functions
of council
This clause outlines the functions of the Council.
These functions include reporting to the Minister on anything relating to the
operation of the Act at the Minister’s request and making recommendations
to the Minister about services for children and young people in the ACT.
Clause 29 — Council
members
This clause provides that the Council has at least 5,
but no more than 10, members.
Clause 30 —
Appointment of council members
This clause allows the Minister to appoint the members
of the Council.
Sub-clause (2) sets out the
criteria for appointing Council members and sub-clause (3) outlines interests
that must be represented by the membership. This clause expands the
Council’s members to include at least one member who represents the
interests of young people and at least one member who represents the interests
of children.
Clause 31 —
Appointment of chair and deputy
The Bill requires the Minister to appoint a chair and
deputy chair for the Council.
Clause 32 — Ending
member appointments
This clause outlines when the Minister may end the
appointment of a member of the Council.
By
clause 210 of the Legislation Act 2001 the member may also resign their
appointment thereby ceasing their appointment.
Clause 33 — Presiding
member at meetings
This clause provides for presiding members at meetings
of the Council, being the chair or deputy chair in the chair’s
absence.
Clause 34 — Quorum at
meetings
This clause provides that business of the Council can be
conducted if at least half of the appointed members are present at the
meeting.
Clause 35 — Voting at
meetings
This clause outlines the voting arrangements for the
Council.
Clause 36 — Advice and
assistance by Chief Executive and Public Advocate
This clause provides an obligation for the Chief
Executive and the Public Advocate to give the Council the advice and assistance
that is reasonably asked for by the Council.
Part 2.3 — Official
visitors
This part relates to Official Visitors. Official
Visitors have oversight and inspectorate functions conferred by this part in
relation to detention places (see chapter 6), therapeutic protection places (see
chapter 16) and places of care (see chapter 15).
Clause 37 — Meaning of
entitled child or young person – pt 2.3
This clause creates definitions for part 2.3. An
entitled child or young person means a child or young person who is detained in
a detention place, confined at a therapeutic protection place or accommodated in
a place of care. Entitled children and young people have rights under this part
in relation to making complaints to an Official Visitor about the conditions of
their detention, confinement or accommodation.
Investigative entity is defined in the
dictionary as an entity with power to require the production of documents or the
answering of questions. Examples include the Chief Police Officer, the Human
Rights Commission, the Public Advocate and the
Ombudsman.
A new concept of ‘operating
entity’ is also created in the Bill and is defined in the dictionary. An
operating entity for a detention place, therapeutic protection place or place of
care means the Chief Executive (if the Territory operates the place) or the
entity that operates the place in any other case. In the 1999 Act, a place of
care was formerly known as a shelter. Operating entities have certain
obligations in relation to facilitating the functions of an Official
Visitor.
Clause 38 — Official
visitors - appointment
This clause requires the Minister to appoint at least
one Official Visitor. More than one Official Visitor may be appointed. The
Minister must appoint a person who has suitable qualifications or experience and
is a suitable entity.
Sub-clause (3)(a)
excludes public servants from being eligible to be an Official Visitor. A
public servant is obliged to follow the direction of a relevant Chief Executive
and their Minister. A conflict of interest would be created between the
individual’s obligations to their Minister, and their obligation to fulfil
the functions as an independent officer under clause 39 if the person appointed
was a public servant.
An appointment as
Official Visitor is no longer than 3 years. This does not prevent the same
person being appointed for a subsequent term.
The conditions of remuneration and other terms
of appointment are to be agreed between the Minister and the person, subject to
any determination under the Remuneration Tribunal Act
1995.
Clause 39 — Official
visitors – functions
This clause outlines the functions of an Official
Visitor which are:
• inspecting detention
places, places outside of the detention place where detainees are, or have been,
directed to work or participate in an activity, places of care and therapeutic
protection places;
• reporting to the
Minister and Chief Executive;
• receiving and
considering complaints from entitled children and young people and others on
their behalf; and
• exercising any other
function given to an Official Visitor under this Act or another Territory law.
Sub-clause (2) sets the minimum number of
visits the Official Visitor must undertake. The Official Visitor may make
visits at reasonable times. An example of a time that would not be reasonable
is given.
An operating entity for a detention
place, therapeutic protection place or place of care must give an Official
Visitor any reasonable help the Official Visitor asks for to exercise the
Official Visitor’s functions at the place. Examples of reasonable help are
included in the Bill to provide guidance.
This
clause introduces a new requirement for the Official Visitor to consider whether
a complaint is more appropriately referred to another investigative entity under
clause 49 if sensitive information needs to be accessed from the operating
entity. This is because investigative entities may receive sensitive
information through the Act or another Territory law, for example, clause 878
relating to the Public Advocate.
Clause 40 — Official
visitors - reporting to Minister
This clause requires the Official Visitor to report to
the Minister in writing if they reasonably believe that either of the following
is not in accordance with the new Act:
• the
care provided to entitled children or young people at a detention place or
therapeutic protection place;
• the living
conditions, education or activities of entitled children or young people at a
detention place or therapeutic protection
place;
• the detention of a detainee
(including any aspect of the treatment, living conditions, work or activities of
the detainee).
Clause 41 — Official
visitors – reporting to Chief Executive
This clause requires the Official Visitor to report to
the Chief Executive in writing if they reasonably believe that either of the
following is not in accordance with the new Act or the out of home care
standards:
• the care provided to entitled
children or young people at a place of care;
or
• the living conditions, education or
activities of entitled children or young people at a place of
care.
Clause 42 — Ending
appointment of Official Visitors
This clause outlines when the Minister has discretion or
is required to end an Official Visitor’s appointment.
The Minister may end a person’s
appointment as an Official Visitor for misbehaviour; or if the person does not
inspect a detention place, therapeutic protection place or place of care as
required under the complaints guidelines and continues to fail to inspect the
place as required for 4 consecutive weeks; or if the person is not a suitable
entity. The Minister must end the person’s appointment as Official Visitor
for physical or mental incapacity, if the incapacity substantially affects the
exercise of the person’s functions or if the person fails to take all
reasonable steps to avoid being placed in a position where a conflict of
interest arises during the exercise of the person’s functions. If the
Official Visitor becomes a public servant, the appointment is automatically
ceased. By section 210 of the Legislation Act 2001, the Official Visitor
may also resign their appointment.
Clause 43 — Complaints
guidelines
This clause allows the Minister to make guidelines (by
way of notifiable instrument) that outline complaints handling by the Official
Visitor.
As more than one Official Visitor
may be appointed, the guidelines must include a schedule that sets out each
detention place, therapeutic protection place and place of care that an Official
Visitor must inspect; and how often the Official Visitor must inspect each
place.
Clause 44 — Complaints
to Official Visitors
This clause enables an entitled child or young person,
or anyone else on the child or young person’s behalf to make a complaint
to an Official Visitor. Complaints must be directed to issues about: the
conditions of detention, confinement or accommodation, any aspect of the
entitled child or young person’s care at the place or how the place is
conducted. The entitled child or young person may make the complaint to the
Official Visitor personally or though someone
else.
Under sub-clause (3), the entitled child
or young person has a right to ask the Official Visitor to hear the complaint
with no-one else present and the Official Visitor is obliged to comply with such
a request. In these circumstances, the operating entity is required to provide
reasonably private facilities for the Official Visitor to hear the complaint,
for example, a private room to talk to the child or young person.
Clause 45 — Requests
to see Official Visitor
This clause requires an operating entity to ensure that
an Official Visitor is told as soon as practicable (and no later than 12 hours
after a request) about an entitled child or young person who has told the
operating entity that the child or young person wants to see an Official
Visitor. An entitled child or young person need not explain to the operating
entity why the child or young person wants to see an Official
Visitor.
Clause 46 — Notice of
complaints
In circumstances where the operating entity for a place
is not the Chief Executive, it is important that the Chief Executive is aware of
any complaints made to the Official Visitor as the Chief Executive has a duty to
ensure the organisation is a suitable entity and is operating the service in
accordance with relevant standards and within an agreed contractual framework.
This clause requires the Official Visitor to
inform the Chief Executive, in writing, that a complaint has been made about a
place and the name of the place to which it relates. The Official Visitor is
not required to tell the Chief Executive about the identity of the child or
young person who is the complainant.
Clause 47 — Official
visitors must try to resolve complaints
After receiving a complaint in relation to a detention
place, therapeutic protection place or place of care, an Official Visitor must
take all reasonable steps to promptly and efficiently resolve the complaint with
the operating entity for the place. The clause enables the Official Visitor to
resolve a complaint by making inquiries about the complaint and exercising any
other function given under the Act. This clause is subject to clauses 49 to 55
which outline when a complaint must be referred to another entity or must be
closed.
This clause allows the Official Visitor
to make a recommendation about the complaint to the operating entity; or if the
Official Visitor considers it appropriate, give the Chief Executive and the
Minister a report about any complaint or inquiry.
Clause 48 — Withdrawal
of complaints
This clause enables a complainant to withdraw their
complaint to the Official Visitor at any time. Given the vulnerability of
entitled children and young people and the potential for them to be intimidated
to withdraw a complaint, this clause introduces a requirement for the Official
Visitor, before closing a complaint, to be satisfied
that:
• the matter has been appropriately
resolved; or
• the complaint concerns a minor
issue; or
• the complaint has lapsed (because
the young person is no longer detained in a detention place or confined at a
therapeutic protection place).
Where a
complaint has been withdrawn for any reason and the Official Visitor reasonably
suspects it is in the public interest to consider the complaint, the Bill
requires the Official Visitor to refer the complaint to the Human Rights
Commission to consider whether it should be investigated under its own motion
powers at 48(3) of the Human Rights Commission Act 2005. If the
complaint is referred, the Official Visitor is required to give the Commission
information about the complaint.
Clause 49 — Complaints
may be closed—referral to other entity
This clause enables the Official Visitor to refer the
complaint to another investigative entity, if satisfied that the complaint would
be better dealt with by the entity. If the complaint is referred, the Official
Visitor:
• is required to give the entity
information about the complaint;
• is
required to tell the complainant about the referral;
and
• may close the complaint.
A definition of investigative entity is
outlined in the dictionary and means an entity with power to require the
production of documents or the answering of questions including, for example,
the Chief Police Officer, the Human Rights Commission, the Public Advocate and
the Ombudsman. The Public Advocate is empowered through clause 878 to require
information, advice and guidance from child welfare entities that must be
complied with.
Clause 50 — Complaints
may be closed—other entity investigating
This clause provides that if the Official Visitor is
satisfied that a complaint has been, is being or will be investigated by another
investigative entity, then the Official Visitor is enabled to give the entity
information about the complaint and may close the complaint.
Clause 51 —
Complaints closed—frivolous, etc
This clause provides that an Official Visitor must close
a complaint if an Official Visitor receives a complaint and after considering
the complaint, the Official Visitor is satisfied that the complaint is
frivolous, vexatious or not made honestly.
Clause 52 —
Complaints closed—resolved
This clause provides that an Official Visitor must close
a complaint when the Official Visitor is satisfied that the complaint is
resolved with the operating entity and to the satisfaction of the complainant,
for example, through verbal indication they are happy with the
outcome.
If a complaint cannot be resolved with
the operating entity, the Official Visitor may refer the complaint to an
investigative entity under clause 49.
Clause 53 — Complaints
closed—complainant left detention etc
This clause requires the Official Visitor to close a
complaint if satisfied that the complainant has left the detention place,
therapeutic protection place or place of care and they cannot be found after
reasonable enquiry.
Clause 54 —
Complainant must be told if complaint closed
This clause requires that if a complaint is closed
(other than because it was withdrawn) an Official Visitor must tell the
complainant that the complaint is closed and the reasons for closing
it.
Clause 55 —
Information about complaints being investigated elsewhere
When complaints are being investigated by another
entity, as provided for under clause 49 and 50, this clause allows the Official
Visitor to report to the complainant about progress and follow up with the
investigating entity about the complaint.
Clause 56 — Reopening
complaints
This clause enables the Official Visitor to reopen a
complaint if the Official Visitor is satisfied that the operating entity did not
do something that was previously agreed to resolve the complaint. The Official
Visitor must try to resolve a re-opened complaint under clause
47.
Clause 57 — Other
matters of concern—referral to other entity
If the Official Visitor becomes aware of a matter that
would be the subject of a complaint under clause 44 (but no complaint is made),
this clause enables the Official Visitor to refer the matter of concern to an
investigative entity (and requires information to be given about the matter); or
refer to the Chief Executive.
Clause 58 — Monthly
reports by Official Visitors
This clause requires an Official Visitor to give the
Minister and the Chief Executive a written report, as soon as practicable at the
end of each month, summarising:
• the number
and kinds of complaints received and matters of concern raised by the Official
Visitor; and
• the action taken on the
complaints received and matters of concern.
The
monthly report may include comments by the Official Visitor about anything in
relation to a complaint to which the report applies. However, an Official
Visitor may only include in a monthly report material that may be adverse to, or
critical of, a person if the Official Visitor has given the person an
opportunity to be heard.
This clause applies
whether or not the adverse or critical material is express or implicit or is by
way of opinion or otherwise.
Clause 59 — Handover
of records by Official Visitors
If a person’s appointment as an Official Visitor
ends, the person must, not later than 7 days after the day the appointment ends,
give any Official Visitor record held by the person to the Public Advocate or
another Official Visitor.
The intention of
this clause is to ensure that the Official Visitor’s records are
adequately protected, in view of the sensitive nature of the material likely to
be contained in the records.
Part 2.4 — Suitable
entities for purposes under Act
This part includes one test for all suitable entities
under the Act, including for example, foster carers, kinship carers, residential
care services, proprietors and controlling persons for childcare services and
researchers undertaking research projects approved under chapter 22.
Clause 60 —
Definitions – Act and pt 2.4
This clause outlines definitions for this part and for
the Act.
Clause 61 — Who is a
suitable entity?
A suitable entity is a person or entity approved by the
Chief Executive for the provision of services to children and young people for a
stated purpose under the Act.
Examples
include persons approved as foster carers and kinship carers, residential care
services, therapeutic protection services, proprietors and controlling persons
for childcare services and researchers undertaking research projects.
Clause 62 — Entity may
apply to be suitable entity for purpose
This clause allows an entity to apply to the Chief
Executive for approval as a suitable entity. The application must be in
writing.
Clause 63 — Chief
Executive may approve suitable entity for purpose
This clause allows the Chief Executive to authorise an
entity in writing as a suitable entity for a stated purpose, for example the
provision of foster care to a child or young person.
This clause also allows the Chief Executive to
orally approve an entity as suitable when orally authorising a person or entity
under clause 515 as a kinship carer, or clauses 517 and 518 as a foster carer.
As soon as practicable thereafter, the Chief Executive must approve the person
or entity in writing.
Clause 64 — Chief
Executive must consider suitability information, etc
An entity may apply to the Chief Executive for approval
as a suitable entity for a stated purpose. This clause enables the Chief
Executive to consider suitability information about the entity and references,
reports, or the results of tests or medical examinations required by the Chief
Executive.
Sub-clause (1) provides that in
deciding whether an entity is suitable for a stated purpose, the Chief
Executive:
• must consider suitability
information outlined at 65(1)(a), (b) and (c). These are core considerations
that will apply to the assessment of all types of entities;
and
• may consider suitability information
outlined at 65(1)(d), (e), (f), (g) and (h). These considerations will be
assessed where relevant to the purpose for which the entity is being assessed.
Sub-clause (2) requires the Chief Executive to
give written notice to the entity when considering suitability information at
65(1)(d) or (e), as the entity once approved has a legal duty under clause 70 to
advise the Chief Executive of changes to this type of suitability
information.
Clause 65 — What is
suitability information?
Suitability information includes the following
information about the entity: ·
• any
conviction of, or finding of guilt against, the entity for—
• an offence relating to the provision of
services for children or young people;
or
• an offence against a child or young
person; or
• an offence involving a child or
young person; or
• an offence involving
violence; or
• a sex offence;
or
• an offence involving dishonesty or
fraud; or
• an offence involving possession
of, or trafficking in, a drug of dependence or controlled drug;
or
• an offence against an
animal;
• any proven non-compliance by the
entity with a legal obligation in relation to providing services for children or
young people;
• any refusal, whether in the
ACT or another State or Territory, of an application for a licence or other
authority (however described) in relation to providing services for children or
young people;
• the soundness of the
entity’s financial reputation and the stability of the entity’s
financial background;
• the entity’s
reputation for honesty and integrity;
• whether the entity has proven experience
or demonstrated capacity in providing services for children and young people;
• whether a child concern report has been
received by the Chief Executive about the entity and any action that has been
taken in response to the report by the Chief Executive or a Court or Tribunal;
and·
• any other consideration relevant
to the entity’s ability to provide high quality services for children or
young people.
This clause is not intended to
limit any operation of Territory discrimination
law.
The 1999 Act contained two suitable entity
tests – applying generally and to children services (which included a
broader range of considerations than the test which applied across the Act). In
order to provide greater consistency and equity between these tests, this clause
provides for one suitable entity test (based on the test in the Childrens
Services chapter of the 1999 Act).
The
suitable entity test is expanded to include whether the person has
-
• been convicted or found guilty of an
offence against an animal;
• been convicted
or found guilty of a sex offence; or
• whether a child concern report has been
received by the Chief Executive about the entity and any action that has been
taken in response to the report by the Chief Executive or a Court or Tribunal.
This is based on international research that
indicates there is a strong relationship between animal abuse and other forms of
family violence, including child abuse.
Clause 66 — Chief
Executive may require suitability information
In deciding whether an entity is a suitable entity for a
purpose under the Act, the Chief Executive may require an entity (by a
suitability information notice) to give the Chief Executive stated suitability
information not later than a set time.
Clause 67 — Chief
Executive need not decide suitability if information not
provided
If the Chief Executive has given an entity a suitability
information notice and the entity does not comply with the notice, the Chief
Executive does not need to continue with the suitable entity assessment.
Clause 68 — Chief
Executive may require test etc
In deciding whether an entity is a suitable entity for a
stated purpose, the Chief Executive may require an entity (by a requirement
notice) to provide a stated reference or report and/or undergo a stated test or
medical examination within a set time.
Clause 69 — Chief
Executive need not decide suitability if test not taken, etc
If the entity does not comply with a requirement notice
given under clause 68, the Chief Executive does not need to continue with the
suitable entity assessment.
Clause 70 — Offence
– ongoing duty to update suitability information
The Bill introduces a new offence for failing to
disclose suitability information in certain circumstances. While a similar
offence applied to Childrens Services at section 333 of the 1999 Act, the
offence has been expanded to apply to all entities who are being assessed by the
Chief Executive to determine if they are suitable entities and entities who are
assessed as suitable entities for a particular purpose and are exercising
functions for that purpose.
This clause obliges
entities to tell the Chief Executive, within 7 days of the change or finding,
if:
• Their suitability information changes
under 65(1)(a),(b) and (c) – which prescribe certain offences,
non-compliance with legal obligations and refusal of application for a licence
or similar authority;
• The entity becomes
bankrupt or executes a personal insolvency agreement;
or
• A Court, Tribunal, or authority with the
power to require the production of documents or the answering of questions,
makes an adverse finding about the entity. This would include for example, the
Commissioner for Fair Trading, the Human Rights Commission and the
Discrimination Commissioner.
Clause 71 — Chief
Executive may employ etc suitable entity
This clause provides that the Chief Executive may
appoint, engage, employ or authorise a suitable entity for a purpose under the
new Act.
This clause contemplates that in
addition to the circumstances outlined in the Bill where a person or entity must
be a suitable entity for a stated purpose (for example, a foster carer), the
Chief Executive may engage other persons for functions under the new Act if they
are a suitable entity.
This clause re-enacts
section 47(1)(a) of the 1999 Act.
Clause 72 — Suitable
entities register
The Bill introduces a new requirement for the Chief
Executive to maintain a register of suitable entities containing the
entity’s name and the purpose for which the entity is
approved.
Information that the Chief Executive
could place in the register is not limited to these details and may include any
other information the Chief Executive considers relevant, for example, the
assessment of the suitable entity, including references or reports obtained.
The note to this clause indicates that under
the Legislation Act, the power to make a statutory instrument includes power to
make different provision for different categories. This enables for example,
multiple suitable entity registers to be established for different types of
suitable entities, such as out-of-home carers or childcare
services.
Chapter
3 — Family group conferences
Part 3.1 — Family group
conferences - general
Family group conferencing was introduced in the 1999 Act
as a form of voluntary action to facilitate agreement between family members and
significant persons about strategies for the family to continue to care for a
child or young person in need of care and protection.
Research and consultation on the review of the
1999 Act indicates there is benefit in applying the family group conference
model more broadly to include decisions being made at different points of the
care and protection continuum and also in working with children and young people
involved in the criminal justice system.
The
Bill enables family group conferences to be used as a mechanism for involving
extended family members and others with an interest in the wellbeing or
development of the child or young person in decisions affecting any aspect of
their wellbeing. Standards will be established to provide for more flexible
delivery of family group conferences, with some of the detail currently existing
in legislation to be moved to standards.
This
chapter outlines arrangements for family group conferences generally. Chapter
12, part 12.2 deals with the registration of family group conference agreements
in care and protection.
Clause 73 —
Definitions - Act
This clause includes definitions related to family group
conferences for the new Act.
Clause 74 — Family
group conferences – objects
This clause outlines the objects for family group
conferences which reflect the broadened scope of family group conferences. The
objects for a family group conference are to encourage the child or young
person, their family members and significant people, to take part in decisions
affecting the child or young person; to increase the support for the child or
young person by their family members, significant people and other people who
are significant in the child or young person’s life; and to make
arrangements for care of the child or young person to reduce the likelihood of
the child or young person being in need of care and protection in the
future.
Clause 75 — What is a
family group conference?
This clause outlines the meaning of a family group
conference. A family group conference is a meeting about a child or young
person which provides an opportunity for participants to reach an agreement
about a matter relating to the welfare of the child or young person and enter
into a family group conference agreement detailing the agreed arrangements for
the child or the young person. If an agreement is already in force for the
child or young person, the family group conference will give participants an
opportunity to review an agreement.
Clause 76 — What is a
family group conference agreement?
This clause provides the meaning of a family group
conference agreement.
A family group
conference agreement requires the agreement of a person over school leaving age,
however clause 87(3) allows a child or young person under school leaving age to
sign an agreement arising from a family group conference.
Sub-clause (2) provides that an agreement
cannot have the effect of transferring or sharing parental responsibility with
the Chief Executive. This is because the agreement is intended to be limited to
family arrangements. Subsequently, it is intended that agreements that have the
effect of a care and protection order with an enduring parental responsibility
provision may be registered (as an enduring parental responsibility provision
does not transfer parental responsibility to the Chief
Executive).
Clause 77 — Offence
– publish details of family group conferences
This clause re-enacts the offence at section 180 of the
1999 Act which prohibits the publication of a family group conference agreement,
outcome report or a record or report prepared for and presented to a family
group conference. A person commits an offence if the person publishes anything
said or done at a family group conference. The maximum penalty is 50 penalty
units. The offence does not apply if the publication is authorised under a
Territory law or this Act.
Part 3.2 — Family group
conferences – facilitators
This part sets out the appointment and functions of
Family Group Conferencing facilitators.
Clause 78 — Family
group conference facilitators – appointment
This clause provides that the Chief Executive may
appoint family group conference facilitators by notifiable instrument.
It is not intended that the appointment of a
family group conference facilitator be limited to engaging a public employee. A
public employee is defined under the Legislation Act 2001 and means a
public servant, a person employed by a Territory instrumentality, a statutory
office-holder or a person employed by a statutory office-holder.
However, the Chief Executive may appoint a
person as a family group conference facilitator only if satisfied that the
person has suitable qualifications and experience and if the person is not a
public employee, that the person is a suitable entity (see chapter 2, part 2.4
for suitable entities).
It is intended that
the facilitator act as a neutral catalyst for progressing the conference
process, and not as a representative of the Chief Executive. A representative
of the Chief Executive, however, is invited to the family group conference.
Clause 79 — Family
group conference facilitators – functions
This clause outlines the functions of a family group
conference facilitator. A family group conference facilitator has the function
of facilitating a family group conference assigned by the Chief Executive under
clause 82.
Part 3.3 — Family group
conferences – arrangement and conduct
This part sets out the administrative arrangements and
processes for conducting Family Group Conferencing.
Clause 80 — Family
group conferences – criteria
Sub-clause (1) allows for the Chief Executive to arrange
a family group conference if satisfied that the conference may help to promote
the welfare of a child of young person. This is intended to be broader than the
current criteria for arranging a family group conference at section 168 of the
1999 Act and will allow the Chief Executive to organise a conference for the
purpose of promoting and supporting the wellbeing of any child or young person
and not only those who may be in need of care and
protection.
Sub-clause (2) allows the Chief
Executive to arrange a family group conference for a child or young person if
the Chief Executive reasonably believes
that:
• the child or young person is in need
of care and protection; and
• arrangements
should be made to secure the child or young person’s care and protection.
There are a number of provisions throughout
the Bill that apply only to family group conferences arranged under sub-clause
(2) but do not apply to conferences arranged under sub-clause (1). These
provisions include:
• Clause 85(3)(b)
requires the Chief Executive to be satisfied that the proposed family group
conference agreement is in the best interests of the child or young
person.
• Clause 389 enables the Chief
Executive to apply to register a family group conference agreement with the
Childrens Court;
• Clause 844 provides that
sensitive information includes anything said or done to facilitate, or anything
said or done at, a family group conference; or information in a family group
conference agreement, or in a family group conference outcome
report;
• Clause 871 provides that evidence
of anything said or done at a family group conference is not admissible in a
proceeding under the care and protection chapters. However, a conference outcome
report is admissible in a proceeding under the care and protection chapters to
prove whether an agreement was or was not reached.
Clause 81 — Family
group conferences – criteria for review conference
This clause outlines the criteria for a review
conference. The Chief Executive is required to review the agreement if the
agreement provided for a review; or the child or young person, or participants
for the original family group conference at which agreement was reached, have
requested a review. However, the Chief Executive is not compelled to arrange
the conference if one has already been arranged at the request of a party to the
original agreement or if the Chief Executive considers that it is not in the
best interests of the child or young person to do so.
Clause 82 — Family
group conferences – facilitator to organise
This clause requires the Chief Executive to assign a
family group conference facilitator to the conference. The clause also outlines
actions that a facilitator must take after being assigned to a family group
conference, including deciding who should be invited to the conference;
informing participants of the arrangements for the conference in writing and
conducting the conference.
Clause 83 — Family
group conferences – who must be invited
This clause requires the family group conference
facilitator to invite certain people to a conference, including the Chief
Executive.
As the purpose of the conference
is to provide for a child or young person’s wellbeing, it is intended that
the child or young person will attend and participate in conferences according
to their developmental capacity.
It is also
intended that each parent or other person who has daily care or long-term care
responsibility will attend the conference, unless it would not be in the best
interests of the child or young person.
To
reflect the purpose of the conference, it is intended that any other person with
an interest in, or knowledge of, the care, wellbeing or development of the child
or young person will also attend. This could include, for example, a health
professional who has been providing counselling to the child or young person, or
other professionals who may be from support services engaged as part of the
family group conference agreement.
Sub-clause
(2) requires the family group conference facilitator to find out and express the
views and wishes of children and young people who are invited but do not take
part in the conference. This requirement does not however create an obligation
on the child or young person to express a
view.
Sub-clause (4) provides a prohibition on
lawyers representing participants at a family group conference, which re-enacts
section 171(3) of the 1999 Act. The prohibition on representation by lawyers is
necessary to ensure family group conferences are conducted with as little
formality as possible.
However, sub-clause (5)
enables a conference participant to nominate a support person to assist them to
participate in the conference. A support person means a person the conference
participant chooses, and the facilitator considers appropriate and capable, to
assist the conference participant at the conference. Examples of assistance
include assisting the conference participant to express their
views.
Clause 84 — Family
group conferences – compliance with standards
This clause requires the family group conference
facilitator to conduct a conference in a way that complies with any family group
conference standards in existence.
It is
intended that standards will be developed which will include procedures
outlining certain aspects of the family group conference process, including how
they are conducted and implementation of agreements.
Clause 85 — Family
group conferences—parties reach agreement
This clause outlines actions the family group conference
facilitator must take when all relevant conference participants have reached an
agreement, including giving an opportunity for a person to obtain legal advice
about the meaning and effect of the agreement.
In relation to conferences organised to secure
a child or young person’s care and protection under clause 80(2), this
clause requires the Chief Executive, as a relevant conference participant to be
satisfied that a proposed agreement is in the best interests of the child or
young person, before reaching agreement.
Clause 86 — Family
group conferences—agreement of young person
This clause requires that a family group conference
agreement may only be entered into with the agreement of the subject young
person who is 15 years or older, unless the young person does not have
sufficient maturity or developmental capacity to agree (for example, if the
young person has impaired decision making capacity by reason of severe
intellectual disability).
Clause 87 — Family
group conferences—before family group conference agreement
This clause requires the family group conference
facilitator to encourage the parties to put the agreement in writing and seek
the signatures of the parties and any other participant who agrees with the
arrangements in the agreement.
Under clause 78,
a family group conference agreement requires the agreement of a person over
school leaving age, however 87(3) allows a child or young person under school
leaving age to sign an agreement arising from a family group
conference.
Clause 88 — Family
group conferences—outcome report
This clause requires the family group conference
facilitator to give the Chief Executive a written report about the outcome of
the conference (and any family group conference agreement) to each person
invited to attend the family group conference, the child or young person to whom
it relates and the Chief Executive.
Sub-clause (4) provides that the facilitator
must not give a copy of the agreement to a child or young person if they
believe, on reasonable grounds:
• that
information contained in the report or agreement is not in the child or young
person’s best interests (for example, information that would cause
significant distress); or
• the child or
young person would be unable to understand the agreement (for example, if they
were very young).
Clause 89 — Family
group conference agreement—when takes effect
This clause outlines when the family group conference
agreement takes effect.
Clause 90 — Family
group conference agreements—implementation
This clause requires the Chief Executive to implement
the agreement in compliance with the family group conference standards.
It is intended that the standards will include
procedures to be followed in implementing a family group conference agreement,
for example, arranging support services to assist with the agreement’s
implementation.
Chapter
4 — Children and young people and criminal matters –
general
This chapter sets out the principles (the youth justice
principles) that apply in the criminal matters chapters, general rules about
keeping young detainees separate from adult detainees and defines some important
concepts.
Clause 91 — What are
the criminal matters chapters?
This clause sets out the meaning of the criminal matters
chapters. The criminal matters chapters are chapters 4 to 9
inclusive.
Clause 92 — Overview
of the criminal matters chapters
This clause provides an overview of the criminal matters
chapters.
This clause notes other laws relevant
to children and young people and criminal matters,
including:
• the Crimes Act 1900, pt
10 (Criminal investigation) and the Crimes Act 1914 (Cwlth), pt 1C (which
applies in relation to the investigation of certain ACT
offences)
• the Bail Act
1992
• the Magistrates Court Act
1930 (in particular ch 4A (The Childrens
Court))
• the Supreme Court Act
1933
• the Court Procedures Act
2004 (in particular pt 7A (Procedural provisions—proceedings involving
children or young people))
• the Crimes
(Sentencing) Act 2005 (in particular ch 8A (Sentencing young
offenders))
• the Crimes (Sentence
Administration) Act 2005 (in particular ch 14A (Sentence
administration—young
offenders))
• the Crimes (Restorative
Justice) Act 2004.
Clause 93 —
Application of criminal matters chapters generally
Young offenders and young detainees who are adults up to
the age of 21 years can be under the supervision or in the custody of the Chief
Executive responsible for the administration of the Children and Young People
Act.
The primary purpose of this clause is to
clarify which aspects of the criminal matters chapters apply to young offenders
and young detainees aged 18 years to 21
years.
Sub-clause (2) clarifies certain clauses
do not apply to young detainees aged 18 years and over.
Sub-clause (3) outlines clauses that are
different in their application to young detainees aged 18 years and over. For
young detainees aged under 18 years, a person with parental responsibility for
the young detainee is required to be notified of certain actions or in some
circumstances, required to be present at strip searches on admission and body
searches. In recognition of their status as an adult, young detainees aged 18
years and over can nominate a support person to be notified of certain actions,
and where necessary due to their vulnerability, to have a nominated support
person present at a strip search on admission or body searches.
Clause 94 — Youth
justice principles
This clause sets out the principles (the youth justice
principles) that apply to all decision makers in the criminal matters chapters,
in deciding what is in the best interests of a child or young person. At clause
8, the best interests of a child or young person is the paramount consideration
for all persons making decisions under the Act.
This clause re-enacts the young offender
principles at section 68 of the 1999 Act with the following
modifications.
Three new principles have been
added that recognise the need:
• to involve
children and young people in making decisions that affect their lives –
sub-clause (1)(c);
• to make decisions about
children and young people in a way that involves Aboriginal and Torres Strait
Islander communities – sub-clause (1)(d);
and
• for timely access to legal assistance
and expeditious legal proceedings – sub-clause
(1)(e).
The principle outlined at
sub-clause(1)(f) has been strengthened to reflect the principle of the
Convention on the Rights of the Child, article 37(b) “The arrest,
detention or imprisonment of a child shall be in conformity with the law and
shall be used only as a measure of last resort and for the shortest appropriate
period of time”.
The principle outlined
at sub-clause (1)(i) has been strengthened to recognise the importance of
promoting the young offender’s rehabilitation, while balancing the rights
of victims and the community’s
interests.
The principles have also been
expanded at sub-clause (2) to allow the decision maker to consider any other
relevant matter, in deciding what is in the best interests of a child or young
person for the criminal matters
chapters.
Sub-clause (3) provides that the
youth justice principles are intended to be interpreted consistently with
relevant human rights instruments and jurisprudence, including for example the
Convention on the Rights of the
Child.
Sub-clause (4) clarifies that a
reference to a child or young person in sub-clause (1) also applies to people
aged at least 18 years who are being dealt with for an offence committed or
alleged to have been committed, when they were under 18 years old. This is
intended to include decisions about breaches or alleged breaches of a sentencing
order related to an offence committed when they were under 18 years
old.
Clause 95 — Who is a
young detainee?
This clause sets out a definition of a young detainee
for the criminal matters chapters. It encompasses all children and young people
and people aged 18 to 21 years who are required to be held in the custody of the
Chief Executive responsible for the administration of the Children and Young
People Act 2008, following their arrest, remand, detention or other custody.
Sub-clauses (1)(a)(iv) and (2)(c) envisage
people who are required to be held in the custody or detention of the Chief
Executive under this Act, another Territory law or a law of the Commonwealth or
a State. This would include, for example:
• Young detainees who are transferred from
one State to another and in detention while transiting through the ACT, under
clause 126 of this Bill;
• Young detainees
who are in the custody of the Chief Executive responsible for the Children
and Young People Act 2008 and who are in custody at a place other than the
detention place as allowed under section 34 of the Corrections Management Act
2007; and
• Young detainees who are
transferred from the custody of the police to the custody of the Chief Executive
responsible for the Children and Young People Act 2008 under section 30
of the Corrections Management Act 2007.
Clause 96 — Who is a
youth detention officer?
This clause sets out a definition of a youth detention
officer, which is an authorised person who has been delegated functions under
the criminal matters chapters by the Chief Executive.
Clause 97 — Treating
doctors – health service appointments
This clause requires the Chief Executive responsible for
the administration of the Health Act 1993 to appoint a treating doctor
for the provision of health services at the detention place.
While appointment of a treating doctor would
normally be progressed in consultation with the Chief Executive responsible for
the administration of the detention place, ultimately the authority to appoint
the doctor is vested with the Chief Executive responsible for the Health Act
1993. This is intended to minimise interference with therapeutic decisions:
it is intended to enable doctors, nurses and other health professionals to act
as they normally would in any other health
setting.
The statutory functions of the
treating doctor are to provide preventative and remedial health services to
young detainees.
Clause 98 below creates an
authority for the Chief Executive of the Children and Young People Act to
authorise other health professionals, including doctors, to exercise
non-treating functions under the criminal matters chapters, for example drug and
alcohol testing, reports regarding the identity of people who identify as being
transgender or intersex and body searches
The
Bill relies upon the Legislation Act 2001 definition of
‘doctor’:
(a) means a person
unconditionally registered as a medical practitioner under the Health
Professionals Act 2004; and
(b) for an
activity, includes a person conditionally registered as a medical practitioner
under the Health Professionals Act 2004 to the extent that the person is
allowed to do the activity under the person’s conditional
registration.
Sub-clause (2) requires appointed
doctors to provide health care to young detainees and to take steps to prevent
health problems at the detention
place.
Sub-clause (3) sets a statutory minimum
level of service to be made available to young detainees each
week.
To ensure any medical decisions to
prevent the spread of disease are implemented, sub-clause (4) empowers appointed
doctors to give written directions to the Chief Executive. However, sub-clause
(5) ensures that any direction of this nature would not compromise security or
order at the detention place.
The power in
sub-clause (5) is provided only to be used when absolutely necessary. The
government envisages that ACT Health and the Department of Disability, Housing
and Community Services will establish the relevant agreements and protocols to
foster a close working relationship between health service providers and youth
detention officers and others involved in the administration of the youth
detention place.
Clause 98 — Health
professionals – non-treating functions
This clause allows the Chief Executive to authorise a
health professional to exercise non-treating functions under the criminal
matters chapters in relation to drug and alcohol testing, reports regarding the
identity of people who identify as being transgender or intersex and body
searches. The authorisation may be oral or written.
The clause contemplates health professionals
as set out in the Health Professionals Act 2004, as some functions could
be performed by health professionals other than doctors, for example, a
psychological assessment.
The purpose of
creating two sets of health professionals (treating and non-treating) is to
prevent treating doctors and other health professionals from having to engage in
medical functions that are related to the security of the detention place. This
is necessary to protect young detainees’ trust and confidence in any
doctor or other health professional who provides
treatment.
International instruments set out
the principle that doctors and other people providing therapeutic services
cannot be involved in any custodial matters that are not directly therapeutic.
[Principles of Medical Ethics relevant to the Role of Health Personnel,
particularly Physicians, in the Protection of Prisoners and Detainees against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UN
General Assembly resolution 37/194 of 18 December 1982.]
Clause 99 —
Transporting young detainees to and from Court—young detainee to be kept
separate from adult detainees
This clause includes a prohibition on transporting young
detainees who are under 18 years old with adults under detention. This is
consistrent with the requirement under the Human Rights Act 2004 that an
accused child is segregated from accused adults and international standards
which provide that regardless of status (remand or sentenced) juvenile detainees
should be separated from adult detainees. It re-enacts section 85A of the 1999
Act.
Clause 100 — Detaining
young detainees at Court—young detainees to be kept separate from adult
detainees
This clause includes a prohibition on placing young
detainees who are under 18 years old with adults under detention in a Court
cell. This is consistent with the requirement under the Human Rights Act
2004 that an accused child is segregated from accused adults and
international standards which provide that regardless of status (remand or
sentenced), juvenile detainees should be separated from adult detainees. It
re-enacts section 85A of the 1999 Act.
Chapter
5 — Criminal matters - transfers
This chapter sets out the framework to escort and
transfer young detainees to places within the ACT, including health facilities
and correctional centres.
The chapter also
provides for a nationally consistent interstate transfer scheme for young
offenders to and from the ACT and through the ACT from one State to another.
Part 5.1 — Transfers within
ACT
This part sets out the authority and obligations for the
Chief Executive in relation to transfers to places within the ACT. It also
confers authorities and obligations on escorts who escort young detainees to
places within the ACT. These authorities and obligations apply to escort
officers who escort a young detainee under division 6.8.1 (Local
Leave).
Division 5.1.1 — Transfers
within ACT - general
This division sets out the authority of the Chief
Executive and escort officers to transfer and escort young detainees who are in
the Chief Executive’s custody, within the ACT.
Clause 101 —
Directions to escort officers
This clause authorises the Chief Executive responsible
for young detainees to direct escort officers (a police officer, a corrections
officer or a youth detention officer) to take custody of a person and take the
person to a place. The escort officers are provided with the necessary power to
give effect to the directions in sub-clause (2).
Clause 102 — Orders to
bring young detainee before Court etc
This clause requires the Chief Executive to arrange for
a young detainee to be brought before a Court or other entity in accordance with
a direction or order of the Court or other entity (such as a Tribunal). This
does not limit any other power of the Court or other entity to bring a person
before the Court or the entity.
Sub-clause (2)
clarifies that the Chief Executive is legally bound to organise a person to be
brought before Court or entity, if ordered to. The Chief Executive is only
obliged to do so if the person is in the custody of the Chief Executive and the
entity (including a Tribunal) or Court in question has the legal authority to
make such an order.
Division 5.1.2 — Escorting
young detainees etc
An escort officer is defined in the dictionary as a
police officer, a corrections officer or a youth detention officer. The
escorting of young detainees to and from police cells, Court, health facilities
and correctional centres is currently undertaken by ACT Corrections (Court
Transport Unit), Australian Federal Police – ACT Policing and the
Department of Disability, Housing and Community Services (Youth Justice). While
this division outlines the overall legal authority for the chain of custody
between these entities and minimum safeguards for young detainees who are being
escorted, it is expected that relevant agreements will guide which agency
performs the escort role at any point in
time.
An escort officer is different to a
transfer escort for the purposes of the interstate transfer scheme in part 5.2
(who has different powers, purposes and authority and includes interstate escort
officers). This division does not apply to the interstate transfer scheme in
part 5.2. It does however apply to escort officers for the purpose of escorting
young detainees for local leave under division 6.8.1 (Local
Leave).
Clause 103 — Escort
officer functions etc
Sub-clause (1) authorises an escort officer (a police
officer, a corrections officer or a youth detention officer) to escort any young
detainee in the custody of the Chief Executive, irrespective of the purpose of
the escort.
Sub-clauses (2)(a) and (b)
stipulate the escort officer has the authority to escort the young detainee and
that the young detainee is deemed to be in the custody of the Chief
Executive.
Sub-clause (2)(c) clarifies that
escort officers are able to exercise any functions allocated to youth detention
officers in this Bill and any functions delegated to the officers by the Chief
Executive under this Bill. The performances of these functions in relation to
young detainees are limited by the powers and obligations set out in the Bill.
However, other powers and obligations relating to detainees generally in other
Territory law or a law of the Commonwealth or State, is not limited by this
clause, as provided for by clause 107.
Clause 104 — Escorting
arrested person to Court etc
This clause authorises a police officer to require that
an escort officer bring an arrested person (not released on bail and in police
custody) to a Court or Tribunal. An arrested person in this context means an
arrested child or young person or people aged 18 to under 21 who are arrested in
relation to an offence alleged to have been committed while the person was aged
under 18 years.
This clause further allows the
escort officer to take the person into custody and arrange for their detention
in a detention place until they are brought before a Court or
Tribunal.
Clause 105 — Custody
etc during proceedings
This clause sets out requirements on the escort officer
during proceedings to ensure the safe custody and welfare of young detainees for
the purposes of the proceeding; and to ensure that the child or young person
does not obstruct or hinder the proceeding.
Clause 106 — Executing
warrants of commitment or remand etc
This clause authorises the Chief Executive to make
escort officers available to take a child or young person into custody, arrange
for a young detainee to be kept in custody; or transfer or otherwise deal with a
young detainee. A Court order or direction addressed to all escorts is taken to
be addressed to each escort; and may be executed by any escort.
Clause 107 — Other
powers not limited
This clause provides that this division does not limit
any other provision relating to the escorting of young detainees under a
Territory law or a law of the Commonwealth or a State.
Division 5.1.3 — Transfers
to health facilities
This division sets out a way of providing health care in
a health facility while accounting for the need to continue the secure custody
of a young detainee.
Clause 108 — Transfers
to health facilities
This clause provides
that:
• The Chief Executive has the power to
transfer a detainee to a health facility upon the advice of a treating doctor.
• In transferring a detainee, escort
officers may be directed by the Chief Executive to escort the detainee to or
from the facility, or remain within the health
facility.
• A detainee may only be discharged
from the health facility if the health care provider in charge of their care
believes the young detainee is fit enough to be discharged, or circumstances
warrant the Chief Executive directing the young detainee be removed from the
health facility. In making this decision, the Chief Executive is required to
have regard to the young detainee’s health needs. For example, if a young
detainee is a danger to the safety of the people at the facility but still
requires medical care, the Chief Executive would be responsible for making
alterative arrangements for that care.
• All
of the matters in the clause are entitlements and not to be regarded as
privileges for the purposes of disciplinary or behaviour management action under
chapter 8.
Division 5.1.4 — Transfers
of young detainees who become adults
This division allows for the transfer of young detainees
who are 18 years and over to correctional centres.
There are instances where a detainee has
attained the age of 18 years and it would be more appropriate for them to
continue their remand or serve their remaining sentence in a correctional
centre, for example where their behaviour places at risk the welfare or safety
of others within the detention place, including children as young as 10 years
who may be detained. It is necessary to ensure there are mechanisms that allow
such a person to be transferred to a more appropriate facility.
There are human rights rules which give a
young detainee who has attained the age of 18 years to remain in a juvenile
facility. The Human Rights Act 2004 provides that an accused child must
be segregated from accused adults and international standards provide that
regardless of status (remand or sentenced) juvenile detainees should be
separated from adult detainees.
The United
Nations Committee On The Rights Of The Child, Forty-fourth session, 2007,
General Comment No. 10 (2007), Children’s rights in Juvenile Justice (UN
Commentary), has stated that:
“A
child deprived of his/her liberty shall not be placed in an adult prison or
other facility for adults. There is abundant evidence that the placement of
children in adult prisons or jails compromises their basic safety, well-being,
and their future ability to remain free of crime and to reintegrate. This rule
does not mean that a child placed in a facility for children has to be moved to
a facility for adults immediately after he/she turns 18. Continuation of his/her
stay in the facility for children should be possible if that is in his/her best
interest and not contrary to the best interests of the younger children in the
facility”.
Clause 109 —
Application—div 5.1.4
This clause sets out the application of this
division.
Clause 110 — Transfers
to correctional centres – under 21 years old
This clause provides the Chief Executive (on own
initiative or on application by anyone to the Chief Executive) with the power to
direct the transfer of adult young detainees to a correctional centre. Before
making the transfer direction, sub-clause (2) requires the Chief Executive to be
satisfied that the transfer is in the best interests of the adult young detainee
or the best interests of other young
detainees.
When considering whether it is
appropriate to direct a transfer, sub-clause (3) requires the Chief Executive to
consider: the young detainee’s views and wishes, maturity and known
history, developmental capacity, and vulnerability; the availability of
appropriate services or programs, whether the adult young detainee is more
likely to be rehabilitated in the detention place or correctional centre, the
time left to be served; and the behaviour of the adult young detainee,
particularly if it presents a risk to the safety of young detainees and staff at
the detention place. Sub-clause (4) allows the Chief Executive to consider any
other matter that is relevant to ascertaining whether the transfer is in the
best interests of the adult young detainee or other young
detainees.
Sub-clause (5) enables the Chief
Executive to direct an escort officer to escort the young detainee to the
correctional centre and once there, sub-clause (6) requires the young detainee
to be dealt with as a detainee under the Corrections Management Act
2007.
Clause 111 — Transfers
to correctional centres – 21 year olds
This clause provides that an adult young detainee
detained at a youth detention place under any authority cannot continue to be
detained in a detention place once they reach 21 years of age. The Chief
Executive is required to make the necessary directions to transfer the adult
young detainee to the correctional centre.
Division 5.1.5 — Notifying
people of transfers
This division gives effect to Rule 23 of the United
Nations Rules for the Protection of Juveniles Deprived of their Liberty
which provides that information about a transfer of a young detainee should be
provided without delay to the parents and guardians or closest relative of the
juvenile concerned.
Clause 112 — Transfer
– notifying people responsible for or nominated by young
detainees
This clause introduces a new requirement for the Chief
Executive to take reasonable steps to notify relevant persons of transfers to a
health facility or correctional centre. For young detainees aged under 18 years,
the person to be notified is a person with parental responsibility for the young
detainee. For young detainees aged over 18 years, the person to be notified is
their nominated support person, details of whom are required to be included at
the register at clause 184(2)(n).
Part 5.2 — Interstate
transfers
This part sets out a nationally consistent scheme for
the transfer of young offenders. It provides for the transfer of sentences and
orders (including custodial or non-custodial sentences and orders) and provides
for the escorted transfers of young offenders who are required to be in the
custody of the Chief Executive.
Within this
part, clauses 113 to 118 and Division 5.2.2 relate to all young offenders, while
clauses 119 to 123 and Divisions 5.2.3 and 5.2.4 relate to young offenders who
are required to be in the Chief Executive’s custody. Nothing in this part
authorises the transfer of persons who are arrested or are on
remand.
Division 5.2.1 —
Interstate transfer generally
Within this division, clauses 113 to 118 relate to all
young offenders (who have custodial and non-custodial sentences), while clauses
119 to 123 relate to young offenders who are required to be in the Chief
Executive’s custody under a sentence.
Clause 113 —
Definitions—pt 5.2
This clause sets out definitions for this part and
continues to have the effect of section 132 of the 1999 Act. This part relies
upon the Legislation Act 2001 definition of State which means a State of
the Commonwealth, and includes the Northern Territory. The definition of young
offender differs for this part from the Bill as it relates only to those young
offenders who have been sentenced.
Clause 114 — General
agreements with other jurisdictions
This clause provides the authority for the Minister to
enter an agreement with a Minister of a State providing generally for the
transfer of young offender from or to the ACT; or through the ACT from a State
to another State.
The Minister must first
declare that a State has a corresponding law dealing with interstate transfers
of young offenders (by way of notifiable instrument) and then the Minister may
enter an agreement with the relevant State Minister.
Clause 115 — Transfer
arrangements—general
This clause provides for the interstate transfer of a
particular young offender, if a transfer agreement under clause 114 is in force
and the criteria in clause 116 are met. It continues to have the effect of
section 134 of the 1999 Act.
Clause 116 — Power to
arrange for transfers
This clause provides for the transfer of a young
offender from the ACT to another state. This can be at the request of the young
offender or a person responsible for the young offender, in which case the Chief
Executive would make a decision having regard to all the relevant circumstances.
A transfer can also be arranged if the Chief Executive reasonably believes that
the behaviour of the young offender would place the safety, health or wellbeing
of other people at risk in the detention place. It continues to have the effect
of section 135 of the 1999 Act.
Clause 117 — Transfer
arrangements—facilities must be adequate
This clause provides that a transfer arrangement for a
young offender from another State to the ACT, can only be made if there are
adequate facilities to deal with the offender as per the transfer arrangement.
It continues to have the effect of section 136 of the 1999 Act.
Clause 118 — Transfer
arrangements—content
This clause outlines provisions to be contained in each
transfer arrangement. It continues to have the effect of section 137 of the
1999 Act.
Clause 119 — Custody
of person on transfer order
This clause provides for the custody and transfer of the
young offender by a transfer escort. A transfer escort for this part is a a
police officer, a corrections officer, a youth detention officer or another
person acting as a transfer escort with the approval of the Chief Executive.
The definition of a transfer escort for this part is intentionally different to
the definition of an escort officer as set out in the dictionary. This is
necessary to ensure consistency with the national scheme, allow flexibility to
authorise persons other than an escort officer (such as an interstate officer)
and clarify the extent of their powers and obligations while transferring a
young offender from the ACT to another State (outlined at clause 122). This
clause continues to have the effect of section 139 of the 1999
Act.
Clause 120 — Custody
pending interstate transfer
This clause provides for the custody of a young person
in a detention place before they are delivered to the transfer escort. Section
140 of the 1999 Act provided for temporary custody within a remand centre,
however this clause limits this to a detention place which is necessary to
ensure that an accused child is segregated from accused adults as required under
the Human Rights Act 2004.
Clause 121 — Transfer
to ACT in custody of transfer escort
This clause continues to have the effect of section 141
of the 1999 Act and provides for the custody of a young offender who is being
transferred from another state to the ACT, and while they are in the ACT but
before they are delivered to the place stated in the transfer arrangement.
A transfer escort authorised under an
arrangement, as provided for in sub-clause (1), would include orders made in
another State that correspond to transfer orders in this part.
Clause 122 — Powers to
transfer escorts
This clause confers new powers on transfer escorts who
transfer a young offender under a transfer order from the ACT to another State.
It does not confer powers on a transfer escort transferring a young offender
from another State to the ACT, under a transfer order made in that
jurisdiction.
The powers conferred on transfer
escorts by this clause include authority to give the young offender necessary
and reasonable directions, use force when necessary in accordance with division
6.6.4 (Use of force), and conduct a scanning search, frisk search or ordinary
search in accordance with parts 7.2 (searches generally), 7.3 (scanning, frisk
and ordinary searches) and 7.9 (seizing property).
Clause 123 —
Offence—escapes during transfer
This clause makes an offence if the young person escapes
from custody while they are being transferred, and the escape occurs in a State
other than the ACT or a receiving State.
If a
young offender, who is being transferred from the ACT to another state, escapes
from custody while they are in ACT then they would also be liable for the
offence of escaping under the Crimes Act 1900. If they escape while they
are in the receiving State, they would be liable for the offence of escape under
a corresponding law in that
jurisdiction.
Transfer orders for young
offenders who escape or attempt to escape during a transfer can be revoked under
division 5.2.4.
This clause continues to have
the effect of section 142 of the 1999 Act.
Division 5.2.2 — Transfer
of sentence or order
This division continues to have the effect of division
6.3.2 in the 1999 Act. Sentences or orders that can be transferred under this
division can be custodial or non-custodial.
Clause 124 — Transfer
from ACT of sentence or order
This clause provides for the transfer of sentences or
orders that apply to young offenders transferred from another State to the ACT.
The sentence or order ceases to have effect in the ACT except for appeals or
reviews of a conviction, judgment, sentence or order made, imposed or fixed by a
Territory Court; and a period of detention served or a reduction of the period
of detention granted before that time; anything done before that time in
carrying out the order; and allowing for a remittance of money that is or has
been paid in discharge or partial discharge of the sentence or order. This
clause continues to have the effect of section 143 of the 1999
Act
Clause 125 — Transfer
to ACT of sentence or order
This clause provides for the transfer of sentences and
orders that apply to young offenders transferred from another State to the ACT.
This clause continues to have the effect of section 144 of the 1999
Act.
Division 5.2.3 — Transit
through ACT
This division outlines arrangements for young offenders
who are being transferred through the ACT, from a State to another State under a
transfer agreement.
Clause 126 — Chief
Executive may receive young offenders
This clause enables the authorisation of a person in a
detention place to receive young offenders transferred between other States, but
who is transiting or moving through the ACT. This clause continues to have the
effect of section 145(1) of the 1999 Act.
Clause 127 — Lawful
custody for transit through ACT
This clause continues to have the effect of section
145(2) of the 1999 Act and allows a person in charge of a detention place to
temporarily detain a young offender who is brought into the ACT, at the request
of the transfer escort who is escorting the young
offender.
A transfer escort authorised under an
agreement, as provided for in sub-clause (1), would include a transfer escort
authorised under orders made in another State that correspond to transfer orders
in this part.
Clause 128 — Escapees
may be apprehended without warrant
This clause enables young offenders who escape custody
of a transfer escort (while being transferred through the ACT from a State to
another State) to be apprehended by a transfer escort or police officer without
a warrant.
Clause 129 — Escapees
to be brought before Magistrate
This clause enables young offenders who escape (or
attempt to escape) custody of a transfer escort (while being transferred through
the ACT from a State to another State) to be brought before a Magistrate who
may, by warrant, order the young offender to be detained in custody at a
detention place.
Clause 130 — Court may
arrange transfer of apprehended escapees
This clause provides that a young offender who is
apprehended under a warrant under clause 129 must be brought before a Court who
can order that the young offender be delivered to the custody of a transfer
escort or be detained for up to 7 days. This clause continues to have the effect
of section 146(5) to (8) of the 1999 Act.
Clause 131 — Search
warrants for escapees
This clause provides for the granting of search warrants
for young offenders who escape custody while being transferred through the ACT
from a State to another State. This clause continues to have the effect of
section 147 of the 1999 Act.
Division 5.2.4 — Revocation
of transfer orders
This division sets out powers to revoke transfer
orders.
Clause 132 —
Revocation of transfer order—offence during transfer
This clause provides for the revocation of a transfer
order if the young offender has, while being transferred interstate, committed
the offence of escaping, attempting to escape or another offence. This section
applies whether an information has been laid for the offence or a conviction has
been recorded for the offence or not. This clause continues to have the effect
of section 148 of the 1999 Act.
Clause 133 —
Revocation of transfer order by Chief Executive
This clause provides for the revocation of a transfer
order by the Chief Executive at any time before the young offender is delivered
in the receiving State into the custody outlined in the transfer arrangement. If
revoked, the Chief Executive is able to make a further transfer arrangement with
the receiving State for the return of the young offender to the ACT. This clause
continues to have the effect of section 149 of the 1999 Act.
Clause 134 — Chief
Executive may consider reports etc
This clause provides that the Chief Executive, in
forming an opinion or exercising a discretion under this part, may be informed
as they consider appropriate; and consider reports from those persons listed in
subclause (1)(b). This clause continues to have the effect of section 150 of the
1999 Act.
Chapter
6 — Criminal Matters – detention places
In this chapter, the Bill seeks to address the
recommendations of the Human Rights Audit of Quamby Youth Detention
Centre. The Bill also seeks to elevate administrative powers relating to
youth detention from their current existence in standing orders established by
disallowable instrument to legislation.
The
Bill also seeks to embody and express relevant international human rights
standards for children and young people deprived of their liberty,
including:
• The Convention on the Rights
of the Child;
• The United Nations
Rules for the Protection of Juveniles Deprived of their
Liberty;
• The United Nations Standard
Minimum Rules for the Administration of Juvenile Justice;
and
• The United Nations Standard Minimum
Rules for the Treatment of Prisoners.
This
chapter is modelled on the Corrections Management Act 2007 with
appropriate modifications for young detainees.
Part 6.1 — Detention
places - general
This part sets out the application, definitions and
treatment of young detainees under this chapter.
Clause 135 —
Application—ch 6
This clause clarifies that the chapter applies to young
detainees.
Clause 136 —
Definitions—ch 6
This clause sets out definitions for terms used in this
chapter, including accredited person, case management plan, prohibited things,
register of young detainees, security classification, segregation, visiting
conditions, visitor, young detainee and youth detention policy.
Clause 137 — Treatment
of young detainees generally
This clause provides that the Bill’s functions in
relation to young detainees are to be implemented in a manner that upholds human
rights. Consistent with section 28 of the Human Rights Act 2004, the
Bill sets out reasonable limitations upon a young detainee’s human rights
in order to ensure the safety of everyone in the detention
place.
Clause 138 — Treatment
of young remandees
This clause ensures that the Bill’s functions in
relation to young remandees are consistent with human rights. It ensures that a
young remandee’s right to be presumed innocent is upheld and that the
circumstance of detention is not a punishment of the person.
Clause 139 — Treatment
of certain young detainees
This clause ensures that anyone held in custody is
recognised and that any of the Bill’s functions applicable to this
category of person are to be implemented in a manner that upholds human
rights.
It is possible that young detainees may
be held in custody at a detention place by another law that applies in the ACT,
for example, a child or young person detained under the Migration Act 1958
(Cth).
Sub-clause (3) enables the Executive
to make regulations to resolve any inconsistency between another law authorising
detention and how that detention is to be exercised, and the Bill. The aim of
the clause is to authorise necessary modifications to reconcile conflicting
laws. For example, a Commonwealth law may be more restrictive about the rights
of certain young detainees to communicate with the community. In this instance
there may be a conflict with the Bill. Generally, where an ACT law is found to
be inconsistent with Commonwealth law, Commonwealth law has the right of way.
Under these circumstances the ACT Executive may make regulations to resolve the
inconsistency.
Clause 140 — Detention
places—minimum living conditions
This clause establishes minimum living conditions that
must apply at the detention place. The detail of each standard is outlined at
part 6.5.
Part 6.2 —
Administration
The Bill is drafted with the intent of clearly setting
the boundaries of any power allocated to people administering the
Territory’s youth detention place. This aims to assist any Court
reviewing a decision to ascertain the extent of the powers the Assembly intended
to give the Minister, the Chief Executive, youth detention officers or other
authorised persons.
By clearly setting out the
limitations of any discretion to be exercised by youth detention officers, the
Bill aims to leave no doubt as to what is intended to be lawful, and what is
not.
In the Human Rights Audit of
Quamby, it was noted that there were important matters that were not in the
substance of the Children and Young People Act 1999 relating to
detention, for example, the use of force. The Audit considered that the
substance of matters like these should be in the principal legislation, not in
regulations or standing orders. Rather than allocate various open-ended powers
to standing orders, as is currently the case, the Bill provides a context for
how the powers are to be exercised.
Division 6.2.1 —
Administration—general
Clause 141 — Detention
places—declaration
This clause enables the Minister to declare a place to
be a detention place by notifiable instrument. The examples provided are to
demonstrate that the declaration may be made in broad terms and can include land
around a building.
The Bill introduces a new
requirement that the detention place be a non-smoking area, with the Bill
providing that it is considered a public place under the Smoking (Prohibition
in Enclosed Public Places) Act 2003.
This
requirement is necessary to:
• safeguard the
health and well-being of all young detainees, the majority of whom will be under
the age of 18 years;
• reduce the risk that
cigarettes will be brought into the detention place and accessed by young
detainees under 18 years; and
• reduce the
risk of potential intimidation among young detainees regarding access to
cigarettes.
Under clause 110, the Chief
Executive may transfer a young detainee who is an adult from the detention place
to a correctional centre if the Chief Executive considers the transfer to be in
the adult young detainee’s best interests or other young detainee’s
best interests, having regard to a range of factors, including the adult young
detainee’s views and wishes. This provides scope for an adult young
detainee, who is of the view that they wish to move to the correctional centre
for any reason, to apply for a transfer.
Clause 142 — Youth
detention policies and operating procedures
This clause authorises the Chief Executive to make youth
detention policies and operating procedures that are within the boundaries set
by the Bill. In order to promote and ensure accountability and transparency,
the policies will be publicly notified on the Legislation Register and must be
available for inspection by anyone at the detention place. The exception to
this requirement for the youth detention policies and operating procedures to be
publicly available is contained in clause
143.
The Chief Executive may also decide to
make the policies available for inspection at another place.
Clause 143 —
Exclusion of matters from notified youth detention policies etc
This clause enables those policies and procedures that
could pose a risk to public safety, security and good order at a detention place
to be exempt from notification or availability for
perusal.
Sub-clause (2) ensures that the
documents remain subject to oversight by requiring them to be available for
inspection by the officials listed.
Clause 144 — Copies
of Act, policies etc to be available for inspection at detention
place
This clause provides that copies of the Act and publicly
available policies and procedures (which are those not excluded from
notification under clause 143) must be available for inspection by young
detainees.
This clause does not oblige the
Chief Executive to make, or give, each and every young detainee a copy of these
documents, nor does it prevent the Chief Executive from giving a copy of a
document to a young detainee upon request.
Clause 145 — Chief
Executive directions
This clause provides for the Chief Executive to give
reasonable directions, orally or in writing, to a young detainee in relation to
any matter under the criminal matters chapters.
Sub-clause (1) outlines a general authority
for the Chief Executive to give reasonable directions to a young detainee about
anything related to the criminal matters chapters. This power however is not
limitless. It is not intended to over-ride a specific function, obligation or
specific power prescribed by the Bill. The power may be exercised if no other
power in the Bill can be exercised to address something unexpected in a
detention place. Sub-clause (2) outlines specific criteria by which the Chief
Executive can give a young detainee
directions.
Contravening a direction by the
Chief Executive under this Act by a young detainee is a behaviour breach and may
be dealt with under chapters 8 and 9.
Clause 146 —
Prohibited areas
This clause enables the Chief Executive to declare
prohibited areas in the detention place in writing, where the Chief Executive
believes it is necessary to ensure safety, security or good order and to protect
the best interests of young detainees.
The
areas may be prohibited to young detainees, visitors, or youth detention
officers.
The Chief Executive must ensure that
each young detainee at the detention place is told about the prohibited area
promptly after the area is declared.
The clause
does not create an offence in its own right. However, a behaviour breach would
apply to young detainees and an offence for visitors would apply at clause 230
if they disobeyed a direction not to enter a prohibited area. Likewise for youth
detention officers and other staff, entering a prohibited area would be a
behaviour breach under the Public Sector Management Act 1994 or of their
relevant contract.
Clause 147 —
Prohibited things
Preventing contraband from being kept, or smuggled into,
a youth detention place is a key way of keeping every person in a youth
detention place safe.
This clause enables the
Chief Executive to declare things, or classes of things, to be prohibited, where
the Chief Executive believes that the declaration is necessary or prudent to
ensure security and good order at the youth detention place. Section 145(b) of
the Legislation Act 2001 interprets words in Acts as meaning both
singular and plural unless explicitly stated otherwise. Any prohibited thing
under this clause would apply to the whole class of things. For example, if
scissors were prohibited then all types of scissors would be
prohibited.
Any declaration is a notifiable
instrument and must be notified on the ACT Legislation Register in accordance
with the Legislation Act 2001.
Clause 148 —
Declaration of emergency
This clause authorises the Chief Executive to declare an
emergency (for a maximum of three days) at a youth detention place on the basis
of a threat to the security or good order of a facility, or the safety of anyone
at the detention place or elsewhere. An emergency can be declared for a maximum
of three days however the Chief Executive can make any number of subsequent
emergency declarations in relation to the same
emergency.
A notifiable instrument is required
for first declaration and any subsequent declaration is required to be a
disallowable instrument.
Clause 149 —
Emergency powers
A declaration of emergency triggers the emergency powers
in this clause. These powers further restrict the young detainee’s
liberty and rights to communicate. Consequently, they can only be exercised if
an emergency is declared and the action taken is necessary and reasonable.
During circumstances of an emergency, the power in sub-clause (1)(d) enables the
Chief Executive to delegate powers under the Act to police officers and public
servants.
The minimum living conditions
outlined at clause 140 continue to apply during the declaration of emergency.
Clause 150 —
Arrangements with police
This clause enables the Chief Executive to ask the Chief
Police Officer for assistance in relation to the exercise of functions under
this chapter and the Chief Police Officer must comply with the request. Under
clause 883, the Chief Police Officer may delegate any of the Chief Police
Officer’s functions under the Bill to a police officer.
Clause 151 —
Assistance from other Chief Executives
This clause enables the Chief Executive to ask another
Chief Executive for assistance in relation to the exercise of functions under
this chapter which must be complied with as far as practicable.
Part 6.3 — Inspection at
detention places
This part authorises inspections at a detention place by
external persons and agencies and addresses the interaction of inspection laws
applying in the ACT with the criminal matters chapters.
Clause 152 —
Inspections by judicial officers, Assembly members etc
Rule 72 of the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty states
that:
“Qualified inspectors or an
equivalent duly constituted authority not belonging to the administration of the
facility should be empowered to conduct inspections on a regular basis and to
undertake unannounced inspections on their own initiative, and should enjoy full
guarantees of independence in the exercise of this function. Inspectors should
have unrestricted access to all persons employed by or working in any facility
where juveniles are or may be deprived of their liberty, to all juveniles and to
all records of such facilities”.
This
clause provides an inspectorate role for certain persons (Judges, Magistrates,
Members of the Legislative Assembly, a commissioner exercising functions under
the Human Rights Act 2004, the Public Advocate, the Ombudsman) who may
enter and inspect a detention place or a place outside a detention place where a
young detainee is, or has been, directed to work or participate in an activity.
This would include, for example, a community service program.
Clause 153 —
Relationship with other inspection laws
This clause clarifies that any existing Act in force in
the Territory that authorises inspections (called an inspection law) applies to
a detention place. Sub-clause (5) provides a definition of inspection law as an
Act that provides for the entry and inspection of premises or the search of
people or premises. The criminal matters chapters must be read to be consistent
with an inspection law unless the Bill or the inspection law sets out a contrary
intention.
The clause qualifies any open-ended
inspection power by enabling the Chief Executive to make arrangements for the
safety of inspectors carrying out their duty. The clause also obliges any
inspectors or police to abide by any reasonable direction given by the Chief
Executive that is relevant to safety or security.
Part 6.4 — Admission to
detention places
This part outlines admission processes for a young
detainee to a detention place, including requirements for the Chief Executive to
notify a person with parental responsibility about the young detainee’s
admission (if the young detainee is under 18 years of age, or a nominated person
if the young detainee is an adult), to provide information to a young detainee
and to undertake initial assessments in order to ensure the young
detainee’s safe transition into custody.
Clause 154 — Meaning
of admission—pt 6.4
The meaning of admission is set out at this
clause.
Clause 155 —
Authority for detention
This clause provides that admission must not occur
unless the detention is authorised by a warrant or other authority and the Chief
Executive must be given the warrant or other authority before a young person is
admitted to a detention place. Examples are included of authorities authorising
detention.
Sub-clause (3) clarifies that a
person may be detained even if there is a defect in the warrant or other
authority, provided that the authority for detention is
demonstrable.
Clause 156 —
Detention—notifying people responsible for or nominated by young
detainees
This clause requires the Chief Executive to take
reasonable steps to tell a person responsible for or nominated by the young
detainee of their admission and any future Court appearance. For young
detainees under 18 years, a person with parental responsibility for them should
be notified. If the Chief Executive has parental responsibility for the young
detainee, the Chief Executive must take reasonable steps to inform another
person with parental responsibility. For young detainees who are adults, the
Chief Executive must notify their nominated support person, listed in the
register at clause 184(2)(n).
This clause gives
effect to rule 23 of the United Nations Rules for the Protection of Juveniles
Deprived of their Liberty:
“The
information on admission, place, and release should be provided without delay to
the parents and guardians or closest relative of the juvenile
concerned”.
Clause 157 —
Identification of young detainees
In order to ensure the identity of a young detainee is
confirmed and maintained throughout detention, this clause enables the Chief
Executive to take identifying material from a young detainee, including: prints
of the young detainee’s hands or fingers; a photograph or video recording;
a buccal swab or saliva sample; or anything else prescribed by regulation.
These things must be destroyed if the person
is acquitted (apart from special verdicts relating to mental states of mind) or
the offence is no longer prosecuted.
Sub-clause
(3) clarifies that things taken of, or from, the young detainee’s body to
identify the young detainee should not be destroyed if the person is acquitted
of one offence but convicted of another or a prosecution for another offence
remains on foot.
Clause 158 —
Information—entitlements and obligations
This clause requires the Chief Executive to take
reasonable steps to explain the following to a young detainee:
• The young detainee’s entitlements
and obligations under the Bill;
• The case
management plan arrangements;
• The role of
Official Visitors;
• The procedures for
seeking information and making complaints to Official
Visitors;
• The areas of the detention place
which are prohibited; and
• If the young
detainee is a national of a foreign country—the right to have a diplomatic
or consular representative of the country told about the
detention.
The information that the Chief
Executive may provide is not limited to these matters and the Chief Executive
may provide any other information considered necessary or helpful.
Sub-clause (2) allows the explanation to be in
general terms through the use of plain language. The explanation must be in a
language that is easily understood by the young detainee as far as possible.
Sub-clause (5) obliges the Chief Executive to
contact diplomatic or consular representatives upon the request of a foreign
national being admitted to a detention place or if the Chief Executive considers
it to be in the best interests of the young detainee to do so.
Sub-clauses (3) and (4) require the Chief
Executive to arrange for the assistance of an interpreter if the Chief Executive
believes, on reasonable grounds, that the young detainee is unable, because of
inadequate knowledge of the English language or a disability, to communicate
with reasonable fluency in English. The assistance of the interpreter may be
provided by telephone.
Clause 159 — Initial
assessment
Principle 24 of the United Nations Body of Principles
for the Protection of all Persons under any Form of Detention or Imprisonment
(1988) states:
“A proper medical
examination shall be offered to a detained or imprisoned person as promptly as
possible after [their] admission to the place of detention or imprisonment, and
thereafter medical care and treatment shall be provided whenever necessary. This
care and treatment shall be provided free of
charge”.
This clause requires the Chief
Executive to ensure that each young detainee admitted to a youth detention place
is assessed for any immediate risks or needs associated with the young
detainee’s health, safety or security. The Chief Executive must respond
to any immediate risks or needs identified. Ongoing risks and needs must be
addressed in the young detainee’s case management plan if one
exists.
The assessments must occur as soon as
practicable after admission but any event within 24 hours after a young
detainee’s admission.
Clause 160 — Health
assessment
This clause sets out rules for who may conduct parts of
the initial assessment outlined in clause 159. A young detainee’s
physical health needs and risks must be assessed by a treating doctor or nurse.
A young detainee’s mental health needs and risks may be assessed by a
treating doctor, nurse or another suitable health professional.
If the assessment under clause 159(2) is made
by a nurse or health professional, the treating doctor must review the
assessment.
This clause gives effect to rule
50 of the United Nations Rules for the Protection of Juveniles Deprived of
their Liberty which
states:
“Every juvenile has a right
to be examined by a physician immediately upon admission to a detention
facility, for the purpose of recording any evidence of prior ill-treatment and
identifying any physical or mental condition requiring medical
attention”.
A report of an assessment
undertaken or reviewed by a treating doctor must be given to the Chief Executive
in order for the Chief Executive to respond to any issues
identified.
Clause 161 — Alcohol
and drug tests on admission
In order to ensure the young detainee’s safe
transition into custody, this clause allows the Chief Executive, as part of an
initial assessment under clause 159, to direct the young detainee to provide a
test sample for the purpose of a drug or alcohol test. The direction may be
oral or written.
For example, if a young
detainee appears to be under the influence of a drug upon admission, the Chief
Executive may direct the young detainee to provide a sample for the purpose of
assessing whether the young detainee is affected by a substance and should
therefore be responded to in a particular way.
Division 6.7.2 (Alcohol and drug
testing—detainees) applies in relation to the direction and any sample
given under the direction.
Clause 162 — Security
classification
This clause requires the Chief Executive to arrange a
security classification for a young detainee on, or soon after, admission.
The Chief Executive may take into account any
relevant consideration in determining a young detainee’s security
classification. This may include, for example, the age of the young detainee,
the reason for the detention, including the nature of any offence for which the
young detainee is detained, the risks posed by the young detainee if the person
was to escape, the risk of the young detainee escaping, the risks posed by the
young detainee while at a detention place and the risks to the young detainee of
being accommodated with particular young detainees or in particular areas at a
detention place.
The young detainee’s
security classification may affect their placement in the detention place (see
clause 165).
Clause 163 — Case
management plan
Preparation for the young detainee’s successful
transition back into the community upon release needs to start as soon as
possible after admission. This clause requires the Chief Executive to prepare a
case management plan for a young detainee as soon as practicable after
admission.
To reflect the legal status of
remandees as presumed innocent, there is discretion for the Chief Executive to
develop a case management plan for remandees. The criteria for exercising this
discretion are outlined at clause 187.
Clause 164 — Entries
in register of young detainees
This clause requires the Chief Executive to ensure that
details of each young detainee admitted to the detention place are entered in
the register on admission.
Clause 184
establishes the register and is discussed below.
Clause 165 —
Requirements and considerations about placement and separation of young
detainees
This clause outlines requirements and considerations for
the Chief Executive in making decisions about placement and separation of young
detainees within a detention place.
Sub-clause (1) enables the Chief Executive to
make a youth detention policy or operating procedure in relation to the
placement and separation of young detainees including separation for the use of
facilities and participation in education and other
activities.
Sub-clause (2) sets out the human
rights requirements regarding segregation of categories of young detainees.
These are that young remandees must be segregated from other young detainees,
male young detainees must be segregated from female young detainees and young
detainees who are under 18 years old must be segregated from any young detainees
who are adults.
Sub-clause (3) enables the
Chief Executive to displace the requirements of sub-clause (2) if the Chief
Executive reasonably believes that another placement is in the best interests of
all affected young detainees. This power engages the rights outlined in the
Human Rights Act 2004 at section 19(2) which provides that an accused person
must be segregated from convicted people, except in exceptional circumstances,
and at section 20(1) which provides that an accused child must also be
segregated from accused adults. However, this is a proportionate limitation on
these rights as the Chief Executive must have a reasonable belief that the
placement is in the best interests of all affected young detainees. This
limitation is consistent with rule 28 of the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty provides
that:
“The detention of juveniles
should only take place under conditions that take full account of their
particular needs, status and special requirements according to their age,
personality, sex and type of offence, as well as mental and physical health, and
which ensure their protection from harmful influences and risk situations. The
principal criterion for the separation of different categories of juveniles
deprived of their liberty should be the provision of the type of care best
suited to the particular needs of the individuals concerned and the protection
of their physical, mental and moral integrity and
well-being”.
Sub–clause (4) obliges
the Chief Executive to consider, when deciding where to place young detainees,
their needs and special requirements, including age, sex, emotional or
psychological state, physical health, cultural background, vulnerability or any
other relevant matter. The Chief Executive must also consider whether isolation
is in the best interests of the young detainee, whether the care provided
protects the young detainee’s physical and emotional wellbeing and that it
is in the best interests of the young detainee to be separated from
co-offenders.
Sub-clause (5) enables the Chief
Executive to consider the security classification given to the young detainee in
deciding where to place the young detainee.
Part 6.5 — Living
conditions at detention places
This part establishes minimum living conditions for
young detainees, including food and drink, clothing, personal hygiene, sleeping
areas, access to open air and exercise, telephone calls, mail, news and
education, visits by family members, visits by accredited people, health care,
and religious observance. It gives effect to the human rights standards
outlined in the United Nations Rules for the Protection of Juveniles Deprived
of their Liberty.
Clause 166 — Food and
drink
Rule 37 of the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty provides
that:
“Every detention facility
shall ensure that every juvenile receives food that is suitably prepared and
presented at normal meal times and of a quality and quantity to satisfy the
standards of dietetics, hygiene and health and, as far as possible, religious
and cultural requirements. Clean drinking water should be available to every
juvenile at any time”.
This clause gives
effect to this requirement. It requires the Chief Executive to ensure that
adequate and nutritional food and drink are provided for young detainees, meal
times are consistent with Australian cultural norms and clean drinking water is
provided.
Sub-clause (2) recognises that food
and drink also play an important part of religious, spiritual and cultural
practices. The clause is not prescriptive about what is to be regarded as
practical, or impractical, as the needs and requests for particular food and
drink will be varied. The Chief Executive must exercise a discretion in deciding
whether provision of particular foods at particular times is practically
possible.
Sub-clause (3) requires the Chief
Executive to provide a young detainee with food and drink that satisfies a diet
prescribed by a doctor. The clause is not absolute in the obligation, as it may
not be logistically possible to meet the provision of all of the specific food
required. For example, because of seasonal reasons, availability etc.
Sub-clause (4) allows a youth detention policy
or operating procedure to address nutritional standards of the food and drink
given to young detainees, the provision of nutritional advice about the diet of
young detainees and the appointment of a nutritionist.
Sub-clause (5) stipulates that these matters
(and anything expressed to be an entitlement in a youth detention policy or
operating procedure in sub-clause (4) are entitlements and not to be regarded as
privileges for the purposes of disciplinary and behaviour management action
under chapter 8.
Clause 167 —
Clothing
This clause obliges the Chief Executive to provide
adequate and appropriate clothing for young detainees. Any particular or
uniform clothing must not be likely to degrade or humiliate young detainees.
Sub-clause (2) obliges the Chief Executive to
ensure the clothing is clean and hygienic as far as practicable.
Sub-clause (3) stipulates that these matters
are entitlements and not to be regarded as privileges for the purposes of
disciplinary and behaviour management action under chapter 8.
Clause 168 — Personal
hygiene
Rule 34 of the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty
states:
“Sanitary installations
should be so located and of a sufficient standard to enable every juvenile to
comply, as required, with their physical needs in privacy and in a clean and
decent manner”.
This clause gives effect
to the rule by requiring the Chief Executive to ensure that young detainees have
access to clean, hygienic and private toileting and showering facilities.
Sub-clause (2) stipulates that these matters
are entitlements and not to be regarded as privileges for the purposes of
disciplinary and behaviour management action under chapter 8.
Clause 169 — Sleeping
areas
Rule 33 of the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty
states:
“Sleeping accommodation
should normally consist of small group dormitories or individual bedrooms, while
bearing in mind local standards. During sleeping hours there should be regular,
unobtrusive supervision of all sleeping areas, including individual rooms and
group dormitories, in order to ensure the protection of each juvenile. Every
juvenile should, in accordance with local or national standards, be provided
with separate and sufficient bedding, which should be clean when issued, kept in
good order and changed often enough to ensure
cleanliness”.
This clause gives effect to
this rule by requiring the Chief Executive to ensure that young detainees have
appropriate sleeping facilities including beds and bedding which are private,
clean, hygienic and designed for reasonable comfort.
Sub-clause (2) stipulates that these matters
are entitlements and not to be regarded as privileges for the purposes of
disciplinary and behaviour management action under chapter 8.
Clause 170 —
Treatment of convicted and non-convicted young detainees
This clause obliges the Chief Executive to make a policy
or operating procedure to give effect to differential treatment of non-convicted
young detainees. The operating procedure must address the United Nations
Rules for the Protection of Juveniles Deprived of their Liberty, rule 18,
which provides non-convicted young detainees opportunities
to:
• pursue work, with remuneration, and
continue education or training;
• receive
and retain materials for their leisure and recreation that are compatible with
the interests of the administration of
justice.
This clause gives effect to section
19(3) of the Human Rights Act 2004 which provides that an accused person
must be treated in a way that is appropriate for a person who has not been
convicted.
Clause 171 — Access
to open air and exercise
Rule 47 of the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty provides
that:
“Every juvenile should have
the right to a suitable amount of time for daily free exercise, in the open air
whenever weather permits, during which time appropriate recreational and
physical training should normally be provided”.
This clause gives effect to this rule by
requiring the Chief Executive to ensure that young detainees have access to open
air and exercise for at least 2 hours each day. Access to open air and exercise
may be combined in the same two hours for each young
detainee.
The entitlement is not absolute, as
there may be practical reasons why the entitlement cannot be implemented every
day, for example, a state of emergency, or a natural disaster
etc.
Sub-clause (3) stipulates that these
matters are entitlements and not to be regarded as privileges for the purposes
of disciplinary and behaviour management action under chapter
8.
Clause 172 —
Communication with family and others
This clause places an obligation upon the Chief
Executive to be proactive in providing opportunities for young detainees to
maintain contact with the community. All young detainees will return to the
community. Positive changes in behaviour will be greatly influenced by
relationships with family members, significant persons and friends. Maintaining
these relationships during detention is an important factor in successful
rehabilitation and release of young
detainees.
Sub-clause (2) follows human rights
jurisprudence that requires consideration of the non-convicted status of a young
detainee when the Chief Executive makes a decision that affects the young
detainee’s opportunity to communicate. This does not mean that the
non-convicted status of the young detainee outweighs all other
considerations.
Sub-clause (3) and (4) are a
prohibition on constructive incommunicado. Incommunicado is the State unlawfully
preventing a person from communicating with all facets of civil society:
institutions and family.
Sub-clause (5) ensures
that any discipline process does not create an authority to impose constructive
incommunicado upon a young detainee.
Sub-clause
(6) clarifies that the prohibition on incommunicado does not limit the Chief
Executive from preventing communication, providing it is lawful, reasonable and
proportionate.
Clause 173 —
Telephone calls
Rule 61 of the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty provides
that:
“Every juvenile should have
the right to communicate in writing or by telephone at least twice a week with
the person of his or her choice, unless legally restricted, and should be
assisted as necessary in order effectively to enjoy this right”.
Sub-clause (1) obliges the Chief Executive to
ensure that a detention place has telephone facilities for use by young
detainees.
Sub-clause (2) provides a statutory
entitlement to make minimum telephone calls to a family member or a significant
person, with the minimum being at least 1 telephone call on admission to a
detention place and 2 telephone calls each
week.
Family member is defined at clause 13 to
mean the child’s or young
person’s—
• parent, grandparent
or stepparent; or
• son, daughter, stepson or
stepdaughter; or
• sibling;
or
• uncle or aunt;
or
• nephew, niece or cousin;
and
• for an Aboriginal or Torres Strait
Islander child or young person—includes a person who has responsibility
for the child or young person in accordance with the traditions and customs of
the child’s or young person’s Aboriginal or Torres Strait Islander
community.
Significant person is defined at
clause 14 to mean a person, other than a family member who the child or young
person, a family member of the child or young person or the Chief Executive
considers is significant in the child’s or young person’s
life.
Sub-clause (3) clarifies that the minimum
calls are not the only calls a young detainee is entitled to make or receive.
Further calls can be made.
Sub-clause (4)
requires the Chief Executive to pay for the calls mentioned above unless the
Chief Executive believes, on reasonable grounds, that it is appropriate for the
young detainee to pay for the calls.
Sub-clause (5) stipulates that these matters
are entitlements and not to be regarded as privileges for the purposes of
disciplinary and behaviour management action under chapter
8.
Sub-clause (6) empowers the Chief Executive
to deny or limit a young detainee’s phone calls if the Chief Executive
suspects the call may undermine security and good order, revictimise a victim,
circumvent any process for investigating complaints, cause community distress or
cause harm to the young detainee. The Chief Executive may also give directions
if it is necessary and reasonable to safeguard the young detainee’s best
interests. This is to ensure that the young detainee is adequately protected
from harmful, inappropriate or abusive behaviour by the person they are seeking
to contact. For example, if the young detainee wanted to contact a person and
the Chief Executive had information that the person had been convicted of sex
offences against children, then the Chief Executive would not approve the young
detainee’s contact with the person.
Sub-clause (7) clarifies that phone calls are
subject to security monitoring set out in clause 199 and to any operating
procedures that apply to phone
calls.
Sub-clause (8) authorises the Chief
Executive to make operating procedures about what times during the day phone
calls may be made; the maximum time allowed for phone calls; and what charges
should be applied for phone calls.
Clause 174 —
Mail
This clause requires the Chief Executive to allow, as
far as practicable, young detainees to send and receive as much mail as they
want. However, this should not be regarded as an absolute entitlement if the
amount of mail exceeds the ability of the detention place to properly process
and move the mail.
A young detainee may
nominate family members, significant persons and other people in writing to the
Chief Executive who they wish to correspond with.
Sub-clause (3) stipulates that these matters
are entitlements and not to be regarded as privileges for the purposes of
disciplinary and behaviour management action under chapter
8.
Sub-clause (4) empowers the Chief Executive
to restrict the sending or receiving of mail by a young detainee if it is
reasonably suspected that mail may undermine security and good order,
revictimise a victim, circumvent any process for investigating complaints, cause
community distress or cause harm to the young detainee. The Chief Executive may
also give directions if it is necessary and reasonable to safeguard the young
detainee’s best interests. This is to ensure that the young detainee is
adequately protected from harmful, inappropriate or abusive behaviour by the
person they are seeking to contact.
Sub-clause
(5) clarifies that mail is subject to security monitoring set out in clauses 200
and 201 and to any operating procedures that apply to
mail.
Sub-clause (6) authorises the Chief
Executive to make operating procedures about how mail is sent or received, the
provision of writing and other material for sending mail (such as postage) and
the storage and return of mail to the young detainee which is denied or limited
under sub-clause (4).
Clause 175 — News and
education
Rule 62 of the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty provides that:
“Juveniles should have the
opportunity to keep themselves informed regularly of the news by reading
newspapers, periodicals and other publications, through access to radio and
television programmes and motion pictures, and through the visits of the
representatives of any lawful club or organization in which the juvenile is
interested”.
This clause gives effect to
this rule by requiring the Chief Executive to ensure that young detainees have
access to information through the media and library services.
Rule 26.1 of the United Nations Standard
Minimum Rules for the Administration of Juvenile Justice ("The Beijing
Rules") provides that:
“The
objective of training and treatment of juveniles placed in institutions is to
provide care, protection, education and vocational skills, with a view to
assisting them to assume socially constructive and productive roles in
society”.
This clause gives effect to
this rule by requiring the Chief Executive to ensure that each young detainee is
provided with education or training that meets his or her
needs.
Sub-clause (3) stipulates that
participation in education and training approved under sub-clause (2) is an
entitlement and not to be regarded as a privilege for the purposes of
disciplinary and behaviour management action under chapter 8.
Clause 176 — Visits
by family members etc
Rule 60 of the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty provides
that:
“Every juvenile should have
the right to receive regular and frequent visits, in principle once a week and
not less than once a month, in circumstances that respect the need of the
juvenile for privacy, contact and unrestricted communication with the family and
the defence counsel.
This clause gives effect
to this rule by requiring the Chief Executive to provide a visit each week for
one family member or significant person of at least 1 hour in
duration.
Family member is defined at clause 13
to mean the child’s or young
person’s—
• parent, grandparent
or stepparent; or
• son, daughter, stepson or
stepdaughter; or
• sibling;
or
• uncle or aunt;
or
• nephew, niece or cousin;
and
• for an Aboriginal or Torres Strait
Islander child or young person—includes a person who has responsibility
for the child or young person in accordance with the traditions and customs of
the child’s or young person’s Aboriginal or Torres Strait Islander
community.
Significant person is defined at
clause 14 to mean a person, other than a family member, who the child or young
person, a family member of the child or young person or the Chief Executive
considers is significant in the child’s or young person’s
life.
Sub-clause (3) stipulates that the visit
mentioned in sub-clause (1) is an entitlement and not to be regarded as a
privilege for the purposes of disciplinary and behaviour management action under
chapter 8.
Sub-clause (4) empowers the Chief
Executive to deny or limit visits if it is reasonably suspected that the visit
may undermine security and good order, revictimise a victim, circumvent any
process for investigating complaints, cause community distress or cause harm to
the young detainee. The Chief Executive may also give directions if it is
necessary and reasonable to safeguard the young detainee’s best interests.
This is to ensure that the young detainee is adequately protected from harmful,
inappropriate or abusive behaviour by the person who visits or proposes to
visit.
Sub-clause (5) provides that this clause
is subject to division 6.6.5 (Access to detention places).
Clause 177 — Contact
with accredited people
This clause requires the Chief Executive to ensure that
a young detainee has adequate opportunities for contact with an accredited
person through telephone or mail or personal contact with an accredited person.
Accredited person is defined at clause 136 as
a:
• A lawyer representing the young
detainee;
• An Official
Visitor;
• A commissioner exercising
functions under the Human Rights Commission Act
2005;
• The Public
Advocate;
• The
Ombudsman;
• The Chief Executive if the Chief
Executive has daily care or long-term care responsibility for the young
detainee;
• a representative, approved by the
Chief Executive, of an entity providing a service or program to the young
detainee at a detention place.
Sub-clause (2)
stipulates that these matters are entitlements and not to be regarded as
privileges for the purposes of disciplinary and behaviour management action
under chapter 8.
Sub-clause (3) allows the
Chief Executive to give directions to deny or limit a young detainee’s
contact with an accredited person if it is reasonably suspected that it may
undermine security or good order or circumvent any process for investigating
complaints or reviewing decisions under the Act.
Visits are conditional on visitors abiding by
the detention place’s laws and procedures. Consequently, sub-clause (4)
stipulates that visits are subject to visiting conditions set out in division
6.6.5.
Clause 178 —
Visits—protected communications
This clause provides that the Chief Executive is not
authorised to monitor communication at a visit between a young detainee and with
the people mentioned in (a) to (f) who are acting in an official
capacity.
Clause 179 — Health
care
This clause relates to the standards of health care
provided to young detainees.
Sub-clause (1)
provides an entitlement to health services which are of at least the same
standard as the young detainee would have access to in the general community.
Sub-clause (2) prescribes the duties the Chief
Executive must exercise to meet the standard of health care.
Sub-clause (3) stipulates that the matters
outlined in sub-clause (1) and (2) are entitlements and not to be regarded as
privileges for the purposes of disciplinary and behaviour management action
under chapter 8.
Sub-clause (4) authorises the
Executive to make regulations to provide for the matters listed in (4)(a) to
(d). Sub-clause (c) contemplates medical rehabilitation after an accident or
other medical trauma, for example, after a burn injury or a
stroke.
Sub-clause (5) stipulates that the
matters outlined in any regulation made under sub-clause (4) are entitlements
and not to be regarded as privileges for the purposes of disciplinary and
behaviour management action under chapter 8.
Clause 180 — Chief
Executive’s consent to medical treatment for young
detainees
In some circumstances, a detained child or young person
will be assessed by a medical practitioner as not being able to consent to their
own medical treatment in accordance with the common law principle of Gillick
(Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112).
This principle is that a parent’s right to determine whether or not a
child or young person below the age of 16 years will or will not have medical
treatment terminates if and when the child or young person achieves sufficient
understanding and intelligence to enable the child or young person to understand
fully what is proposed.
The consent of a
person with daily care responsibility is required therefore in these
circumstances for the medical treatment to be given to the young detainee. In
these circumstances, if the Chief Executive is unable to locate a person with
parental responsibility to provide this consent, the young detainee’s
health may be significantly negatively affected by the inability to contact a
person with this legal responsibility for consent.
This clause allows the Chief Executive to
consent to the medical treatment in these circumstances if delaying the
treatment would be detrimental to the child or young person’s health. This
upholds the child or young person’s right to protection under section
11(2) and the right to life under section 9 of the Human Rights Act
2004.
Clause 181 — Injury
etc - notifying people responsible for or nominated by young
detainee
Rule 56 of the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty provides
that:
“The family or guardian of a
juvenile and any other person designated by the juvenile have the right to be
informed of the state of health of the juvenile on request and in the event of
any important changes in the health of the juvenile. The director of the
detention facility should notify immediately the family or guardian of the
juvenile concerned, or other designated person, in case of death, illness
requiring transfer of the juvenile to an outside medical facility, or a
condition requiring clinical care within the detention facility for more than 48
hours”.
This clause gives effect to this
human rights requirement and provides that if the young detainee requires
clinical care for any reason for more than 24 hours, a person must be notified
of the young detainee’s condition. The person to be notified for young
detainees under the age of 18 years is the person with daily care
responsibility. For young detainees who are adults, this is the person nominated
by the young detainee who is listed at 184(2)(n) of the register for young
detainees.
Clause 182 —
Religious spiritual and cultural needs
Rule 48 of the United Nations Rules for the
Protection of Juveniles Deprived of their Liberty provides
that:
“Every juvenile should be
allowed to satisfy the needs of his or her religious and spiritual life, in
particular by attending the services or meetings provided in the detention
facility or by conducting his or her own services and having possession of the
necessary books or items of religious observance and instruction of his or her
denomination. If a detention facility contains a sufficient number of juveniles
of a given religion, one or more qualified representatives of that religion
should be appointed or approved and allowed to hold regular services and to pay
pastoral visits in private to juveniles at their request. Every juvenile should
have the right to receive visits from a qualified representative of any religion
of his or her choice, as well as the right not to participate in religious
services and freely to decline religious education, counselling or
indoctrination”.
This clause gives effect
to this rule by obliging the Chief Executive to provide for the religious,
spiritual and cultural needs of young detainees as far as practicable.
Sub-clause (2) stipulates that where
practical, young detainees must have access to religious, cultural and spiritual
Ministers and leaders (such as priests, lamas, rabbis, imams, elders or other
people who lead spiritual or religious
activity).
Services, texts and relevant
artifacts should also be provided to young detainees, where practical. The
practicality of providing for religious worship or exercise of spirituality will
depend upon the logistics required to meet the needs of the young detainee, or
young detainees.
Sub-clause (3) empowers the
Chief Executive to deny or limit a young detainee’s access to religious
services and articles if the Chief Executive suspects the young detainee will
engage in any of the behaviour listed in (a) to
(d).
Sub-clause (4) upholds the right of a
young detainee not to participate in any religious, spiritual or cultural
practices.
Sub-clause (5) stipulates that the
matters outlined in sub-clauses (1) and (2) are entitlements and not to be
regarded as privileges for the purposes of disciplinary and behaviour management
action under chapters 8 and 9.
Part 6.6 — Management and
security
The prime operational task of a youth detention place is
to provide safe and secure custody of young detainees. This part sets out
general powers and obligations for the Chief Executive to provide and manage
safe and secure custody.
Division 6.6.1 —
Management and security—general
Clause 183 —
Compliance with Chief Executive’s directions
This clause requires young detainees to comply with
directions from the Chief Executive. Directions can be given by the Chief
Executive as prescribed under the criminal matters chapters and clause 145
generally allows the Chief Executive to give reasonable directions.
Non-compliance with a direction of the Chief Executive by a young detainee is a
behavioural breach under chapter 8.
Clause 184 — Register
of young detainees
This clause creates an obligation for the Chief
Executive to keep a register of young detainees to ensure the lawfulness of a
person’s detention and enable continuity of management by providing a
record of the person’s identity, relevant health matters, case management
plans, and any specific needs of the young detainee.
Clause 185 — Health
reports
This clause provides an explicit authority for the Chief
Executive administering the Act to require health information from other Chief
Executives and an obligation for the relevant Chief Executive to promptly comply
with that request. It is intended that this clause will provide lawful
authority for health agencies to provide health records about young detainees
without having to decide compliance with the privacy principles in the Health
Records (Privacy and Access) Act 1997.
This clause does not oust any existing or
future obligations upon the Chief Executive, or authorised persons or youth
detention officers, to treat any information about young detainees as
confidential. Section 9(m) of the Public Sector Management Act 1994
obliges public servants to not disclose, without lawful
authority—
• any information acquired
by him or her as a consequence of his or her employment;
or
• any information acquired by him or her
from any document to which he or she has access as a consequence of his or her
employment.
Any youth detention officers who
are authorised access to health information of young detainees as part of their
duties would be obliged to keep that information confidential outside of their
duties.
Sub-clause (4) obliges the Chief
Executive to organise a treating doctor to assess the reports and prepare a
health schedule for each young detainee’s case management
plan.
The health schedule is a summary of the
young detainee’s medical conditions, medical risks, potential symptoms,
and treatment for the young detainee. The health schedule will be able to be
accessed in a medical crisis to facilitate quick assessment of the situation and
organise any necessary assistance or treatment for a young
detainee.
Sub-clause (6) enables an operating
procedure to be made to set out the detail to be included in a health schedule.
The procedure would be able to also specify who may access the
schedule.
Sub-clause (7) is an obligation upon
the Chief Executive to ensure access to medical information is only available to
those who have authority to access the information.
Clause 186 — Use of
medicines
This clause provides the Chief Executive with authority
to approve the use of a medicine, other than prescription medicine, and the
Chief Executive must record details of the approval in the register. It is
intended that this would include medicines bought over the counter, such as
asprin, cough medicine etc. In making a decision to approve the use of a
non-prescription medicine, the Chief Executive is enabled to seek the advice of
a treating health professional. In some circumstances the advice of a health
professional may be needed, for example to confirm that a young detainee is not
allergic to a non-prescription medicine.
Clause 187 — Case
management plans—scope etc
This clause obliges the Chief Executive to develop a
case management plan for each young detainee.
To reflect the legal status of remandees as
presumed innocent, there is discretion for the Chief Executive to develop a case
management plan for remandees. In deciding whether a case management plan
should be developed, the Chief Executive must
consider:
• the period of
remand;
• the young remandee’s age and
development;
• the young remandee’s
educational needs;
• any special needs that
the young remandee has; and
• any other
relevant consideration.
The rehabilitation of
sentenced young offenders needs to start at the earliest point in their
sentence. It is intended that case management plans for young detainees will be
an important part of their rehabilitation and preparation for release. The
plans incorporate issues relevant to the management of the young detainee as
well as long-term rehabilitation
goals.
Sub-clause (3) outlines the minimum
requirements for case management plans, and includes education activities,
transition planning to support the young detainee’s return to the
community and includes requirements that case management plans are based on the
needs, capacities and disposition of the young detainee and consistent with
resources available to the Chief Executive.
It
is not intended that case management plans will be limited to the minimum
matters set out at sub-clause (3). It is intended that plans will address
relevant matters relating to the young detainee’s health, wellbeing and
development needs.
Clause 188 —
Transgender and intersex young detainees—sexual identity
The sexual identity of a young detainee has a critical
impact upon their placement within the detention place and how intimate searches
are conducted. This clause sets out how the sexual identity of a transgender or
intersex young detainee should be ascertained. The clause provides a
decision-making choice for the young detainee and the Chief Executive if the
young detainee does not or refuses to nominate an identity. In choosing the sex
of a young detainee, the Chief Executive must obtain a report by a non-treating
health professional.
In making decisions about
whether to place a transgender or intersex young detainee with females or males,
in some circumstances the sex chosen by the young detainee and subsequent
placement decision may put the young detainee or other young detainees at risk
of intimidation or harm. It may also be necessary to include in the case
management plan, supports for a transgender or intersex young detainee who may
be ambivalent about their sexual identity.
Sub-clause (5) therefore introduces a power
for the Chief Executive to obtain a report by a health professional about the
young detainee’s sexual identity, if the Chief Executive reasonably
believes the report is in the best interests of the young detainee and is
necessary to make a decision in relation to the young detainee’s placement
or case management. This power engages human rights law, in particular sections
10(1)(b) (inhuman or degrading treatment), 11(2) (protection of the child), 12
(privacy), and 19(1) (humane treatment) of the Human Rights Act 2004.
However the limitation on these rights is proportionate as the power is
necessary to protect the safety and emotional wellbeing of the young detainee
and other young detainees.
Clause 189 — Security
classification—basis etc
This clause requires the Chief Executive to give a young
detainee a security classification and enables review of the classification at
any time. The clause also sets out factors that must be considered when
deciding the level of security risk the young detainee poses. The factors
include the risk the young person may pose within the youth detention place, as
well as the risk they pose if they escape. The security measures imposed must
be only that which are the least restrictive.
Clause 190 — Property
of young detainees
This clause provides for the young detainee’s
property to be brought into a detention place. The property is subject to any
conditions set by the Chief Executive. Property may be secured away from the
young detainee, or the Chief Executive may conditionally allow the property to
be in the possession of the young detainee. The Chief Executive must ensure that
the register of young detainees includes details of the property each young
detainee has at a detention place.
Clause 191 —
Possession of prohibited things
This clause introduces a new offence for a young
detainee to possess a prohibited thing. The maximum penalty is 5 penalty units.
This penalty reflects the limited capacity of young detainees to earn money.
Prohibited things are declared under clause 147.
Possession of a prohibited thing by a young
detainee is also a behaviour breach under chapter 8.
Clause 192 —
Mandatory reporting of threats to security etc at detention
place
This clause introduces a new obligation for adults who
provide services at a detention place, including work that is not remunerated.
This could include, for example, youth detention officers, health professionals,
community based youth workers and a minister of religion.
The obligation arises if the person reasonably
suspects, through providing services at the detention place, that a young
detainee or anyone else at the detention place poses a significant threat to
security or good order at the detention place; or has something concealed on him
or her that is a prohibited thing or that may be used by him or her in a way
that may involve a risk to the personal safety of anyone at the detention
place.
This requirement engages human rights
law, in particular sections 11(2) (protection of the child), and 12 (privacy) of
the Human Rights Act 2004. However the limitation on these rights is
proportionate as the power is necessary to protect the safety of everyone in the
detention place.
Clause 193 — Trust
accounts of young detainees
This clause requires the Chief Executive to establish
trust accounts to deposit money belonging to young detainees. Any fines incurred
as a consequence of discipline or behaviour management consequences can be
deducted from a young detainee’s trust account. A regulation may be made
by the Chief Executive about the management of trust accounts.
Clause 194 — Register
of searches and uses of force
This clause requires the Chief Executive to maintain a
register of intrusive searches and the use of force. The register must contain
details of the following searches:
• strip
searches on admission under clause 253,
• strip searches directed by Chief Executive
under clause 257,
• body searches directed
by Chief Executive under clause 263,
• searches of premises and property under
clause 274,
• searches of young detainees
cells for privileged material under clause
275;
• searches of young detainees cells for
suspected privileged material under clause
276;
Sub-clause (2) sets out what details must
be included in the register in relation to searches. Sub-clause (2)(e) requires
details and reasons to be entered in the register about incidents where certain
same sex requirements for strip or body searches are not complied with, as
permitted under sub-clauses 259(4), 265(5) and 269(4). This is to ensure that
there is oversight and review of any
non-compliance.
The register must also contain
details of any time when force is used under division 6.6.4. The register must
include details of the incident, including the circumstances, the decision to
use force and the force used.
The register
must be available for inspection by the inspection entities listed at sub-clause
(5). To ensure that there is a minimum amount of oversight of the register,
this clause obliges the Public Advocate to inspect the register every three
months at a minimum.
This clause does not
limit the details that the Chief Executive may include in the
register.
Division 6.6.2 —
Monitoring
Section 12 of the Human Rights Act 2004, provides
that everyone has the right not to have their privacy, family, home or
correspondence interfered with unlawfully or
arbitrarily.
A consequence of lawful detention
is the inevitable displacement of that right to a degree necessary to secure the
person in custody and to run a safe detention
place.
Monitoring the activities and
whereabouts of young detainees is a way to prevent violence, possession of drugs
or other contraband and escape.
Clause 195 —
Disapplication of Listening Devices Act
This clause displaces the Listening Devices Act
1992.
Clause 196 —
Monitoring—general considerations
This clause sets out the factors the Chief Executive
must balance when establishing systems to monitor young detainees, or exercising
the powers to monitor individual young detainees. This clause requires the
application of the human rights principle of proportionality. Sub-clause (g)
allows the Chief Executive to consider any matter reasonably believed to be
relevant to the exercise of a function under division 6.6.2 and considered
against the criteria in (a) to (f).
Clause 197 — Notice
of monitoring
This clause requires the Chief Executive to make people
who enter a detention place aware that the person may be
monitored.
Clause 198 —
Monitoring at detention places
This clause provides the authority for the Chief
Executive to monitor any part, any activity and movement of anyone at the
detention place.
Clause 199 —
Monitoring telephone calls etc
This clause provides the authority for the Chief
Executive to monitor and record a young detainee’s phone calls, and other
electronic communications such as email or fax. The parties to a communication
must be informed that the communication is open to monitoring. If evidence of a
criminal offence is gleaned from monitoring, the police must be advised.
Investigations of offences are a function of the
police.
The Chief Executive is not authorised
to monitor or record protected communication with certain listed persons acting
in a professional capacity. At common law and in human rights jurisprudence,
young detainees have a right to access their lawyer and various relevant office
holders.
Clause 200 —
Monitoring ordinary mail
This clause provides the authority for the Chief
Executive to monitor, open and inspect a young detainee’s ordinary mail.
Ordinary mail may be read if the Chief Executive believes the mail will
undermine security, revictimise a victim, or circumvent any investigative
process. The Chief Executive can also read the mail if the Chief Executive
suspects the mail is not in the best interests of the young detainee (for
example, if it contains sexually explicit, abusive or harmful content). This
power engages the right to privacy under the Human Rights Act 2004,
however it is a proportionate limitation as it balances the young
detainee’s right to privacy with their right to
protection.
Ordinary mail is any mail other
than the categories of mail set out in the definition of protected mail in
sub-clause (4).
If the monitoring of mail
reveals evidence of an offence the police must be advised. Investigations of
offences are a function of the police.
Sub-clause (3) authorises the Chief Executive
to read a random selection of young detainees’ mail in addition to the
suspicion based power of sub-clause (2). An operating procedure can be drafted
to set out the detail of how this power will be
exercised.
Sub-clause (4) defines
‘protected mail’ as correspondence between a young detainee and the
people listed in (a) to (f) acting in their official capacity.
‘Search’ is also defined broadly so that it would be unnecessary to
physically open every piece of mail.
Clause 201 —
Monitoring protected mail
Protected mail may be opened in the presence of a young
detainee if it is suspected that the mail is dangerous or contains
contraband.
Protected mail may only be read
with the written consent of the young detainee. A breach of human rights would
otherwise occur.
Clause 202 — Mail
searches—consequences
This clause requires any mail that is searched, but not
seized, to be delivered as intended to the
addressee.
Sub-clause (2) requires the Chief
Executive to pass on information that may be evidence of an offence to the
police.
Division 6.6.3 —
Segregation
The segregation of young detainees is a fundamental way
of managing the safety and health of young detainees. A breach of human rights
would occur if the powers in this division were exercised for a purpose other
than health and safety. The exercise of any power in this division therefore
must apply the human rights principle of proportionality.
Subdivision 6.6.3.1 —
General
Clause 203 —
Definitions—div 6.6.3
This clause sets out definitions for this division.
‘Segregation’ has a wide meaning. It can mean anything from
restricting a young detainee from being in certain parts of the detention place
at certain times, through to denying a young detainee the opportunity to have
contact with other young detainees.
Clause 204 — Purpose
of segregation under division 6.6.3
This clause clarifies that segregation powers under this
division must not be used for punishment or disciplinary
purposes.
Clause 205 —
Segregation not to affect minimum living conditions
This clause ensures that the minimum living conditions
prescribed by clause 140 are not affected by segregation directions. However,
sub-clause (2) ensures that the application of the standards does not set aside
the effect of the segregation direction. In some cases the circumstances may
require a temporary suspension of the conditions. For example, if a young
detainee is segregated because they have a contagious disease, a weekly visit,
as prescribed by clause 176 may not be possible.
Clause 206 — Notice
of segregation directions – safe room and other
This clause requires the Chief Executive to give written
notice of any safe room segregation direction made. The notice must include
details about the direction and the duration and effect of the direction. The
notice must be given to the young detainee and the Public Advocate. For young
detainees under 18 years, the notice must be given to a parent or someone else
who has parental responsibility for the young detainee. For young detainees who
are adults, the Chief Executive must notify their nominated support person
(listed in the register at clause 184(2)(n).
Subdivision 6.6.3.2 — Safe
room segregation
This part authorises segregation in a designated part of
the youth detention place known as a safe room.
Clause 207 —
Designation of safe rooms
This clause allows the Chief Executive to declare a part
of a detention place to be a safe room in writing. This declaration is an
instrument within the meaning of section 14 of the Legislation Act 2001.
In order to make the declaration, the Chief
Executive must be satisfied of the criteria outlined at (2)(a) and (b) which
seek to ensure the area is safely designed and will facilitate monitoring of,
and communication with, the young detainee, by the Chief Executive and health
professionals (other than non-treating health professionals).
Clause 208 —
Segregation—safe room
This clause outlines the criteria for when the Chief
Executive may make a safe room segregation direction. The criteria have been
carefully designed to ensure that the safe room is only used to protect the
young detainee from harming themselves, and used only as a last resort.
Clause 209 — Safe
room segregation directions—privacy
This clause creates a rule about how the safe room
segregation direction is put into effect which has the objective of protecting
the privacy of the young detainee subject to the direction. The rule is that
the confining of a young detainee under a safe room segregation direction, and
any force used, must not be done in the presence or sight of another young
detainee.
An exception to this rule is created
in circumstances of urgent and significant risk to the young detainee or another
person and where compliance with the rule would increase the risk.
Clause 210 — Review
of safe room segregation directions
This clause creates a statutory rule for the frequency
of reviews of a safe room segregation direction. The direction must be reviewed
by the Chief Executive after it has been in force for 2 hours and at the end of
every subsequent 2 hours for which it is in effect.
Subdivision 6.6.3.3 —
Other segregation
This subdivision provides authority for the Chief
Executive to make segregation directions on the grounds of safety and security
reasons, health reasons and for protective custody reasons.
There are a number of important safeguards
incorporated in this subdivision (6.6.3.3), subdivision 6.6.3.4 and subdivision
6.6.3.5 designed to ensure the Chief Executive’s decision to segregate a
young detainee is subject to review and the young detainee is accorded
procedural fairness. These include:
• The
Chief Executive is required to revoke the segregation direction immediately if
the grounds that gave rise to the making of the direction no longer
exist.
• In addition to notice being given to
the young detainee of a segregation direction, notice must also be given to a
parent or someone who has daily care responsibility, or long-term care
responsibility, for the young detainee who is under 18 years or the young
detainee’s nominated person for young detainees 18 years and over; and and
the Public Advocate.
• The young detainee can
seek an internal review of the segregation direction under clause
216.
• The young detainee can seek an
external review of the segregation direction under clause 218.
• All segregation directions must be
recorded by the Chief Executive in a register and the register must be available
for inspection and oversight by the persons and entities outlined in clause
221(3).
Clause 211 —
Segregation—safety and security
This clause authorises the Chief Executive to make a
segregation direction to protect the safety of anyone else at a detention place;
or security or good order at a detention
place.
Sub-clause (2) requires the Chief
Executive to have regard to relevant cultural considerations and the likely
impact of segregation on the health and well-being of the young
detainee.
Sub-clause (3) contains an obligation
for the Chief Executive to revoke the direction if the grounds that gave rise to
the making of the direction no longer exist.
Clause 212 —
Segregation—protective custody
This clause authorises the Chief Executive to make a
segregation direction to protect the young detainee’s
safety.
Sub-clause (2) enables the Chief
Executive to give a direction on the Chief Executive’s own initiative or
on request by the young detainee.
Sub-clause
(3) contains an obligation for the Chief Executive to revoke the direction if
the grounds that gave rise to the making of the direction no longer exist.
Clause 213 —
Segregation—health etc
This clause authorises the Chief Executive to make a
segregation direction for health related reasons, including
• to assess the young detainee’s
physical or mental health; or
• to protect
anyone (including the young detainee) from harm because of the young
detainee’s physical or mental health;
or
• to prevent the spread of
disease.
Sub-clause (2) contains an obligation
for the Chief Executive to revoke the direction if the grounds that gave rise to
the making of the direction no longer exist.
In deciding whether to make a segregation
direction for health reasons, or revoke the direction, sub-clause (3) requires
the Chief Executive to have regard to advice by a treating doctor regarding the
segregation.
Clause 214 —
Interstate segregated young detainees transferred to ACT
This clause has the effect of continuing an interstate
segregation direction after a young detainee is transferred into custody at an
ACT detention place.
The direction ends 3
days after the day the young detainee is taken into custody at the detention
place unless this division applies otherwise.
Subdivision 6.6.3.4 —
Review of certain segregation directions
Clause 215 — Meaning
of segregation direction—subdiv 6.6.3.4
This clause creates a definition of segregation
direction for this subdivision (6.6.3.4) which is intentionally narrower than
the definition of segregation direction for this division (6.6.3) outlined at
clause 203.
A segregation direction for this
subdivision is a safety and security, protective custody or health segregation
direction under clauses 211, 212 and 213 respectively. It does not include safe
room segregation direction under clause 210.
Clause 216 — Internal
review of segregation directions
This enables the Chief Executive to review a safety and
security, protective custody or health segregation direction under clauses 211,
212 and 213 respectively, at any time upon the Chief Executive’s own
initiative or upon a request from the young detainee.
This clause also requires the Chief Executive
to review a segregation direction if a transfer to a correctional centre or
somewhere else (for example, a health facility) is imminent. As a matter of
course, the Chief Executive must review a segregation direction within the first
7 days, conduct a second review within 7 days, and conduct subsequent reviews
every 14 days thereafter while the direction remains in force. The Chief
Executive must review a health segregation direction on request by the treating
doctor.
This clause further requires the Chief
Executive to make an active decision about segregation after a review. This
ensures that each decision made to continue segregation is accountable and can
be verified by any authority reviewing the decision or inspecting the youth
detention place. Directions to segregate may be made consecutively.
Clause 217 — End of
segregation directions
This clause clarifies that, unless revoked sooner, a
safety and security, protective custody or health segregation direction ends 28
days after the day it is given or 90 days after a further segregation direction
or directions given following a review under subdivision
6.6.3.4.
Clause 218 —
Application for review of segregation directions
This clause enables a young detainee to apply for a
review of a segregation direction. An application is made to an external
reviewer, who is a Magistrate appointed to review disciplinary matters and
segregation decisions. The segregation decision remains in force unless an
external reviewer makes another decision in its place or revokes the
decision.
Clause 219 — External
review of segregation directions
This clause empowers an external reviewer to review a
segregation direction or refuse to do so.
If
an external reviewer decides to review a segregation direction the review
procedure in Chapter 9 must be used. If an external reviewer refuses to review
the segregation direction, clause 220(3) requires the external reviewer to
provide reasons for the refusal.
Under
sub-clause (3), after a review, the external reviewer may confirm the
segregation direction; or make a decision that the Chief Executive has the power
to make, which substitutes for the existing decision. The external reviewer can
vary the existing direction, or set it aside. The clause enables the external
reviewer to end the segregation direction.
Clause 220 — Notice
of decision about segregation direction
This clause requires the external reviewer to give
prompt written notice of their decision under clause 219 to the young detainee,
a parent or person with parental responsibility for young detainees aged under
18 years, or the nominated support person (see 184(2)(n)) for young detainees
aged over 18 years and the Chief Executive. Reasons must be outlined in the
notice, if the external reviewer refuses to review the
direction.
Subdivision 6.6.3.5 —
Register of segregation directions
This sub-division requires a segregation register to be
maintained by the Chief Executive.
Clause 221 — Register
of segregation directions
This clause requires a register to be maintained by the
Chief Executive containing details in relation to each segregation direction
given under this division. Sub-clause (1) outlines what the register must
include at a minimum in relation to each segregation direction given.
The register must be available for inspection
by the entities outlined at sub-clause
(3).
This clause does not limit the details
that the Chief Executive may include in the register.
Division 6.6.4 — Use of
force
The United Nations Rules for the Protection of
Juveniles Deprived of their Liberty (Rules 63-65) provides that instruments
of restraint and force:
• can only be used in
exceptional cases, where all other control methods have been exhausted and
failed, and only as explicitly authorised and specified by law and regulation;
• may be resorted to prevent self-injury,
injuries to others or serious destruction of
property;
• should not cause humiliation and
degradation, should be used restrictively and for the shortest possible period
of time;
• if used, medical and other
relevant personnel should be consulted and its use reported to a higher
administrative authority; and
• carrying and
use of weapons by personnel is prohibited in any facility where juveniles are
detained.
The United Nations Standard
Minimum Rules for the Treatment of Prisoners (Rules 33-34 and 54) provides
that:
• use of force can be used in cases of
attempted escape, or active or passive physical resistance to an order based on
law or regulations;
• force can be used no
more than is strictly necessary and incidents must be reported immediately to a
higher administrative authority;
• officers
shall be given special physical training to enable them to restrain aggressive
prisoners; and
• restraint as a punishment is
prohibited.
This division authorises the use of
force and prescribes for the proportionate use of force. The inappropriate use
of force could potentially cause injury to the young detainee, limits the
ability of individuals to move freely and is inherently degrading. It therefore
engages human rights law, in particular sections 9(1) (right to life), 10(1)(b)
(cruel, inhuman or degrading treatment), 11(2) (protection of the child), 13
(freedom of movement) and 19(1) (humane treatment) of the Human Rights Act
2004.
Clause 222 — Managing
use of force
This clause sets out requirements on the Chief Executive
to:
• Make arrangements to ensure that force
is always used as a last resort and in accordance with this
division;
• Ensure those persons using force
first consider the individual’s characteristics and capacities, except in
urgent circumstances;
• Ensure the young
detainee receives any appropriate health assessment or treatment because of
force used against them which results in an
injury;
• Offer a medical examination to a
young detainee by a treating doctor or nurse after any force is used;
and
• Make a policy or procedure which sets
out the circumstances when force may be used and the kinds of force that may be
used.
Clause 223 —
Authority to use force
This clause sets out the grounds by which a youth
detention officer may use force. A youth detention officer can only use force if
they believe the purpose cannot be achieved another way, and then only if it is
necessary and reasonable to achieve the purposes outlined at sub-clause
(b).
Clause 224 —
Application of force
This clause sets out requirements on the youth detention
officer in using force. A youth detention officer can only use force (except in
urgent circumstances) if they give a warning about the use of force and allow
time for it to be observed, and use it in a way that reduces the risk of causing
injury.
Clause 225 — Use of
restraint
This clause sets out rules for applying force with the
use of restraint. A restraint may include body contact, handcuffs, restraint
jackets and other restraining devices and anything else prescribed by
regulation.
Clause 226 — Monthly
reports about use of force
This clause requires a youth detention officer to
provide a monthly report, summarising incidents involving the use of force in
relation to a young detainee, to the Chief Executive.
Division 6.6.5 — Access to
detention places
This division facilitates entry to the detention place
by visitors.
Clause 227 — Visiting
conditions
This clause empowers the Chief Executive to declare
conditions that apply to visitors and visits at a place of detention through a
disallowable instrument. This may include conditions that relate to times and
duration of visits, the number of visitors allowed and the circumstances in
which visitors may be monitored.
Clause 228 — Notice
of visiting conditions
This clause requires the Chief Executive to make
reasonable efforts to alert visitors to any conditions in force. A notice must
be put up and copies of the conditions made available to be inspected on request
by visitors.
Clause 229 — Taking
prohibited things etc into detention place
This clause creates an offence for taking or removing a
prohibited thing from a detention place or giving a prohibited thing to a young
detainee, including through sending. The offence applies to any person,
including a young detainee. An exception to the offence is created if the Chief
Executive approves the action. ‘Prohibited things’ are those
declared and notified by the Chief Executive to be prohibited under clause 147.
Clause 230 —
Directions to visitors
This clause authorises the Chief Executive to give a
visitor directions to ensure the visitor complies with any conditions in force
or to uphold the security or good order of a detention place. The direction may
be given verbally or in writing.
Non-compliance with the direction is a strict
liability offence. Sub-clauses (2) and (3) create a strict liability offence
for a visitor failing to comply with a direction. The Government is of the view
that a strict liability offence is warranted. The physical element of the
offence, a failure to comply, is the critical feature of the offence. Providing
for mental elements of the offence would diminish the regulating purpose of the
offence.
The offence extends the existing
statutory defences in the Criminal Code 2002 by including a defence that
the person took reasonable steps to comply with the direction.
Clause 231 —
Directions to leave detention place etc
This clause empowers the Chief Executive to refuse a
person entry to a detention place and to direct a person to leave a detention
place.
Sub-clauses (4), (5) and (6) create a
strict liability offence for a visitor failing to comply with a direction to
leave or attempting to enter detention place. A strict liability offence is
warranted. The physical element of the offence, a failure to comply, is the
critical feature of the offence that needs to be upheld. Providing for mental
elements of the offence would diminish the regulating purpose of the
offence.
The offence extends the existing
statutory defences in the Criminal Code 2002 by including a defence that
the person took reasonable steps to comply with the direction.
Clause 232 — Removing
people from detention place
This clause authorises the use of force to remove a
person from the detention place, or prevent a person entering the place,
following non-compliance with a direction under clause 231. The use of force
must be commensurate to the necessary aim.
Division 6.6.6 —
Maintenance of family relationships
The Standing Committee on Community Services and Social
Equity’s report, The Forgotten Victims of Crime: Families of Offenders
and their Silent Sentence recommended that young people, whether on remand
or sentenced, who are primary caregivers for their children should be allowed to
maintain their children up to pre-school age with them in a place of detention,
where that is assessed as being in the younger child’s best interests.
The ACT Human Rights Commissioner in the Human Rights Audit of Quamby Youth
Detention Centre endorsed this
recommendation.
In response to these
recommendations, this division allows a young detainee who is a primary
caregiver for their child aged up to 6 years old, to have contact with, or care
for their child, in a detention place subject to directions and any youth
detention policy or operating procedure in place. This division upholds the
human rights to protection of the family and children outlined at section 11 of
the Human Rights Act 2004.
Clause 233 — Chief
Executive may allow young child to stay with young detainee
Sub-clauses (1) and (2) provides that where a young
detainee is a primary caregiver for their child aged up to 6 years old, the
Chief Executive may allow young detainees to have contact with, or care for
their child in a detention place. This is subject to any direction by the Chief
Executive and any youth detention policy or operating procedure in place
contemplated by sub-clause (4).
In considering
whether to allow the detainee to have contact with or care for their child, the
Chief Executive (responsible for care and protection matters in the ACT) must
carry out a care and protection appraisal of the child and must be satisfied
that that allowing the detainee to have contact with or care for their child in
the detention place would be in the child’s best interests.
Sub-clause (4) allows the Chief Executive to
make a youth detention policy or operating procedure about the arrangements for
a young detainee to have contact with, or care for, their child in a detention
place.
This clause is intended to be
additional to the general entitlement of young detainees to receive visits from
family members at clause 140(1)(g), which may include the young detainee’s
son, daughter, stepson or stepdaughter.
Part 6.7 — Alcohol and
drug testing
This part provides the requisite powers to test young
detainees and youth detention officers for drugs and alcohol. Testing for drugs
and alcohol, and taking action on positive tests are critical ways of
neutralising any drug market within a youth detention place and managing young
detainees with drug and alcohol problems. The use of drugs and alcohol by young
detainees and youth detention officers who are responsible for their wellbeing,
can create risks to the safety of everyone at the detention centre and pose
substantial risks to security and good order. The powers to conduct alcohol
and drug testing outlined in this division, engages the right to privacy and
reputation at section 12 of the Human Rights Act 2004, however it is a
reasonable and proportionate limitation as it is necessary to protect the safety
of all people in the detention place.
Division 6.7.1 —
General
This division outlines key concepts for alcohol and drug
testing of young detainees and youth detention officers.
Clause 234 —
Definitions—pt 6.7
This clause sets out definitions for the chapter.
‘Drug’ is defined in a way that excludes drugs that are authorised
to be taken by a young detainee.
Clause 235 — Positive
test samples
This clause defines what a ‘positive test
sample’ means and includes: a young detainee who refuses to provide a
sample, or intentionally fails to provide a sample, substitution or masking of a
sample and a positive presence of drugs or alcohol. Failing to provide a sample
does not extend to young detainees who have a reasonable excuse for not being
able to provide a sample. The Chief Executive is able to decide a drug should
be exempt from being a prohibited drug under this part of the Bill. Any
exemptions must be notified.
Division 6.7.2 — Alcohol
and drug testing—young detainees
The division provides for alcohol and drug testing of
young detainees.
Clause 236 — Alcohol
and drug testing of young detainees
This clause empowers the Chief Executive to direct a
young detainee to provide a test sample, and state what type of sample is
required. The Chief Executive or a relevant non-treating doctor or non-treating
nurse can direct how the young detainee must provide the sample. Any sampling
method must be taken in accordance with any operating procedures made by the
Chief Executive. However, only non-treating doctors and nurses can take blood.
Samples are required to be given to a youth detention officer for identification
and recording, prior to analysis.
After
analysis the Chief Executive must notify the young detainee and a relevant
person of the results as soon as practicable. For young detainees aged under 18
years, the relevant person to be notified is a person with parental
responsibility for the young detainee. For young detainees aged over 18 years,
the relevant person to be notified is their nominated support person, details of
whom is required to be included at the register at clause
184(2)(n).
Contravening a direction by the
Chief Executive under this Act by a young detainee is a behaviour breach and may
be dealt with under chapter 8.
Clause 237 — Effect
of positive test sample by young detainee
This clause enables the Chief Executive to consider a
positive test sample in making any decisions about the management of the young
detainee under the Act, including for example case management plans, security
classification or behaviour breaches.
Division 6.7.3 — Alcohol
and drug testing—youth detention officers
Clause 238 — Alcohol
and drug testing of youth detention officers
This clause authorises the development of regulations to
test for alcohol and drugs by youth detention officers, and may include
circumstances for testing and the conduct of the tests. A youth detention
officer is an authorised person who has been delegated functions under the Act
by the Chief Executive as outlined at clause 96.
Part 6.8 — Young
detainees—leave
This part deals with leave for young detainees from the
detention place.
Division 6.8.1 — Local
leave
This division sets out the authority for the Chief
Executive to authorise leave within the ACT for a young
detainee.
Clause 239 — Local
leave directions
This clause authorises the Chief Executive to direct
that a young detainee be transferred from a detention place to any other place
in the ACT. This may be for any purpose the Chief Executive considers
appropriate. For example, the Chief Executive may direct the transfer of a
young detainee to a service in the community which provides a program that would
assist the young detainee’s rehabilitation.
This may be limited by any condition
prescribed by regulation or any other condition believed necessary and
reasonable by the Chief Executive that is consistent with any condition
prescribed by regulation (if any exist).
The
direction must be by way of written permit and the conditions must be stated in
the permit.
Clause 240(1) requires that a young
detainee who is the subject of a local leave direction be given a local leave
permit.
Clause 240 — Local
leave permits
This clause provides the authority for the Chief
Executive to authorise a young detainee to be absent from the detention place
within the ACT for a specified
period.
Sub-clause (1) requires a young
detainee who is the subject of a local leave direction under clause 239 to be
given a local leave permit. It is not intended that a transfer direction which
has the effect of transferring a young detainee to Court or a health facility as
permitted in chapter 5, would require a local leave
permit.
Sub-clause (2) allows the Chief
Executive to give a written permit (known as a local leave permit) to authorise
a young detainee’s absence from a detention place within the ACT for any
reason, after having regard to the young detainee’s best interests. For
example, the Chief Executive may provide a leave permit for a young detainee to
attend the funeral of a family member.
The
leave permit must outline the purpose for which the leave is granted and the
period for which it is granted being not longer than 7 days. However, this does
not include permits to attend educational or training programs or employment.
These activities may occur over a number of weeks for a certain amount of hours
each day. In these circumstances, the leave permit must state the venue of the
activity and the period for which the leave is granted which may be over 7 days.
The leave permit may be limited by any
condition prescribed by regulation or any other condition believed necessary and
reasonable by the Chief Executive. The conditions must be stated in the permit.
Any time spent on leave counts as time served in
detention.
For example, a transition plan for a
young detainee from the detention place to the community includes a vocational
training program that is 6 weeks in duration for four hours each day. The leave
permit must state where the vocational training program is being undertaken and
the length of the permit being 6 weeks. The permit is subject to the condition
that the young detainee may be absent on unescorted leave for 5 hours per day on
weekdays (4 hours program time and 1 hour traveling time).
Division 6.8.2 —
Interstate leave
Clause 241 —
Interstate leave permits
This clause authorises the Chief Executive to grant a
young detainee leave to travel to a State or Territory and stay in that State or
Territory, after having regard to the young detainee’s best interests. A
permit issued under this power must include the destination state, the purpose
of the leave and the period of leave approved. Interstate leave is limited to
less than 7 days, except when the leave is granted for employment or education
purposes which may occur over a number of weeks for a certain amount of hours
each day (for example, several hours of employment in Queanbeyan which may be
permitted as part of the young detainee’s transition
plan).
For young detainees with a high security
classification, interstate leave can only be issued for the purpose of receiving
a health service or compassionate reasons such as attending a funeral. Other
young detainees can be granted interstate leave for any purpose the Chief
Executive reasonably believes is appropriate. Any time spent on leave counts as
time served in detention.
Clause 242 — Effect
of interstate leave permit
This clause establishes that a leave permit may
authorise a young detainee to leave a detention place escorted or unescorted. If
an escort is required as a condition of the leave, the escort is authorised to
carry out their duty in the relevant State.
Clause 243 — Powers
of escort officers
This clause empowers an escort officer to give the young
detainee on interstate leave directions and to use force, when necessary, to
prevent escape or to arrest the young detainee following escape. An escort
officer is also authorised to conduct a scanning, frisk or ordinary search of
the young detainee in accordance with parts 7.2, 7.3 and 7.9, with any necessary
changes prescribed by regulation.
Division 6.8.3 — Leave -
miscellaneous
Clause 244 — Lawful
temporary absence from detention place
This clause clarifies that any young detainee who is
lawfully absent from a youth detention place is still in the legal custody of
the Chief Executive and if under escort, they are also taken to be in the escort
officer’s custody.
Chapter
7 — Criminal matters—search and seizure at detention
places
The provisions in this chapter re-enact provisions
introduced as part of the Children and Young People Amendment Act 2007.
New provisions include those that relate to searches of other people and use of
search dogs.
Searches of young detainees are
necessary to prevent the entry of unauthorised items that may harm any person
within a youth detention place, including young detainees. The Human Rights
Act 2004 provides at section 9 that everyone has the right to life. Public
authorities have a positive duty to protect the life of a person in care or
custody of the Territory. This search and seizure scheme, involving the use of
force in certain circumstances, will protect against the unlawful admittance of
contraband which could threaten the safety of young
detainees.
Strip searches and searches of body
cavities are inherently degrading, and therefore engage human rights law, in
particular sections 10(1)(b) (inhuman or degrading treatment), 11(2) (protection
of the child), 12 (privacy), and 19(1) (humane treatment) of the Human Rights
Act 2004.
To ensure that searches of young
detainees are proportionate to the necessary aim of the searches, the chapter
introduces a number of obligations on persons conducting or assisting with a
search. These obligations (outlined below) are introduced to ensure that young
detainees who are searched are treated humanely and with respect for their
inherent dignity, and are protected from unlawful or arbitrary interferences
with their privacy.
Some of the primary
obligations include:
• Searches must be
conducted in an area providing reasonable
privacy;
• The degree of visual inspection is
limited to that which is strictly
necessary;
• A requirement to consider any
information known about the young detainee’s individual characteristics
such as age, maturity, developmental capacity and history (for example - history
of abuse, impairment, sexuality, and religious or spiritual beliefs) in deciding
whether an invasive search is necessary and in how that search is conducted;
and
• A requirement to consider the
individual circumstances of the young detainee to determine if it is necessary
and prudent for a person with parental responsibility (or support person for
young detainees over 18 years) to be present during a strip search on admission
or a body search.
Part 7.1 —
Preliminary—ch 7
This part sets out whom the chapter applies to and key
definitions.
Clause 245 —
Definitions—ch 7
This clause sets out the definitions of the types of
searches and related terms contemplated by chapter
7.
The definitions are aligned with the
Crimes Act 1900, part 10.
Clause 246 —
Relationship with other laws
This clause provides that this chapter is additional to,
and does not limit, any other Territory, State or Commonwealth laws related to
searches of young detainees.
Part 7.2 — Searches
generally
This part provides the powers and procedures for
personal searches of children and young people who are detained at a youth
detention place.
Clause 247 — Searches
– intrusiveness
This clause obliges the person conducting a search under
this chapter to undertake the type of search that is commensurate with, and
proportionate to, the circumstances.
This
clause also invokes the principle of proportionality. The exercise of power
must be: necessary and rationally connected to the objective, the least
intrusive in order to accomplish the object, and not have a disproportionately
severe effect on the person to whom it
applies.
For this chapter, frisk, scanning and
ordinary searches are less intrusive searches than strip searches or body
searches.
Clause 248 — Searches
– use of search dog
This clause enables specially trained dogs to be used
during any searches authorised by this chapter of the
Bill.
Trained dogs have great acuity for
smelling and identifying particular substances, such as drugs. Enabling dogs to
be used for searches will reduce the time taken for searches and the level of
intrusiveness required for the
search.
Sub-clause (4) enables the Chief
Executive to make an operating procedure about the use, training and management
of search dogs.
Clause 249 — Searches
- transgender and intersex young detainees
A number of clauses in this chapter require that a
person conducting a search, or a person who is present at a search, be the same
sex as the young detainee being searched. These provisions would have an
ambiguous and potentially discriminatory application where the child or young
person being searched is an intersex person or transgender person. This clause
provides guidance on how the Chief Executive should determine the young
detainee’s sex for the purpose of conducting a search under this chapter
in these circumstances.
Clause 188(7)
requires that for the criminal matters chapters, the detainee’s sex is
taken to be that entered for the detainee in the register of young detainees.
For transgender or intersex young detainees who elect to be identified as a
certain sex, that sex will be entered in the
register.
Sub-clause (2) however envisages
circumstances where a transgender or intersex detainee does not elect to be
identified as a particular sex. In this circumstance, the sub-clause allows the
detainee to require that a search be conducted by a female or male, and the
detainee is taken to be treated as that sex for the purposes of this chapter.
For example, if the detainee chooses a female person to conduct the search, then
the detainee is taken to be female for the purposes of this chapter. This means
that other same sex requirements in the chapter (such as being present at a
strip search or assisting at a body search) would need to be fulfilled by a
female.
Clause 250 — Notice
of strip and body searches —person responsible for or nominated by young
detainee
This clause requires the Chief Executive to notify a
person with parental responsibility for the young detainee aged under 18 years
that a strip search (including but not limited to on admission) or a body search
will take place. For young detainees over 18 years, this should be the support
person nominated by the young detainee listed at clause 184(2)(n) of the
register.
If the person with parental
responsibility or support person cannot be contacted before the search is
conducted, or if it is impracticable to do so, for example because of the
urgency of the situation, they must be notified after the search is
conducted.
Part 7.3 — Scanning, frisk
and ordinary searches
This part provides the powers and obligations for
scanning, frisk and ordinary searches of children and young people who are
detained at a youth detention place.
Clause 251 —
Directions for scanning, frisk and ordinary searches
This clause enables the Chief Executive to direct a
youth detention officer to conduct a scanning search, frisk search or ordinary
search of a young detainee at any time that the Chief Executive believes is
prudent for security or good order at a youth detention
place.
Sub-clause (2) enables a youth detention
officer to conduct a scanning, frisk or ordinary search of a young detainee if
they suspect the young detainee is carrying a prohibited thing or something that
is a risk to the safety of the young detainee or others, may involve an offence
or is a risk to security or good order of the youth detention
place.
Clause 252 —
Requirements for scanning, frisk and ordinary searches
This clause sets out the procedures required for
scanning, frisk and ordinary searches.
This
clause obliges the youth detention officer conducting a search under this clause
to:
• tell the young detainee about the
search and the reasons for the search and ask for their
cooperation;
• ensure the young detainee
searched is left with or given reasonably appropriate clothing, if clothing is
seized because of the search;
• for frisk and
ordinary searches - conduct the search in an area that provides reasonable
privacy and ensure that the search is not carried out in the presence or sight
of someone whose presence is not necessary for the search, including another
young detainee; and
• for frisk searches -
ensure that the officer conducting the search is the same sex as the young
detainee, unless there is an imminent and serious threat to the personal safety
of the young detainee or someone else and compliance would exacerbate the
threat.
A requirement for the youth detention
officer to be the same sex as the young detainee to conduct a frisk search has
been established at sub-clause (3) as the search involves touching of the young
detainee's outer clothing. Ordinary and scanning searches however are less
intrusive searches than frisk searches as there is no touching of the young
detainee, therefore there is no similar same sex requirement. To protect the
privacy and dignity of the detainee in an ordinary search, which involves the
removal of outer clothing (such as a jacket, gloves or footwear) or for a frisk
search, the Bill at sub-clause (2) requires that the search be conducted in a
private area.
At sub-clause (4), the same sex
requirement to conduct a frisk search can be displaced in very limited
circumstances where the Chief Executive believes there is an imminent and
serious threat to the personal safety of the young detainee or someone else and
compliance would exacerbate the threat. While this engages human rights at
sections 10(1)(b) (inhuman or degrading treatment), 12 (privacy), and 19(1)
(humane treatment) under the Human Rights Act 2004, it is a proportionate
and justifiable limitation as public authorities have a positive duty to protect
the life of a person in the custody of the Territory. The Human Rights Act
2004 provides at section 9 that everyone has the right to life.
An example of when the same sex requirement
for a frisk search can be displaced is as follows. A female youth detention
officer accompanies a group of young detainees from the kitchen area to another
area in the detention place. The youth detention officer is informed by a young
detainee that he has seen a young male detainee in the group pick up a knife.
When asked by the youth detention officer, the male detainee denies that he has
picked up the knife. The youth detention officer believes that the delay in
waiting for a male officer to conduct a frisk search of the young detainee could
exacerbate the risk to the other detainees. The female officer conducts the
search after seeking approval from the appropriate delegate of the Chief
Executive to do so.
Part 7.4 — Strip
searches—young detainees
This part provides the powers and obligations for strip
searches of children and young people who are detained at a youth detention
place.
Clause 253 — Strip
searches on admission to detention place
Preventing contraband finding its way into a youth
detention place, particularly weapons and drugs, is an important method of
keeping every person in a youth detention place
safe.
This clause enables the Chief Executive
to direct a strip search upon admission without the need to decide if a search
is warranted by any evidence of a young detainee concealing something.
Admission to a youth detention place is a high risk time for the entry of
contraband. This clause intends to enable a strip search to occur where it is
considered to be necessary as part of the admission
process.
Clause 280 enables any contraband, or
suspected contraband, to be seized by the Chief
Executive.
Sub-clauses (1) and (4) require the
Chief Executive to first ascertain whether a strip search is necessary, after
considering any information known about the young detainee’s age,
maturity, developmental capacity and known history (for example - history of
abuse, impairment, sexuality and religious or spiritual beliefs).
For young detainees under 18 years,
sub-clauses (2) and (4) require the Chief Executive to then ascertain if it is
necessary for the strip search to be undertaken in the presence of a person with
parental responsibility, after considering the young detainee’s age,
maturity, developmental capacity and known history (for example - history of
abuse, impairment, sexuality and religious or spiritual beliefs). The Chief
Executive also needs to have regard to whether it is in the best interests of
the young detainee for the person with parental responsibility to attend the
strip search. For example, the Chief Executive may be aware that the person
with parental responsibility has posed a risk to the young detainee in the past
by attempting to bring contraband into the youth detention place and giving it
to the young detainee. The young detainee must also agree to the presence of
the person with parental responsibility.
For
young detainees aged 18 years and over, sub-clause (3) allows the Chief
Executive to arrange for the strip search to be conducted in the presence of a
support person nominated by the young detainee, in circumstances where the Chief
Executive considers their presence to be necessary or desirable because of the
young detainee’s vulnerability (for example, developmental capacity,
impairment or history of abuse). A support person can be any person who the
Chief Executive considers desirable (for example, someone who does not pose a
risk to security or good order) and whose presence is agreed to by the young
detainee. It is not intended to be limited to the detainee’s support
person at 184(2)(n) of the register.
Clause 254 — Strip
searches of young detainees under 18 years old - no-one with parental
responsibility available
Where it has been determined by the Chief Executive that
it is necessary and prudent for a person with parental responsibility to attend
under clause 253(2), this clause requires that if that person cannot be
contacted or is unavailable to attend the search or the young detainee does not
agree with their presence, then the search must be conducted in the presence of
someone else who can support and represent the young detainee’s interests
and is acceptable to the young detainee. This may include a delegate of the
Chief Executive who is capable of fulfilling this
function.
Sub-clause (3) provides that if the
young detainee does not agree to the presence of a support person, or if the
Chief Executive directs the person to leave under 255(2), then the search can
continue in their absence.
Clause 255 — Strip
searches on admission—directing person to leave
This clause allows the Chief Executive to direct a
person present for a strip search to leave if they are acting in a way that
prevents or hinders the search from being undertaken effectively. For example,
if the person engages in behaviour that causes distress, including verbally
abusing the youth detention officer conducting the search. Clause 254(3) allows
the search to continue in this circumstance.
Clause 256 — Removing
people from search area
This clause allows the Chief Executive to direct a youth
detention officer to use force which is necessary and reasonable to ensure
compliance with a direction to leave a strip search under clause
255(2).
Clause 257 — Strip
searches directed by Chief Executive
This clause enables the Chief Executive to direct a
youth detention officer to conduct a strip search if the Chief Executive
suspects that the young detainee may be carrying a prohibited thing, something
that may be used in a way that may involve an offence or behaviour breach,
something that could injure anyone at the youth detention place or elsewhere, or
be a risk to the security or good order of the youth detention
place.
This clause provides that a strip search
must not be conducted unless a scanning, frisk or ordinary search has already
been carried out for that purpose.
This clause
does not apply to strip searches on admission to the youth detention
place.
Clause 258 —
Obligations on youth detention officers before strip searches
This clause sets out the rules that the youth detention
officer must comply with before a strip search is conducted, including telling a
young detainee whether they will be required to remove any clothing, and the
reasons for this if a young detainee seeks an explanation; and seeking the
cooperation of the young detainee.
Clause 259 — Youth
detention officers at strip searches
Sub-clause (1)(a) requires that a strip search must be
conducted by a youth detention officer who is the same sex as the young
detainee.
Sub-clause (1)(b) requires that the
strip search must be conducted in the presence of one or more youth detention
officers who are the same sex as the young detainee, and sub-clause (2) requires
the number of officers present during the search to be no more than is necessary
and reasonable to ensure the search is carried out safely and as effectively as
possible.
Sub-clause (3) enables officers to
assist in the search, if the officer conducting the search reasonably believes
it is necessary and reasonable for the search.
Sub-clause (4) allows officers present at the
search to be the opposite sex, if the Chief Executive reasonably believes there
is an imminent and serious threat to the young detainee’s personal safety
and also reasonably believes that compliance with the same-sex requirement would
exacerbate that threat. As this is a limitation on the young detainee’s
right to privacy and dignity, the Bill introduces a new requirement at clause
194(2)(e) to record (in the register of searches and use of force) incidents
where the same sex requirement was not complied with, detailing the Chief
Executive’s reasons for believing the requirement did not apply.
An example of when this power would be
required is when a male youth detention officer receives information that a male
young detainee has a knife concealed under their clothes. The young detainee is
taken to a private area and the officer conducts a scanning, frisk or ordinary
search but fails to detect the knife. The officer considers it necessary to
conduct a strip search, however there will be a delay in getting another male
officer to observe the search (as they are located in another part of the
detention place). The officer believes that the delay in waiting for the male
officer to observe the search will exacerbate the serious and imminent threat to
the detainee’s personal safety. The officer, after seeking approval from
a delegate of the Chief Executive, conducts the strip search in the presence of
a female officer. The reasons for not complying with a same sex requirement are
entered in the register at clause 194(2)(e).
Clause 260 — Strip
searches—general rules
This clause sets out the general rules that the youth
detention officer must comply with during the conduct of a strip
search:
• the search must be conducted as
quickly as possible and in a way that provides reasonable privacy and is
appropriate to the young detainee’s sexuality, impairment or history (for
example - history of abuse and religious or spiritual
beliefs);
• a search must not be conducted in
the presence of anyone who is of the opposite sex, except if they are a
non-treating doctor or non-treating nurse who is acceptable to the young
detainee, or a person with parental responsibility or a support person, or a
youth detention officer present at the
search;
• a search must not be conducted in
the presence or sight of anyone whose presence is not necessary for the search
or for the safety of anyone present;
and
• the touching of a young
detainee’s body is not permitted.
Clause 261 — Strip
searches—rules about visual inspection of young detainee’s
body
This clause sets out the rules about the visual
inspection of a young detainee’s body during a strip search which the
youth detention officer must comply
with:
• The young detainee’s genital
area (or female young detainee’s breasts) must not be visually inspected
for the search unless it is necessary to do so;
and
• The search must not involve more visual
inspection of the young detainee’s body than is reasonably necessary.
Visual inspection of the young detainee’s genital area, anal area, buttock
and breasts must be kept to a minimum.
Clause 262 — Strip
searches—rules about young detainees’ clothing
This clause sets out the rules about the young
detainee’s clothing during a strip search that the youth detention officer
must comply with:
• A search must not involve
the removal of more clothes, or the removal of more clothes at any time, than is
reasonably necessary. A person must not be more than half undressed at one
time;
• The person must be allowed to dress
in private as soon as the whole search process is finished;
and
• If clothing is seized during the
search, the person must be offered adequate replacements.
Part 7.5 — Body
searches—young detainees
Clause 263 — Body
searches directed by Chief Executive
Body searches are the most intrusive search possible.
This clause authorises contact with a young detainee’s orifices to enable
a physical search of the young detainee’s orifices, known as a body
search.
Sub-clause (1) enables the Chief
Executive to authorise a non-treating doctor to conduct a body search of a young
detainee if the Chief Executive reasonably suspects: the young detainee has
ingested or inserted something that may be harmful to themselves; or the young
detainee has a prohibited thing concealed in their body that may be used in a
way that may pose a substantial risk to security or good order at a youth
detention place. Sub-clause (2) requires the Chief Executive, in deciding to
authorise a body search, to give consideration to the young detainee’s
age, maturity, developmental capacity and known history (for example - history
of abuse, impairment, sexuality and religious or spiritual
beliefs).
A non-treating doctor acting under
this clause is immune from civil liability under clause 877 of the Bill if their
conduct is engaged in honestly and without recklessness.
Clause 264 —
Obligations of Chief Executive before body searches
This clause sets out the rules that the Chief Executive
must comply with before a non-treating doctor is authorised to conduct a body
search, including telling a young detainee whether they will be required to
remove any clothing, and the reasons for this if a young detainee seeks an
explanation; and seeking the cooperation of the young detainee.
Clause 265 — People
present at body searches
This clause sets out who can be present at a body
search.
Sub-clause (2) ensures a non-treating
nurse is also present at the search and that of the two medical people present
at the search, at least one must be the same sex as the young
detainee.
Sub-clause (3) allows the Chief
Executive to direct one or more youth detention officers to be present at the
search. Sub-clause (4) requires the number of officers present during the
search to be no more than is necessary and reasonable to ensure the search is
carried out safely and as effectively as possible.
Sub-clause (5) allows officers present at the
search to be the opposite sex, if the Chief Executive reasonably believes there
is an imminent and serious threat to personal safety and also reasonably
believes that compliance with the same sex requirement would exacerbate that
threat. As this is a limitation on the young detainee’s right to privacy
and dignity, the Bill introduces a new requirement at 194(2)(e) to record (in
the register of searches and use of force) incidents where the same sex
requirement was not complied with, detailing the Chief Executive’s reasons
for believing the requirement did not apply.
Sub-clause (6) requires that for young
detainees under 18 years, the search must be conducted in the presence of a
person with parental responsibility if their presence is believed by the Chief
Executive to be necessary and in the young detainee’s best interests,
after considering the young detainee’s age, maturity, developmental
capacity and history (for example - history of abuse, impairment, sexuality and
religious or spiritual beliefs). The young detainee must agree for them to be
present. The detainee’s best interests, in this context, would include
whether the Chief Executive considered the person with parental responsibility
to be acceptable to attend the search and if the search was not required in an
emergency.
For young detainees aged 18 years
and over, sub-clause (8) allows the Chief Executive to arrange for the body
search to be conducted in the presence of a support person, in circumstances
where the Chief Executive considers their presence to be necessary or desirable
because of the detainee’s vulnerability (for example, developmental
capacity, impairment or history of abuse). A support person can be any person
who the Chief Executive considers desirable (for example, someone who does not
pose a risk to the young detainee) and whose presence is agreed to by the young
detainee. Given the intrusiveness of a body search, it is not intended to be
limited to the detainee’s nominated support person at 184(2)(n) of the
register.
Clause 266 — Body
searches of young detainees under 18 years old - no-one with parental
responsibility available
Where it has been determined by the Chief Executive that
it is necessary for a person with parental responsibility to attend under clause
265(6), this clause requires that if that person cannot be contacted or is
unavailable to attend the search or the young detainee does not agree with their
presence, then the search must be conducted in the presence of someone else who
can support and represent the young detainee’s interests and is acceptable
to the young detainee. This may include a youth detention officer who is
capable of fulfilling this function.
Sub-clause
(3) provides that if the young detainee does not agree to the presence of a
support person, or if the Chief Executive directs the person to leave under
267(2), then the search can continue in their absence.
Clause 267 — Body
searches—directing people to leave
This clause allows the Chief Executive to direct a
person present for a search to leave if they are acting in a way that prevents
or hinders the search from being undertaken effectively. Sub-clause 266(3)
allows the search to continue in this circumstance.
Clause 268 — Removing
people from search area
This clause allows the Chief Executive to direct a youth
detention officer to use force which is necessary and reasonable to ensure
compliance with a direction to leave a body search under clause
267(2).
Clause 269 — Help for
body searches
This clause allows a non-treating doctor conducting a
body search to ask the Chief Executive for assistance that the non-treating
doctor believes is reasonable and necessary for the search. The Chief Executive
is enabled to direct or authorise a youth detention officer or someone else
present for the search to assist in its conduct.
The person providing the assistance must be
the same sex as the detainee except if the Chief Executive reasonably believes
there is an imminent and serious threat to personal safety and also reasonably
believes that compliance with the same-sex requirement would exacerbate that
threat. As this is a limitation on the young detainee’s right to privacy
and dignity, the Bill introduces a new requirement at 194(2)(e) to record (in
the register of searches and use of force) searches where the same sex
requirement was not complied with, detailing the Chief Executive’s reasons
for believing the requirement did not apply.
A
person assisting under this clause is immune from civil liability under clause
877 of the Bill if their conduct is engaged in honestly and without
recklessness.
Clause 270 — Body
searches—rules about young detainees’ clothing
This clause sets out the rules about the young
detainee’s clothing during a body search that must be complied
with:
• A search must not involve the removal
of more clothes, or the removal of more clothes at any time, than is reasonably
necessary. A person must not be more than half undressed at one
time;
• The person must be allowed to dress
in private as soon as the whole search process is finished;
and
• If clothing is seized, the person must
be offered adequate replacements.
Clause 271 — Body
searches—rules about touching young detainees
This clause allows a non-treating doctor, who is
authorised by the Chief Executive to conduct the body search, to touch and
examine the young detainee’s body orifices for the search. The
non-treating nurse, who is present but not conducting the search, may touch and
examine the young detainee’s orifices.
Clause 272 — Seizing
things discovered during body searches
Sub-clause (1) allows anything discovered during the
search to be seized by the non-treating doctor, unless seizing the thing would
cause injury to the young detainee or someone else. Sub-clause (2) requires
anything seized to be passed on to the relevant youth detention officer as soon
as practicable.
Part 7.6 — Searching
people other than detainees
Clause 273 — Searches
of people other than detainees
This clause empowers the Chief Executive to direct a
scanning search, frisk search or ordinary search of anyone working at or
visiting a detention place. The discretion to order a search by the Chief
Executive must be based upon the need to uphold the safety and security of the
detention place. The exercise of this discretion is not based upon
individualised suspicion.
Directions and
requirements for scanning, frisk and ordinary searches outlined at part 7.3
apply to the conduct of a search under this part. Force cannot be used to
ensure compliance with a search under this part.
Part 7.7 — Searches of
premises and property
This part provides the powers and obligations for
searches of premises and property at a youth detention place.
Clause 274 —
Searches—premises and property generally
This clause enables the Chief Executive to search any
part of a youth detention place; anything at a centre; and any vehicle used to
transport a young detainee. The examples provided clarify the intended extent
of the powers. The power extends to any possessions in a young detainee’s
cell or carried by a young detainee, but not to the extent of the young
detainee’s clothing.
The power does not
extend to searches of young detainees or other persons in the youth detention
place as this is addressed in parts 7.2, 7.3, 7.4, 7.5 and 7.6.
Searches of premises and property may be
conducted physically, with the aid of an electronic device or other technology,
or with the assistance of a search dog.
Clause 275 — Searches
of young detainee cells—privileged material
This clause allows a youth detention officer to search a
cell in the absence of a young detainee, provided that the young detainee
removes any privileged material from the cell or the material is stored in
accordance with arrangements for secure storage made by the Chief Executive. A
search undertaken under this section must be entered at the register of searches
and use of force at clause 194.
Clause 276 — Searches
of young detainee cells—suspected privileged material
This clause provides obligations for the youth detention
officer in searching a cell if they suspect the young detainee’s cell
contains privileged information.
The following
rules apply:
• The young detainee must be
present for the search, except if it is urgent and the officer believes that
complying with this rule would create a risk of injury to any
person.
• The search may include an
examination of any privileged material found in the
cell.
• The officer must not read the
privileged material, except if it is urgent and the officer believes that
complying with this rule would create a risk of injury to any
person.
A search undertaken under this section
must be entered at the register of searches and use of force at clause
194.
Part 7.8 —
Searches—use of force
This part provides the powers and obligations for using
force to carry out a search under this chapter.
Clause 277 —
Searches— use of force
The United Nations Rules for the Protection of
Juveniles Deprived of their Liberty (Rules 63-65) provides that instruments
of restraint and force:
• can only be used in
exceptional cases, where all other control methods have been exhausted and
failed, and only as explicitly authorised and specified by law and regulation;
• may be resorted to prevent self-injury,
injuries to others or serious destruction of
property;
• should not cause humiliation and
degradation, should be used restrictively and for the shortest possible period
of time ;
• if used, medical and other
relevant personnel should be consulted and its use reported to a higher
administrative authority; and
• carrying and
use of weapons by personnel is prohibited in any facility where juveniles are
detained.
The Standard Minimum Rules for the
Treatment of Prisoners (Rules 33-34 and 54) provides
that:
• use of force can be used in cases of
attempted escape, or active or passive physical resistance to an order based on
law or regulations;
• force can be used no
more than is strictly necessary and incidents must be reported immediately to a
higher administrative authority;
• officers
shall be given special physical training to enable them to restrain aggressive
prisoners; and
• restraint as a punishment is
prohibited.
This clause explicitly enables the
use of force to carry out a search or secure anything seized, or that needs to
be seized, in a search. The effect of this clause is that reasonable force can
be used to secure a young detainee’s compliance with the search.
The inappropriate use of force could
potentially cause injury to the young detainee, limits the ability of
individuals to move freely and is inherently degrading. It therefore engages
principles of human rights, in particular sections 9(1) (right to life),
10(1)(b) (cruel, inhuman or degrading treatment), 11(2) (protection of the
child), 13 (freedom of movement) and 19(1) (humane treatment) of the Human
Rights Act 2004.
Under this clause, the
youth detention officer may only use force in accordance with division
6.6.4.
Part 7.9 — Seizing
property
This part provides the powers and procedures for seizing
property at the youth detention place.
Clause 278 — Meaning
of owner—pt 7.9
This clause sets out the meaning of the owner of a thing
for this part. This clarifies that an owner of an item may be a person who is
entitled to possession, but not in possession of the item. For example, a young
detainee may be the owner of something mailed to them, intended as a
gift.
Clause 279 — Seizing
mail etc
Sub-clause (1) enables the Chief Executive to seize
prohibited things in a young detainee’s mail, or any other thing in the
mail that may harm someone. Clause 147 enables the Chief Executive to declare
things, or classes of things, to be
prohibited.
An example of something that may be
suspected of causing harm is a substance that is or resembles explosive
material, biological agents or
poisons.
Sub-clause (2) enables the Chief
Executive to seize a young detainee’s mail if the Chief Executive believes
that doing so would stop the transmission or entry of a prohibited thing. It
also enables the Chief Executive to seize mail if the correspondence itself will
cause harm of any nature, is not in the young detainee’s best interests or
is a means of making an unauthorised
purchase.
An example of correspondence that is
not in a young detainee’s best interests would include mail addressed to a
young detainee by a person convicted of a sexual offence against a child or
young person.
Sub-clause (3) enables the Chief
Executive to seize a document, provided that the Chief Executive can reasonably
ascertain that the document is not privileged. Sub-clause (4) provides for the
immediate return of material to the young detainee which, though reasonably
believed not to be privileged, turns out to be privileged. See clause 147 for
the meaning of privileged material.
Clause 280 — Seizing
property—general
This clause enables the Chief Executive to seize a
person’s property if the Chief Executive believes that the property would
jeopardise the security or good order of the centre or the safety of anyone at
the centre or elsewhere.
This clause also
enables the Chief Executive to seize property that is intended for the
commission of an offence or a behaviour
breach.
Any prohibited thing found during a
search may also be seized unless written approval exists for the person to
possess the thing.
Sub-clause (3) enables the
Chief Executive to seize a document, provided that the Chief Executive can
reasonably ascertain that the document is not privileged. See clause 147 for
the meaning of privileged material.
Clause 281 — Notice
of seizure
This clause obliges the Chief Executive to notify
certain persons of things seized under this
chapter.
The owner, or if the owner cannot be
located, the person in possession of the thing when it was seized, must be
notified in writing within 7 days.
Sub-clause
(3) sets out what must be in the notice. The meaning of owner is at clause
278.
Clause 282 —
Forfeiture of things seized
This clause provides an explicit power for things seized
to be forfeited to the Territory.
If an item is
allowed to be possessed by a young detainee but the owner cannot be found, or
the thing cannot be returned to the owner, the item may be forfeited to the
Territory.
If an item is prohibited, or may be
used to commit an offence, is a behaviour breach, is unsafe or a risk to
security or good order, the item may be forfeited to the
Territory.
Sub-clause (2) enables the Chief
Executive to make a decision about what to do with the forfeited item. For
example, weapons or drugs may be passed on to the police for destruction; other
items may be passed to the public trustee for sale; other items may be kept for
the general use of the youth detention
place.
The Uncollected Goods Act 1996
provides for the disposal of abandoned goods.
Clause 283 — Return
of things seized but not forfeited
If something is seized under clause 279 or 280 but not
forfeited, the Chief Executive is obliged to return the thing to its owner at
the end of 6 months after it was seized, or if a proceeding for an offence or
behavioural breach involving the thing has commenced within that 6 months, then
at the end of that proceeding and any appeal or
review.
If an item is no longer required to be
retained as evidence, the Chief Executive must return it immediately to the
owner.
Chapter
8 — Criminal matters – discipline at detention
places
This chapter provides a framework for responding to
behaviour breaches by young detainees in the detention place. The chapter
creates a distinction between low-level breaches (minor behaviour breaches) and
breaches which are of a persistent or serious nature (behaviour breaches).
Minor behaviour breaches may be dealt with through the behaviour management
framework and this could lead to the imposition of behaviour management
consequences prescribed by the Bill. Behaviour breaches may be dealt with
through the discipline process of administrative charging and hearing, leading
to the imposition of behaviour management
consequences.
The Human Rights Audit of
Quamby Youth Detention Centre made a number of recommendations in relation
to the behaviour management system. The Audit recommended that the behaviour
management system should be comprehensively reviewed and given a specific
legislative basis to ensure clarity and consistency in implementation. This
chapter and chapter 9 give effect to the Government’s agreement to this
recommendation.
This chapter and chapter 9 also
incorporate human rights protections such as those outlined in the United
Nations Rules for the Protection of Juveniles Deprived of their Liberty.
The Rules provide that:
“Rule 68 -
Legislation or regulations adopted by the competent administrative authority
should establish norms concerning the following, taking full account of the
fundamental characteristics, needs and rights of juveniles:
1. Conduct constituting a disciplinary
offence;
2. Type and duration of disciplinary
sanctions that may be inflicted;
3. The
authority competent to impose such sanctions;
4. The authority competent to consider
appeals.
Rule 69. A report of misconduct
should be presented promptly to the competent authority, which should decide on
it without undue delay. The competent authority should conduct a thorough
examination of the case.
Rule 70. No
juvenile should be disciplinarily sanctioned except in strict accordance with
the terms of the law and regulations in force. No juvenile should be sanctioned
unless he or she has been informed of the alleged infraction in a manner
appropriate to the full understanding of the juvenile, and given a proper
opportunity of presenting his or her defence, including the right of appeal to a
competent impartial authority. Complete records should be kept of all
disciplinary proceedings”.
This chapter
is modelled on the discipline scheme introduced as part of the Corrections
Management Act 2007, with appropriate modifications for young detainees.
The provisions in this chapter and chapter
9:
• accord young detainees procedural
fairness and natural justice in responding to an alleged behaviour
breach;
• allow the behaviour management
framework to reinforce positive behaviour in reflection of the age and
developmental maturity of young detainees, not only respond to negative,
undesirable behaviour;
• allow young
detainees to have the assistance of two support persons at critical points of
the process;
• require any response to
behaviour breaches, including the imposition of behaviour management
consequences, to be proportionate to the circumstances of the breach;
and
• address human rights requirements that
there is separation between criminal proceedings and administrative proceedings.
Part 8.1 — Discipline at
detention places – general
Clause 284 —
Application – ch 8
This clause states that the chapter applies to behaviour
breaches and allegations of behaviour breaches by young
detainees.
Clause 285 —
Definitions – ch 8
This clause outlines definitions for the chapter
including definitions for accused detainee, administrator, allegation report,
behaviour management framework, minor behaviour breach, behaviour breach, charge
notice, behaviour management consequences, and reporting and investigation
procedure.
A definition of support person is
also included in this clause. A support person can be chosen by a young
detainee for help, support or representation in relation to action under
chapters 8 or 9 which is disciplinary in nature. The Chief Executive must
consider that the support person is capable of providing some help to the young
detainee or is capable of representing their interests.
The Chief Executive must also consider that it
is in best interests of the young detainee for the person to be their support
person. An example of when the Chief Executive may consider that it is not in a
young detainee’s best interests for a person to be the young
detainee’s support person is if the person has previously brought
contraband into the detention place.
Examples
of support persons are included. Support persons may include a statutory office
holder such as the Public Advocate, a lawyer, family members or friends of the
young detainee with the Chief Executive’s
agreement.
The Bill contemplates that a young
detainee may want two support persons to assist him or her, such as parents.
This is allowed under clauses 299(2), 303(2) and 309(2).
Clause 286 — Meaning
of behaviour breach
This clause lists the behaviour that constitutes a
behaviour breach under the chapter. It includes behaviour that may also
constitute a criminal offence and minor behaviour breaches as defined under
clause 286.
Clause 287 — Meaning
of minor behaviour breach
This clause provides a definition for minor behaviour
breach. A minor behaviour breach is a behaviour breach listed in clause 285
that does not involve a serious risk to the health or safety of a person or
security or good order.
Clause 288 — Meaning
of privilege
This clause provides that a ‘privilege’ is
any benefit a young detainee may have, material or otherwise, beyond the minimum
entitlements set out in chapter 6. In this chapter, loss of privilege can be
imposed as an administrative penalty in response to a behaviour breach or minor
behaviour breach.
The meaning of privilege is
not intended to include using common areas at a detention place for mixing with
other young detainees, or participating in activities other than those forming
part of a young detainee’s case management plan. Freedom of association
is a fundamental human right, the application of which is reinforced by section
15 of the Human Rights Act 2004.
Clause 289 —
Overlapping behaviour breaches and criminal offences
This clause sets out the rules for when a disciplinary
process must stop, or may continue, if a criminal process is in progress,
where:
• a criminal prosecution cannot
commence or continue if disciplinary action has been taken to address the
behaviour, incident or act;
• disciplinary
process cannot commence or continue if a criminal prosecution has
commenced;
• disciplinary action cannot be
imposed upon a young detainee if the young detainee has been convicted of a
criminal offence relating to the same behaviour, incident or act;
• if a criminal prosecution acquits a young
detainee on a criminal charge, a disciplinary process may begin or continue for
the same behaviour, incident or act.
This
clause is not intended to limit the discretion to separately deal with several
behaviour breaches that are committed during a single incident (for example if a
young detainee is alleged to have been disrespectful towards someone, break a
window and physically assault a person within a 10 minute period). For example,
the behaviour breaches of being disrespectful and breaking a window may be dealt
with under the behaviour management framework, while the assault of a person may
be referred to the police or the Director of Public Prosecutions.
Part 8.2 — Responding to
behaviour breaches
This part sets out the powers and functions of persons
involved in the discipline process. There are three primary roles – the
youth detention officer who reports an alleged breach, the authorised or
appointed person who investigates the breach, and the administrator who makes a
disciplinary charge.
At each stage in the
process, the authorised persons can take immediate, informal action that does
not involve a sanction. In relation to any one breach, the tasks of reporter,
investigator or administrator must be undertaken by different
persons.
Clause 290 — Who is
an investigator?
This clause provides that the term
‘investigator’ denotes the functions associated with the
investigation of disciplinary breaches that are delegated to an authorised
person by the Chief Executive or undertaken by a person appointed under
291.
Clause 291 —
Appointment of investigators
This clause enables a person other than an authorised
person to be engaged to investigate disciplinary breaches. Should a major
incident occur within the youth detention centre, it may be necessary to engage
an external person to conduct investigations to either manage the work load or
ensure objectivity.
Clause 292 — Report
etc by youth detention officer
This clause contains two powers: one power for the youth
detention officer to take immediate, informal action that does not involve a
sanction (enabling the officer to deal with incidents as they happen without
having to resort to a formal disciplinary process for every infraction). The
second power is to report an alleged behaviour breach to an investigating
officer (to be called an allegation report).
The clause requires an allegation report to be
made in accordance with the reporting and investigation procedures, outlined at
clause 293.
Clause 293 —
Reporting and investigation procedures
This clause requires the Chief Executive to make
reporting and investigation procedures for the making, recording and
investigating of allegation reports by way of notifiable instrument.
This clause sets out what the procedures must
provide for at a minimum. This
includes:
• that allegation reports must be
in writing and given to an administrator;
• in relation to any one breach, the tasks
of reporter, investigator or administrator must be done by different
persons;
• that the young detainee must be
given notice about the allegation report in a language and way the young
detainee can understand;
• that the young
detainee has a right to contact one or two support persons to assist him or her
to respond to an alleged behaviour breach. The meaning of a support person is
set out at clause 285; and
• that a young
detainee must be informed of their right to contact one or two support persons
for assistance in responding to an alleged behaviour breach.
Clause 294 — Action
by administrator
This clause sets out the administrator’s powers in
response to an allegation report. The administrator means an authorised person
to whom the Chief Executive has delegated functions of an administrator under
this chapter.
The administrator must consider
the allegation report and may arrange for further investigation by an
investigator if considered necessary. This investigation must be undertaken in
accordance with the reporting and investigation procedures.
After considering the report, the
administrator can take the following action which the administrator considers
reasonable and proportionate in the
circumstances:
• Discuss the behaviour with
the young detainee in the form of counselling, warning or
reprimanding;
• Deal with the young detainee
under the behaviour management framework if it is a minor behaviour
breach;
• Charge the young detainee with a
breach;
• Refer the matter to the Chief
Police Officer or the Director of Public Prosecutions. Any referral of this
nature must be in writing and include the allegation report and any other
reports about investigations conducted regarding the alleged behaviour breach.
The administrator also has the option of
taking no further action in relation to the report.
Sub-clause (5) requires the administrator to
review any previous minor behaviour breaches and consequences imposed before
deciding what action to take for a minor behaviour breach.
Clause 295 —
Disciplinary charge
This clause stipulates the requirements for charging a
young detainee with a behaviour breach. The young detainee must be informed in
writing of a behaviour breach charge. The administrator must include the
behaviour breach charged; a statement of the conduct that gave rise to the
charge; the option of accepting the charge and consenting to disciplinary action
proposed by the administrator in relation to the charge; and detailing the
disciplinary action the administrator considers appropriate to account for the
breach.
Part 8.3 — Dealing with
minor behaviour breaches
This part sets out the framework for dealing with minor
behaviour breaches.
Clause 296 —
Behaviour management framework
This clause requires the Chief Executive to establish a
behaviour management framework for responding to minor behaviour breaches. The
framework will be publicly available by way of notifiable instrument.
This clause sets out what the framework must
provide for at a minimum. This includes:
• A
framework for ensuring that any behaviour management consequences imposed on a
young detainee are reasonable and proportionate to the minor behaviour
breach;
• Guidance for how privileges can be
withdrawn for minor behaviour breaches;
and
• A mechanism for internal review by the
Chief Executive, upon the Chief Executive’s own initiative or upon request
of a young detainee, of decisions to impose behaviour management consequences
for minor behaviour breaches. This is to ensure that young detainees who
receive behaviour management consequences for minor behaviour breaches have an
avenue to seek a review of the decision.
Clause 297 —
Behaviour management framework – behaviour management
consequences
This clause sets out the maximum administrative
penalties (called behaviour management consequences) that may be imposed for a
minor behaviour breach under the behaviour management
framework.
The maximum behaviour management
consequences that may be imposed under the behaviour management framework are
proportionately less than could be imposed as behaviour management consequences
for a behaviour breach under the disciplinary framework. This reflects that a
minor behaviour breach is not as serious or persistent as a behaviour breach and
should be dealt with by way of lesser penalty.
The maximum behaviour management consequences
are:
• A fine of not more than
$25;
• A withdrawal of privileges, for not
longer than 6 days;
• A requirement to make
an apology to an affected person;
• A
requirement to perform extra chores, for not longer than 2
hours;
• Anything prescribed by regulation to
be a behaviour management consequence for the behaviour management framework
which is reasonable and proportionate to minor behaviour
breaches.
In relation to the consequence of a
fine, clause 193 provides for the deduction of money from a young
detainee’s trust account for the purpose of paying a fine.
Privilege is defined in clause 288.
Withdrawal of privileges may involve, for example, the loss of radio,
television, MP3 players, hobbies and crafts. Withdrawal of privileges could not
result in a loss of freedom of association with others in the detention place or
a loss of activities contained in a young detainee’s case management plan
or any other entitlement outlined in clause 140 relating to minimum living
conditions. Any minimum living condition in chapter 6 that is not prescribed to
be an entitlement can be regarded as a
privilege.
The administrator must have regard
to the individual characteristics of the young detainee, including age,
developmental capacity, rehabilitation needs and any known history, in deciding
whether to impose an administrative penalty. ‘Any known history’ is
intended to be construed broadly to encapsulate the personal history of the
child or young person which is known to the administrator, for example, any
history of abuse or neglect, past behaviour or health needs and risks. The
administrator is required to be satisfied that any penalty is reasonable and
proportionate to the circumstances and gravity of the behaviour breach.
Clause 298 —
Behaviour management framework - limits
This clause includes a new rule to ensure that a young
detainee can not indefinitely receive consequences under the behaviour
management framework without review which would otherwise be available to the
young detainee if the breach was dealt with under the disciplinary process.
The rule is that after a young detainee
reaches half the maximum consequence under the discipline framework for fines,
withdrawal of privileges or requirements to perform extra chores, then any
future minor behaviour breach alleged to have been committed by the young
detainee must be dealt with under the discipline framework and not the behaviour
management framework.
For example, over a
period of 6 months, a young detainee commits 5 minor behaviour breaches and the
consequence of each breach is a fine of $25. The young detainee allegedly
commits a sixth minor behaviour breach. As the young detainee’s
consequences for the previous 5 breaches have cumulatively totalled half the
maximum consequence for a disciplinary breach (ie. $125), the administrator must
not decide to deal with the breach by way of the behaviour management framework.
However, sub-clause (3) clarifies that the
administrator may take any other action under clause 294 for a subsequent minor
behaviour breach, including counselling, warning, reprimanding, referring the
alleged breach to the Chief Police Officer or Director of Public Prosecutions or
charging the young detainee for the behaviour breach. The administrator also
retains discretion to take no further action.
Clause 294(5) requires the administrator to
review any previous minor behaviour breaches and consequences imposed before
deciding what action to take, if any, for a minor behaviour
breach.
Part 8.4 — Disciplinary
action – behaviour breach
charged
Division
8.4.1 — Disciplinary action by administrator
This division provides the young detainee with options
to admit to the behaviour breach charged and accept proposed disciplinary action
under division 8.4.1 or apply for a review of the charge under division
8.4.2.
Clause 299 — Right to
contact support person – disciplinary action by
administrator
This clause provides an entitlement for a young detainee
to contact one or two support persons if they have been given a charge notice to
help the young detainee with having the charge dealt with under this division.
In order for the young detainee to contact a
support person or persons, the Chief Executive is obliged to provide access to
facilities as soon as practicable, for example, a telephone.
Clause 300 —
Behaviour breach admitted by accused detainee
This clause provides the young detainee with the option
of admitting to a charge and accepting proposed disciplinary action.
As this is a formal process, the young
detainee’s decision to admit to a charge and accept the proposed
disciplinary action must be written and must be given to the administrator
within 48 hours of the young detainee receiving the charge
notice.
However, upon written application by
the young detainee, the administrator may allow more time than 48 hours if the
administrator considers it appropriate in the circumstances.
The administrator is required to put their
decision to extend this period in writing and give this notice to the young
detainee.
Clause 301 —
Disciplinary action by administrator
This clause allows the administrator to take the
proposed disciplinary action outlined in the charge notice in any of the
following circumstances:
• If the young
detainee admits to the charge and accepts the proposed disciplinary action under
clause 300; or
• If the young detainee does
not elect to admit to the charge or does not apply for a review of the charge
under clause 304 within the permitted time. The administrator cannot take
disciplinary action if the young detainee has applied for a review of the
charge, and the review has not been
conducted.
Before taking the disciplinary
action outlined in the charge notice, the administrator must form the belief
that the young detainee understands the nature of the proposed action to be
taken against them.
Division 8.4.2 — Internal
review
This division provides an avenue for a young detainee to
seek a review a charge.
Clause 302 — Meaning
of review officer – div 8.4.2
This clause provides a definition of review officer for
this division. A review officer is an authorised person to whom the Chief
Executive has delegated the functions of a review officer.
Clause 303 — Right to
contact support person – internal review
This clause provides an entitlement for an accused
detainee to contact one or two support persons to assist them to apply for a
review of the charge. Support person is defined at clause 285.
In order for the young detainee to contact a
support person or persons, the Chief Executive is obliged to provide access to
facilities as soon as practicable, for example, a telephone. The Chief
Executive is also required to provide access to facilities for the young
detainee to consult with the support person or persons, for example, a private
room.
Clause 304 —
Application for internal review
This clause provides that if a young detainee has been
notified of a behaviour breach charge, they have up to 48 hours to apply for a
review of the charge, after the charge notice is
given.
However, upon written application by the
young detainee, the administrator may allow more time than 48 hours if the
administrator considers it appropriate in the circumstances.
The administrator is required to put their
decision to extend this period in writing and give this notice to the young
detainee.
Clause 305 — Internal
review of charge
This clause obliges the administrator to arrange for a
review officer to conduct a review into the behaviour breach. For one incident,
the review officer cannot be a person who laid a charge or made an allegation
report or investigators report in part 8.2.
The processes in chapter 9 must be used by the
review officer to conduct the review with any changes prescribed by regulation.
Clause 306 — Review
officer’s powers after internal review
This clause empowers the review officer to impose
disciplinary action if a review into a charge is complete.
If the charge is proven on the balance of
probabilities, then the review officer may impose disciplinary action set out in
division 8.4.4. Sub-clause 310(3) provides that the disciplinary action
continues during the external reviewer’s review of the decision, and only
ceases if the external reviewer makes this decision. However, clauses 313(4)
and (5) provide a remedy for a young detainee if disciplinary action is taken
which is later reduced or set aside by an external
reviewer.
The review officer must dismiss the
charge if the evidence does not prove the young detainee committed a breach on
the balance of probabilities.
The review
officer must also dismiss the charge if satisfied that it would be appropriate
to do so for other reasons.
The review
officer may also refer a matter to the Chief Police Officer or the Director of
Public Prosecutions if the review officer believes that the evidence revealed at
a review warrants criminal investigation or
proceedings.
The young detainee must be
informed in writing of the review officer’s decision under this clause.
The notice must include reasons for the decision; a statement that a young
detainee has a right to apply for review of the decision and a statement that
the young detainee has a right to contact a support person.
Division 8.4.3 — External
review of internal review decisions
This division provides for the creation of a position of
external reviewer to review decisions arising out of internal disciplinary
reviews.
Clause 307 — Meaning
of external reviewer – div 8.4.3
This clause provides a definition for external reviewer.
An external reviewer is a Magistrate appointed under clause
308.
Clause 308 —
Appointment of external reviewers
This clause requires the Minister to appoint one or more
external reviewers by way of notifiable instrument. The external reviewer must
be a Magistrate and must consent in writing to the appointment.
Clause 309 — Right to
contact support person – external review
This clause provides an entitlement for an accused
detainee to contact a support person or persons to assist them to apply for a
review of the decision.
Support person is
defined at clause 285. In order for the young detainee to contact a support
person or persons, the Chief Executive is obliged to provide access to
facilities as soon as practicable, for example, a telephone. The Chief
Executive is also required to provide access to facilities for the young
detainee to consult with the support person or persons, for example, a private
room.
Clause 310 —
Application for external review
This clause allows a young detainee to apply for a
review of a decision under 306(2) that a behaviour breach has been proven.
Sub-clause (2) requires that the application
must be made within 7 days after the young detainee is given notice of any
disciplinary action by a review officer under clause
306.
Sub-clause (3) provides that the
disciplinary action continues during the external reviewer’s review of the
decision, and only ceases if the external reviewer makes this decision.
However, clauses 313(4) and (5) provide a remedy if disciplinary action is taken
which is later reduced or set aside by an external reviewer.
Clause 311 — External
review of change
This clause empowers an external reviewer to review a
disciplinary decision or refuse to review the decision. The external reviewer
must use the processes set out in chapter 9 to review a disciplinary decision
with any changes prescribed by regulation.
Clause 312 — Refusal
to review
This clause specifies that the young detainee and their
support person or persons are entitled to written notice of the external
reviewer’s decision to refuse to review the disciplinary decision. The
notice must set out the reasons why the application was refused and that the
decision may be reviewed under the Administrative Decisions (Judicial Review)
Act 1989.
Clause 313 — External
reviewer’s powers after external review
This clause empowers the external reviewer to confirm
the decision; vary the decision; or set aside the decision and make a new
decision. The young detainee, the support person or persons for the young
detainee and the Chief Executive must be informed in writing of the external
reviewer’s decision following the
review.
The notice must set out the reasons for
the decision and that the decision may be reviewed under the Administrative
Decisions (Judicial Review) Act 1989.
As
clause 310(3) does not stay or otherwise affect the taking of disciplinary
action pending the external review, sub-clauses (4) and (5) provide a remedy for
a young detainee if a successful external review reduces or sets aside the
behaviour management consequences imposed. Sub-clause (4) provides that if the
external reviewer’s decision reduces or sets aside a fine, the Chief
Executive must credit the amount deducted to the young detainee’s trust
account. For any other behaviour management consequence, the Chief Executive
must take steps to provide a reasonable and commensurate remedy, in consultation
with the young detainee. For example, if a consequence of 10 hours extra chores
is reduced by an external reviewer’s decision to 5 hours of extra chores,
and the young detainee has performed 7 hours of chores under the original
decision, then the Chief Executive must consult with the young detainee about a
remedy for the extra 2 hours of chores performed. The Chief Executive may
consider that a reasonable remedy is an additional privilege, for example,
watching a movie.
Division 8.4.4 —
Disciplinary action generally
This division provides the action that can be taken if a
disciplinary charge is proven. The action includes the imposition of one of
more administrative behaviour management consequences.
The note at clause 319 removes doubt that
records must be kept by the Chief Executive under the Territory Records Act
2002 of disciplinary action taken against young detainees.
Clause 314 —
Application – div 8.4.4
This clause sets out the application of division 8.4.4.
It applies to a young detainee against whom disciplinary action can be taken
under the part.
Clause 315 — Meaning
of relevant presiding officer – div 8.4.4
This clause sets out the meaning for relevant presiding
officer for the division. The relevant presiding officer could be an
administrator acting under division 8.4.1 or a review officer acting under
division 8.4.2 or an external reviewer acting under division 8.4.3.
Clause 316 —
Disciplinary action by relevant presiding officer
This clause provides that any officer who has the
authority to impose disciplinary action (as outlined at clause 315) may take any
of the actions in (1)(a) to (c), or any combination of actions in (1)(a) to (c).
If the breach does not warrant the imposition of a behaviour management
consequence, the officer may simply warn or reprimand the young detainee by way
of (1)(a) and (b).
The relevant review officer
must have regard to the individual characteristics of the young detainee,
including age, developmental capacity, rehabilitation needs and any known
history, in deciding whether to impose a behaviour management consequence.
‘Any known history’ is intended to be construed broadly to
encapsulate the personal history of the child or young person which is known to
the presiding officer, for example, any history of abuse or neglect, past
behaviour or health needs and risks. The presiding officer must be satisfied
that any behaviour management consequence is reasonable and proportionate to the
circumstances and gravity of the behaviour breach.
Clause 317 —
Disciplinary action – behaviour management consequences
This clause sets out administrative penalties (called
behaviour management consequences) that may be imposed against a young detainee
for a behaviour breach that is proven or admitted to by the young detainee.
These behaviour management consequences
are:
• A fine not exceeding
$250;
• A withdrawal of privileges not
exceeding 60 days;
• A requirement to make an
apology to an affected person;
• A
requirement to perform extra chores not exceeding 20
hours;
• Anything prescribed by regulation to
be a behaviour management consequence and that is reasonable and proportionate
to behaviour breaches.
The maximum fine that
can be imposed is $250 as the majority of young detainees will not be in a
position to earn, or retain, large sums of money. The clause enables the
withdrawal of privileges for up to 60 days.
A
‘privilege’ is defined in clause 288 as any benefit a young detainee
may have, material or otherwise, beyond the minimum entitlements set out in
chapter 6. Withdrawal of privileges may involve, for example, the loss of
radio, television, MP3 players, hobbies and crafts. Withdrawal of privileges
could not result in a loss of freedom of association with others in the
detention place or a loss of activities contained in a young detainee’s
case management plan. Any minimum living condition in chapter 6 that is not
prescribed to be an entitlement can be regarded as a privilege.
Clause 318 — Maximum
behaviour management consequences
This clause sets a limit on the maximum behaviour
management consequences that can be imposed for one incident. If the same
conduct leads to two or more charges being proven, the officer imposing a
penalty cannot impose a penalty beyond the maximum that can be imposed for one
breach.
Clause 319 —
Privileges and entitlements – impact of discipline
This clause ensures that disciplinary action does not
affect any minimum living condition set out in chapter
6.
A ‘privilege’ is defined in
clause 288 as any benefit a young detainee may have, material or otherwise,
beyond the minimum entitlements set out in chapter 6.
Chapter 6 draws a line between the minimum
conditions that are regarded as entitlements and conditions that may be
considered to be privileges. The note to part 6.5 explains that any withdrawal
of privileges as a consequence of behaviour management or disciplinary action
does not affect any entitlement set out under chapter six. Conversely, any
condition in chapter 6 that is not prescribed to be an entitlement can be
regarded as a privilege, which may be affected by action taken under this
chapter or chapter 9.
Chapter
9 — Criminal matters—conduct of disciplinary reviews
This chapter outlines procedures for the conduct of
disciplinary reviews. The procedures incorporate procedural fairness, namely
the right to a fair hearing, the right to an unbiased hearing and a decision
based on logically probative material.
Chapter
9 intends to provide for a procedure that is fair and prompt.
Part 9.1 — Conduct of
disciplinary review – general
While the process in chapter 9 is envisaged to be used
predominantly for disciplinary purposes, the process is also suitable for
reviews and hearings conducted to review other prescribed decisions in this
Bill. External review of certain segregation directions in chapter 6 also uses
the review and hearing procedures in this chapter (see clause
219).
Clause 320 —
Application—ch 9
This clause clarifies that the chapter applies to
reviews mentioned in the divisions listed. The note explains that the chapter
also applies to reviews of segregation directions under clause 219.
Clause 321 —
Definitions—ch 9
This clause provides an abbreviated definition of
decision-makers in the disciplinary process who can impose sanctions. The
definition labels any review officer or external reviewer as the ‘review
officer’.
Part 9.2 — Disciplinary
review procedures
Clause 322 — Nature
of disciplinary reviews
Sub-clause (1) explicitly stipulates that disciplinary
reviews are administrative
procedures.
Sub-clause (2)(a) affirms that the
common law principle of natural justice
applies.
Sub-clause (2)(b) clarifies that being
a quasi-judicial process, but not a judicial process, the statute law and common
law on evidence relevant to Court hearings do not apply to these proceedings. It
should be noted, however, that consistent with the principles of natural
justice, a decision cannot be based upon no evidence, nor speculation or
suspicion: there must be logically probative material informing the
decision.
Akin to the above sub-clause,
sub-clause (2)(c) clarifies that the procedure for deciding if a disciplinary
breach has occurred is not a Court proceeding. Consequently, evidence on oath or
affidavit is not appropriate.
Sub-clause (2)(d)
stipulates that when deciding if a charge is proven, or not proven, the relevant
officer must apply a standard of balance of probabilities. The balance of
probabilities is a standard of proof associated with civil and administrative
proceedings. This standard has a lower threshold than the criminal standard of
beyond reasonable doubt. Proving a fact on the standard of the balance of
probabilities means that the existence of the fact is more probable than not, or
the fact is established by a preponderance of probability.
Clause 323 — Notice
of disciplinary review etc
This clause requires that a review officer notify a
young detainee of a review. The young detainee should already be informed of
charges laid, and already have had the opportunity to elect to consent to the
charges as a consequence of division
8.4.1.
Sub-clause (2) lists the matters that
must be in the notice.
Sub-clause (3) enables
the young detainee to make submissions to the review officer for the review in
any form acceptable to the review officer. The young detainee is entitled to
receive assistance from one or two support persons for this purpose under
sub-clause (5).
Sub-clause (4) creates an
entitlement for the young detainee to assistance from the Chief Executive to put
the submission in a form acceptable to the review officer. This does not
necessarily have to be in writing. The Chief Executive must inform the young
detainee of this entitlement.
Sub-clause (6)
obliges the review officer to consider submissions made by the young detainee
prior to any deadline set in the notice of the review.
Clause 324 — Conduct
of disciplinary reviews
This clause allows reviews to be conducted prudently and
expediently. The provision enables the procedure to be exercised in a manner
commensurate to the circumstances.
Sub-clause
(2) enables the review officer to hold a hearing. Sub-clause (3) requires the
procedure in part 9.3 to be used for hearings. In some cases a hearing may be
unnecessary if, for example, the young detainee makes a submission to the effect
that they concede the breach.
Sub-clause (4)
stipulates that reviews are not open to the public. However, this is subject to
clause 330(5) which empowers the review officer to allow a youth detention
officer or anyone else to be present and to be heard at a hearing. Examples of
people who may be allowed to be present include a support person, a person with
parental responsibility and another young
detainee.
Sub-clause (5) ensures that a
decision is not rendered inoperable because of a lack of form rather than
substance. For example, if a notice in clause 323 does not have a deadline for
submissions, yet a submission is made, any decision made as a consequence is not
invalid. However, if no notice was given at all and the young detainee had no
opportunity to make submissions, this would be a matter of substance and the
decision may be invalid.
Clause 325 — Review
officer may require official reports
This clause authorises the review officer to seek
reports from the Chief Executive, the Director of Public Prosecutions, or a
public servant. The person asked for a report must provide a
report.
Clause 326 — Review
officer may require information and documents
This clause authorises the review officer to seek
information from people with a relevant connection to the alleged disciplinary
breach being decided.
The clause enables the
review officer to ask for particular information or particular
documents.
Sub-clause (2) provides an exception
to the provision of information or documents if the Minister certifies that
disclosing the document or information may endanger someone or is not in the
public interest.
The power in this clause does
not override a person’s privilege against self-incrimination nor exposure
to civil penalty. The clause also retains client legal
privilege.
Clause 327 —
Possession of review documents etc
This clause enables the review officer to have
possession of documents, or other things obtained, for the duration of the
review. However, the review officer may return the documents, or other things,
prior to the completion of the review.
Clause 328 — Record
of review
The review officer is obliged to keep a record of the
review proceedings.
Part 9.3 — Disciplinary
hearing procedures
Clause 329 — Notice
of disciplinary hearing
This clause requires the review officer to notify the
accused young detainee and the Chief Executive, if the review officer is not the
Chief Executive, of a hearing. The young detainee should already be informed of
charges laid.
Sub-clause (2) stipulates that
the notice must say when and where the hearing will take place and state the
young detainee’s rights and obligations in clauses 330 and
331.
Sub-clause (3) clarifies that the hearing
must, if practicable, be held at the detention place. It is intended that most
hearings will be held at the detention place unless special and exceptional
circumstances arise which make this impractical.
Clause 330 — Review
officer’s powers at review
Sub-clause (1) authorises the review officer to direct
witnesses to attend the hearing to answer questions or produce relevant
documents or things for the hearing.
Sub-clause
(2) clarifies that compliance with providing documents or other things is
achieved if they are provided before the deadline in the notice issued by the
review officer.
Sub-clause (3) provides the
review officer with explicit authority to require an accused young detainee or a
witness to answer questions, produce documents, or produce other
things.
Sub-clause (4) enables the review
officer to disallow questions that are unfair, prejudicial, vexatious or are an
attempt to abuse the review
procedure.
Sub-clause (5) gives the review
officer the power to allow a youth detention officer and other people to be
heard at a hearing.
The power in this clause
does not override a person’s privilege against self-incrimination nor
exposure to civil penalty. The clause also retains client legal privilege (see
note to Legislation Act 2001, section 170 and 171).
Clause 331 — Rights
of accused detainee at disciplinary hearing
Sub-clause (1) entitles the young detainee accused of
breaching discipline to be present at the
hearing.
Sub-clause (2)(a) establishes a young
detainee’s right to be heard, to examine witnesses, to cross-examine
witnesses and to make submissions to a
review.
Sub-clause (2)(b) establishes that a
young detainee has a right to a support person or lawyer at a disciplinary
hearing who may make submissions on their behalf.
Clause 332 —
Exclusion of accused detainee from hearing
This clause empowers the review officer, by written
order, to exclude a young detainee from a hearing if the young detainee
interrupts, interferes with or obstructs the hearing or contravenes a direction
made by the review officer about the conduct of the hearing, without reasonable
excuse.
Clause 333 — Hearing
in accused detainee’s absence
This clause clarifies that the young detainee’s
presence is not inherently required for the review officer to determine if a
charge is proven. However, this does not set aside the review officer’s
obligation to see that natural justice is applied. The review officer should
consider why the young detainee failed to attend and consider whether making a
decision in the young detainee’s absence would not offend natural
justice.
For example, if the young detainees
refuse to attend, the young detainee may have waived their right to question
witnesses etc. However, if the young detainee was physically unable to attend
due to circumstances out of the young detainee’s control, the review
officer may consider whether a hearing should be re-convened.
Clause 334 —
Appearance at disciplinary hearing by audiovisual or audio link
This clause enables the use of technology to conduct
hearings. This clause enables appearances by relevant parties and witnesses to
take place via audiovisual or audio links. The individuals do not have to be
physically before the review officer.
The
clause draws upon relevant provisions of the Evidence (Miscellaneous
Provisions) Act 1991.
Chapter
10 — Care and protection—general
This chapter includes general matters relating to care
and protection such as principles and considerations and overarching concepts.
Section 11(1) of the Human Rights Act
2004 provides that the family is the natural and basic group unit of society
and is entitled to be protected by society. The care and protection principles
outlined at clause 349 emphasise that the primary responsibility for providing
care and protection for children and young people rests with their parents and
family members (clause 349(1)(a)) and support should be given to parents and
family members to provide for the care, protection and wellbeing of children and
young people (clause 349(1)(b)). However, the care and protection chapters
place reasonable limits on this right in circumstances where a child or young
person has been abused or neglected or is at risk of abuse or neglect and is in
need of some form of protective intervention from the State through reporting,
appraising and care and protection orders tailored to meet the child or young
person’s protective needs. This gives effect to section 11(2) of the
Human Rights Act 2004 which provides that every child has the right to the
protection needed by the child because of being a child, without distinction or
discrimination of any kind. The care and
protection chapters include cultural plans and a placement principle for
Aboriginal and Torres Strait Islander children and young people at clause 512.
This engages the right to equal protection of the law without discrimination, at
section 8(3) of the Human Rights Act 2004. However it is justifiable
under section 28 of the Human Rights Act 2004, because the proposed
positive discriminatory measures recognise the needs of Aboriginal and Torres
Strait Islander children, their families and their communities in the light of
their history as Indigenous Australians separated from
families[1]
and their over-representation in the child protection system.
Part 10.1 — Application of
care and protection chapters
This part outlines what the care and protection chapters
are in the Bill and sets out rules for ascertaining the age of a child or young
person being responded to under the care and protection
chapters.
Clause 335 — What are
the care and protection chapters?
This clause outlines the meaning of the term ‘care
and protection chapters’. The care and protection chapters are chapters
10 to 19 inclusive of the Bill which deal with the care and protection continuum
from reporting to assessing and responding to abuse and neglect of children and
young people at risk.
Clause 336 —
Age—proof of age to be sought before action taken
This clause provides for a duty on the Childrens Court,
the Chief Executive and a police officer to undertake reasonable inquiries to
ascertain the age of a person before dealing with them as a child or young
person under the care and protection chapters in the Bill.
Clause 337 —
Age—application of care and protection chapters if no proof of
age
This clause allows the Childrens Court, Chief Executive
and a police officer to deal with a person as a child or young person under the
care and protection chapters if the age of the person cannot be established
after reasonable inquiries and it reasonably appears to the Court, Chief
Executive or police officer that the person is a child or young person.
Clause 338 —
Age—care and protection chapters stop applying if person discovered to be
adult
This clause provides that any order or agreement under
the care and protection chapters lapses if a child or young person has been
dealt with as a child or young person by the Childrens Court, the Chief
Executive or a police officer and it is established that the person is 18 years
or older.
Clause 339 — Care and
protection chapters stop applying when young person becomes
adult
This clause provides that the care and protection
chapters cease to have effect for people once they turn 18 years. To remove any
doubt, the clause provides that it does not operate to require a person detained
for an offence or charge to be released by virtue only of the fact that he or
she has turned 18 years.
Part 10.2 — Important
concepts for care and protection chapters
This part sets out the concepts that apply across the
care and protection chapters.
Clause 340 —
Definitions—care and protection chapters
This clause includes definitions for the care and
protection chapters and the Act.
For the Act,
these definitions include abuse, care and protection appraisal, care and
protection principles, contact, family group conference, in need of care and
protection, neglect and care and protection assessment.
For the care and protection chapters, these
definitions include at risk of abuse or neglect, former caregiver, party and
significant harm.
A definition of significant
harm is introduced in the Bill. It is intended to remove doubt that significant
harm may include a single serious event causing significant harm to a child or
young person or multiple instances of harm that, when viewed individually, may
not amount to significant harm but the cumulative effect of these instances is
significant harm to a child or young person.
Clause 341 — What is
abuse?
This clause provides the definition of abuse for the
Act. Abuse is defined to mean physical abuse, sexual abuse or emotional abuse.
This re-enacts section 151of the 1999 Act,
however the definition of emotional abuse has been expanded to incorporate the
new definition of psychological abuse at clause 460 which includes exposure to
domestic violence.
Clause 342 — What is
neglect?
This clause provides the definition of neglect for the
Act as a failure to provide a necessity of life that has caused or is causing
significant harm to the wellbeing or development of a child or young person.
Examples of necessities of life are included. These include such things as
food, shelter, clothing and health care treatment.
This re-enacts section 151A of the 1999 Act.
Health care treatment has been included as an example of a necessity of life in
place of the example of medical care in the 1999 Act. Health care treatment is
defined in the dictionary as treatment of an illness, disability, disorder or
condition by a health professional.
Clause 343 — When are
children and young people at risk of abuse or neglect?
This clause provides the definition of when a child or
young person is at risk of abuse or neglect. A child or young person will be at
risk of abuse or neglect if there is a significant risk of the abuse or neglect
occurring. The standard of proof is the balance of probabilities.
The balance of probabilities is a standard of
proof associated with civil and administrative proceedings. This standard has a
lower threshold than the criminal standard of beyond reasonable doubt. Proving a
fact on the standard of the balance of probabilities means that the existence of
the fact is more probable than not, or the fact is established by a
preponderance of probability.
Risk of abuse or
neglect includes circumstances where abuse or neglect has not yet occurred but
will probably occur if no action is taken to protect the child. This may include
circumstances where past evidence relating to other children within the family
indicates risk to the subject child. It also includes circumstances where a
child or young person is abandoned, or where action or inaction of a person with
parental responsibility or another person exposes the child or young person to
significant risk of abuse or neglect by others.
Examples are included to highlight
circumstances in which a child or young person is at risk of abuse or neglect.
This re-enacts section 151B of the 1999 Act.
Clause 344 — When are
children and young people in need of care and protection?
This clause outlines the circumstances in which a child
or young person is considered to be in need of care and protection. The
Childrens Court must find that a child or young person is in need of care and
protection before making a care and protection order in relation to the child or
young person (see clause 463(5)).
There are
two aspects to the test to be satisfied to show that a child or young person is
in need of care and protection. Firstly, the child or young person must have
experienced abuse or neglect in the past or must be currently experiencing abuse
or neglect or must be at risk of abuse or neglect. At risk of abuse or neglect
is defined in clause 343.
Secondly, the child
or young person must not have a person with parental responsibility for them
willing and able to protect them from the abuse or neglect or the risk of abuse
or neglect. If a child or young person’s protection can be achieved by a
person or persons with parental responsibility (possibly with some help and
support), then the child or young person will not be in need of care and
protection. This is intended to limit the circumstances in which statutory
child protection services can intervene within a
family.
In addition to the test outlined above,
sub-clause (2) provides that a child or young person can also be in need of care
and protection in the following
circumstances:
• If there is serious or
ongoing conflict between the child or young person and the people with parental
responsibility for him or her, that has resulted or could result in the child or
young person’s care arrangements breaking down or being significantly
disrupted; or
• If the people with parental
responsibility for the child or young person are deceased, or have abandoned the
child or young person or are not able to be located after reasonable inquiry;
or
• If the child or young person is being
sexually or financially exploited and persons with parental responsibility for
the child or young person cannot prevent it from happening or cause it to
happen.
Clause 345 — Incident
need not have happened in ACT
This clause allows for the event amounting to a child or
young person being in need of care and protection to be one which occurs outside
the Territory.
This clause varies the
critical nexus in clause 6 which provides that functions under the Act can be
exercised in relation to children and young people who ordinarily live in, or
are present in, the Territory or who are subject to an event occurring in the
Territory which leads to a voluntary or mandatory report about their care and
protection.
Clause 346 — Who is a
former caregiver?
For the care and protection chapters, a former caregiver
is defined in this clause.
Where parental
responsibility has shifted as a result of the operation of the Act (for example,
by Court order or the taking of emergency action), the former caregiver is the
person who was providing care for the child or young person prior to that shift.
Where a voluntary care agreement is to be entered into (see Part 12.3), the
former caregiver is the person caring for the child or young person at the time
the agreement is being proposed. The term is not intended to include a person
such as a baby-sitter or day carer.
This
re-enacts section 153 of the 1999 Act.
Clause 347 — What is
contact with a person?
This clause provides a definition of contact for the
Act. Contact describes the direct or indirect interaction that a child or young
person may have with other people.
It is a
principle of the care and protection chapters that if a child or young person
does not live with his or her family because of the operation of the Act,
contact with the child or young person’s family members and significant
people must be supported where it is appropriate and practicable (see clause
349(1)(c)). For a child or young person who is, or is proposed to be, subject
to a care and protection order or interim care and protection order, a care plan
prepared by the Chief Executive may include contact arrangements for the child
or young person with family members and significant people as appropriate (see
clause 454(b)(v)).
Part 14.8 of the Bill
addresses contact provisions in care and protection orders. A contact provision
in a care and protection outlines who may have contact with the child or young
person, and where it is not in the child or young person’s best interests,
who must not have contact with the child or young person. Clause 485 creates a
rebuttable presumption when an application is made for a contact provision in a
care and protection order that is in the best interests of the child or young
person for the child or young person to have contact with a person with parental
responsibility for the child or young person or his or her siblings. The Bill
also requires contact to be facilitated for a child or young person in certain
circumstances, for example, after the taking of emergency action (see clause
411).
Part 10.3 — Principles and
considerations for care and protection chapters
This part sets out the principles and considerations
that apply across the care and protections chapters (chapters 10 –
19).
Clause 348 — What is
in best interests of child or young person?
Clause 8 in Chapter 1 outlines that the best interests
of a child or young person are the paramount consideration for decisions being
made under the care and protection chapters. This clause outlines the matters
that decision-makers must take into account in deciding what is in the best
interests of a child or young person for the care and protection chapters.
These matters include a greater emphasis
on:
• stability for children and young people
in out of home care through early decision-making for a safe, supportive and
stable placement; and
• protecting and
promoting the cultural and spiritual identity of Aboriginal or Torres Strait
Islander children and young people through connections to family and
community.
The list of matters that a decision
maker can take into account to determine what is in a child or young
person’s best interests for the care and protection chapters is not
exhaustive. Decision-makers may take into account other relevant information in
order to determine what is in a child or young person’s best
interests.
This clause re-enacts and expands
section 13 of the 1999 Act for the care and protection
chapters.
Clause 349 — Care and
protection principles
This clause outlines care and protection principles.
These principles were contained in the general principles at section 12 of the
1999 Act and are relocated to this chapter as they specifically relate to care
and protection matters.
A new principle has
been included to emphasise that the safety and wellbeing of children and young
people who have been removed from their parents is paramount over the interests
of their parents. This principle seeks to balance the right of the child or
young person to protection at section 11(2) of the Human Rights Act 2004
with the interests of parents and the right to protection of the family at
section 11(1) of the Human Rights Act 2004.
The principles in this clause are to guide all
decisions and actions made or taken under the Act, whether by the Chief
Executive, Courts or otherwise.
Clause 350 — Helping
families understand care and protection procedures
This clause provides that, for any decision under the
care and protection chapters, the decision-maker must strive to ensure that the
child or young person or their legal representative and people with parental
responsibility for them understand the nature of the decision, the
decision-making process, that they may participate in the decision-making
process having their views and wishes heard and understand the final decision
after it is communicated to them.
The clause
applies to all decisions made about a child by all decision makers in the care
and protection chapters, including Courts. It embodies the requirement in
Article 9 of the Convention on the Rights of the Child that all
interested parties shall be given an opportunity to participate in care and
protection proceedings and make their views
known.
This clause re-enacts section 155A of
the Act. This principle was introduced to guide decision-makers regarding
consultation with, and participation of, children and young people and people
with parental responsibility in care and protection decision-making under the
Act.
Clause 351 — Views
and wishes of children and young people
This clause contains a new principle for decision-makers
making a decision under the care and protection chapters.
The clause is broadly modelled on sections
60CD and 60CE of the Family Law Act 1975 and is intended to deal with how
decision-makers inform themselves of views expressed by children and young
people.
This clause requires decision-makers
to give a child or young person a reasonable opportunity to convey their views
and wishes directly to the decision-maker except in circumstances where the
decision-maker is satisfied that the child or young person does not have
sufficient developmental capacity to express his or her views or wishes. The
term ‘developmental capacity’ is intended to broadly cover a
child’s capacity to make decisions or put their views across that may be
limited because of their age or stage of development, or a developmental delay,
or a disability.
A decision-maker may find
out the views and wishes of a child or young person in a number of ways,
including through a representative of the child or young person or through a
report containing the child or young person’s views or wishes.
This clause does not allow a decision-maker to
compel a child or young person to express their views or wishes.
This clause upholds children and young
people’s right to participate, which is recognised in numerous articles of
the Convention on the Rights of the
Child:
“Article 9. (2) In any
proceedings pursuant to paragraph 1 [which speaks to the separation of a child
from their parents] of the present article, all interested parties shall be
given an opportunity to participate in the proceedings and make their views
known.
Article 12. (1) States Parties
shall assure to the child who is capable of forming his or her own views the
right to express those views freely in all matters affecting the child, the
views of the child being given due weight in accordance with the age and
maturity of the child. (2) For this purpose, the child shall in particular be
provided the opportunity to be heard in any judicial and administrative
proceedings affecting the child, either directly, or through a representative or
an appropriate body, in a manner consistent with the procedural rules of
national law.
Article 13. (1.) The child
shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through
any other media of the child’s choice”.
Chapter
11 — Care and Protection – reporting, investigating and appraising
abuse and neglect
This chapter outlines the reporting and assessing of
suspected abuse and neglect of children and young
people.
This chapter addresses key
recommendations of the 2004, The Territory as Parent: Review of the Safety of
Children in Care in the ACT and of ACT Child Protection Management (The
Vardon Report) and The Territory's Children: Ensuring safety and quality care
for children and young people: Report on the Audit and Case Review (The
Murray Report).
These reports both
recommended that section 161(3) of the 1999 Act be amended so as to ensure that
the Chief Executive must act in relation to a report made under sections 158
[voluntary reports] or 159 [mandatory reports] of the 1999 Act in relation to a
child or young person for whom the Chief Executive has parental
responsibility.
These recommendations are
addressed at clauses 359 and 360 which introduce a requirement for the Chief
Executive to undertake an initial assessment of matters raised in child concern
reports to assess whether the child or young person may be in need of care and
protection. These clauses also enhance the capacity of the Chief Executive to
make better decisions about the level of risk to children and young people and
take the most appropriate action in response to the assessed level of
risk.
Part 11.1 — Care and
protection—reporting abuse and
neglect
Division
11.1.1 — Definitions
This division sets out definitions of care and
protection terms for the Act.
Clause 352 —
Definitions—Act
This clause defines certain care and protection terms
for the purposes of the Act, including voluntary report, mandatory report, child
concern report and prenatal report. This chapter introduces new concepts of a
child concern report (which includes both mandatory and voluntary reports) and a
child protection report (where the Chief Executive suspects a child or young
person is in need of care and protection and deems that a child concern report
should be treated as a child protection report).
Division 11.1.2 —
Reporting abuse and neglect of children and young people
This division relates to reporting of abuse and neglect
of children and young people.
This division
seeks to create a differential response to reports received by the Chief
Executive about abuse and neglect of children and young people. It
differentiates between all reports received (child concern reports) and those
reports where the Chief Executive suspects the child or young person may be in
need of care and protection (child protection reports).
Clause 353 —
Voluntary reporting of abuse and neglect
This clause allows for any person (whether in or outside
the Territory) to report to the Chief Executive their reasonable belief or
suspicion about a child or young person being abused or neglected or being at
risk of abuse or neglect.
This re-enacts
section 158 of the 1999 Act, however, the threshold is changed from reporting
that a child or young person is in need of care and protection to reporting a
belief or suspicion about the child or young person being abused, neglected or
being at risk of abuse or neglect. This change arose from concerns that
generally reporters could not reasonably know whether there is a person with
parental responsibility who is willing and able to protect the child or young
person, which is necessary to establish whether a child or young person is in
need of care and protection.
Clause 354 —
Offence—false or misleading voluntary report
Section 354 of the Bill includes an offence to make a
false or misleading voluntary report. In order for the offence to be proved, the
prosecution must show that the information or allegations provided in the report
are false or misleading in a material respect. Information or an allegation
provided in a report can be taken to be false or misleading if it is shown that
the person knowingly omitted anything in their report without which makes
anything they have stated false or misleading. The false or misleading
information or allegation can be made orally, in a document, or in any other
way.
The use of the words "in a material
particular" is intended to act as a limitation to prevent prosecutions where a
false or misleading allegation or fact is trivial or of little consequence.
Ultimately, however, the question of whether the information or allegation is
false or misleading in a material particular is a question to be resolved by the
trier of fact.
The key fault element for the
offence is knowledge, which is defined in section 19 of the Criminal Code
2002. To prove the offence, the prosecution will need to show that the
defendant knew that the information or allegation was false or misleading in a
material particular, or if the person omitted to say something without which the
report is false or misleading in a material particular, that the person knew
that omission would make the report false or misleading.
Clause 355 —
Offence—mandatory reporting of abuse
This clause requires certain people listed in sub-clause
(2) (called mandated reporters) to report to the Chief Executive their
reasonable work-related belief of sexual abuse or non-accidental physical injury
to a child or young person.
Sub-clauses
(2)(a),(b),(c),(d) and (e) rely on definitions of doctor, dentist, nurse,
enrolled nurse and midwife in the Legislation Act 2001,
where:
doctor—
(a)
means a person unconditionally registered as a medical practitioner under the
Health Professionals Act 2004; and
(b) for an
activity, includes a person conditionally registered as a medical practitioner
under the Health Professionals Act 2004 to the extent that the person is allowed
to do the activity under the person’s conditional
registration.
dentist—
(a)
means a person unconditionally registered as a dentist under the Health
Professionals Act 2004; and
(b) for an
activity, includes a person conditionally registered as a dentist under the
Health Professionals Act 2004 to the extent that the person is allowed to do the
activity under the person’s conditional
registration.
nurse—
(a)
means a person unconditionally registered as a nurse under the Health
Professionals Act 2004; and
(b) for an
activity, includes a person conditionally registered as a nurse under the
Health Professionals Act 2004 to the extent that the person is allowed to
do the activity under the person’s conditional registration; but (c) does
not include an enrolled
nurse.
enrolled
nurse—
(a) means a person
unconditionally enrolled as a nurse under the Health Professionals Act
2004; and
(b) for an activity, includes a
person conditionally enrolled as a nurse under the Health Professionals Act
2004 to the extent that the person is allowed to do the activity under the
person’s conditional
registration.
midwife—
(a)
means a person unconditionally registered as a midwife under the Health
Professionals Act 2004; and
(b) for an
activity, includes a person conditionally registered as a midwife under the
Health Professionals Act 2004 to the extent that the person is allowed to
do the activity under the person’s conditional
registration.
Sub-clause (2)(f) is new and
expands the list of mandated reporters to include a person providing education
to a child or young person who is registered, or provisionally registered, for
home education under the Education Act 2004. This is to ensure
consistency in mandatory reporting requirements for children and young people in
all settings where education is provided to
them.
The definitions of person caring for a
child at a childcare centre and teacher at sub-clause (2) are also new and
clarify that these concepts relate to persons in paid employment and include
assistants and aides.
Clause 356 —
Mandatory reporting - exceptions
This clause creates an exception to the requirement for
mandated reporters to report non-accidental physical injury or sexual abuse of a
child or young person under clause 355 and an exception to the requirement for
mandated reporters to report non-accidental physical injury of a child or young
person under clause 355(1)(c)(ii).
The first
exception to the requirement to report non-accidental physical injury or sexual
abuse of a child or young person under clause 355 is if the mandated reporter
reasonably believes that another person has made a report to the Chief Executive
about the same child or young person and the same abuse or injury. For example,
a doctor in a hospital would not be required to report sexual abuse of a child
if the doctor is aware that a nurse has reported the same abuse about the same
child to the Chief Executive. This re-enacts section 159(3) of the 1999
Act.
The second exception to the requirement to
report non-accidental physical injury of a child or young person under clause
355(1)(c)(ii) is if the mandated reporter reasonably believes that the child or
young person has experienced, or is experiencing, non-accidental physical injury
caused by another child or young person and the subject child or young person
has a person with parental responsibility who is willing and able to protect
them from further injury. This is a new exception to the requirement to report.
It is intended to narrow the grounds for reporting non-accidental physical
injury to the Chief Executive in circumstances where the child or young person
has received a non-accidental physical injury from another child or young person
(for example, in a playground incident) and the child or young person will be
protected from further injury by a person with parental responsibility.
Clause 357 —
Offence—false or misleading mandatory report
This clause includes an offence to make a false or
misleading mandatory report. In order for the offence to be proved, the
prosecution must show that the information or allegations provided in the report
are false or misleading in a material respect. Information or an allegation
provided in a report can be taken to be false or misleading if it is shown that
the person knowingly omitted anything in their report without which makes
anything they have stated false or misleading. The false or misleading
information or allegation can be made orally, in a document, or in any other
way.
The use of the words "in a material
particular" is intended to act as a limitation to prevent prosecutions where a
false or misleading allegation or fact is trivial or of little consequence.
Ultimately, however, the question of whether the information or allegation is
false or misleading in a material particular is a question to be resolved by the
trier of fact.
The key fault element for the
offence is knowledge, which is defined in section 19 of the Criminal Code
2002. To prove the offence, the prosecution will need to show that the
defendant knew that the information or allegation was false or misleading in a
material particular, or if the person omitted to say something without which the
report is false or misleading in a material particular, that the person knew
that omission would make the report false or misleading.
Clause 358 — Reports
made to Public Advocate
This clause addresses the circumstance of a person who
reasonably suspects or believes that a child is being abused, neglected or is at
risk of abuse and neglect and reports that information to the Public Advocate.
The Public Advocate is required to forward that information to the Chief
Executive. This clause has the effect of treating the information as if it were
a voluntary report made to the Chief Executive under clause 353. This re-enacts
section 164 the 1999 Act.
However, like clause
353, under the 1999 Act a person could make a report if they believed or
suspected a child or young person was in need of care and protection
however, this has been amended to reporting a belief or suspicion about the
child or young person being abused, neglected or being at risk of abuse or
neglect. This change is necessary, as generally reporters do not reasonably
know whether there is a parent willing and able to protect the child or young
person, which is necessary to establish whether a child or young person is in
need of care and protection.
Clause 359 — Chief
Executive to act on child concern report
This clause addresses key recommendations of the 2004,
The Territory as Parent: Review of the Safety of Children in Care in the ACT
and of ACT Child Protection Management (The Vardon Report) and The
Territory's Children: Ensuring safety and quality care for children and young
people: Report on the Audit and Case Review (The Murray Report). These
reports both recommended that section 161(3) of the 1999 Act be amended so as to
ensure that the Chief Executive must act in relation to a report made to him or
her under section 158 [voluntary reports] or section 159 [mandatory reports] in
relation to a child or young person for whom the Chief Executive has parental
responsibility.
Sub-clause (2) introduces a
requirement for the Chief Executive to undertake an initial assessment of
matters raised in the child concern report to assess whether the child or young
person may be in need of care and protection. This initial assessment may
include an examination of information already held by the Chief Executive in
Departmental records, for example, child concern reports received in the past
and previous appraisals or assessments. It may also include the use of a risk
assessment tool which has been empirically validated to predict risk to children
and young people.
The primary purpose of the
initial assessment is to determine:
• whether
a child concern report warrants statutory intervention and should be treated as
a child protection report under clause 360; and
• the most appropriate supports for families
where a child or young person may be at a lower risk of abuse or neglect, but
the matters are not serious enough to warrant statutory
intervention.
This new requirement intends to
facilitate better and more informed decisions being made about the level of risk
to children and young people.
Sub-clause (4)
expands the actions that the Chief Executive can take in response to a report
after conducting the initial assessment. The Chief Executive will retain the
discretion to determine the most appropriate action following an initial
assessment of the report information. Sub-clause (4)(h) allows for no further
action to be taken in response to a child concern report. This discretion is
necessary in circumstances where the seriousness of the report does not warrant
taking action. For example, after conducting the initial assessment the Chief
Executive may form the view that the child or young person is not in need of
care and protection. In this circumstance, taking no action may be the most
appropriate course of action.
The intention of
this clause is to:
• enable better decisions
to be made about the level of risk to children and young people, through the new
provision for a preliminary assessment of matters raised in reports at
sub-clause (2)(b);
• respond earlier and more
flexibly to families where children are at risk of abuse and neglect by
referring the matters raised in a report to a community based service for
appropriate assistance under sub-clause (4)(d) and providing support services
for the child or young person and, if appropriate, the child’s or young
person’s family under sub-clause
(4)(e);
• provide a balanced approach to the
need for support required by parents and families in order to prevent abuse and
neglect while at the same time providing a statutory response where a child or
young person may be in need of care and protection;
and
• allow a more differentiated approach to
the concerns that people have about children and young people and encourage a
greater sense of responsibility on the part of the broader human services sector
to support families and protect children.
Clause 360 — Chief
Executive action on child protection report
This clause outlines what action the Chief Executive may
take after determining that a child concern report constitutes a child
protection report.
Under this clause, the Chief
Executive can undertake more intrusive action than is permitted for child
concern reports on the basis that the Chief Executive has formed a reasonable
suspicion that the child or young person may be in need of care and protection.
In addition to the action the Chief Executive may take under clause 359(4) in
relation to child concern reports, the Chief Executive
can:
• seek information from anyone to decide
the most appropriate response;
• enter into a
voluntary care agreement;
• carry out a care
and protection appraisal under clause
367;
• take emergency action, subject to the
criteria outlined in clause 405; or
• apply
to the Childrens Court for a care and protection order under clause
423.
The Chief Executive will retain the
discretion to determine the most appropriate action in response to the report
and may take no further action. Taking no action may be the most appropriate
response in circumstances where after taking action (for example, after seeking
information from the child’s school) in relation to the child protection
report, the Chief Executive considers that the child or young person is not in
need of care and protection.
Division 11.1.3 — Prenatal
reporting of anticipated abuse and neglect
Pre-natal reporting is necessary for the Chief Executive
to respond to reports made during a woman’s pregnancy that a child who may
be born as a result of the pregnancy may be in need of care and protection.
The prenatal reporting provisions will allow
the Chief Executive to undertake a voluntary assessment of whether the child is
likely to be in need of care and protection after the child is born. The
provisions will also enable the Chief Executive to provide, or arrange the
provision of, voluntary support services to the pregnant woman and other family
members who may be involved in the care of the child after birth, including for
example the child’s father.
The prenatal
reporting provisions may be considered to encroach upon the pregnant
woman’s rights and liberties, in particular, the right not to have her
privacy (and family) interfered with unlawfully or arbitrarily (section 12,
Human Rights Act 2004) and the right of the family to protection (section
11, Human Rights Act 2004). Section 28 of the Human Rights Act
2004 provides that human rights may be subject only to reasonable limits set
by Territory laws that can be demonstrably justified in a free and democratic
society.
In considering the reasonableness of
the intrusion on these rights, the following factors have been
considered:
• child death reviews across
Australia have consistently identified the need for legislative provisions that
allow concerns about children (who may be born as a result of pregnancy) to be
reported and responded to, in order to provide early
support;
• the objective of these provisions
is to reduce the likelihood the child will be in need of care and protection
when born. This will be achieved through the Chief Executive providing or
arranging the provision of appropriate support services to the pregnant woman
with her consent; and
• to ensure that
intervention by the Chief Executive is proportionate and least restrictive, the
Bill does not enable the Chief Executive to take action to compel a pregnant
woman to do or not do something.
This division introduces a power at clause 361 for
the Chief Executive to allow the exchange of information before the birth of a
child, after a prenatal report is made, without the consent of the pregnant
woman if the Chief Executive reasonably suspects that the child may be in need
of care and protection after the child is born. It is considered that this
limitation on the right to privacy for the pregnant woman is proportionate to
the objective served by the provisions in reducing the likelihood of future
abuse or neglect of children.
Clause 361 — Prenatal
reporting—anticipated abuse and neglect
This clause allows the Chief Executive to receive
prenatal reports that a child who may be born as a result of a pregnancy may be
in need of care and protection. With the consent of the pregnant woman, the
Chief Executive may take any action considered appropriate, for example,
arranging a drug and alcohol
assessment.
Without the consent of the pregnant
woman, the Chief Executive may also give advice to the person who made the
report. This may include, for example, information and advice about services in
the community that may assist the pregnant woman.
This clause also allows the exchange of
information before the birth of a child, after a prenatal report is made,
without the consent of the pregnant woman in certain circumstances. In the
first instance, the Chief Executive will ask the pregnant woman to consent to
the Chief Executive giving prenatal information to a prenatal information
sharing entity or asking an information sharing entity for prenatal information.
Prenatal information is defined as information that is relevant to the safety,
wellbeing and development of a child after the child is born. For example,
prenatal information may include information about the pregnant woman’s
history of drug and alcohol use or mental health issues. Prenatal information
sharing entities are outlined at sub-clause
(10).
If the pregnant woman does not consent,
the clause allows the Chief Executive to give the prenatal information to the
information sharing entity, or ask the information sharing entity for the
prenatal information, only if the Chief Executive reasonably suspects that the
child may be in need of care and protection after the child is
born.
The following examples illustrate the
circumstances which this clause seeks to
address:
• the Chief Executive receives a
prenatal report in relation to a pregnant woman with an intellectual disability
whose children have been previously removed due to severe neglect. The Chief
Executive works with the woman and Public Advocate to seek her informed consent
for further action but the woman refuses to give consent. This power would
allow the exchange of information between the Public Advocate, previous
community based service providers and health services to assess the future risk
to the child after its birth and take appropriate action at
birth;
• the Chief Executive receives a
prenatal report in relation to a pregnant woman who is the subject of frequent
domestic violence from the father of her child. The Chief Executive seeks the
woman’s consent to work with her to address the concern, but she refuses
consent on the basis that she is afraid of partner. This clause would allow for
the exchange of information between relevant community services, police and the
Chief Executive in order to assess the future risk to the child after its birth
and develop appropriate intervention plans to be implemented at birth;
and
• the Chief Executive receives a
prenatal report in relation to a pregnant woman who is a heavy user of illicit
drugs and has schizophrenia. The Chief Executive seeks the woman’s
consent to work with her but she refuses consent. This power would allow for
the exchange of information between mental health services, drug and alcohol
services and the Chief Executive in order to assess the future risk to the child
after its birth.
The power to share information
about a pregnant woman engages the right to privacy under the Human Rights
Act 2004. It is considered, however, that this is a reasonable intrusion on
the pregnant woman’s right to privacy as sharing the information
facilitates a comprehensive assessment of the level of future risk to the child
and enables appropriate and least intrusive plans to be developed for the
child’s future care and protection.
Certain prenatal information sharing entities,
outlined at sub-clause (10), rely on definitions set out in the Legislation
Act 2001 as follows:
• administrative
unit means an administrative unit for the time being established under the
Public Sector Management Act 1994, section 13
(1).
• public employee means— (a) a
public servant; or (b) a person employed by a Territory instrumentality; or (c)
a statutory office-holder or a person employed by a statutory office-holder.
The Legislation Act 2001, further defines statutory office-holder as a
person occupying a position under an Act or statutory instrument (other than a
position in the public service).
• Territory
authority means a body established under an Act, but does not include a body
declared by regulation not to be a Territory
authority.
• Territory instrumentality means
a corporation that—(a) is established under an Act or statutory
instrument, or under the Corporations Act; and (b) is a Territory
instrumentality under the Public Sector Management Act
1994.
Clause 362 —
Offence—false or misleading prenatal report
Section 362 of the Bill includes an offence to make a
false or misleading prenatal report. In order for the offence to be proved, the
prosecution must show that the information or allegations provided in the report
are false or misleading in a material respect. Information or an allegation
provided in a report can be taken to be false or misleading if it is shown that
the person knowingly omitted anything in their report without which makes
anything they have stated false or misleading. The false or misleading
information or allegation can be made orally, in a document, or in any other
way.
The use of the words "in a material
particular" is intended to act as a limitation to prevent prosecutions where a
false or misleading allegation or fact is trivial or of little consequence.
Ultimately, however, the question of whether the information or allegation is
false or misleading in a material particular is a question to be resolved by the
trier of fact. The key fault element for the offence is knowledge, which is
defined in section 19 of the Criminal Code 2002. To prove the offence,
the prosecution will need to show that the defendant knew that the information
or allegation was false or misleading in a material particular, or if the person
omitted to say something without which the report is false or misleading in a
material particular, that the person knew that omission would make the report
false or misleading.
Clause 363 — How
prenatal reports may be used in evidence
This clause addresses the admissibility of prenatal
reports.
Sub-clause (2) provides that the
report, or evidence of the contents of the report, may be admitted in evidence
in any Court proceeding if the report or evidence is given by the reporter, the
proceeding is a proceeding under the care and protection chapters for a child
who is born as a result of the pregnancy, the proceeding is an appeal from a
decision of the Childrens Court made under the care and protection chapters for
a child who is born as a result of the pregnancy or the proceeding is in
relation to a charge or allegation against a person for how a function under the
Act has been exercised.
Clause 364 — Prenatal
report information is sensitive information
This clause deems prenatal report information to be
sensitive information. Sensitive information is defined in clause 844.
Pre-natal information means information in a
prenatal report (or would allow the information to be worked out) or identifies
a person who made a prenatal report or allows their identity to be worked out.
The intention of this clause is to give prenatal information an appropriate
level of protection to uphold the right to privacy of the pregnant woman and to
protect the identity of the reporter.
Part 11.2 — Care and
protection—appraisals
This part outlines appraisals and assessments which are
utilised to determine whether a child or young person is in need of care and
protection.
Division 11.2.1 —
Definitions
Clause 365 — What is
a care and protection appraisal?
This clause outlines the meaning of a care and
protection appraisal. An appraisal is an assessment by the Chief Executive of a
child or young person’s circumstances undertaken in response to a child
protection report.
Appraisal powers include
visual examination, interview, information sharing, making enquiries or
arranging an assessment (which may be exercised in relation to a child or young
person or another person, for example, a parent).
Clause 366 — What is
a care and protection assessment?
This clause outlines the meaning of a care and
protection assessment.
A care and protection
assessment means a medical, dental, social, paediatric, developmental,
psychological or psychiatric assessment, examination or test of the child or
young person or another person in relation to the child or young person, for
example, a parent. It also includes assessment of the parenting capacity of a
parent or other person with parental responsibility. This may involve, for
example, a social assessment and a psychological assessment of the parent or
other person with parental responsibility.
A
care and protection assessment may be necessary to provide further information
to the Chief Executive or the Childrens Court about a person’s capacity to
care for or have contact with a child or young person.
A care and protection assessment must be
undertaken by an assessor authorised under clause
437.
This clause does not authorise an
assessment, examination or test involving surgery and anything else prescribed
by regulation for this clause.
Division 11.2.2 —
Appraisal with agreement or order
This division outlines when a care and protection
appraisal of a child or young person can occur.
Clause 367 — Care and
protection appraisal—only with agreement or appraisal
order
This clause provides that the Chief Executive may
undertake an appraisal in response to a child protection report where it is
reasonably suspected that the child or young person may be in need of care and
protection.
The Chief Executive may undertake
the appraisal in one of three ways:
• under
an appraisal order in force which authorises the appraisal;
or
• by making reasonable endeavours to seek
the agreement of each person with daily care responsibility for the child or
young person to the appraisal (unless it is not practicable or not in the best
interests of the child or young person to do so) and where the agreement of at
least one parent or person with parental responsibility has been obtained;
or
• if the Chief Executive reasonably
suspects that seeking the agreement of a parent or person with daily care
responsibility would place the child or young person at significant risk of
abuse or neglect or jeopardise a criminal investigation and the appraisal
involves an interview of the child or young person or visual examination.
Clause 368 — Care and
protection appraisal—acknowledgement of agreement
This clause sets out obligations on the Chief Executive
in seeking a person’s agreement for an appraisal. Clause 367(4) allows
the person’s agreement to be given orally or in writing. In circumstances
where agreement is given orally (for example, over the phone), clause 367(6)
requires the Chief Executive to keep a written record of that
agreement.
Clause 369 — Care and
protection appraisal—agreement need not be sought if risk
etc
The Chief Executive is not required to seek the
agreement of a person who has daily care responsibility for the child or young
person prior to interviewing or visually examining the child or young person or
sharing information, if seeking the person’s agreement would put the child
or young person at significant risk of abuse or neglect or jeopardise a
concurrent police investigation.
For
example, if the Chief Executive receives a report that a child is being sexually
abused by their parent who is their sole carer, the Chief Executive would not be
required to seek the consent of this parent for an appraisal involving an
initial interview of the child as it would place the child at significant risk
of further abuse.
These powers are necessary
to ensure that a child or young person is adequately protected during the
appraisal process. In some circumstances prior knowledge by the parents/persons
with parental responsibility of the Chief Executive’s action is likely to
obstruct the appraisal and result in the child or young person being placed at
significant risk of emotional and physical harm, for example, through coercion
not to disclose abuse or threats of violence if the child or young person
discloses abuse.
It is considered that in these
circumstances, the rights of a child to be protected from harm override
fundamental legislative principles in regard to the rights of individuals (in
this case those of the parents).
Clause 370 — Visual
examination etc without agreement
This clause authorises the Chief Executive to visually
examine or interview a child or young person for the purpose of appraising a
child protection report. Sub-clause (2) provides authority for the Chief
Executive to enter a school, health facility or childcare service for this
purpose while the child or young person is in one of these settings.
The term ‘visually examine’ is
intended to mean that the Chief Executive will sight the child or young person
as the child or young person would appear to a person in the street. This is to
assess the child or young person’s overall presentation that may show
signs of harm, for example, bruising or other physical marks to the child or
young person’s body. This clause does not authorise the Chief Executive
to adjust or remove the child or young person’s clothing in order to
undertake a visual examination. In circumstances where this is considered
necessary, a medical examination would be warranted, with the agreement of a
person with daily care responsibility or authorised by an appraisal order.
Sub-clause (3) requires the Chief Executive to
inform at least one person with daily care responsibility for the subject child
or young person that a visual examination or interview has been carried out.
However, in circumstances where the Chief Executive is satisfied that informing
that person of the action taken would put the child or young person at
significant risk of abuse or neglect or jeopardise a criminal investigation,
sub-clause (4) allows this requirement to be displaced.
Sub-clause (5) clarifies that this section
does not limit the Chief Executive’s capacity to undertake necessary
actions to protect the child or young person, including any action authorised in
response to a child concern report or child protection report at clauses 359 and
360, emergency action at clause 405, applications to the Childrens Court for a
care and protection order at clause 423 or giving information as authorised
under part 25.3.
Division 11.2.3 —
Appraisal orders
This division introduces appraisal orders. An appraisal
order authorises the Chief Executive to undertake an appraisal where voluntary
cooperation of a parent or person with parental responsibility for an appraisal
cannot be achieved.
These orders are broadly
similar to Temporary Assessment orders in Queensland (see Child Protection
Act 1999, Chapter 2, Part 2).
The order
may also include a temporary parental responsibility provision which transfers
daily care responsibility for a child or young person to the Chief Executive and
authorises entry to premises to find a child or young person. The purpose of
the order is to authorise an appraisal and transfer of daily care responsibility
to the Chief Executive in circumstances where there is an unacceptable risk to
the child or young person remaining in the same care arrangements during the
assessment period.
The division also sets out
procedural matters relating to an application for an appraisal order or an
application for extension of an appraisal order,
including:
• Clause 377 Appraisal orders
– application to state
grounds;
• Clause 378 Appraisal orders - who
must be given application;
• Clause 379
Appraisal orders - Court to consider application promptly.
Clause 371 — What is
an appraisal order?
This clause outlines the meaning of an appraisal order.
The order authorises the Chief Executive to conduct a care and protection
appraisal of a child or young person. This may include a care and protection
assessment as outlined at clause 366 of the child or young person or another
relevant person, for example, a parent.
An appraisal order may also include requirements
about the conduct of the appraisal,
including:
• that a person attend, alone or
with someone, at a stated place and time for the
appraisal;
• that a person or entity comply
with arrangements made by the Chief Executive for the
appraisal;
• that a person or entity give the
Chief Executive information about the care, welfare or development of a child or
young person; and
• that something be
produced to the Court or given to the Chief Executive or someone
else.
The appraisal order may also include a
temporary parental responsibility provision. This provision has the effect of
transferring daily care responsibility provision to the Chief Executive for the
period of the order.
Clause 372 — What is
a temporary parental responsibility provision?
This clause includes the meaning of a temporary parental
responsibility provision in an appraisal order. A temporary parental
responsibility provision transfers responsibility for daily care of the child or
young person to the Chief Executive. This provision may be necessary in
circumstances where the child or young person would be at significant risk if
they were to remain in their care arrangements during the period of the
appraisal order.
This provision also authorises
the Chief Executive to enter and search a place to find the child or young
person.
Clause 373 —
Offence—contravene appraisal order
This clause creates an offence for contravening an
appraisal order. A person may contravene an order by engaging in conduct that
contravenes a provision of the order or by failing to comply with a requirement
made of the person under the order. The maximum penalty is 50 penalty units,
imprisonment for 6 months or both.
Clause 374 —
Appraisal orders—prevails over care and protection orders
This clause removes doubt that if there is an apparent
inconsistency between an appraisal order and a care and protection order, then
the appraisal order is taken to override the care and protection order.
For example, an appraisal order with a
temporary parental responsibility provision for a child or young person would
take precedence over a care and protection order with a supervision provision
for the child or young person.
Clause 375 —
Appraisal orders—application by Chief Executive
This clause allows the Chief Executive only to apply for
an appraisal order for a child or young person. The Chief Executive may apply
for an appraisal order if satisfied that an appraisal is necessary to assess
whether the child or young person is in need of care and protection, and the
appraisal cannot be effectively undertaken unless the order is made and a person
with responsibility for day to day matters has not given consent, where
necessary, or cannot be found.
Clause 376 —
Appraisal orders—urgent applications
An appraisal order is intended to be available in urgent
circumstances. This clause provides for the Chief Executive to make an
application for an appraisal order by telephone, fax or other electronic means
in urgent circumstances.
Sub-clause (2)
requires the Chief Executive to give to the following people a copy of the
application for the appraisal order in urgent circumstances before the
application is heard by the Court: the child or young person, each parent (with
daily care or long-term care responsibility), any other person with daily care
or long-term care responsibility and the Public Advocate. Clause 700 allows a
person to apply for leave to have an application heard ex parte where notice of
the application to the persons required to be served would place the child or
young person at significant risk of significant harm. Clause 722 allows the
Court to make an order dispensing with service of an application under the care
and protection chapters.
Clause 377 —
Appraisal orders—application to state grounds
This clause requires an application for an appraisal
order to address minimum requirements, including the grounds on which the order
is sought and a proposal for the child or young person’s care during the
period of the order if a temporary parental responsibility provision is sought.
For example, the Chief Executive may propose that the child or young person is
placed in foster care during the period of the appraisal order with a temporary
parental responsibility provision.
Clause 378 —
Appraisal orders—who must be given application
This clause outlines the persons who must be served with
the Chief Executive’s application for an appraisal order and when they
must be served. The Chief Executive must give a copy of the application for an
appraisal order, at a minimum of working day before the application is heard by
the Court, to the child or young person, each parent (with daily care or
long-term care responsibility), any other person with daily care or long-term
care responsibility and the Public Advocate.
This requirement is displaced in circumstances
of urgent applications under clause 376 and following the taking of emergency
action under part 13.1.
Clause 379 —
Appraisal orders—Court to consider application promptly
This clause requires the Childrens Court to hear and
decide an application for an appraisal order within 5 working days of the
application being filed. The length of an appraisal order under clause 383 is 4
weeks. The requirement for the Childrens Court to hear and decide an
application for an appraisal order within 5 working days is necessary to ensure
that the application is finalised quickly in order to expedite the appraisal of
the child or young person’s circumstances and avoid delay in the best
interests of the child or young person.
Clause 380 —
Appraisal orders—no interim orders
This clause prohibits the Childrens Court from making an
interim appraisal order. This is because appraisal orders are intended to be
available quickly and in an uncomplicated manner for a one-off appraisal.
Clause 381 —
Appraisal orders—criteria for making
This clause outlines the criteria for making an
appraisal order. In order to make an appraisal order, the Childrens Court must
be satisfied that a parent or person with daily care responsibility who is
required to agree but does not agree to the appraisal and a care and protection
appraisal is needed to assess whether the child or young person is in need of
care and protection.
Clause 382 —
Appraisal orders—different provisions and requirements
This clause enables the Childrens Court, upon
application or on its own initiative to include a temporary parental
responsibility provision in an appraisal order.
The Court may also include any of the
requirements outlined at sub-clause (a) for any person or entity, in relation to
the child or young person for whom the appraisal order is
about.
Clause 383 —
Appraisal orders—length
This clause outlines the length of an appraisal order
and a temporary parental responsibility provision in an appraisal order. An
appraisal order may be up to 4 weeks in length. A temporary parental
responsibility provision in an appraisal order may also be up to 4 weeks in
length. The length of the appraisal order and temporary parental responsibility
provision may be of different duration.
An
appraisal order of a full 4 weeks in duration may be necessary for the Chief
Executive to adequately assess the level of risk to a child or young person.
This may be because the family circumstances are particularly complex and
multiple interviews are necessary for the appraisal to be
completed.
Clause 384 —
Appraisal orders—extension application
This clause allows the Chief Executive to apply for
extension of an appraisal order for a child or young person. Clause 387 allows
the appraisal order to be extended up to 8 weeks. An application for extension
of an appraisal order must state the grounds for the extension and a proposal
for the child or young person’s care during the period of the order if
extension of a temporary parental responsibility provision is sought.
To make the application, the Chief Executive
must reasonably believe that the appraisal cannot be properly carried out unless
the order is extended. Often this will be because the necessary assessment has
not been able to be undertaken in the original timeframe of the order because of
delays in arranging assessment interviews with relevant people, appointments
cancelled by persons being assessed or delays in accessing specialist authorised
assessors (for example, due to a long waiting list).
Clause 385 —
Appraisal orders—who must be given extension application?
This clause outlines the persons who must be served with
the Chief Executive’s application for extension of an appraisal order and
when they must be served. The Chief Executive must give a copy of the
application to each party to the proceeding in which the order was made and the
Public Advocate.
Clause 386 —
Appraisal orders—Court to consider extension application
promptly
Sub-clause (1) requires the Court to be satisfied that
any adjournment of an application for extension of an appraisal order is
appropriate considering the urgency of the application. In the event of an
adjournment after initial consideration or otherwise, sub-clause (2) requires
the Childrens Court to hear and decide an application for extension of an
appraisal order within 5 working days of the application being filed.
Sub-clause (3) has the effect of continuing
any appraisal order in force when an application for extension of an appraisal
order is filed until the application is finalised by the Childrens Court. This
applies regardless of whether the application is heard and decided within the
prescribed period of 5 working days after filing.
Clause 387 —
Appraisal orders—criteria for extension
This clause outlines the criteria for extending an
appraisal order. In some circumstances, the length of the appraisal order will
not be sufficient for the Chief Executive to undertake, or facilitate, the
necessary assessments forming the appraisal. This clause allows the Childrens
Court to extend an appraisal order for a period of up to a maximum of 8 weeks
from the date of the original appraisal order.
Chapter
12 — Care and protection—voluntary agreements to transfer or share
parental responsibility
This chapter outlines the ways in which parental
responsibility can be voluntarily transferred or shared under the Bill between a
person or persons with parental responsibility for a child or young person and
another person or persons. This occurs through the registration of family group
conference agreements and voluntary care
agreements.
Family group conferences are
outlined in chapter 3 of the Bill. A family group conference is a meeting of
family members and significant people for a child or young person that has the
purpose of reaching agreement on an aspect of the child or young person’s
care, protection or wellbeing. Under clause 80(2), a family group conference
may be arranged by the Chief Executive if the Chief Executive reasonably
believes a child or young person is in need of care and protection and
arrangements should be made to secure the child or young person’s care and
protection. An agreement arising out of a family group conference convened for
this purpose may be registered with the Childrens Court under part 12.2 of this
chapter if the agreement has the effect of proposing a shift in parental
responsibility for the child or young person (other than to the Chief
Executive). Clause 76(2) specifically precludes parental responsibility being
shifted to the Chief Executive under a family group conference agreement as the
conference aims to facilitate an outcome of an appropriate family member
exercising parental responsibility for the child or young person where this is
considered necessary and appropriate by conference participants.
A voluntary care agreement is an agreement in
writing between the Chief Executive and a person with parental responsibility
for a child or young person to share either daily care or long-term care
responsibility for the child or young person, or both, for a specified period of
time. The child or young person does not need to be in need of care and
protection for the Chief Executive to enter into a voluntary care agreement,
although there may be care and protection concerns for the child or young
person. The Chief Executive must be satisfied of the criteria set out in clause
396 before entering into an agreement. This is to ensure that the agreement is
the most appropriate and proportionate response to ensure the child or young
person’s safety and wellbeing.
Part 12.1 —
Definitions
This part sets out definitions of terms used in the Act
and the chapter.
Clause 388 —
Definitions—ch 12
This clause sets out definitions of terms used in the
Act and the chapter including voluntary care agreement, registered and a
party.
Part 12.2 — Registration
of family group conference agreements that transfer or share parental
responsibility
This part contains provisions regarding registration of
a family group conference agreement.
Clause 389 —
Registered family group conference agreement—application
This clause provides authority for the Chief Executive
to apply to the Childrens Court to register a family group conference agreement
following a family group conference arranged for a child or young person in need
of care and protection if an agreement is reached between the parties that daily
care or long-term care responsibility should be transferred to another person or
shared with a person.
A family group
conference agreement may propose that daily care or long-term care
responsibility be transferred or shared between family members or significant
people attending the conference. An agreement may not transfer or share
parental responsibility for the child or young person with the Chief Executive
(see clause 76). This is because the agreement is intended to be limited to
family arrangements.
Sub-clause (3) outlines
what must accompany the application. This is a copy of the family group
conference agreement and a signed statement by each party (excluding the Chief
Executive) that the person had an opportunity to get legal advice about the
meaning and effect of the agreement.
Sub-clause (4) requires the Chief Executive to
serve a copy of the application on the Public Advocate, in line with the
requirement for the Public Advocate to be given a copy of applications for
orders under the care and protection chapters.
It may be that a family group conference will
have been held concerning a child or young person who has been in foster care as
a result of a care and protection order for more than two years. If this
happens and the participants at the conference agree that the child or young
person should remain with his or her foster carers until aged 18, it is also
intended by sub-clause (2) that the Chief Executive may apply to the Court for
an order to this effect (for example by seeking a variation to an existing final
care and protection order) rather than by registering the family group
conference agreement.
This clause re-enacts
section 175(1),(2),(4) and (5) of the 1999 Act. The restriction on registering
an agreement equivalent to an enduring parental responsibility order at section
175(3) of the 1999 Act has been removed on the basis that there may be
circumstances where a child or young person will not be able to return to their
parents or former caregivers and it is appropriate than a long-term care and
protection order which transfers daily care and long-term care responsibility to
a person, to be made until the child or young person is 18 years.
Clause 390 —
Registered family group conference agreement—registration
This clause allows for the Childrens Court to register
or refuse to register a family group conference agreement on application from
the Chief Executive. A family group conference agreement must be registered if
the Court is satisfied that it could make a care and protection order with
equivalent effect. If satisfied it could not make a care and protection order
with the same effect, the Court must refuse to register the agreement and notify
the Chief Executive of that decision.
An
agreement may not transfer to, or share parental responsibility for the child or
young person with, the Chief Executive (see clause 76).
Clause 391 —
Registered family group conference agreement—notice
This clause requires the Childrens Court to notify the
Chief Executive and the Public Advocate when a family group conference agreement
is registered. The Chief Executive must then give a copy of that notice to each
person invited to attend the family group conference.
This clause re-enacts section 176(3) and (4)
of the 1999 Act.
Clause 392 —
Registered family group conference agreement—effect and
enforcement
This clause outlines the effect of a registered family
conference agreement. It has the effect of a care and protection order made by
the Childrens Court and can be enforced accordingly.
Under clause 422, it is an offence to
contravene a care and protection order.
This
clause re-enacts section 177 of the 1999 Act.
Part 12.3 — Voluntary
agreement to share parental responsibility with Chief Executive
This part outlines voluntary care agreements.
Clause 393 — What is
a voluntary care agreement?
A voluntary care agreement is a written agreement
between the Chief Executive and a parent or someone else who has responsibility
for daily care or long-term care for a child or young person to share either or
both aspects of parental responsibility for the period of the agreement. This
re-enacts section 182(1) of the 1999 Act.
A
child or young person for whom the Chief Executive has daily care responsibility
may be placed with an out-of-home carer under clause 511, for example, under a
voluntary care agreement.
The voluntary care
agreement may include a binding arrangement whereby people with parental
responsibility who are parties to a voluntary care agreement pay, or contribute
to, the Chief Executive’s costs in looking after a child or young person
under the agreement. The contribution must not exceed the amount paid by the
Territory for the care of the child or young person and is a debt due and
payable to the Territory. This re-enacts section 188 of the 1999
Act.
Clause 394 —
Voluntary care agreements—who may initiate?
The making or ending of a voluntary care agreement can
be initiated by the Chief Executive, a person with daily care or long-term care
responsibility for the child or young person including a parent, or the child or
young person (or their representative). This re-enacts section 182(2) of the
1999 Act.
Clause 395 —
Voluntary care agreements—who are parties?
This clause establishes that the Chief Executive and
persons with parental responsibility who enter the agreement are parties to a
voluntary care agreement. The subject child or young person is not a party as
such, though may be required to consent to the agreement if they are school
leaving age or older - see clause 396(d). Voluntary care agreements made by
people with parental responsibility who are under 18 years are
valid.
This clause re-enacts sections 181 and
185 of the 1999 Act.
Clause 396 —
Voluntary care agreements—Chief Executive’s criteria
This clause sets out the matters which the Chief
Executive must have regard to before entering into a voluntary care
agreement.
Sub-clause (a) requires the Chief
Executive to consider whether other forms of assistance would be better options
than entering a voluntary care agreement, such as arranging for kinship care or
intensive family support.
Sub-clause (b)
requires the Chief Executive to be satisfied that a voluntary sharing of
responsibility for daily care matters or long-term matters for the child or
young person is necessary to ensure the child or young person’s wellbeing.
Sub-clause (c) requires the Chief Executive to
consider the child or young person’s views or wishes if they have
sufficient developmental capacity to understand the nature of the proposal that
they be temporarily cared for by someone else.
Sub-clause (d) requires the Chief Executive to
seek the consent of the young person to the voluntary care agreement if the
young person is school leaving age or older (15 years) and has sufficient
maturity or developmental capacity to understand and agree to the proposed
voluntary care agreement.
Clause 397 —
Voluntary care agreements—start day
This clause provides that he Chief Executive’s
shared responsibility commences on the day the agreement is signed or later as
agreed between the parties. This re-enacts section 182(4) of the 1999
Act.
Clause 398 —
Voluntary care agreements—length
A voluntary care agreement can be made for up to 6
months for a child or young person under 15 years. A statutory limit of 6
months is placed on an agreement for a child or young person under this age as
it would be necessary for the Chief Executive to consider an application for a
care and protection order if the child or young person requires care for a
period in excess of 6 months to ensure appropriate planning is made to meet the
child or young person’s protective and developmental needs.
For young people who are school leaving age or
older and have sufficient maturity and developmental capacity to understand and
agree to the proposed agreement, a voluntary care agreement can be made for
longer than 6 months if the young person agrees. This clause re-enacts sections
182(5) and 184 of the 1999 Act.
Clause 399 —
Voluntary care agreements—extension
This clause applies to the extension of voluntary
agreements that are made for less than 6 months, or longer agreements made with
the consent of young people who are school leaving age or
older.
Sub-clause (1) enables the parties to
extend an agreement if the proposed extension is no longer than 6 months (in
each 12 month period). If the agreement is in relation to a young person who is
school leaving age or older, the agreement can be extended with the consent of
the young person.
Sub-clause (2) requires the
Chief Executive to be satisfied of certain matters before agreeing to extend a
voluntary care agreement, including whether another form of assistance would be
preferable, whether the sharing of responsibility will ensure the child or young
person’s wellbeing, consideration of the views and wishes of children and
young people, and seeking the agreement of a young person who is school leaving
age or older.
Sub-clause (3) allows multiple
extensions of voluntary care agreements (to the maximum period allowed under
clause 399).
This clause re-enacts sections 183
and 184 of the Act.
Clause 400 —
Voluntary care agreements—early ending
This clause allows for parties to a voluntary care
agreement to terminate the agreement earlier than they first agreed. This can
only occur by a party giving written notice to the other parties to the
agreement.
This re-enacts section 186 of the
1999 Act.
Clause 401 —
Voluntary care agreements—return of children and young
people
This clause provides that when a voluntary care
agreement ends, the Chief Executive must return the subject child or young
person to a former caregiver, or other person as agreed between the parties to
the agreement, thereby ending the Chief Executive’s shared responsibility.
In making a decision to return the child or young person to a person other than
a former caregiver, the Chief Executive would need to be satisfied that this is
in the best interests of the child or young person.
Sub-clause (4) creates an exception to this
requirement if emergency action has been or is being taken or if an application
has been made by the Chief Executive for a care and protection order with a
parental responsibility provision in favour of the Chief Executive.
Sub-clause (5) requires the Chief
Executive’s responsibility to cease if the Court refuses to make an order
giving the Chief Executive parental responsibility.
This re-enacts section 187 of the 1999 Act,
with a key difference which requires the Chief Executive to return the child or
young person as soon as practicable after the day the voluntary care agreement
ends. For example, if the voluntary care agreement ends on a Saturday, the
Chief Executive must arrange for the return of the child or young person as soon
as practicable on the next day, Sunday.
Chapter
13 — Care and protection and therapeutic protection – emergency
situations
Part 13.1 — Emergency
action
This part outlines when a child or young person is in
need of emergency care and protection or emergency therapeutic protection and
confers powers on the Chief Executive and police officers to take action to
ensure the child or young person’s safety in emergency
circumstances.
A new concept of a child or
young person in need of emergency therapeutic protection is created in this part
for the care and protection chapters. It contemplates circumstances where a
child or young person would meet the criteria for a therapeutic protection order
and the child or young person’s safety can only be secured through their
immediate placement in a therapeutic protection place (for example, pending the
application and making of an interim therapeutic protection order). Emergency
action can be taken for a child or young person in need of emergency therapeutic
protection. It may only be taken for a child or young person over the age of 10
years in line with the criteria for the making of the order (see clause
548).
The effect of this part is to limit the
circumstances where the Chief Executive or a police officer can assume daily
care responsibility for a child or young person without an order of a Court to
those instances when immediate intervention must occur to protect a child or
young person from immediate and significant harm. The Bill includes a statutory
time limit of two working days (or until the matter can be brought before the
Childrens Court) for the Chief Executive or a police officer to retain daily
care responsibility for the child or young person after which the responsibility
lapses if an order under the care and protection chapters has not been made by
the Childrens Court.
Accordingly, clause 813 in
chapter 23 provides authority for a police officer or an authorised person to
enter premises at any time without consent of the occupier of the premises or a
warrant if the officer reasonably believes that a child or young person at the
premises is in need of emergency care and protection or emergency therapeutic
protection and the purpose of the entry is to take emergency action for the
child or young person. This may include the use of reasonable and necessary
force to enter the premises to safeguard the wellbeing of the child or young
person. In these circumstances the delay involved in an authorised person or
police officer leaving the premises to obtain a warrant would expose the child
or young person to a significant risk of harm. The Government considers that
the right of a child or young person to be protected from immediate and
significant harm overrides the fundamental legislative principle that power to
enter premises should be conferred only with a warrant issued by a judicial
officer.
Part 13.2 provides a mechanism for
judicial oversight immediately after emergency action has been taken. Upon
application by an affected person or the Public Advocate, the Childrens Court
may, by order, reverse the decision or action of the Chief Executive or a police
officer and make an order for the release of the child or young person from the
Chief Executive or police officer’s daily care responsibility and
placement into the care of a person stated in the
order.
The Government considers that, in these
circumstances, the powers exercised under the Bill are adequately defined and
subject to appropriate judicial review and are therefore proportionate under
section 28 of the Human Rights Act 2004.
Clause 402 — When are
children and young people in need of emergency care and
protection?
This clause sets out when a child or young person is
considered to be in need of emergency care and protection for the care and
protection chapters in the Bill. The care and protection chapters are chapters
10 to 19 inclusive of the Bill which deal with the care and protection continuum
from reporting to assessing and responding to abuse and neglect of children and
young people at risk.
A child or young person
is in need of emergency care and protection if the child or young person is in
immediate need of care and protection. In need of care and protection is
defined in clause 344. This clause provides that a child or young person is in
need of care and protection if—
(a) the child
or young person—
(i) has been abused or
neglected; or
(ii) is being abused or neglected;
or
(iii) is at risk of abuse or neglect;
and
(b) no-one with parental responsibility for the
child or young person is willing and able to protect the child or young person
from the abuse or neglect or the risk of abuse or
neglect.
A child or young person may also be in
need of emergency care and protection if they are likely to be in immediate need
of care and protection if emergency action is not taken.
Clause 403 — When are
children and young people in need of emergency therapeutic
protection?
The 1999 Act authorised the placement of a child or
young person in a therapeutic protection place after taking emergency action.
This clause introduces a new term of a child or young person who is in need of
emergency therapeutic protection. It contemplates circumstances where a child
or young person meets the criteria for a therapeutic protection order and the
child or young person’s safety can only be secured through their immediate
placement in a therapeutic protection place (for example, pending the
application and making of an interim therapeutic protection
order).
A child or young person may only be
placed at a therapeutic protection place if the Chief Executive believes on
reasonable grounds that the child or young person is in need of emergency
therapeutic protection or if an interim or final therapeutic protection order is
in force (see clause 530).
Clause 404 — What is
emergency action?
This clause sets out the meaning of emergency action for
the Act which can be taken by the Chief Executive or a police officer.
Emergency action is a form of protective intervention for a child or young
person at significant risk which has the effect of transferring daily care
responsibility for the subject child or young person to the Chief Executive or a
police officer.
Daily care responsibility is
outlined at clause 19. A person with daily care responsibility may make
decisions about, and have responsibility for, all the facets of a child or young
person’s daily care. The transfer of parental responsibility as part of
emergency action was provided for at sections 224 and 225 of the 1999
Act.
To remove any doubt, this clause specifies
that daily care responsibility exercised by the Chief Executive or a police
officer includes the authority and responsibility for making decisions about
where the child or young person is to reside or temporarily stay. This may
involve a decision that the child or young person remain at the location or
premises where the child or young person is (for example, a hospital) or a
decision to move the child or young person to another place (for example, a
kinship or foster placement). It includes the authority for physical movement
of the child or young person in the latter
circumstance.
Daily care responsibility
exercised by the Chief Executive or a police officer also includes the authority
and responsibility for making all other decisions associated with or necessary
for the child or young person’s daily
care.
Chapter 23, clause 813 provides authority
for a police officer or an authorised person to enter premises at any time
without consent of the occupier of the premises or a warrant if the officer
reasonably believes that a child or young person at the premises is in need of
emergency care and protection or emegrency therapeutic protection and the
purpose of the entry is to take emergency action for the child or young person.
This may include the use of reasonable and necessary force to enter the premises
to safeguard the wellbeing of the child or young person.
Clause 405 —
Emergency action—criteria for taking emergency action
This clause empowers the Chief Executive or a police
officer to take emergency action for a child or young person who is reasonably
believed to be in need of emergency care and protection or emergency therapeutic
protection. The circumstances when this is authorised are specifically limited
to those where the Chief Executive or a police officer reasonably believes
that:
• a child or young person is in
immediate need of care and protection or would be in need of emergency care and
protection if the officer does not take emergency action;
or
• a child or young person meets the
criteria for a therapeutic protection order and the child or young
person’s safety can only be secured through their immediate placement in a
therapeutic protection place.
For a child or
young person to be in need of care and protection, the child or young person
firstly must have experienced abuse or neglect in the past or must be currently
experiencing abuse or neglect or must be at risk of abuse or neglect. At risk
of abuse or neglect is defined in clause 343. Secondly, the child or young
person must not have anyone with parental responsibility willing and able to
protect them from abuse or neglect or the risk of abuse or neglect. In
addition, the Chief Executive or police officer must reasonably believe the
child or young person immediately requires care and
protection.
This is an intentionally high
threshold to be met before the Chief Executive or a police officer has the
requisite authority to assume daily care responsibility for the child or young
person without first obtaining a warrant or order of the Court. The Chief
Executive or police officer may form the belief that a child or young person is
in need of emergency care and protection or emergency therapeutic protection if
a person with parental responsibility is completely absent or not able and
willing to protect the child or young person for other reasons, for example,
incapacity due to drug or alcohol use.
For
example, a 9 month old infant is found locked in a car parked in a car park on a
hot summer’s day. The delay involved in an officer leaving the carpark to
seek a warrant or order to authorise action to remove the infant from the car
could result in significant harm or death. The officer forms the belief that
the child is in need of emergency care and protection and uses force to enter
the vehicle and remove the child in order for the child to receive immediate
medical treatment.
Sub-clause (2) clarifies
that emergency action can be taken under sub-clause (1) irrespective of who the
child or young person is in the care, or apparent care, of and includes
circumstances where the child or young person is in the care, or apparent care,
of a parent or another person who has daily care responsibility for the child or
young person.
Clause 406 —
Emergency action—assistance
This clause enables the Chief Executive or a police
officer to use necessary and reasonable assistance to take emergency
action.
For example, the Chief Executive may
seek the assistance of police to use force to enter premises to take emergency
action.
Clause 407 —
Emergency action—certain people must be told
This clause sets out obligations on a police officer and
the Chief Executive to inform certain people that emergency action has been
taken.
Sub-clause (1)(a) requires a police
officer who has taken emergency action to inform the Chief Executive in writing
immediately after taking the action of the child or young person’s name,
why the action was taken and what action was taken. Sub-clause (2) creates an
exception to the requirement for this notification to be in writing if it is not
practicable. In these circumstances, the police officer may verbally inform the
Chief Executive immediately and then put the notification in writing as soon as
practicable thereafter.
The act of the police
officer informing the Chief Executive that emergency action has been taken for a
particular child or young person has the effect of transferring the police
officer’s daily care responsibility to the Chief Executive under clause
408(3). The police officer is then required to place the child or young person
at a place (for example, a therapeutic protection place if the child or young
person is in need of emergency therapeutic protection) or with a person advised
by the Chief Executive (for example, a foster or kinship
carer).
Sub-clause (1)(b) requires a police
officer, if practicable, to inform the parents of the child or young person and
each other person with parental responsibility of the emergency action being
taken.
Sub-clause (3) requires the Chief
Executive to notify parents and persons with parental responsibility for the
child or young person about the emergency action, if the police officer has not
already done so under clause 407(1), as well as notify the Public Advocate and
the Childrens Court. A parent who has parental responsibility or another person
with daily care responsibility or long-term care responsibility may apply to the
Childrens Court for an emergency action release order under part 13.2 for the
child or young person’s release from the parental responsibility of the
Chief Executive or a police
officer.
Notification of the Childrens Court is
necessary for the Court to be aware that an application for an emergency action
release order may be made under part 13.2 by a person affected by the emergency
action (for example, the subject child or young person, a parent who has
parental responsibility, another person with daily care responsibility or
long-term care responsibility or the child or young person’s former
caregiver) or the Public Advocate. Notification of the Public Advocate provides
a mechanism for oversight of the Chief Executive or police officer’s
decision to take emergency action and is necessary to facilitate the Public
Advocate’s right to apply to the Childrens Court for an emergency action
release order for the child or young person’s release from the parental
responsibility of the Chief Executive or a police officer.
Clause 408 —
Emergency action—daily care responsibility after action
This clause clarifies the legal status of the child or
young person following emergency action being
taken.
Sub-clause (1) clarifies that, following
emergency action being taken for a child or young person by the Chief Executive,
the Chief Executive has daily care responsibility. Daily care responsibility is
outlined at clause 19 and allows a person with daily care responsibility to make
decisions about, and have responsibility for, all the facets of a child or young
person’s daily care.
Sub-clause (2)
clarifies that, following emergency action being taken for a child or young
person by a police officer, the police officer has daily care responsibility
until the police office tells the Chief Executive about his or her action under
clause 407. The effect of the police officer informing the Chief Executive of
the emergency action being taken shifts daily care responsibility to the Chief
Executive under sub-clause (3). The Chief Executive may authorise the police
officer to exercise daily care responsibility for the child or young person
under sub-clause (4). This may be necessary, for example, while the Chief
Executive makes arrangements for a placement for the child or young person with
a kinship or foster carer.
If the Chief
Executive makes a direction to the police officer to place the child or young
person at a place or with a person under clause 407(1)(c), the police officer
must comply with the direction.
Clause 409 —
Emergency action—length of daily care responsibility
This clause limits the transfer of daily care
responsibility to the Chief Executive or a police officer to an aggregated
maximum of two working days following the day on which the action was taken,
unless those two working days are separated by a Saturday, a Sunday and a public
holiday.
In the latter case, an application for
an order under the care and protection chapters must be brought before the Court
(if necessary) on the next sitting day of the Court following the day the action
was taken. For example if the action is taken on the Thursday before Easter,
and the following Friday and Monday are public holidays but the Childrens Court
sits on a Saturday, the matter must be brought before the Court on the Saturday.
If the Court does not sit on the Saturday, the matter must be brought before the
Court on the Tuesday if that is the next sitting
day.
If emergency action is taken at 11pm on a
Thursday, the two working days are interrupted by a weekend and therefore the
matter must be brought before the Court on the next sitting day which is the
Friday.
Clause 410 — Care and
protection appraisal and placement
This clause enables the Chief Executive to make
arrangements for a child or young person whom the Chief Executive has parental
responsibility for following emergency action, including arrangements for a care
and protection appraisal. A care and protection appraisal is defined at clause
365 and may include the Chief Executive visually examining or interviewing the
child or young person, or taking any other action listed under clause 365(b)
such as seeking further information. An appraisal is necessary to determine,
before the Chief Executive’s daily care responsibility lapses under clause
409, whether the child or young person’s care and protection can only be
secured through an application by the Chief Executive for an order under the
care and protection chapters, or whether less intrusive action may secure the
child or young person’s care and protection, for example, intensive family
support.
Sub-clause (b) clarifies that the
Chief Executive may make a decision to place the child or young person with a
parent (including a parent who was not the primary caregiver for the child or
young person before the emergency action was taken), another person with daily
care responsibility or long-term care responsibility (for example, a person with
parental responsibility under an order of the Family Court of Australia) or a
former caregiver of the child or young person (irrespective of whether the
former caregiver was providing the care in an informal care arrangement and
irrespective of whether the former caregiver has parental responsibility for the
child or young person).
Clause 411 —
Emergency action—contact with family
Sub-clause (1) requires the Chief Executive or police
officer to allow reasonable contact between the child or young person and their
family members and significant people as far as practicable. For example, it
may not be practicable for the Chief Executive or the police officer to
facilitate personal contact for all the child or young person’s extended
family members and significant people during the period that the Chief Executive
or police officer has daily care responsibility before the matter is required to
be brought before the Childrens Court under clause
409.
Sub-clause (2) gives the Chief Executive
or police officer discretion to limit or stop contact if satisfied that the
contact would create a risk of harm to the child or young person. This may be
necessary in circumstances where the contact may create a risk to the
child’s physical safety or emotional wellbeing, either directly or
indirectly by the person with whom the child or young person is to have
contact.
Clause 412 —
Emergency action—application for orders
This clause sets out who an application must be given to
by the Chief Executive if the Chief Executive applies for certain orders under
the care and protection chapters before the Chief Executive or a police
officer’s daily care responsibility for the child or young person lapses,
according to the statutory timeframe outlined at clause
409.
The Childrens Court is required by
sub-clause (3) to give initial consideration to the Chief Executive’s
application on the day of filing.
The Chief
Executive is not required to apply for a care and protection order following
emergency action as the circumstances which gave rise to the emergency action
being taken may no longer exist, and accordingly the Chief Executive may not
suspect or believe the child or young person is in need of care and protection
to warrant an application for an order under the care and protection chapters.
In these circumstances, clause 414 requires the Chief Executive or a police
officer to return the child or young person into the care of one of the persons
listed at clause 414(2) at the end of the period outlined in clause
409.
Clause 413 —
Emergency action – end of daily care responsibility
This clause clarifies when daily care responsibility for
the child or young person ceases to be vested in the Chief Executive or a police
officer.
Sub-clause (2)(a) provides that the
Chief Executive or police officer no longer has daily care responsibility for
the child or young person if, under clause 414(2), the child or young person is
returned to a parent who has parental responsibility, another person with daily
care or long-term care responsibility or a former caregiver of the child or
young person.
Sub-clause (2)(b) provides that
the Chief Executive or police officer no longer has daily care responsibility
for the child or young person if the Childrens Court makes an order giving daily
care responsibility for the child or young person to another person. For
example, the Childrens Court makes an interim care and protection order with a
parental responsibility provision in favour of a family member.
Clause 414 —
Emergency action – return of child or young person
This clause outlines what action must be taken by the
Chief Executive or police officer at the end of the statutory timeframe outlined
in clause 409 when daily care responsibility for the child or young person
lapses without an order being made by the Childrens
Court.
For example, if the Chief Executive
takes emergency action and does not apply for a care and protection order for
the child or young person which is granted, the Chief Executive is required to
return the child or young person not later than the end of the period prescribed
by clause 409 to one of the persons listed at clause
414(2).
Sub-clause (2) requires the Chief
Executive or police officer to return the child or young person into the
physical care of a parent who has parental responsibility, another person with
daily care or long-term care responsibility or a former caregiver of the child
or young person. In making a decision about who to return the child or young
person to in these circumstances, the Chief Executive or police officer would
need to be satisfied that it is in the best interests of the child or young
person to be delivered into their care.
Part 13.2 — Emergency
action release orders
This division creates a mechanism for review of
emergency action taken by the Chief Executive or a police officer by allowing an
affected person or the Public Advocate to apply for an emergency action release
order.
An emergency action release order
authorises the release of a child or young person, for whom the Chief Executive
or a police officer has daily care responsibility following emergency action
being taken, into the care of a person stated in the order.
Clause 415 — What is
an emergency action release order?
This clause sets out the meaning of an emergency action
release order for the Bill. The order authorises the release of a child or
young person from the parental responsibility of the Chief Executive or a police
officer following emergency action being taken into the care of a person stated
in the order.
Clause 416 —
Emergency action release order—application
The persons listed in sub-clause (2) may apply to the
Childrens Court for an emergency action release order following emergency action
being taken by the Chief Executive or a police officer for the release of the
child or young person from the parental responsibility of the Chief Executive or
a police officer. These persons are the child or young person, a parent who has
parental responsibility, another person with daily care responsibility or
long-term care responsibility, the child or young person’s former
caregiver, or the Public Advocate.
Clause 417 —
Emergency action release order—application to state
grounds
This clause provides that an application for an
emergency action release order must state the grounds for seeking the order,
addressing why the person considers the child or young person is no longer in
need of emergency care and protection or therapeutic protection.
Clause 418 —
Emergency action release order—who must be given
application
This clause outlines who must be given an application
for an emergency action release order and when it must be given. Due to the
short time frame in which an application for an emergency action release order
may be heard, this clause requires the applicant to give a copy of the
application to the persons listed in (a) to (e) at any reasonable time before it
is heard by the Court.
Clause 419 —
Emergency action release order—criteria for making
This clause outlines the criteria for the Childrens
Court to make an emergency action release order. To make an emergency action
release order, the Childrens Court must be satisfied that the child or young
person is no longer in need of emergency care and protection or emergency
therapeutic protection.
Chapter
14 — Care and protection—care and protection orders
This chapter outlines care and protection orders. Care
and protection orders may contain provisions necessary to authorise certain
action or responsibility by the Chief Executive or address specific matters
related to a child or young person’s care and protection (for example,
drug use provisions).
Key changes in the Bill
from the 1999 Act include:
• Drug use
provisions in care and protection orders are introduced in the Bill. These
provisions are intended to address a child or young person’s protective
needs while the child or young person remains in the care of, or having contact
with, a parent or primary caregiver whose parenting capacity is impacted by
their use of a substance.
• The Bill removes
references to short care and protection orders as drafted in the 1999 Act. The
review of the Act found that these orders were not commonly used in practice and
did not achieve their intended use as a care and protection order that was
available in a timely and uncomplicated
manner.
• The Bill consolidates all matters
related to contact for a child or young person within a contact provision in a
care and protection order, including directions that a person not have contact
with a child or young person. Such directions prohibiting a person’s
contact with a child or young person would have been made as specific issues
orders under the 1999 Act.
• Similarly, the
Bill consolidates all matters related to residence arrangements for a child or
young person within a residence provision in a care and protection order,
including directions that a person not reside with a child or young person.
Such directions prohibiting a person residing with a child or young person would
have been made as specific issues orders under the 1999
Act.
• Other types of specific issues orders
under the 1999 Act have become provisions within a care and protection order,
for example, under the Bill, a mental health tribunal provision directing an
assessment of a child or young person’s mental health would have been a
specific issues order under the 1999 Act. Similarly, a parental responsibility
provision under the Bill will address a child or young person’s parental
responsibility, and not a specific issues order about parental responsibility as
would have been made under the 1999
Act.
• The Bill exclusively retains specific
issues provisions within care and protection orders for directing a person to do
or refrain from doing something directly relevant to a child or young
person’s care and protection.
• In
order to achieve stability for children and young people subject to care and
protection orders and minimise the making of multiple short-term orders, the
Bill provides guidance to the Childrens Court about the length of parental
responsibility provisions within care and protection orders, being options of
short-term parental responsibility provisions up to 2 years in duration or
long-term parental responsibility provisions until the child or young person
turns 18 years. Clause 476 creates a rebuttable presumption that it is in the
best interests of a child or young person to become subject to a long term
parental responsibility provision after a short term parental responsibility
provision in the circumstances outlined in clause
476(2).
The requirements contained in the 1999
Act at Schedule 1 regarding service of care and protection applications and
notice of care and protection hearings have been incorporated into this chapter,
with some modifications.
Part 14.1 —
Preliminary
This part includes definitions for chapter 14 and
outlines what a care and protection order is.
Clause 420 —
Definitions—ch 14
This clause sets out definitions for chapter 14,
including authorised assessor and provisions. The Bill contains references to a
care and protection order with different provisions, rather than different care
and protection orders as existed under the 1999
Act.
For example, under the Bill, a care and
protection order with residence and parental responsibility provisions would
have been residence and parental responsibility orders under the 1999 Act.
Another example is a care and protection order with an enduring parental
responsibility provision under the Bill which would have been an enduring
parental responsibility order under the 1999 Act. There is no intended or
actual difference between the meaning of a provision or provisions attached to a
care and protection order under the Bill compared to a care and protection order
or orders as would have been made under the 1999 Act.
Clause 421 — What is
a care and protection order?
This clause sets out the meaning of a care and
protection order for the Act. A care and protection order may include
provisions such as a short term parental responsibility provision, long-term
parental responsibility provision or enduring parental responsibility provision
(see part 14.6), residence provision (see part 14.7), contact provision (see
part 14.8), drug use provision (see part 14.9), supervision provision (see part
14.10), mental health tribunal provision (see part 14.11) or a specific issues
provision (see part 14.12).
Clause 422 —
Offence—contravene care and protection order
This clause creates an offence to engage in conduct that
contravenes a provision of a care and protection order. This re-enacts an
existing offence at section 210(3) of the 1999 Act. The maximum penalty is 100
penalty units, imprisonment for one year or both.
Part 14.2 — Applications
for care and protection orders
This part outlines applications for care and protection
orders and includes requirements for service of applications for care and
protection orders that were previously contained in Schedule 1 of the 1999 Act.
Clause 423 — Care and
protection order—application by Chief Executive
This clause clarifies that the basis of an application
for a care and protection order in this chapter by the Chief Executive is a
reasonable belief that a child or young person is in need of care and
protection. This re-enacts section 195(1) of the 1999 Act.
Clause 424 — Care and
protection order—application by others
This clause enables people other than the Chief
Executive to apply for a care and protection order.
A person other than the Chief Executive may
apply for a care and protection order if they reasonably believe that the child
or young person is in need of care and protection, they have consulted with the
Chief Executive about the application and they have the leave of the Childrens
Court to make the application. If the person seeks leave, the Childrens Court
must hear the applicant and the Chief Executive, and the Court may grant leave
to the applicant to make the application. If an application is made, the Chief
Executive and the Public Advocate can attend and be heard at proceedings under
Schedule 1, Part 1.2, Court Procedures Act 2004, section 74C.
Clause 425 — Care and
protection order—application must state provisions sought and
grounds
This clause outlines what must be in an application for
a care and protection order.
The Bill
introduces a new requirement for applications for a care and protection order
with a parental responsibility provision. These applications must
state:
• whether parental responsibility is
proposed to be shared or transferred;
and
• the persons who are to share parental
responsibility for the child or young person;
and
• the person or persons to whom parental
responsibility is proposed to be transferred for the child or young
person.
Clause 426 — Care and
protection orders—who must be given application
This clause provides that an application must be served
on the listed persons at least 3 working days before the application is heard by
the Court. The timeframe for service of application re-enacts Schedule 1 of the
1999 Act. There is an exception to this requirement if the Chief Executive or
police officer has daily care responsibility following the taking of emergency
action, in which case clause 412 only requires service of the application before
the application is heard by the Childrens Court.
Clause 427 — Care and
protection order—cross-application for different
provisions
This clause allows a party to a proceeding to cross
apply on an application for a care and protection order by the Chief Executive
or another person for:
• a different order
under the care and protection chapters; or
• a different provision to be included in
the order; or
• different terms in a
provision in the order.
The applicant must
believe on reasonable grounds that the different provision, terms or order are
in the best interests of the child or young person. The applicant must also
have the leave of the Childrens Court to cross apply. Sub-clause (2) provides
that the Childrens Court, in order to give leave, must be satisfied there are
reasonable grounds for believing that the different provision, terms or order is
in the best interests of the child or young
person.
Different orders which may be sought on
cross application are any other orders under the care and protection chapters
including a therapeutic protection order, appraisal order, DVPO protection order
or assessment order. An example of a cross application for a different order
would be a cross application by a parent for an assessment order upon the Chief
Executive’s application for a care and protection order with a drug use
provision.
An example of a cross application
for a different provision would be a cross application for a supervision
provision in a care and protection order upon the Chief Executive’s
application for a care and protection order with a residence provision.
An example of a cross application for
different terms in a provision in the order would be a cross application for a
residence provision in favour of the applicant upon application by the Chief
Executive for a care and protection order with a residence provision authorising
the Chief Executive to decide with whom the child is to reside.
Clause 428 — Care and
protection order—cross-application must state provisions sought and
grounds
This clause provides that a cross application for a care
and protection order must state the proposed provisions, the proposed different
terms in the provisions in the order or the proposed different order. The cross
application must also include a draft of the different provision, terms or order
and why this would be in the best interests of the child or young
person.
The Bill introduces a new requirement
for a cross application for a care and protection order with a parental
responsibility provision. These applications must
state:
• whether parental responsibility is
proposed to be shared or transferred and state which aspect or aspects are
proposed to be shared or transferred;
and·
• the persons who are to share
parental responsibility for the child or young person;
and
• the persons to whom parental
responsibility is proposed to be transferred for the child or young
person.
Clause 429 — Care and
protection order—Court to consider application and cross-application
promptly
This clause requires a Magistrate of the Childrens Court
to give initial consideration to an application or cross application not later
than 5 working days after it is filed.
The
Bill introduces a new requirement that initial consideration of an application
or cross-application for a care and protection order be made by a Magistrate.
This ensures there is judicial oversight of the application from the earliest
point in the process and allows for appropriate directions to be issued by the
judicial officer about the conduct of the application.
Part 14.3 — Interim care
and protection matters
This part deals with action the Childrens Court may take
before adjourning an application or cross application for a care and protection
order, including Court-ordered meetings, interim care and protection orders,
assessment orders and orders that can be made by the Childrens Court under the
Domestic Violence and Protection Orders Act 2001 during care and
protection proceedings. This part also addresses care plans which outline
proposals for the child or young person’s care when they are subject to an
interim or final care and protection order.
Division 14.3.1 —
General
Clause 430 — Interim
matters—Court action before adjournment
This clause outlines action the Childrens Court may take
before adjourning an application or cross application for a care and protection
order.
Sub-clause (1) requires the Childrens
Court, before adjourning the application or cross-application, to identify the
matters in dispute, consider the length of the hearing required in the matter
and give necessary directions.
Sub-clause (2)
allows the Childrens Court to take one or more of the following actions before
adjourning an application or cross-application:
• order that a meeting take place to
identify or resolve issues in dispute (called a Court-ordered
meeting);
• make an assessment
order;
• make an interim care and protection
order to remain in force during the adjournment
period;
• make a DVPO interim protection
order;
• extend or revoke any interim care
and protection order already in force and/or any provision within the
order.
Clause 431 — Interim
matters—Court-ordered meeting
This clause outlines who can attend a Court ordered
meeting and provides for a person, appointed by the Court, to preside over the
meeting. The person appointed must be independent of the parties. Examples
include a community based mediator or a registrar of the
Court.
Sub-clause (4) provides that the person
presiding over the meeting must report the outcome only of the meeting to the
Childrens Court, in order for the Court to know whether there has been any
progress in resolving the matters in dispute. Accordingly clause 872 provides
that evidence of anything said or done at a Court ordered meeting is admissible
in the care and protection proceeding to which it relates only if the parties to
the proceeding agree to the evidence being admitted or the Childrens Court gives
leave for the evidence to be admitted. This is intended to allow parties to
participate in a Court-ordered meeting in good faith to identify and resolve
matters in dispute, and in the knowledge that any information disclosed, or
discussed, at the meeting can only be admitted in the relevant care and
protection proceedings with their agreement or with the leave of the
Court.
Division 14.3.2 — Interim
care and protection orders
This division makes provision for interim care and
protection orders.
Clause 432 — Interim
matters—interim care and protection orders
Sub-clause (1) enables the Childrens Court, on
application or its own initiative, to make an interim care and protection order
for a child or young person where an application for a care and protection order
has been made but not decided and the Childrens Court reasonably believes that
the child or young person is (or would be) in need of care and protection if the
interim order was not made.
Sub-clause (2)
provides that the Childrens Court is required to include in an interim care and
protection order one or more provisions that the Court is satisfied are in the
best interests of the child or young person. For example, the Childrens Court
may consider that the child or young person’s circumstances require the
making of an interim care and protection order with a drug use provision and a
supervision provision to ensure the child or young person’s safety during
the period of the adjournment.
Under the 1999
Act this power was limited to orders for parental responsibility, contact,
assessment and specific issues orders however this limitation was removed to
give the Childrens Court discretion to tailor the care and protection order as
it considers appropriate to meet the protective needs of the child or young
person.
Sub-clause (4) provides that the
Childrens Court may require the Chief Executive to give the Court a care plan
for a child or young person for the period of an interim care and protection
order before it makes the order. Care plans are dealt with at division
14.3.4.
Clause 433 —
Offence—contravene interim care and protection order
This clause contains a new strict liability offence of
contravening an interim care and protection order. The maximum penalty for this
offence mirrors the penalty for contravening a final care and protection order
– 100 penalty units, imprisonment for 1 year or both.
Clause 434 — Interim
care and protection orders—revocation or amendment
This clause addresses how interim care and protection
orders made by the Childrens Court can be revoked or
amended.
Sub-clause (2) allows a party to
proceedings to apply for revocation or amendment of an interim care and
protection order. The meaning of a party is outlined at clause
699.
Sub-clause (3) requires the applicant to
give the application to each other party to the proceeding and the Public
Advocate at a minimum of three working days before the application is heard. It
also requires the applicant to give the application to anyone else who was
required to be given a copy of the application for the care and protection
order, as these persons may not be parties within the meaning set out at clause
699.
Sub-clause (4) requires the Childrens
Court to give initial consideration to the application not later than 5 working
days after filing.
Sub-clause (5) requires
the Childrens Court to give directions about the conduct of the proceeding at
the time of giving initial consideration to the application.
Sub-clause (6) requires the Childrens Court,
after hearing the application, to take one of the actions outlined at (a) to
(d). Action that may be taken by the Court includes dismissing the application,
revoking the interim care and protection order, amending the interim care and
protection order or substituting a provision in the order for a different
provision.
Division 14.3.3 —
Assessment orders
This division outlines assessment orders. An assessment
order authorises a care and protection assessment of a person (defined at clause
366) which is relevant to a child or young person’s care and protection.
The order can be no longer than 10 weeks (clause 448), however, the order may be
extended to up to 18 weeks if the assessment cannot be effectively undertaken if
the order is not extended or 26 weeks if special and exceptional circumstances
exist which mean the extension is necessary for the assessment to be completed
(clause 453).
Clause 435 — What is
an assessment order?
This clause outlines the meaning of an assessment order
for the care and protection chapters. It is an order authorising the Chief
Executive to arrange a care and protection assessment of a person (which
includes the child or young person) and may include requirements in relation to
the conduct of the assessment. The assessment may be of the child or young
person or another person, including for example other family
members.
A care and protection assessment is outlined at clause
366 and means any of the following:
• a
medical examination or test of the
person;
• a dental examination or test of the
person;
• a social assessment of the
person;
• an assessment of the
person;
• a paediatric or developmental
assessment of the person;
• a psychological
examination or test of the person;
• a
psychiatric examination or test of the person;
• if the person is a parent or other person
with parental responsibility—an assessment of the person’s parenting
capacity.
It does not include an assessment,
examination or test that involves surgery or anything prescribed by regulation.
This clause re-enacts section 217 of the 1999
Act in relation to special assessments. Assessments involving child protection
appraisals at section 217 of the 1999 Act are now dealt with by appraisal orders
at division 11.2.3 of the Bill.
Clause 436 — Care and
protection assessment—terms of reference for care and protection
assessment
In order to facilitate the expeditious conduct of
assessments ordered by the Childrens Court, sub-clause (1) requires the Chief
Executive to decide the matters to be assessed in a care and protection
assessment of a child or young person (known as the terms of reference) and
choose an authorised assessor to conduct the assessment, subject to the
Childrens Court ordering otherwise. Assessors are authorised by the Chief
Executive under clause 437.
Sub-clause (2)
allows the terms of reference to relate to the subject child or young person or
another person and may include any matter considered appropriate by the Chief
Executive to be assessed.
Sub-clause (3)
provides that the Chief Executive must consult with the other parties before
deciding the terms or reference or determining the authorised assessor to
undertake the assessment. In consulting the other parties, the Chief Executive
must inform the other parties about the proposed terms of reference or assessor
and provide 7 days for submissions to be made to the Chief Executive about
either of these matters. The Chief Executive is obliged to take into account
any submissions made by a party, however, to the extent of any disagreement
between the Chief Executive and another party about the proposed terms of
reference or assessor, the Chief Executive’s decision takes precedence,
subject to the Court otherwise ordering.
Clause 437 — Care and
protection assessment—authorisation of assessors
This clause allows the Chief Executive to authorise a
person (for example, a certain interstate medical specialist), or category of
people (for example, all registered health professionals under the Health
Professionals Act 2004), to carry out care and protection assessments (an
authorised assessor) if the person is suitably qualified to carry out care and
protection assessments. The authorisation occurs by way of notifiable
instrument.
Authorised assessors may include
for example, registered health professionals under the Health Professionals
Act 2004 or other corresponding interstate Act, a person who is eligible for
membership of the Australian Association of Social Workers, or a suitably
qualified delegate of the Chief Executive.
Clause 438 — Care and
protection assessment—report after making
This clause requires an authorised assessor who carries
out a care and protection assessment to give the Chief Executive, as soon as
practicable after the assessment is completed, the assessment report and any
records made by the assessor in the course of carrying out the assessment.
Section 220 of the 1999 Act created an offence
for an assessor who failed to provide the assessment report to the Court (if it
so ordered) and each person named in the order for the purpose of receiving the
report. This clause removes the offence and requires the report to be given to
the Chief Executive to reflect that the Chief Executive has made arrangements
for the assessment. As sub-clause (3) provides that the report is taken to be a
report to the Childrens Court rather than evidence tendered by a party, this
clause clarifies that it is appropriate for the Chief Executive to assist the
Court with producing the finalised assessment report. In any event, sub-clause
(2) obliges the Chief Executive to file the report with the Childrens Court.
Clause 439 —
Offence—contravene assessment order
This clause creates an offence for contravening an
assessment order. The maximum penalty is 50 penalty units, imprisonment for 6
months or both.
Clause 440 —
Assessment orders—prevails over care and protection order
This clause removes doubt that if there is an apparent
inconsistency between an assessment order and a care and protection order, then
the assessment order is taken to override the care and protection order.
For example, an assessment order with a
requirement that a person attend for the assessment at a stated time would take
precedence over a care and protection order with a supervision provision which
required the person to report to the Chief Executive at the same time.
Clause 441 —
Assessment orders—on application or Court’s own
initiative
This clause provides that the Court, either of its own
motion or upon application by a party to the proceeding, may make an assessment
order. Section 217 of the 1999 Act previously provided that the order could
only be made upon application. This restriction has been removed to enable the
Court to make an assessment order where the Court considers it necessary to
assess whether the child or young person is in need of care and protection and
the other criteria in clause 447 are met.
Clause 442 —
Assessment orders—application by party
This clause introduces new criteria that a party to a
proceeding must satisfy in order to apply for an assessment order. These
criteria include that the assessment is necessary to assess whether the child or
young person is in need of care and protection and the assessment could not be
properly carried out without an order.
Sub-clause (1)(c) requires the applicant to
reasonably believe that any subsequent care and protection assessment for a
child or young person is not harmful or detrimental to them. The intention of
this clause is to ensure that children and young people are not subjected to
unnecessary, multiple assessments which could cause them direct or indirect harm
or detriment. An example of the former is emotional distress caused by
questions posed by an assessor. An example of the latter is missing significant
amounts of school time to attend assessment appointments.
Sub-clause (2) requires the applicant for an
assessment order to meet the cost of the assessment. This is consistent with
the general principle that the applicant bears the costs of their
application.
Clause 443 —
Assessment orders—application to state grounds
This clause outlines that an application for an
assessment order must state the grounds on which the order is
sought.
Clause 444 —
Assessment orders—who must be given application
This clause outlines who must be provided with a copy of
the application for an assessment order and when they must receive it. This
requirement does not apply if the Chief Executive or a police officer has
parental responsibility for a child or young person as a result of taking
emergency action.
Clause 445 —
Assessment orders—Court to consider application promptly
This clause requires the Childrens Court to give initial
consideration to an application for an assessment order not later than 5 working
days after the application is filed. This timeframe is necessary to minimise
the detrimental effects of time delays in assessing and then planning if
necessary for the child or young person’s care and protection
needs.
Clause 446 —
Assessment orders—no interim order
This clause provides the Childrens Court cannot make an
interim assessment order. This is because an assessment order is a final, once
only order authorising a specific event, namely the assessment. This re-enacts
section 203(2) of the 1999 Act.
Clause 447 —
Assessment orders—criteria for making
This clause provides for the Childrens Court to make an
assessment order in relation to a child or young person, about any person and
state the matters about which the Court must be satisfied before making the
order. This clause replaces criteria at section 218(1) of the 1999 Act. The
intention of these new criteria is to ensure that children and young people are
not subjected to unnecessary assessments that are not in their best
interests.
Clause 448 —
Assessment orders—length
This clause provides that assessment orders can be made
for a maximum of 10 weeks.
However, clause
453(2) allows the Childrens Court to extend an assessment order up to 18 weeks
(from the date the original order was made) if necessary for the completion of
the assessment or up to 26 weeks if special and exceptional circumstances exist
which mean the extension is necessary for the assessment to be completed. An
example of special and exceptional circumstances is that the Court may be
satisfied that the assessment cannot be properly carried out if the assessor has
not been able to meet and interview all relevant family members for a family
assessment as some family members were overseas. Another example is that the
Court may be satisfied that the assessment cannot be properly carried out as the
child who is the subject of a paediatric assessment became ill mid way through
the assessment and the child needs time to recuperate before the assessment can
be completed.
Clause 449 —
Assessment orders—extension application
This clause allows a party to a proceeding for a care
and protection order to apply for an extension of an assessment order if the
party reasonably believes the assessment could not be carried out unless the
order is extended.
Clause 450 —
Assessment orders—extension application must state grounds
This clause outlines what must be addressed in an
application to extend an assessment order.
Clause 451 —
Assessment orders—who must be given extension application?
This clause outlines who must be provided a copy of the
application for an assessment order and when they must receive it.
Clause 452 —
Assessment orders—Court to consider extension application
promptly
This clause requires the Childrens Court to give initial
consideration to an application for an assessment order not later than 5 working
days after the application is filed. This timeframe is necessary to minimise
the detrimental effects of time delays in assessing and then if necessary,
planning for the child or young person’s care and protection needs.
Sub-clause (2) requires the Court to be
satisfied that any adjournment of an application for extension of an assessment
order is appropriate considering the urgency of the application.
Sub-clause (3) has the effect of continuing
any assessment order in force when an application for extension of an assessment
order is filed until the application is finalised by the Childrens Court. This
applies regardless of whether the application is considered within the
prescribed period of 5 working days after filing.
Clause 453 —
Assessment orders—criteria for extension
This clause provides the criteria for the Childrens
Court to extend an assessment order. Sub-clause (1)(a) requires the Court to be
satisfied that the care and protection assessment cannot be effectively
undertaken if the order is not extended. An example is that the Court may be
satisfied that the assessment cannot be properly carried out if the assessor has
not been able to meet and interview all relevant family members for a family
assessment as some family members were overseas. Another example is that the
Court may be satisfied that the assessment cannot be properly carried out as the
child who is the subject of a paediatric assessment became ill mid way through
the assessment and the child needs time to recuperate before the assessment can
be completed.
Sub-clause (1)(b) allows the
Childrens Court to extend an assessment order up to a maximum of 18 weeks (from
the date the original order was made) if the assessment cannot be effectively
undertaken if the order is not extended.
Sub-clause (2) allows the order to be extended
up to 26 weeks if special and exceptional circumstances exist which mean the
extension is necessary for the assessment to be completed. An example of a
special and exceptional circumstance is if an assessor becomes ill mid way
through an assessment and requires 3 weeks leave, which impacts upon the overall
timeframe in which the assessment was to be completed.
Division 14.3.4 — Care
plans
This division outlines care plans for a child or young
person who is, or is proposed to be, subject to a care and protection order. A
care plan is a written document outlining the Chief Executive’s proposals
for the care and protection of the child or young person. Key new proposals
introduced by the Bill include:
• A stability
proposal - which outlines how the Chief Executive proposes to ensure a long-term
placement for a child or young person in a safe, nurturing and secure
environment. The stability proposal will include strategies to support children
and young people who live with their parents, and for children who do not live
with their parents, concurrent planning for restoration with parents and/or
placement in alternative care.
• A cultural
proposal - for Aboriginal and Torres Strait Islander children and young people
subject to care and protection orders. This outlines how the Chief Executive
proposes to preserve and enhance the identity of the child or young person as an
Aboriginal or Torres Strait Islander
person.
The Childrens Court must consider a
care plan before it makes a care and protection order under clause 463(1)(b).
The Childrens Court may require the Chief Executive to give the Court a care
plan for a child or young person for the period of an interim care and
protection order before it makes the order under clause 432(4).
Clause 454 — What is
a care plan?
This clause outlines the meaning of a care plan for a
child or young person who is or proposed to be subject to a care and protection
order or interim care and protection order.
A care
plan is a written document outlining the Chief Executive’s proposals for
the care and protection of the child or young
person.
Sub-clause (b)(ii) allows the Chief
Executive to include cultural proposals in care plans for Aboriginal and Torres
Strait Islander children and young people subject to, or proposed to be subject
to interim or final care and protection orders. Under the 1999 Act, such
proposals were limited to Aboriginal and Torres Strait Islander children and
young people who were in out of home care. This proposed positive
discriminatory measure is a justifiable limitation on the right to recognition
and equality before the law under the Human Rights Act 2004, as it
recognise the needs of Aboriginal and Torres Strait Islander children, their
families and their communities in the light of their history as Indigenous
Australians and their over-representation in the child protection system and in
out of home care.
Sub-clause (b)(iv) extends
section 259 in the 1999 Act by including proposals regarding stability planning
for the child or young person in the care plan.
This clause re-enacts section 259 of the Act
related to care plans.
Clause 455 — Care
plans—stability proposals
This clause seeks to improve stability for children and
young people. One of the key determinants of a child’s outcomes in
out-of-home care is stability of placement, or permanency. Research confirms
that[2]:•
Multiple
placements in care results in serious relational, emotional and cognitive
consequences for children; and•
Stability is
important, particularly in the early years of children’s lives. Children
who do not have responsive caring early in life will have great difficulty
overcoming these deficits later.Consultations
on the review of the Children and Young People Act 1999 supported the
introduction of stability plans for children and young people who are subject to
a care and protection order, with the capacity to concurrently plan for
restoration to parents’ care and placement in alternative
care.Clause 454(b)(iii) allows the Chief
Executive to include a proposal in a care plan about how the Chief Executive
proposes to ensure the living arrangements for the child or young person are as
stable as possible. If a proposal under clause 454 (b)(iii) is included in a
care plan, the Chief Executive must prepare a proposal (a stability proposal)
which outlines how the Chief Executive proposes to ensure a long-term placement
in a safe, nurturing and secure environment. The stability proposal will
include strategies to support children and young people who live with their
parents, and for children who do not live with their parents, concurrent
planning for restoration with parents and/or placement in alternative care.
Clause 456 — Care
plans—who must be consulted
This clause introduces a new requirement for the Chief
Executive to consult about the care plan with a child or young person, parents
or other persons with daily care responsibility and anyone else involved with
implementing the care plan. For proposals about Aboriginal or Torres Strait
Islander children and young people, the Chief Executive is required to consult
with certain Aboriginal or Torres Strait Islander people and support
organisations identified by the Chief
Executive.
Examples have been included in the
Bill of persons who are likely to be involved in implementing a proposal in a
care plan as an out-of-home carer (being a foster carer, kinship carer,
residential care service) or a community based service (for example, family
support service).
Participants consulted on
the review of the 1999 Act supported enhanced participation in care planning by
children, young people, their families, and agencies responsible for
implementation of the care plan.
Division 14.3.5 —
Orders under Domestic Violence and Protection Orders Act
This division relates to orders made by the Childrens
Court under the Domestic Violence and Protection Orders Act 2001.
The 1999 Act provided for the Childrens Court
to make an interim or final Domestic Violence and Protection Order in relation
to a child or young person while an application for a care and protection order
is before the Court. The 1999 Act did not provide for these orders to be made
by the Childrens Court in circumstances where an application for a care and
protection order is not before the Court. The Magistrates Court has
jurisdiction under the Domestic Violence and Protection Orders Act 2001
in these circumstances.
The Bill remakes
these provisions. The power for the Childrens Court to make a DVPO protection
order upon an application for a care and protection order allows an additional
level of protection to be afforded to a child or young person at risk of
significant harm from domestic violence. For example, the Chief Executive
applies to the Childrens Court for a care and protection order with a
supervision provision for a child who is at risk of physical abuse as a
consequence of domestic violence perpetrated by the child’s mother’s
partner towards the mother. After the Chief Executive files the application for
the care and protection order, the Chief Executive then applies for a DVPO
interim protection order to prevent the perpetrator from residing in the same
house as the child during the period of the proceedings.
The criteria for making a DVPO protection
order under the Bill (which is defined at clause 457 to include both DVPO
interim and final protection orders) has been expanded to include psychological
abuse within the meaning of domestic violence. This addresses concerns raised
in consultation for the review of the 1999 Act that children and young people
need to be appropriately and adequately protected from exposure to domestic
violence and its associated detrimental effects on the child or young
person’s emotional and psychological wellbeing, both short and long
term.
Clause 834 provides that a person may
appeal to the Supreme Court against a decision of the Childrens Court to make a
DVPO protection order in accordance with the Domestic Violence and Protection
Orders Act 2001. Part 8 of the Domestic Violence and Protection Orders
Act 2001 outlines appeal rights and rules.
Clause 457 —
Definitions—div 14.3.5
This clause sets out definitions used for this division.
It incorporates an expanded definition of domestic violence which includes the
meaning of domestic violence outlined at section 9(1) of the Domestic
Violence and Protection Orders Act 2001 and includes psychological abuse of
a child or young person which is defined at clause 460.
This clause creates a definition of DVPO
protection order as meaning a DVPO interim protection order or a DVPO final
protection order.
Clause 458 — DVPO
interim protection orders
While an application for a care and protection order is
before the Childrens Court, sub-clause (1) enables the Court to make a DVPO
interim protection order for the subject child or young person if satisfied that
it is necessary to ensure the child or young person’s safety until the
application for the care and protection order is
decided.
Sub-clause (2) provides that the Court
may have regard to the need to ensure the person against whom the order is made
will not engage in domestic violence in relation to the child or young person.
Domestic violence is defined at clause 457 and includes psychological abuse
defined at clause 460.
Sub-clause (3) allows
the Childrens Court to make the DVPO interim protection order on its own
initiative, or on application by a party to the proceeding for the care and
protection order, or on application by the Public
Advocate.
Sub-clause (4) addresses the
interaction of the Domestic Violence and Protection Orders Act 2001 with
this Act. Any DVPO interim protection order that the Court makes must be
consistent with this division and the Domestic Violence and Protection Orders
Act 2001.
Clause 459 — DVPO
final protection orders
While an application for a care and protection order is
before the Childrens Court, sub-clause (1) enables the Court to make a DVPO
final protection order for the subject child or young person if satisfied that
the person against whom the order is to be made has engaged in domestic violence
towards the child or young person or has engaged in personal violence and may
place the child or young person at risk of personal violence if the order were
not made.
Sub-clause (2) allows the Childrens
Court to make the DVPO final protection order on its own initiative, or on
application by a party to the proceeding for the care and protection order, or
on application by the Public
Advocate.
Sub-clause (3) addresses the
interaction of the Domestic Violence and Protection Orders Act 2001 with
this Act. Any DVPO final protection order that the Court makes must be
consistent with this division and the Domestic Violence and Protection Orders
Act 2001.
Clause 460 — What is
psychological abuse of a child or young person?
This clause incorporates a new definition of
psychological abuse of a child or young person. The meaning of domestic
violence at clause 457 includes psychological abuse. It is intended to address
the harm caused to a child or young person by their intentional or incidental
exposure or risk of exposure to physical, sexual or psychological abuse of any
person who the child or young person lives with. This is intended to be
construed broadly to include all persons within the child or young
person’s usual household or regular living arrangements (for example,
where the child has more than one usual residence due to a shared care
arrangement between separated parents).
Psychological abuse of a child or young person
is defined as a person causing or allowing the child or young person to see or
hear the physical, sexual, or psychological abuse of a person with whom the
child has a domestic relationship; or putting the child, or allowing the child
to be put, at real risk of seeing or hearing that abuse occurring.
The definition of psychological abuse is
consistent with developments in other jurisdictions, for example, New
Zealand.
Sub-clause (2) clarifies that a person
who also suffers the abuse is not to be considered as having exposed the child
or young person to the abuse. However, if this person has parental
responsibility, this does not mean that the person is willing and able to
protect the child or young person from significant emotional or psychological
harm or risk in accordance with the second part of the test of in need of care
and protection under clause 344(1)(b).
Sub-clause (3) clarifies that one incident or
act may cause or result in psychological abuse of a child or young person in
addition to multiple incidents of a less serious nature which cumulatively have
the effect of psychological abuse of a child or young person.
Clause 461 — No DVPO
protection order if no proceeding under care and protection
chapters
This clause provides that the jurisdiction of the
Childrens Court to make a DVPO protection order for a child or young person does
not enliven until care and protection proceedings are before the Court following
an application filed by the Chief Executive or another person. In these
circumstances where the jurisdiction of the Childrens Court is not enlivened,
the Bill removes doubt that this clause does not preclude an application being
made under the Domestic Violence and Protection Orders Act 2001.
Clause 462 — Effect
of making DVPO protection order under this Act
This clause addresses the status and effect of a DVPO
protection order made under this Act.
Sub-clause (1) provides that a DVPO protection
order made by the Childrens Court under this Act is taken to have been made
under the Domestic Violence and Protection Orders Act 2001.
Sub-clause (2) provides that the validity of a
DVPO protection order is not affected by the making of such an order upon
application for a care and protection order.
Sub-clause (4) reconciles the expanded
definition of domestic violence in the Domestic Violence and Protection
Orders Act 2001 with the expanded definition of domestic violence at clause
457 which includes psychological abuse as outlined at clause 460. The expanded
definition of domestic violence is intended to address the harm caused to a
child or young person by their intentional or incidental exposure or risk of
exposure to physical, sexual or psychological abuse of any person who the child
or young person lives with. This is intended to be construed broadly to include
all persons within the child or young person’s usual household or regular
living arrangements (for example, where the child has more than one usual
residence due to a shared care arrangement between separated parents).
Psychological abuse of a child or young person
is defined as a person causing or allowing the child or young person to see or
hear the physical, sexual, or psychological abuse of a person with whom the
child has a domestic relationship; or putting the child, or allowing the child
to be put, at real risk of seeing or hearing that abuse occurring.
Part 14.4 — Making care
and protection orders
This part includes the criteria for making a care and
protection order.
Clause 463 — Care and
protection order—criteria for making
Sub-clause (1) empowers the Childrens Court to make a
care and protection order and outlines the criteria for the making of a care and
protection order.
Sub-clause (1)(a) requires
the Childrens Court to be satisfied that the child or young person is in need of
care and protection before making a care and protection order. The test for
when a child or young person is in need of care and protection is outlined at
clause 344. Sub-clause (5) specifies that the Court must satisfy itself that
the child or young person is in need of care and protection and must not only
accept the admission of the parties that the child or young person is in need of
care and protection.
Sub-clause (1)(b)
requires the Court to consider the care plan for the child or young person
prepared by the Chief Executive before making a care and protection order. The
care plan is outlined at division 14.3.4 and is a written plan detailing the
Chief Executive’s proposals for meeting the child or young person’s
protective and care needs.
Sub-clause
(1)(c)(i) requires the Court to be satisfied that the provisions included in the
order are necessary to ensure the care and protection of the child or young
person before making a care and protection order. The types of provisions that
may be included in a care and protection order are outlined at sub-clause (2).
The Court must include at least one provision in a care and protection order and
may include any number of provisions considered necessary to meet the child or
young person’s protective needs. This ensures that the provision or
provisions included in the order are a proportionate and tailored response to
the circumstances which gave rise to the child or young person being in need of
care and protection.
Sub-clause (1)(c)(ii)
requires the Court to be satisfied that making the order is in the best
interests of the child. This reflects the principle that the best interests of
a child or young person is the paramount consideration for all decision makers
across the Bill at clause 8.
Sub-clause (2)
enables the Court to include a provision or multiple provisions in a care and
protection order, on application by a party or on its own initiative, if
satisfied that the provision or provisions are in the best interests of the
child or young person.
The provisions that
may be included in a care and protection order
are:
• short-term parental responsibility
provision (see clause 475)
• long-term
parental responsibility provision (see clause
478)
• enduring parental responsibility
provision (see clause 480)
• residence
provision (see clause 483)
• contact
provision (see clause 484)
• drug use
provision (see clause 487)
• supervision
provision (see clause 488)
• mental health
tribunal provision (see clause
490)
• specific issues provision (see clause
491)
Sub-clause (3) specifies that the Court
may only make an enduring parental responsibility provision as part of the care
and protection order if satisfied that the additional criteria outlined at
clause 481 are met. As an enduring parental responsibility provision has the
effect of transferring daily care and long term responsibility for a child or
young person to a person (other than the Chief Executive) until 18 years, it is
necessary that the additional criteria at clause 481 are met to ensure the
provision is appropriate for the child or young person’s circumstances.
Sub-clause (4) requires the Chief Executive to
give a copy of the care plan to each other party to the proceeding unless
ordered otherwise by the Childrens Court.
Sub-clause (5) provides that whether a child
or young person is in need of care and protection is a matter for the Court to
decide on the balance of probabilities and must not merely be based on
admissions by the parties that the child is in need of care and protection.
Sub-clause (6) specifies that a provision may
be included in a care and protection order by the Court on its own initiative or
on application by a party to the proceeding.
Sub-clause (7) specifies that if it is
intended that a person make decisions about a child or young person’s
residence, then a residence provision must be made as part of the care and
protection order. For example, the Court decides to include a parental
responsibility provision in favour of the Chief Executive and intends for the
Chief Executive to have responsibility for deciding where the child resides.
The Court must make a residence provision authorising the Chief Executive to
decide the child’s residence.
Clause 464 — Care and
protection order—length
This clause requires the Childrens Court to state the
length of each provision included in the care and protection order.
Sub-clause (2) provides that where an order
contains multiple provisions which are of different duration, the length of the
order is the length of the longest provision within the order. For example, a
care and protection order contains a supervision provision for 3 years, a
specific issues provision that a person not reside at the same premises as the
child or young person for 1 year and a drug use provision for 3 years. The
length of the order is taken by force of this sub-clause to be 3 years.
Part 14.5 — Extending,
amending and revoking care and protection orders
This part includes the procedures for extending,
amending and revoking care and protection orders.
Clause 465 — Care and
protection order—extension and amendment applications
This clause allows for a person (including a party to
the original proceedings) to seek the leave of the Court to apply to extend or
amend a provision in a care and protection order in a manner stated in the
application. This clause is necessary to allow the Childrens Court to extend or
amend an order in such a way that meets the child or young person’s
changing needs for care and protection (which may increase or decrease over
time).
The onus of proof that the extension or
amendment of the order is in the best interests of the child or young person
rests with each applicant. For the care and protection chapters, a decision
maker must consider the matters outlined at clause 348 in deciding what is in
the best interests of a child or young
person.
Sub-clause (2) requires leave to be
given by the Court to a person who was a party to the original proceeding in
which the order was made.
Sub-clause (3) allows
the Childrens Court to give leave to a person to apply more than once in a 12
month period only if satisfied there has been a significant change in any
relevant circumstances since the care and protection order was made or last
varied.
Clause 466 — Care and
protection order—revocation applications
This clause allows for people (including parties to
proceedings) to seek the leave of the Court to apply to revoke a provision in a
care and protection order in a manner stated in the application.
The onus of proof is that the revocation of
the order is in the best interests of the child or young person, or that the
child or young person would not be in need of care and protection if the order
was revoked, or that the order cannot be administered effectively because of the
child or young person’s persistent refusal to comply with the residence
provision of the order. The onus of proof rests with the
applicant.
Clause 467 — Care and
protection order—application to state what sought and
grounds
This clause outlines requirements for extension,
amendment or revocation applications.
Clause 468 — Care and
protection order—who must be given extension, amendment or revocation
This clause outlines who must be given a copy of the
application for extension, amendment or revocation of a provision in a care and
protection order and the timeframe in which the application must be
given.
Clause 469 — Care and
protection order—Court to consider extension, amendment and revocation
applications promptly
Sub-clause (1) requires the Court to give initial
consideration to an application for extension, amendment or revocation of a
provision in a care and protection order or a care and protection order not
later than 5 working days after filing.
Sub-clause (2) requires the Court to set
directions for the conduct of the proceeding at the time of initial
consideration.
Sub-clause (3) provides that
any order or direction in force on the day of filing continues in force until
the application is heard and decided. This applies regardless of whether the
application is considered within the prescribed period of 5 working days after
filing.
Clause 470 — Care and
protection order—criteria for extensions and amendments
This clause outlines the criteria for extensions and
amendments of provisions in care and protection orders.
Sub-clause (1) requires the Court to be
satisfied that the extension or amendment is in the best interests of the child
or young person.
Sub-clause (2) specifies
that an extension of a provision can be for any length considered appropriate by
the Court. However, sub-clause (4) has the effect of creating a special rule
for the extensions of short-term parental responsibility provisions by providing
that this clause is subject to clause 476. Clause 476 creates a rebuttable
presumption that it is in the best interests of a child or young person to
become subject to a long term parental responsibility provision after a short
term parental responsibility provision in the circumstances outlined in clause
476(2).
Sub-clause (3) allows the Court to
amend a provision in a care and protection order in any manner considered
appropriate. This could include the substitution of a provision with a
different provision or the addition of a provision. An example of the former is
the substitution of a supervision provision for a short term parental
responsibility provision due to a successful restoration of the child from out
of home care to the care of the child’s parents. An example of the latter
is the addition of a drug use provision to a supervision provision in a care and
protection order due to concerns about the emergent drug use of the
child’s primary caregiver.
Clause 471 — Care and
protection order—criteria for revocation
This clause outlines the criteria for the Childrens
Court to revoke a care and protection order or a provision in a care and
protection order.
Sub-clause (1)(a) allows the
Court to revoke a care and protection order or a provision in a care and
protection order if satisfied that the child or young person would not be in
need of care and protection if the order was revoked. This includes
circumstances where a child or young person is no longer in need of care and
protection because of changes in the circumstances which gave rise to the child
or young person being in need of care and protection and the child or young
person being able to return to their former care arrangements. It also includes
circumstances where a young person is no longer in need of care and protection
because the young person is of sufficient age and maturity to transition to
independent living arrangements.
Sub-clause
(1)(b) introduces a new criterion for the revocation of a care and protection
order or a provision in a care and protection order that the order cannot be
adMinistered effectively because of the child or young person’s persistent
refusal to comply with the residence provision of the order. This has been
included because there are circumstances where the child or young person’s
non-compliance with the residence part of a care and protection order (for
example, due to absconding) means the order cannot be properly adMinistered.
Sub-clause (1)(c) allows the Court to revoke a
care and protection order or a provision in a care and protection order if
satisfied that it is in the best interests of the child or young person to
revoke the order.
Sub-clause (2) requires the
Childrens Court to take into account the matters listed at (2)(a) to (d) related
to the child or young person and their situation before revoking a care and
protection order. These considerations are intended to guide the Court in
making a decision to revoke a care and protection order, and to ensure that the
revocation of the order does not diminish a child or young person’s
protection.
Clause 472 — Care and
protection orders—financial burdens
This clause provides that a care and protection order
imposing a financial cost on a person is to be borne by the person unless the
Childrens Court orders otherwise.
Part 14.6 — Parental
responsibility provisions
This part includes parental responsibility provisions.
For a care and protection order, a parental responsibility provision must be
short-term (see division 14.6.2), long-term (see division 14.6.3) or enduring
(see division 14.6.4). An interim care and protection order may include a
parental responsibility provision (see clause 432(2)(f)).
Division 14.6.1 —
General
Clause 473 — What is
a parental responsibility provision?
This clause contains the meaning of a parental
responsibility provision in a care and protection order. It is a provision
about who has daily care responsibility or long-term care responsibility for a
child or young person. It can include one or more of the following
directions:
• That a person (or persons)
stated in the order has daily care responsibility for the child or young
person;
• That a person (or persons) stated
in the order has long-term care responsibility for the child or young
person;
• That daily care or long-term care
responsibility or both be shared between persons stated in the
order;
• That a person who has long-term care
responsibility consult with one or more other people who share long-term care
responsibility for the child or young person in relation to a long term
matter;
• That a person who has parental
responsibility must exercise the responsibility in a stated
way.
An example of the first direction is a
parental responsibility provision with a direction that the Chief Executive has
daily care responsibility for Henry.
An
example of the second direction is a parental responsibility provision with a
direction that Aunt Mary has long-term care responsibility for
Sally.
An example of the third direction is a
parental responsibility provision with a direction that daily care
responsibility and long-term care responsibility for Hugh be shared between
Hugh’s mother, step-father and the Chief
Executive.
An example of the fourth direction
is a parental responsibility provision with a direction that the Chief Executive
consult Richard’s parents in making a decision as to whether Richard
should attend a Government or non-Government school
An example of the fifth direction is a
parental responsibility provision with a direction that the Chief Executive must
facilitate contact for Fiona with her grandparents on a regular basis.
Clause 474 — Chief
Executive sharing daily care responsibility
This clause address circumstances where the Chief
Executive and another person (or more than one other person) share daily care
responsibility for a child or young person. Each person may act independently
of each other in discharging the responsibility. However, sub-clause (2)
provides that the other person or persons who share daily care responsibility
with the Chief Executive must not discharge their responsibility in a manner
that would be inconsistent or incompatible with how the Chief Executive is
exercising the responsibility.
For example,
the Chief Executive shares daily care responsibility for Ben with Ben’s
mother. The care plan provides that Ben resides in a shared care arrangement
with his mother and foster carers. While Ben is residing with his mother,
Ben’s mother exercises daily care responsibility for Ben. While Ben is
residing with foster carers, the Chief Executive authorises the foster carers to
exercise daily care responsibility under clause 517. The care plan specifies
that Ben is not to have contact with a a friend of Ben’s mother who is
convicted of child sex offences. While Ben is residing with his mother,
Ben’s mother decides to allow Ben to have contact with this person. This
clause operates to disallow Ben’s mother to discharge her daily care
responsibility in this manner as it not compatible with how the Chief Executive
wants daily care responsibility for Ben to be discharged as outlined in the care
plan.
Division 14.6.2 —
Short-term parental responsibility provisions
This division contains the meaning of a short-term
parental responsibility provision and the criteria for extending this
provision.
Clause 475 — What is
a short-term parental responsibility provision?
This clause provides the meaning of a short-term
parental responsibility provision. This is a parental responsibility provision
in a care and protection order that is not longer than 2 years.
A parental responsibility provision is defined
at clause 473. The provision may transfer or share daily care or long-term care
responsibility for a child or young person and may include other directions
about how parental responsibility is to be exercised by a person or
persons.
Under clause 464, the Childrens Court
must state the length of each provision included in a care and protection order.
For example, the Court may make a care and protection order with a short-term
parental responsibility provision sharing daily care responsibility for a child
between the Chief Executive and a parent for 1 year.
Clause 476 —
Short-term parental responsibility provision—extension
This clause addresses the criteria for extension of a
short-term parental responsibility provision in a care and protection order. A
short-term parental responsibility provision is a parental responsibility
provision which is not longer than 2 years.
The Second Report on Key Findings from the
Review of the Children and Young People Act 1999 identified concerns that
multiple, short parental responsibility orders (between 2 and 5 years in
duration) were being made for children and young people. Concern was expressed
that this creates considerable uncertainty and instability for children and
young people and often disrupts their attachment and relationships with new
caregivers. This can occur whilst intervention is occurring to return a child
or young person to their parents.
The
intention of this clause is to limit the making of multiple short term parental
responsibility provisions (of up to 2 years in duration) and to create a
presumption for the child or young person to be subject to a long-term parental
responsibility provision after being in out of home care for the 2 year period
of a short term parental responsibility provision.
The clause creates a rebuttable presumption
that it is in the best interests of the child or young person to be subject to a
long term parental responsibility provision (until 18 years) when an application
to extend a short term parental responsibility provision is made. This
presumption can be rebutted by a parent or other person who has had parental
responsibility during the term of the order by satisfying the Childrens Court
that the person is likely to be able to resume care of the child or young person
during the period of the extension and it also in the best interests of the
child or young person for the person to resume
care.
The reverse onus of proof contained in
this clause engages the right to a fair trial at section 21 of the Human
Rights Act 2004. This is a justified limitation on the right to a fair
trial as it balances the need to promote stability for children and young people
in out of home care with the rights of parents or persons with parental
responsibility to demonstrate to the Court their circumstances have changed
sufficiently to resume parenting responsibilities for the child or young person
and that it is in the best interests of the child or young person to be returned
to their care.
The United Nations Committee
on the Rights of the Child has recognised the need for the earliest possible
decisions to be made about long term placement. In their Fortieth Session,
2007, General Comment No.7 (2005), Implementing child rights in early childhood
(UN Commentary), the Committee stated
that:
“Children’s rights to
development are at serious risk when they are orphaned, abandoned or deprived of
family care or when they suffer long-term disruptions to relationships or
separations (e.g. due to natural disasters or other emergencies, epidemics such
as HIV/AIDS, parental imprisonment, armed conflicts, wars and forced migration).
These adversities will impact on children differently depending on their
personal resilience, their age and their circumstances, as well as the
availability of wider sources of support and alternative care. Research suggests
that low-quality institutional care is unlikely to promote healthy physical and
psychological development and can have serious negative consequences for
long-term social adjustment, especially for children under 3 but also for
children under 5 years old. To the extent that alternative care is required,
early placement in family-based or family-like care is more likely to produce
positive outcomes for young children. States parties are encouraged to invest in
and support forms of alternative care that can ensure security, continuity of
care and affection, and the opportunity for young children to form long-term
attachments based on mutual trust and respect, for example through fostering,
adoption and support for members of extended families”.
Clause 477 —
Short-term parental responsibility provision—financial
contribution
This clause allows for the Childrens Court to order that
a parent contribute financially (giving rise to a recoverable debt owing to the
Territory) to the cost of care for a child or young person for whom the Chief
Executive has daily care or long-term care responsibility.
To ensure that the order is not unduly onerous
on a person’s financial situation, the Court is obliged to consider the
financial circumstances of the parent in deciding the amount of the
contribution.
Division 14.6.3 —
Long-term parental responsibility provisions
This division contains the meaning of long-term parental
responsibility provisions.
Clause 478 — What is
a long-term parental responsibility provision?
This clause provides the meaning of a long-term parental
responsibility provision. A long-term parental responsibility provision is in
force until a child or young person is 18 years old and transfers daily care and
long-term care responsibility for the child or young person to the Chief
Executive or another stated person, unless otherwise ordered by the Childrens
Court.
Clause 479 —
Long-term parental responsibility provision—financial contribution by
parents
This clause allows for the Childrens Court to order that
a parent contribute financially (giving rise to a recoverable debt owing to the
Territory) to the cost of care for a child or young person for whom the Chief
Executive has daily care or long-term care responsibility.
To ensure that the order is not unduly onerous
on a person’s financial situation, the Court is obliged to consider the
financial circumstances of the parent in deciding the amount of the
contribution.
Division 14.6.4 — Enduring
parental responsibility provisions
This division remakes provisions in Chapter 7 of the
1999 Act related to enduring parental responsibility orders.
A care and protection order with an enduring
parental responsibility provision may not transfer parental responsibility to
the Chief Executive. However, the Chief Executive may assume long-term
responsibility for a child or young person until they are 18 years old under a
care and protection order with a long-term parental responsibility provision
(see division 14.6.3).
Clause 480 — What is
an enduring parental responsibility provision?
This clause outlines the meaning of an enduring parental
responsibility provision in a care and protection order. An enduring parental
responsibility provision transfers responsibility for day-to-day matters and
long term matters for the child or young person to a stated person (who is not
the Chief Executive) and is in force until the child or young person is 18 years
old.
Sub-clause (2) removes doubt that an
enduring parental responsibility provision is deemed to include a residence
provision which authorises the person to decide where and with whom the child or
young person will live.
Clause 481 — Enduring
parental responsibility provision—criteria for making
The Court must be satisfied of the additional criteria
outlined in this clause when making an enduring parental responsibility
provision.
The Childrens Court may not make an
enduring parental responsibility provision for an Aboriginal or Torres Strait
Islander child or young person unless it has given any Aboriginal or Torres
Strait Islander person or organisation that has provided ongoing support
services to the child or young person and their family a reasonable opportunity
to provide a submission in writing about the making of the proposed provision.
This is to ensure that cultural considerations about long-term care for a child
or young person are taken into account in making the provision.
Clause 482 — Enduring
parental responsibility provision—financial contribution
This clause re-enacts section 263(4) of the 1999 Act and
allows the Chief Executive to provide financial or other assistance, on the
terms and conditions that the Chief Executive considers appropriate, to the
person with parental responsibility under a care and protection order with an
enduring parental responsibility provision.
This discretionary clause does not create or
confer an obligation for the Chief Executive to provide financial or other
assistance in these circumstances.
Part 14.7 — Residence
provisions
This part outlines residence
provisions.
Clause 483 — What is
a residence provision?
This clause outlines the meaning of a residence
provision in a care and protection order. A residence provision is about where
or with whom a child or young person must live or authorises a person to decide
where or with whom a child or young person must live.
It may include one or both of the following
directions:
• that a stated person must not
live at the same premises as the child or young person (including that the
stated person must stop living at those
premises);
• that a stated person may live
with the child or young person only subject to stated
conditions.
An example of the former is a
direction that a lodger residing in the subject child’s family home cease
to reside at the premises as the lodger has been charged with sexually abusing
the subject child.
An example of the latter is
a direction that a person reside with the subject young person subject to the
condition that the person attend an anger management program.
Clause 422 creates an offence to engage in
conduct that contravenes a provision of a care and protection order. The maximum
penalty is 100 penalty units, imprisonment for one year or both.
Part 14.8 — Contact
provisions
This part expands section 260 of the 1999 Act in
relation to contact orders. The 1999 Act provided that only a specific issues
order, not a contact order, may prohibit a person having contact with a child or
young person (section 206(5)). The Bill consolidates all matters relating to
contact arrangements for a child or young person, including a direction that a
person or persons not have contact with a child or young person, in contact
provisions of care and protection orders.
This
part therefore provides that a contact provision in a care and protection order
is about who may or must not have contact with the child or young person or a
provision authorising the Chief Executive or another person to decide with whom
the child or young person may have contact and to decide any conditions for
contact.
Clause 484 — What is
a contact provision?
This clause outlines the meaning of a contact provision
in a care and protection order. This is a provision about who may, or must not,
have contact with the child or young person or a provision authorising the Chief
Executive or another person to decide with whom a child or young person is to
have contact and any conditions for the
contact.
An example of the latter provision
would be a contact provision authorising the Chief Executive to decide with whom
a child or young person is to have contact. In these circumstances, the Chief
Executive would prepare a care plan (see division 14.3.4) outlining the contact
arrangements for the child or young person with family members and significant
persons.
Clause 422 creates an offence to
engage in conduct that contravenes a provision of a care and protection order.
The maximum penalty is 100 penalty units, imprisonment for one year or both.
Clause 485 — Contact
provision—presumption about contact with family
This clause creates a rebuttable presumption that it is
in the best interests of the child or young person for people with parental
responsibility and siblings to have contact with the child or young person upon
an application for a contact provision in a care and protection order.
Sibling of a child or young person is defined
in the dictionary and includes a stepbrother or stepsister and a half-brother or
half-sister.
Clause 486 — Contact
provision—sibling may join proceeding without leave
This clause provides that siblings of a subject child or
young person do not need the leave of the Childrens Court to be joined as a
party to a proceeding for a contact provision in a care and protection order.
This re-enacts section 206(4) of the 1999
Act.
Sibling of a child or young person is
defined in the dictionary and includes a stepbrother or stepsister and a
half-brother or half-sister.
Part 14.9 — Drug use
provisions
The 2006 Murray-Mackie study that investigated the
deaths and near-deaths of five children known to Care and Protection Services in
the ACT recommended that more emphasis be placed by care and protection workers
on the assessment of illicit drug use by primary caregivers for children through
objective medical testing such as urine screening and Court orders where
necessary. This is currently given effect through specific issues orders made
by the Childrens Court authorising drug testing.
This part introduces new clauses related to
drug use provisions in a care and protection order. These provisions engage
human rights outlined in the Human Rights Act 2004, including the
protection of the family and children (section 11), right to privacy and
reputation (section 12), and protection from torture and cruel, inhuman or
degrading treatment or punishment (section 10(1)), and no medical or scientific
experimentation or treatment without consent (section
10(2)):
The limitations on these rights are
proportionate on the basis that:
• The
objective of drug use provisions is to protect children and young people,
particularly vulnerable infants, from significant risk of abuse and neglect due
to a primary caregiver’s parenting capacity being impaired because of
their use of substances;
• The provisions
seek to objectively monitor and address the level of risk to a child or young
person in order to avoid more intrusive intervention which may involve
separating the child or young person from their
caregiver/s;
• The provisions may also inform
planning to return a child or young person to a former caregiver through
objectively assessing the fomer caregvier’s use of drugs and their effect
on parenting capacity.
The intent of these
provisions is to allow assessment and monitoring of the effect of any type of
drug on a person’s parenting capacity (and subsequent risk to a child or
young person), irrespective of the illegality or otherwise of the person’s
use.
Clause 487 — What is
a drug use provision?
This clause provides the meaning of a drug use provision
in a care and protection order as a provision about usage of drugs by a stated
person. It must include one or more of the following
directions:
• that the person not use a
stated drug;
• that the person use a stated
drug only in accordance with certain stated conditions;
• that the person undergo drug testing as
directed by the Chief Executive in accordance with drug testing
standards.
A drug use provision in a care and
protection order is intended to address risk to a child or young person residing
with, or having contact with, a parent (usually) or other significant person who
is using drugs. Accordingly it is intended that a drug use provision will be
directed at addressing the risk to the child or young person posed by the drug
use of this person.
Under clause 886, the
Minister may make drug testing standards by way of disallowable instrument. The
standards will improve transparency through detailing what a test sample is,
arrangements for sample collection, invalidation of samples (eg through
tampering), provision of results to persons tested and when a test sample is
considered positive.
The Childrens Court may
make a drug use provision in a care and protection order on application or its
own initiative. A drug use provision may be extended, amended or revoked under
part 14.5. Under clause 717, a drug use provision can only be made if the
person agrees to it, has been given an opportunity to be heard about it or
cannot be found, or if the application is heard in the absence of any other
party or person under clause 700.
Clause 422
creates an offence to engage in conduct that contravenes a provision of a care
and protection order. The maximum penalty is 100 penalty units, imprisonment for
one year or both.
Part 14.10 — Supervision
provisions
This part provides the meaning of a supervision
provision in a care and protection order.
Clause 488 — What is
a supervision provision?
A supervision provision in a care and protection order
means a provision placing a child or young person under the supervision of the
Chief Executive.
It may include one or more of
the following requirements:
• That the child
or young person or a parent or someone with daily or long-term care
responsibility report to the Chief Executive at the reasonable times and places
decided by the Chief Executive;
• That the
child or young person or a parent or someone else with daily care or long-term
care responsibility take part in discussions with the Chief Executive about the
child or young person’s care, wellbeing and
development;
• That a person with parental
responsibility allow the Chief Executive entry to premises for the purpose of
supervising the child or young person under the
provision.
A supervision provision in a care
and protection order is intended to address risk to a child or young person
through placing the child or young person under the supervision of the Chief
Executive. This provision enables the Chief Executive to monitor the level of
risk to the child or young person through regular contact with the child or
young person and their parents or persons with responsibility for them.
Clause 422 creates an offence to engage in
conduct that contravenes a provision of a care and protection order. The maximum
penalty is 100 penalty units, imprisonment for one year or
both.
Clause 489 —
Supervision provision—meetings with Chief Executive
This clause makes clear that a supervision provision
authorises the Chief Executive to meet and talk with the child or young person
in the absence of, or within hearing distance, of any other person.
This is to ensure that the child or young
person can talk freely and openly to the Chief Executive about the circumstances
that gave rise to the making of the supervision provision and their ongoing
care, wellbeing and development. It will also facilitate the Chief Executive
making informed assessments about the ongoing level of risk to the child or
young person.
Part 14.11 — Mental health
tribunal provisions
This part provides the meaning of a mental health
tribunal provision in a care and protection order.
Clause 490 — What is
a mental health tribunal provision?
A mental health tribunal provision authorises a referral
for a child or young person to the Mental Health Tribunal to allow the Tribunal
to decide whether the child or young person has a mental illness or mental
dysfunction and if so, to make recommendations to the Childrens Court about how
the child or young person should be dealt
with.
Definitions of mental illness and mental
dysfunction for the Bill are included at clause 529 which correspond to the
definitions in the Mental Health (Treatment and Care) Act 1994
dictionary.
Mental dysfunction is defined under
that Act as a disturbance or defect, to a substantially disabling degree, of
perceptual interpretation, comprehension, reasoning, learning, judgment, memory,
motivation or emotion.
Mental illness is
defined under that Act as a condition that seriously impairs (either temporarily
or permanently) the mental functioning of a person and is characterised by the
presence in the person of any of the following
symptoms:
• delusions;
• hallucinations;
• serious
disorder of thought form;
• a severe
disturbance of mood;
• sustained or repeated
irrational behaviour indicating the presence of the symptoms referred to in
paragraph (a), (b), (c) or (d).
This provision
may be made upon application for a care and protection order to assist the Court
to determine whether a care and protection order is the most appropriate order
to make, or whether another order is more appropriate (for example, a
therapeutic protection order) or another course of action.
Part 14.12 — Specific
issues provisions
This part details specific issues provisions. Specific
issues orders were introduced in the 1999 Act at section 246 in order to address
a wide range of care and protection matters for a child or young person such as
parental responsibility, prohibition of contact or residence with a child or
young person, referrals to the mental health Tribunal and supervision. Under
the Bill, a specific issues provision in a care and protection order will
specifically address a child or young person’s protective needs by
directing a person to do or not do something or comply with a stated
condition.
Clause 491 — What is
a specific issues provision?
This clause outlines the meaning of a specific issues
provision in a care and protection order. A specific issues provision in a care
and protection order means a provision about the care and protection of a child
or young person and may include a direction that a stated person do or not do a
stated thing or comply with a stated
condition.
A specific issues provision in a
care and protection order is intended to address risk to a child or young person
which may arise from the action or inaction of a person who is caring for the
child or young person or having contact with the child or young person (usually
a parent). The Bill intentionally frames specific issues provisions broadly to
enable the Court to determine what is necessary to direct a person to do or not
do to reduce the level of risk to the child or young
person.
Examples include a specific issues
provision directing a parent to attend a parenting course, a specific issues
provision directing a primary caregiver to refrain from corporal punishment of
the child or a specific issues provision requiring a person to comply with a
condition not to remove the child from the
ACT.
Clause 422 creates an offence to engage in
conduct that contravenes a provision of a care and protection order. The maximum
penalty is 100 penalty units, imprisonment for one year or
both.
Part 14.13 — Annual review
reports—parental responsibility provisions and supervision
provisions
This part introduces a new term of ‘annual review
report’ to describe the Chief Executive’s annual progress report for
a child or young person subject to the parental or supervisory responsibility of
the Chief Executive.
Clause 492 — What is
a reviewable care and protection order?
This clause introduces a new term of reviewable care and
protection order for this chapter. A reviewable care and protection order means
a care and protection order with a supervision provision or a parental
responsibility provision giving daily care or long-term care responsibility to
the Chief Executive that has been in force for over 6
months.
For example, a reviewable care and
protection would include a care and protection order in force for over 6 months
with a parental responsibility provision sharing daily care responsibility
between the Chief Executive and a parent; or a care and protection order in
force for over 6 months with a parental responsibility provision transferring
long-term care responsibility to the Chief Executive or a care and protection
order in force for over 6 months with a supervision
provision.
An annual review report is not
required to be prepared for a child or young person subject to a care and
protection order with an enduring parental responsibility provision, as the
Chief Executive does not have parental responsibility for the child or young
person.
Clause 493 — What is
an annual review report?
This clause outlines the definition of an annual review
report. It is a report about the circumstances and living arrangements of the
subject child or young person and whether the arrangements in place for the
child or young person’s care and protection at the time of reporting,
continue to be in the best interests of the child or young
person.
Clause 494 — Annual
review report—prepared at least annually
This clause outlines when an annual review report for a
reviewable care and protection order must be prepared which is each year, or in
cases where the order is in force for less than 1 year, at least one month but
not earlier than 2 months, before the order expires.
Clause 495 — Annual
review report—consultation
This clause requires the Chief Executive to arrange a
meeting with the child or young person (if satisfied the child or young person
can understand and take part in the meeting), parents or other persons with
parental responsibility, out-of-home carers (for children and young people in
out of home care) and the foster care service (for children and young people
placed with a foster carer) to discuss the matters that the Chief Executive
proposes to include in the report before the report is finalised. The Chief
Executive may also invite anyone one else to the meeting that the Chief
Executive considers appropriate. Examples include the Public Advocate or
Official Visitor.
This clause addresses a
recommendation of the ACT Legislative Assembly Standing Committee on Community
Services and Social Equity’s 2003 report, Inquiry Into the Rights,
Wellbeing and Interests of Children and Young People.
Clause 496 — Annual
review report—must be given to certain people
This clause requires the Chief Executive to provide a
copy of the annual review report to the listed persons, including the child or
young person, each person with daily care or long-term care responsibility, each
kinship or foster carer providing care to the child or young person, the Public
Advocate and the Childrens Court.
Sub-clause
(2) envisages that the Chief Executive may give the annual review report to
another person, for example an interpreter or a doctor, to assist in bringing
the contents of the report to the attention of a person to whom the report must
be given.
Sub-clause (3) allows the Chief
Executive to make minor adjustments to the annual review report before
distribution to everyone except the Childrens Court and the Public Advocate to
protect the privacy and confidentiality of a person or people named in the
report as required.
Clause 497 — Annual
review report—application for waiver of obligation to give report to
someone
This clause describes the circumstances in which the
Chief Executive may apply to the Childrens Court for an order to waive the
obligation to provide the annual review report to the child or young person,
each person with daily care or long-term care responsibility, or each kinship or
foster carer for the child or young person. This is called a waiver
order.
The Chief Executive may apply for the
waiver order if the Chief Executive considers that giving the report to any of
these persons would not be in the best interests of the child or young
person.
An example of when the Chief Executive
may consider that giving the report to a child or young person is not in their
best interests is if the report contains information about a parent that is
likely to be harmful to the child or young person’s mental health at that
time and by receiving the information in that
form.
An example of when the Chief Executive
may consider that giving the report to a parent is not in the child or young
person’s best interests is if the parent has previously made threats of
violence against the child’s carers and the report contains information
that is likely to lead to the identification and location of the child’s
carers.
An example of when the Chief Executive
may consider that giving the report to a kinship or foster carer is not in the
child or young person’s best interests is if the Chief Executive has
received a report of alleged abuse of the child in care and is in the process of
investigating the report. The Chief Executive may consider that giving the
report to the carer is likely to jeopardise the investigation and place the
child or young person at risk.
Clause 21
provides that the Chief Executive is not required to act in relation to parents
or persons with parental responsibility (under this clause this would mean to
give the report to a parent or person with parental responsibility for a child
or young person) if the person cannot be found after reasonable
inquiry.
Clause 498 — Annual
review report—waiver of obligation to give annual review report to
someone
This clause outlines how the Childrens Court is to deal
with an application by the Chief Executive for an order (the waiver order)
waiving the requirement to give the annual review report to the child or young
person, each person with daily care or long-term care responsibility for the
child or young person, or each kinship or foster carer for the child or young
person.
Sub-clause (2) provides that in
circumstances where the Chief Executive has applied for a waiver order, the
Childrens Court may hear an application ex parte if
necessary.
Sub-clause (3) provides that the
Court must make the waiver order if satisfied that giving the annual review
report to the person stated in the application would not be in the best
interests of the child or young person.
Under
sub-clause (4), if the Court is not so satisfied, the Court must order the Chief
Executive to give the person a complete or edited copy of the annual review
report. The Court may also make any other order about the report being provided
to the person that the Court considers appropriate.
Clause 499 — Annual
review report—Public Advocate may require Chief Executive to give annual
review report to someone
In circumstances where the Chief Executive is required
to prepare an annual review report but has not done so or obtained an order
waiving compliance, the Public Advocate may apply to the Childrens Court for an
order for production within 14 days. The order is called an annual review
report order.
Clause 500 — Annual
review report—extension of care and protection order
If the Childrens Court makes an annual review report
order requiring the Chief Executive to produce the annual review report and the
care and protection order is due to lapse within one month, the Childrens Court
may extend the care and protection order so that it ends not more than one month
later.
Chapter
15 — Care and protection – Chief Executive has aspect of parental
responsibility
This chapter outlines arrangements for the Chief
Executive’s exercise of parental responsibility. The Chief Executive may
have daily care and/or long-term care responsibility for a child or young person
under a voluntary care agreement or order under the care and protection
chapters.
In exercising parental
responsibility for a child or young person, the Chief Executive may make
arrangements for the child or young person’s care with an out-of-home
carer. An out-of-home carer includes a foster carer, kinship carer or
residential care service.
This chapter
obliges the Chief Executive to ensure that persons and agencies providing out of
home care for children and young people are suitable entities to exercise
parental responsibility on behalf of the Chief Executive. In approving an
entity to be a suitable entity, the Chief Executive must consider suitability
information about the entity outlined at clause 65 and for foster and kinship
carers, this includes an assessment of the suitability of adult members of the
carer’s household under clause
65(1)(h).
This chapter does not address the
authorisation of services and places for the Chief Executive’s exercise of
parental responsibility for a child or young person under a therapeutic
protection order. This is dealt with in chapter 16.
Part 15.1 —
General
Clause 501 —
Definitions – Act
This clause outlines definitions for the Act. Some
terms included in this clause are new, including general parental authority,
specific parental authority, residential care service, foster care service and
kinship carer. These terms are introduced to more closely align the Bill with
current practice.
Clause 502 — Chief
Executive may provide assistance
The Chief Executive may provide assistance and support
as listed at (1)(a) to (h) to a child or young person for whom the Chief
Executive has parental responsibility. This clause does not intend to limit the
range of matters for which the Chief Executive may provide assistance. This
clause re-enacts section 27(2) of the 1999 Act.
Sub-clause (2) also provides discretion for
the Chief Executive to provide, or arrange the provision of, financial
assistance or other types of help to a child or young person who ceases to be
subject to the Chief Executive’s parental responsibility for whatever
reason. This does not create or confer an obligation for the Chief Executive to
provide financial or other assistance in these circumstances. This re-enacts
section 33 of the 1999 Act.
Part 15.2 — Chief
Executive has long-term care responsibility
This part addresses circumstances when the Chief
Executive has long-term care responsibility for a child or young person.
Clause 503 — Chief
Executive sharing long-term care responsibility
This clause provides a mechanism to resolve disputes
regarding the exercise of long-term care responsibility between the Chief
Executive and other persons who share long-term care
responsibility.
Under clause 473, the Court may
order that a person (including the Chief Executive) who has long-term care
responsibility consult with one or more other people who share long-term care
responsibility for the child or young person in relation to a long-term
matter.
Sub-clause (2) provides that to the
extent of any disagreement between the Chief Executive and the other person or
persons about how an aspect of long-term parental responsibility should be
exercised, then the disagreement is to be resolved by order of the Childrens
Court.
For example, if the Chief Executive
proposes to make a decision about agreeing to the issuing of a passport for a
young person to allow the young person to travel overseas with his or her carer,
the Chief Executive must consult with each of the young person’s parents
who retain responsibility for long-term care (if consultation with the parents
is a requirement of the care and protection order). If one of the young
person’s parents opposes the issuing of a passport, the Chief Executive
may apply to the Childrens Court seeking an order to authorise the
passport’s issue.
Clause 504 — Chief
Executive must consult about long-term care
This clause provides that if the Chief Executive has
responsibility for long-term care for a child or young person, the Chief
Executive must consider the views and wishes of any person who previously had
responsibility for long-term care, as far as practicable.
Part 15.3 — Chief
Executive has daily care responsibility
This part addresses circumstances when the Chief
Executive has daily care responsibility for a child or young person.
Clause 505 — Pt 15.3
applies to care and protection chapters
This clause outlines the application of this part. This
part applies if the Chief Executive has responsibility for daily care for a
child or young person by effect of the care and protection chapters (for
example, a child subject to a voluntary care agreement or a care and protection
order including a parental responsibility
provision).
This part does not apply if the
Chief Executive has responsibility for daily care for a child or young person
under an interim or final therapeutic protection order. A child or young person
subject to an interim or final therapeutic protection order must be placed at a
therapeutic protection place under clause 534.
Clause 506 — Public
advocate to be told about action following appraisals
This clause provides that the Chief Executive must
provide a report to the Public Advocate
when:
• an incident gives rise to a child
concern report being made about a child or young person for whom the Chief
Executive has parental responsibility and is placed in out of home care;
and
• the Chief Executive decides it is a
child protection report and an appraisal is conducted;
and
• the incident involves the authorised
carer or happened while the child or young person was in an approved care
placement. This includes children and young people placed in out-of-home care or
on approved contact visits.
The report to the
Public Advocate must be about the incident and what action, if any, has been
taken in response to the incident.
The
intention of the provision is for the Public Advocate to provide oversight of
the Chief Executive’s actions in relation to children and young people
allegedly abused or neglected in care or while on an approved contact visit.
This clause re-enacts section 189A.
Part 15.4 — Out-of-home
carers
This part provides a framework for the approval of
out-of-home carers to care for children and young people for whom the Chief
Executive has daily care or long-term care responsibility, including processes
for revoking authorisations of out-of-home carers.
Division 15.4.1 —
Placement with out-of-home carer
Clause 507 — Who is
an out-of-home carer?
This clause provides the meaning of out-of-home carer
for a child or young person for the Act as a kinship carer, a foster carer or a
residential care service for the child or young person.
Clause 508 — Who is a
kinship carer?
This clause provides the meaning of kinship carer for a
child or young person as a person authorised by the Chief Executive under clause
515 and with whom the Chief Executive has placed the child or young person under
clause 511.
Clause 509 — Who is a
foster carer?
This clause provides the meaning of foster carer for a
child or young person as a person authorised by the Chief Executive under clause
517 or 518.
Clause 510 — What is
a residential care service?
This clause provides the meaning of residential care
service as an entity authorised by the Chief Executive under clause
519.
Clause 511 — Chief
Executive may place child or young person with out-of-home carer
This clause allows the Chief Executive to place the
child or young person with an out-of-home carer if the Chief Executive has daily
care responsibility for a child or young person.
This does not require the Chief Executive to
place a child or young person with an out-of-home carer and the Chief Executive
may place the child or young person in any care arrangement that the Chief
Executive considers suitable.
If the Chief
Executive is placing an Aboriginal or Torres Strait Islander child or young
person with an out-of-home carer, the placement must be in accordance with
clause 512.
Clause 512 —
Priorities for placement with out-of-home carer—Aboriginal or Torres
Strait Islander child or young person
This clause re-enacts the Indigenous placement principle
at section 15 of the 1999 Act. This clause gives effect to a recommendation of
the 1997 Report of the National Inquiry into the Separation of Aboriginal and
Torres Strait Islander Children from their Families entitled ‘Bringing
them Home’. It applies the Aboriginal and Torres Strait Islander
placement principle for Aboriginal and Torres Strait Islander children and young
people in out-of-home care and creates a hierarchy for placements of Aboriginal
and Torres Strait Islander children and young people in accordance with cultural
traditions and practices.Sub-clause (1)(c)
also requires that any placement of Aboriginal or Torres Strait Islander child
or young person with an out-of-home carer is in accordance with any Aboriginal
or Torres Strait Islander cultural plan in existence. This clause re-enacts the
requirement for cultural plans introduced as part of the Children and Young
People Amendment Act 2006.The meaning of a
cultural plan in this section is a care plan developed by the Chief Executive
that includes proposals for the preservation and enhancement of the identity of
the child or young person as an Aboriginal or Torres Strait Islander person
under clause 454. For Aboriginal and Torres Strait Islander children and young
people, clause 456 requires the plan to be developed by the Chief Executive in
consultation with:•
the child or young
person;•
each person who has daily care
responsibility for the child or young
person;•
anyone else who would be involved
in implementing a proposal; •
Aboriginal and
Torres Strait Islander people who have an interest in the wellbeing of the child
or young person through family, kinship and cultural ties;
and•
any Aboriginal or Torres Strait
Islander people or organisation identified by the Chief Executive as providing
ongoing support services to the child or young person or his or her family.
This principle engages the right to equal
protection of the law without discrimination, at subsection 8(3) of the Human
Rights Act 2004. However it is justifiable under section 28 of the Human
Rights Act 2004, because the proposed positive discriminatory measures
recognise the needs of Aboriginal and Torres Strait Islander children, their
families and their communities in the light of their history as Indigenous
Australians separated from
families[3]
and their over-representation in the child protection and out of home care
systems.
Clause 513 —
Residential care service may accommodate child or young person at place of
care
This clause provides that a residential care service may
accommodate a child or young person at a place of care. This includes, but is
not limited to, a child or young person for whom the Chief Executive has
parental responsibility.
A place of care is a
place approved by the Minister to be operated by a residential care service
under clause 524. The Bill contemplates that a residential care service may
operate more than one place at which children and young people can be placed
under the care and protection chapters.
Places of care are defined in the Act
separately from other residential care services, for the purpose of
distinguishing places that the Official Visitor is required to inspect and
handle complaints about.
A therapeutic
protection place is authorised under chapter 16.
Division 15.4.2 —
Authorisation of out-of-home carers and approval of places of
care
This division intends to bring the legislation more
closely into line with current practices for approval of out-of-home carers
(kinship carers, foster carers and residential care services) and places of
care.
Clause 514 —
Definitions-Act
This clause includes definitions for the Act of foster
care service, general parental authority, out of home care authorisation, and
specific parental authority.
Clause 515 —
Authorisation of kinship carer—specific parental authority
This clause allows the Chief Executive with parental
responsibility for a child or young person to authorise a family member or
significant person for the child or young person to exercise daily care
responsibility and/or long-term care responsibility for the Chief Executive.
Family member is defined at clause 13.
Significant person is defined at clause 14.
In
urgent circumstances, the Chief Executive may need to orally authorise a kinship
carer. Under clause 520, the Chief Executive is required to provide a written
authorisation to the kinship carer as soon as practicable after the verbal
authorisation.
The authorisation may occur
only if the Chief Executive is satisfied the person agrees to exercise the
responsibility for the Chief Executive and is a suitable entity to have
responsibility for daily care for the child or young person. A person may be
approved as a suitable entity after providing suitability information to the
Chief Executive at clause 65.
Sub-clause (5)
provides that a kinship carer’s authorisation only applies while the child
or young person is placed with them, and therefore lapses when the child or
young person leaves that placement.
Clause 516 —
Authorisation of foster care service
This clause allows the Chief Executive to authorise an
entity to be a foster care service. The role of a foster care service is to
recruit people to become foster carers and provide support for foster carers.
The Chief Executive must be satisfied that the entity is a suitable entity to
facilitate foster care services and complies with, and be likely to continue to
comply with, the out of home care standards.
Clause 517 —
Authorisation of foster carer— specific parental authority
This clause allows the Chief Executive with
responsibility for daily care or long-term care responsibility for a child or
young person to authorise a person to exercise the responsibility for the Chief
Executive as a foster carer.
In urgent or
other circumstances, the Chief Executive may need to verbally authorise a foster
carer to exercise daily care or long-term care responsibility for the child or
young person. Under clause 520, the Chief Executive is required to provide a
written authorisation as soon as practicable after the verbal authorisation.
The authorisation may occur only if the Chief Executive is satisfied the person
agrees to exercise the responsibility for the Chief Executive.
Sub-clause (4) provides that the
responsibility must be exercised by the person in accordance with any directions
given by the Chief Executive. Sub-clause (5) provides that an authorisation
under this clause lapses if the child or young person leaves the placement for
any reason.
Clause 518 —
Authorisation of foster carer—general parental authority
This clause allows the Chief Executive to authorise a
person to exercise daily care or long-term care responsibility for any child or
young person on the Chief Executive’s behalf as a generally approved
foster carer.
The authorisation may occur
only if the Chief Executive is satisfied the person is a suitable entity to
exercise the responsibility for any child or young person and the person has
given the Chief Executive suitability information about each other adult member
of the person’s household.
Sub-clause
(3) provides that the responsibility must be exercised by the foster carer in
accordance with any directions given by the Chief Executive. An example of a
direction includes complying with the agreed arrangements for the child or young
person set out in the care plan.
Clause 519 —
Authorisation of residential care service—general parental
authority
This clause allows the Chief Executive to authorise an
entity, in writing, to exercise daily care or long-term care responsibility for
the Chief Executive for any child or young person on the Chief Executive’s
behalf.
This authorisation may occur only if
the Chief Executive is satisfied that the entity agrees to exercise the
responsibility for the Chief Executive; is a suitable entity to exercise the
responsibility and the entity complies with, and is likely to continue to comply
with, the out of home care standards.
Sub-clause (3) provides that the
responsibility must be exercised by the entity in accordance with any directions
given by the Chief Executive.
Clause 520 —
Out-of-home carer must be given copy of authorisation and any relevant Court
orders
After a verbal authorisation to a person or entity as an
out-of-home carer, this clause requires the Chief Executive to provide a written
authorisation and a copy of any relevant Court order about the child or young
person, as soon as practicable thereafter.
Clause 521 —
Revocation of foster care service’s authorisation
This clause allows the Chief Executive to revoke an
entity’s authorisation as a foster care service and is additional to the
power conferred by section 180 of the Legislation Act 2001. Section 180
of the Legislation Act provides that the power to make a decision under a law
includes the power to reverse or change the decision, which is exercisable in
the same way, and subject to the same conditions, as the power to make the
decision.
In order to revoke an
entity’s authorisation, the Chief Executive must be satisfied that the
entity is not a suitable entity to facilitate foster care services or has not
complied with, or continued to comply with, the out of home care
standards.
Sub-clause (3) reflects natural
justice requirements that an entity must be given notice of the Chief
Executive’s intention to revoke the authorisation, including the grounds
and provide an opportunity for the entity to make a written submission to the
Chief Executive about the notice. The Chief Executive must consider any written
submission provided in response.
The Chief
Executive must then revoke the authorisation or withdraw the notice of intention
to revoke. A decision to revoke an authorisation under this clause is a
reviewable decision by the Administrative Appeals Tribunal (see clause 838).
Clause 522 —
Revocation of foster carer’s authorisation
This clause outlines the grounds by which the Chief
Executive may revoke a person’s authorisation as a foster carer and is
additional to the power conferred by section 180 of the Legislation Act
2001. Section 180 of the Legislation Act provides that the power to make a
decision under a law includes the power to reverse or change the decision, which
is exercisable in the same way, and subject to the same conditions, as the power
to make the decision.
In order to revoke a
person’s authorisation as a foster carer, the Chief Executive must be
satisfied that:
• the person is not a
suitable entity to have responsibility for any child or young person; or
• the person has not adequately cared for or
protected the child or young person; or
• the person has not complied with a
direction of the Chief Executive in exercising parental responsibility for any
child or young person.
An example of the
person not being a suitable entity to have responsibility for any child or young
person is if the person’s suitability information changes and the person
informs the Chief Executive under clause 70(2) that they have been convicted of
an offence against a child or young person.
An example of the person not adequately caring
for or protecting the child or young person is if person does not meet minimum
standards for the provision of care to a child or young person whether or not
the standards are outlined in the out of home care
standards.
An example of the person not
complying with a direction of the Chief Executive in exercising parental
responsibility is if the Chief Executive directs the person not to allow the
child to have contact with a person who has previously harmed the child and the
person does not comply with the direction by allowing the child to have contact
with the person.
Sub-clause (3) reflects
natural justice requirements that a person must be given notice of the Chief
Executive’s intention to revoke the authorisation, including the grounds
and provide an opportunity for the entity to make a written submission to the
Chief Executive about the notice. The Chief Executive must consider any written
submission provided in response.
After
considering any submission, the Chief Executive may consider any other relevant
matter and must decide to either revoke the authorisation; or revoke the
notice.
A decision to revoke an authorisation
under this clause is a reviewable decision by the Administrative Appeals
Tribunal (see clause 838).
Clause 523 —
Revocation of residential care service’s authorisation
This clause outlines the grounds by which the Chief
Executive may revoke an entity’s authorisation as a residential care
service and is additional to the power conferred by section 180 of the
Legislation Act 2001. Section 180 of the Legislation Act provides that
the power to make a decision under a law includes the power to reverse or change
the decision, which is exercisable in the same way, and subject to the same
conditions, as the power to make the decision.
In order to revoke an entity’s
authorisation as a residential care service, the Chief Executive must be
satisfied that the entity is not a suitable entity to have daily care
responsibility for any child or young person, or has not adequately cared for or
protected the child or young person or has not complied with the out of home
care standards.
Prior to revoking the
authorisation under sub-clause (1), the Chief Executive is required to give
written notice to the entity that the Chief Executive intends to revoke their
general authorisation as a residential care service (with reasons) and their
right to make a submission about the notice within 14
days.
After considering any submission, the
Chief Executive may consider any other relevant matter and must decide to either
revoke the authorisation; or revoke the notice. A decision under this clause to
revoke an authorisation is a reviewable decision by the Administrative Appeals
Tribunal (see clause 838).
Clause 524 — Approval
of places of care
This clause allows the Minister to approve a place of
care if satisfied that the residential care service and the place complies with,
and is likely to continue to comply with, the out-of-home care standards. An
approval of a place of care will be publicly notified as a notifiable
instrument.
In order to assess an application
for approval of a place of care, the Minister may ask the residential care
service to allow the Chief Executive to inspect the place to ensure it complies
with the out of home care standards, for example, in relation to physical
facilities. If the residential care service does not allow entry for this
purpose, sub-clause (3) provides that the application need not be decided.
Division 15.4.3 —
Information to be kept by foster carers and residential care
services
This division seeks to ensure that children and young
people have access to their personal information during or after leaving foster
or residential care to support and promote the child or young person’s
sense of identity and knowledge of their personal history, particularly their
placement in out of home care.
Clause 525 —
Definitions—div 15.4.3
This clause creates definitions for this division. Care
entities are defined to mean a child or young person’s foster carer and
foster care service (if placed in foster care) or a residential care service.
Personal information means all information about a child or young person,
including person documents such as a birth certificate, school reports, medical
reports and photographs.
Clause 526 —
Information must be kept during placement
This clause requires care entities to keep personal
information about the child or young person that the entity possesses, and
records made by the care entity about the child or young person, because of the
placement.
Clause 527 —
Information must be kept after placement ends
This clause requires the care entity to keep the child
or young person’s personal information or records until the information is
given to the Chief Executive.
This
information must be given by the care entity to the Chief Executive in the
following circumstances:
• if the care entity
ceases to be a care entity under the Act for any
reason;
• it is two years after the placement
has ended;
• the Chief Executive has
requested the information for any reason;
• the person to whom the personal
information relates becomes an
adult.
Sub-clause (4) provides that any records
or personal information given to the Chief Executive under this clause become a
record of an agency under the Territory Records Act
2002.
Clause 528 — Child or
young person must have access to information
This clause provides that the care entity may be
authorised by the Chief Executive to give a child or young person access to
their personal information and records if the care entity retains the
information and the Chief Executive considers it to be in the child’s or
young person’s best interests.
Sub-clause
(3) obliges the care entity to give the child or young person access to the
personal information and records if the entity has been authorised by the Chief
Executive to do so.
Under sub-clause (4), the
Chief Executive’s authorisation may be conditional regarding the access to
be given and the care entity must comply with any conditions.
Chapter
16 — Care and protection—therapeutic protection of children and
young people
Therapeutic protection orders enable the Chief Executive
to confine a child or young person at a place declared by the Minister as a
therapeutic protection place in circumstances where the child or young person
poses a significant risk of significant harm to themselves or others.
The provisions relating to therapeutic
protection engage human rights law. The Bill seeks to build in safeguards that
protect against unlawful and arbitrary interferences with rights contained in
the Human Rights Act 2004 and to ensure the child or young person is
confined at a therapeutic protection place for the shortest necessary time to
reduce the risk to the child or young person.
This chapter requires the application of the
human rights principle of proportionality, where the period of confinement and
exercise of powers in the place of therapeutic protection must be limited to
that which is reasonably necessary to safeguard the child’s or young
person’s wellbeing and interests.
Part 16.1 —
Preliminary
This part outlines definitions. It also provides a rule
that a child or young person may only be confined at a therapeutic protection
place under an interim or final therapeutic protection order or if the Chief
Executive believes that the child or young person is need of emergency
therapeutic protection.
Clause 529 —
Definitions – Act and ch 16
This clause sets out definitions for the Act and chapter
and introduces a number of new terms, including harmful conduct, therapeutic
protection history, therapeutic protection place, therapeutic protection plan
and therapeutic protection person.
Clause 530 —
Therapeutic protection only under therapeutic protection order or for emergency
protection
This clause enables the Chief Executive to confine a
child or young person at a therapeutic protection place under a therapeutic
protection order (whether interim or final). This is intended to ensure that
the therapeutic protection place is not used to confine children and young
people without the requisite legal authority of an interim or final therapeutic
protection order and the grounds for that order having been met.
However, a child (over 10 years) or young
person can also be confined at a therapeutic protection place for a period of up
to two working days (or if interupted by a weekend, the next sitting day) if the
Chief Executive reasonably believes the child or young person is in need of
emergency therapeutic protection (see clause 403), that is if the child or young
person meets the criteria for a therapeutic protection order (outlined at clause
548) and their immediate placement is necessary to ensure their safety. In
accordance with the human rights principle of proportionality, this could only
be used as measure of last resort and for the shortest necessary
time.
Part 16.2 — Therapeutic
protection orders
This clause sets out a framework for the application,
making, review, extension and revocation of therapeutic protection orders,
including interim therapeutic protection orders.
Division 16.2.1 —
Definitions—Act and pt 16.2
This clause sets out definitions and concepts used under
the chapter and Act.
Clause 531 — What is
a therapeutic protection order?
This clause clarifies that a therapeutic protection
order authorises the confinement of a child or young person for a particular
period at a therapeutic protection place for implementation of a therapeutic
protection plan; and transfers daily care responsibility for the child or young
person to the Chief Executive for the period of confinement. The order may also
include conditions the Court considers necessary to prevent the child or young
person from engaging in harmful conduct.
This
clause re-enacts section 235(2) of the 1999 Act.
Clause 532 — What is
harmful conduct?
This clause introduces the concept of harmful conduct
engaged in by a child or young person, which means conduct which leads to a
significant risk of significant harm to the child or young person or someone
else.
This concept is used by the Childrens
Court to examine the grounds for making, amending or extending a therapeutic
protection order. It replaces the concept in the 1999 Act of ‘serious
harm’ to ensure that therapeutic protection orders are only considered for
those children and young people most at risk of serious harm to themselves or
others.
Clause 533 — What is
a risk assessment?
This clause introduces the concept of a risk assessment
that is used in the application for a therapeutic protection order to assess the
level of risk to the child or young person. The clause enables the Chief
Executive to make guidelines about the risk assessment by way of notifiable
instrument.
Clause 534 — What is
a therapeutic protection place?
This clause establishes the concept of a therapeutic
protection place declared by the Minister. Only children or young people
subject to an interim or final therapeutic protection order, or in need of
emergency therapeutic protection, may be placed at a therapeutic protection
place.
Clause 535 — What is
a therapeutic protection plan?
This clause establishes the concept of a therapeutic
protection plan which replaces and extends the meaning of a schedule for
therapeutic protection at section 243 of the 1999 Act. The plan is developed by
the Chief Executive as part of the application, and endorsed by the Childrens
Court as part of making an interim or final therapeutic protection order under
clause 543 or 548.
The purpose of the plan is
to reduce the likelihood of the child or young person engaging in harmful
conduct in the future. The plan outlines the period of confinement, the
proposed therapy, counselling or other services and expected results of those
services and the proposed education, supervision and contact arrangements for
the child or young person.
Under the 1999
Act, contact arrangements were largely at the discretion of the Chief Executive
but the Bill contemplates that these arrangements will be overseen by the Court
through this clause. For Aboriginal or Torres Strait Islander children and
young people, there is an obligation that the plan will include proposals to
preserve and enhance their identity at Aboriginal or Torres Strait Islander
people.
Clause 536 — What is
therapeutic protection history?
This clause establishes the concept of therapeutic
protection history that outlines how the plan referred to in clause 535 was
implemented for the child or young person. The therapeutic protection history
for a child or young person is considered by the Childrens Court as part of the
application to amend or extend a therapeutic protection order.
Clause 537 — What is
a transition plan?
This clause introduces the concept of a transition plan,
which is a plan developed by the Chief Executive for the child or young
person’s transition from therapeutic protection.
The transition plan may outline proposals and
recommendations for ongoing intervention for the child or young person (for
example, through therapy or counselling) and any other services considered
necessary to support and assist the child’s or young person’s
transition from therapeutic protection.
Division 16.2.2 —
Applications for therapeutic protection orders
This division outlines applications for therapeutic
protection orders.
Clause 538 —
Therapeutic protection order—application by Chief
Executive
This clause enables the Chief Executive only to apply
for a therapeutic protection order if satisfied that the criteria for making the
order in clause 548 are met.
Clause 539 —
Therapeutic protection order—application to state grounds
etc
This clause outlines what must be included in
applications for therapeutic protection orders, including a risk assessment,
details of previous therapeutic protection orders, any therapeutic protection
history, less restrictive interventions that the Chief Executive has tried or
considered that were not successful or appropriate, a therapeutic protection
plan, a transition plan and how the therapeutic protection order is part of the
overall care plan for the child or young person.
Clause 540 —
Therapeutic protection orders—who must be given
application
This clause outlines who must be given the application
for a therapeutic protection order by the Chief Executive and when they must be
given the application.
Clause 541 —
Therapeutic protection order—Childrens Court to consider application
promptly
Sub-clause (1) requires the Court to give initial
consideration to an application for a therapeutic protection order not later
than 2 working days after filing.
Sub-clause
(2) requires the Court to set directions for the conduct of the proceeding
(including hearing of the proceeding) at the time of initial consideration.
Sub-clause (3) provides that this clause is
displaced if the Chief Executive or a police officer has taken emergency action,
in which case the Childrens Court must give consideration to the application on
the day it is filed under clause 412.
Division 16.2.3 — Interim
therapeutic protection orders
This division outlines interim therapeutic protection
orders.
Clause 542 — What is
an interim therapeutic protection order?
This clause establishes that an interim therapeutic
protection order authorises a period of confinement for a child or young person
for up to 2 weeks. During this period, the order transfers daily care
responsibility for the child or young person to the Chief Executive (see clause
531).
Clause 543 — Interim
therapeutic protection order—criteria for making
This sets out the prerequisites of which the Court must
be satisfied before making an interim therapeutic protection order. The
Childrens Court can make an interim order if an application for a therapeutic
protection order has been made but not decided and the Court is satisfied that
the criteria for making the order outlined at clause 548 are
met.
Clause 544 — Interim
therapeutic protection order—mental health referral
Children and young people being considered for a
therapeutic protection order may have an undiagnosed mental illness or
dysfunction that would otherwise be considered by the Mental Health Tribunal.
This clause introduces a new requirement for the Court to refer children and
young people who it reasonably suspects may have a mental illness or mental
dysfunction for assessment by the Mental Health Tribunal, to decide whether they
are suffering from a mental illness or mental dysfunction and if so, make
recommendations to the Court about how the child or young person should be dealt
with.
The Mental Health (Treatment and Care)
Act 1994 dictionary defines mental dysfunction as a disturbance or defect,
to a substantially disabling degree, of perceptual interpretation,
comprehension, reasoning, learning, judgment, memory, motivation or emotion.
The Act further defines mental illness as a condition that seriously impairs
(either temporarily or permanently) the mental functioning of a person and is
characterised by the presence in the person of any of the following
symptoms:
(a) delusions;
(b) hallucinations;
(c) serious
disorder of thought form;
(d) a severe disturbance
of mood;
(e) sustained or repeated irrational
behaviour indicating the presence of the symptoms referred to in paragraph (a),
(b), (c) or (d).
Clause 545 — Interim
therapeutic protection order—length
This clause provides that an interim therapeutic
protection order can be made for up to 2 weeks. Any interim therapeutic
protection order in force which would end before the application is decided
remains in force until the application for the therapeutic protection order is
decided.
Clause 546 — Interim
therapeutic protection order—no extension, amendment,
revocation
This clause establishes that interim therapeutic
protection orders cannot be extended, amended or revoked. Interim therapeutic
protection orders may be made for up to two weeks under clause
545.
Clause 547 —
Offence—interim therapeutic protection order
This clause creates an offence for a person (other than
the subject child or young person) to engage in conduct that contravenes a
provision of an interim therapeutic protection order. An example is assisting a
child or young person who is subject to an interim therapeutic protection order
to abscond from the place.
Division 16.2.4 — Making a
therapeutic protection order
This division addresses the making of a therapeutic
protection order.
Clause 548 —
Therapeutic protection order—criteria for making
This clause introduces new criteria for making a
therapeutic protection order to ensure that these orders are used as a last
resort and only for those children and young people most at risk of serious harm
to themselves or others.
Before making an
order, the Childrens Court must be satisfied
that:
• if the order is not made—there
will be a significant risk of significant harm to the child or young person or
someone else, where the risk of harm arises from the child’s or young
person’s conduct, and the risk of harm would be imminent;
• the Chief Executive has tried less
restrictive ways without success; or considered less restrictive ways but were
inappropriate; and there are no less restrictive ways for the Chief Executive to
prevent the child or young person from engaging in harmful conduct;
• the child or young person is at least 10
years old;
• the child or young person is not
suffering from a mental illness; or is suffering from a mental illness in
addition to other behaviours or dysfunction giving rise to the risk of harm but
the Court is satisfied that making a therapeutic protection order is the best
way to deal with the child or young
person;
• no-one who has parental
responsibility for the child or young person (other than the Chief Executive) is
able and willing to prevent the child or young person from engaging in harmful
conduct;
• confinement of the child or young
person is necessary to prevent the child or young person from engaging in
harmful conduct;
• the Chief Executive has
developed a therapeutic protection plan for the child or young person, which is
more likely than not to reduce the likelihood of the child or young person
engaging in harmful conduct in the future;
and
• making the order is in the best
interests of the child or young
person.
Examples are included to illustrate
other ways to prevent a child or young person from engaging in harmful
conduct.
Clause 549 —
Therapeutic protection order—length
This clause continues to have the effect of section 244
of the 1999 Act that a therapeutic protection order can be made for up to 8
weeks. The length of the order must be stated in the order.
Clause 550 —
Therapeutic protection order—statement of reasons
This clause introduces a new requirement for the
Childrens Court to provide a statement of reasons after deciding an application
for a therapeutic protection order.
Clause 551 —
Offence—therapeutic protection order
This clause creates an offence for a person (excluding
the subject child or young person) to engage in conduct that contravenes a
provision of a therapeutic protection order.
Division 16.2.5 — Review
of therapeutic protection orders
This clause introduces an obligation for the Chief
Executive to review therapeutic protection orders that are in force. This is to
ensure that children and young people are only confined for the minimum
necessary period to address risks.
Clause 552 — Initial
review within 4 weeks
This clause introduces a new obligation for the Chief
Executive to review the operation of a therapeutic protection order within 4
weeks of the order being made. This is called an initial review.
Clause 553 — Ongoing
review at least each 4 weeks
This clause introduces a new obligation for the Chief
Executive to review the operation of a therapeutic protection order within 4
weeks of the initial review and each four weeks thereafter while the order is in
force.
Clause 554 — Review
– views to be considered
For each review conducted under clauses 552 or 553, the
Chief Executive must seek and consider the views of the child or young person,
each person who has parental responsibility for the child or young person (other
than the Chief Executive) and each person who had daily care responsibility for
the child or young person immediately before the order was made, the Public
Advocate and the Official Visitor.
The Chief
Executive must consider the views of any other person the Chief Executive
considers appropriate. This may include, for example, a health professional or
other professional involved in the therapeutic support of the child or young
person.
Clause 555 — Review
report
This clause requires the Chief Executive to prepare a
review report about the operation of the therapeutic protection order after the
initial review and each ongoing review. The Chief Executive is required to give
a copy of the report to the child or young person, each person with parental
responsibility (including each person who had daily care responsibility before
the order was made), each Official Visitor who has visited the child or young
person in therapeutic protection and the Public Advocate.
Clause 556 — Chief
Executive’s action after review
This clause requires the Chief Executive to take certain
action in relation to the order after making decisions as a result of the
initial review or each ongoing review.
If the
Chief Executive decides the order should be extended, amended or revoked this
clause requires the Chief Executive to apply to the Court for the relevant
extension, amendment or revocation of the order.
Division 16.2.6 —
Extending a therapeutic protection order
This division addresses extensions of therapeutic
protection orders. It introduces a maximum upper limit of 6 months for
extensions of a therapeutic protection order by the Childrens Court.
Clause 557 —
Therapeutic protection order—extension application
This clause enables the Chief Executive only to apply to
the Childrens Court to extend a therapeutic protection order if the Chief
Executive reasonably believes the criteria for extending the order are met.
Clause 558 —
Therapeutic protection order—extension application must state grounds
etc
This clause sets out what must be included in an
application for extending a therapeutic protection order, including the grounds
for extension, the therapeutic protection history, a further therapeutic
protection plan and further risk assessment.
Clause 559 —
Therapeutic protection order—who must be given extension
application
This clause provides that the application must be given
to each party to the original proceeding and the Public Advocate at least one
working day before the application is to be heard by the Court.
Clause 560 —
Therapeutic protection order—Childrens Court to consider extension
application promptly
This clause provides that the Childrens Court must give
initial consideration to an application for extension of a therapeutic
protection order within two working days after the day the application is filed.
The Childrens Court is required to give directions about the conduct of the
proceeding at the time of giving initial consideration to the application. As
the effect of a therapeutic protection order is confinement of a child or young
person, it is imperative that the Court gives prompt attention to an application
for extension of a therapeutic protection order with appropriate directions for
the timely finalisation of the application.
Sub-clause (3) provides that any therapeutic
protection order in force on the day of filing continues in force until the
application is heard and decided. This applies regardless of whether the
application is considered within the prescribed period of 2 working days after
filing.
Clause 561 —
Therapeutic protection order—criteria for extension up to 6
months
This clause outlines the criteria for the Childrens
Court to extend a therapeutic protection order.
The Childrens Court may only extend the order
for a further 8 weeks each time and extend the total length of the order (from
the date the order was made) up to 6 months. The length of a therapeutic
protection order for a child or young person will be guided by the need to
provide adequate time for assessment, and stabilisation through therapeutic
intervention. It is intended that, where necessary, therapeutic intervention
could continue after the period of a therapeutic protection order, either
voluntarily or through a care and protection order.
Clause 562 —
Therapeutic protection order extension—statement of
reasons
This clause requires the Childrens Court to record
reasons for its decision following hearing and deciding an application to extend
a therapeutic protection order.
Division 16.2.7 — Amending
or revoking a therapeutic protection order
This division addresses applications for amendment or
revocation of therapeutic protection orders.
Clause 563 —
Therapeutic protection order—application for amendment or
revocation
This clause lists persons who can apply for amendment,
or revocation, of a therapeutic protection order if the person reasonably
believes that the criteria for amending, or revoking, the order are met. These
persons include the Chief Executive, the child or young person, a person with
parental responsibility for the child or young person, a former caregiver or the
Public Advocate.
Clause 564 —
Therapeutic protection order—application for amendment must state grounds
etc
This clause sets out what must be included in an
application for amendment of a therapeutic protection order.
Clause 565 —
Therapeutic protection order—application for revocation must state grounds
etc
This clause sets out what must be included in an
application for revocation of a therapeutic protection order.
Clause 566 —
Therapeutic protection order—who must be given application for amendment
or revocation
This clause provides that the application must be given
to each party to the original proceeding, anyone else required to be given the
application and the Public Advocate at least one working day before the
application is to be heard by the Court.
Clause 567 —
Therapeutic protection order—Childrens Court to consider application for
amendment or revocation promptly
This clause provides that the Childrens Court must give
initial consideration to an application for amendment or revocation of a
therapeutic protection order within 5 working days after filing. The Childrens
Court is required to give directions about the conduct of the proceeding at the
time of giving initial consideration to the application. As the effect of a
therapeutic protection order is confinement of a child or young person, it is
imperative that the Court gives prompt attention to an application for amendment
or revocation of a therapeutic protection order with appropriate directions for
the timely finalisation of the application.
Sub-clause (3) provides that any therapeutic
protection order in force on the day of filing continues in force until the
application is heard and decided. This applies regardless of whether the
application is considered within the prescribed period of 5 working days after
filing.
Clause 568 —
Therapeutic protection order—criteria for amendment
This clause provides the criteria for amending a
therapeutic protection order. The Court must be satisfied
that:
• if the order is not amended there
will be a significant risk of significant harm to the child or young person; or
someone else; and the risk of harm arises from the child’s or young
person’s conduct; and the risk of harm will be
imminent;
• the Chief Executive has developed
a further therapeutic protection plan for the child or young
person;
• the further therapeutic protection
plan is more likely than not to reduce the likelihood of the child or young
person engaging in harmful conduct in the future;
and
• amending the order is in the best
interests of the child or young person.
Clause 569 —
Therapeutic protection order—criteria for revocation
This clause provides that in order to revoke the
therapeutic protection order, the Court must be satisfied
that:
• if the order is revoked, there will
be no imminent, significant risk of significant harm to the child or young
person or someone else arising from the child’s or young person’s
conduct; and
• revoking the order is in the
best interests of the child or young person.
Clause 570 —
Therapeutic protection order amendment or revocation—statement of
reasons
This clause requires the Childrens Court to record
reasons for its decision following hearing and deciding an application to amend
or revoke a therapeutic protection order.
Part 16.3 — Children and
young people in therapeutic protection
This part creates a definition of when a child or young
person is in therapeutic protection. It authorises personal searches of
children and young people and the use of force in certain circumstances.
Division 16.3.1 —
Preliminary
Clause 571 — When is
a child or young person in therapeutic protection?
This clause establishes that a child or young person is
taken to be in therapeutic protection if the child or young person is confined
at a therapeutic protection place under an interim or final therapeutic
protection order or following emergency action being taken because the child or
young person is in need of emergency therapeutic protection. It therefore does
not include children and young people who are visiting the
place.
Clause 572 —
Transgender and intersex children and young people—sexual
identity
The sexual identity of a child or young person has a
critical impact upon how intimate searches are conducted. This clause sets out
how the sexual identity of a transgender or intersex child or young person
should be ascertained. The clause provides a decision-making choice for the
child or young person and the operating entity if the child or young person does
not or refuses to nominate an identity (which must be informed by a report of a
non-treating health professional).
In making
decisions about whether to place a transgender or intersex child or young person
with females or males, in some circumstances their choice of sex and subsequent
placement decision may put the child or young person or other children or young
people at risk of intimidation or harm. It may also be necessary to include in
the therapeutic protection plan, supports for a transgender or intersex child or
young person who may be ambivalent about their sexual identity. Sub-clause (5)
therefore introduces a power for the operating entity to obtain a report by a
non-treating health professional about the child or young person’s sexual
identity, if the operating entity reasonably believes the report is in the best
interests of the child or young person and is necessary to make a decision in
relation to the child or young person’s placement, supervision and
management. This power engages human rights law, in particular sections
10(1)(b) (inhuman or degrading treatment), 11(2) (protection of the child), 12
(privacy), and 19(1) (humane treatment) of the Human Rights Act 2004.
However the limitation on these rights is proportionate as the power is
necessary to protect the safety and emotional wellbeing of the subject child or
young person and other children or young people in therapeutic
protection.
Division 16.3.2 —
Supervision
This division authorises supervision of the child or
young person in therapeutic protection and escorts of children and young people
outside the therapeutic protection place.
Clause 573 —
Therapeutic protection—supervision
This clause enables the operating entity to closely or
constantly supervise a child or young person in therapeutic protection. This
clause requires the application of the human rights principle of
proportionality, where the supervision must be limited to that which is
reasonably necessary to safeguard the child’s or young person’s
wellbeing.
Clause 574 —
Therapeutic protection—escort outside therapeutic protection
place
This clause enables a child or young person in
therapeutic protection to leave a therapeutic protection place if they are
escorted by the operating entity. This leave may be for any reason including,
but not limited to, visits to a doctor, for compassionate reasons or approved
contact arrangements.
Sub-clause (2) removes
doubt that a child or young person under escort outside the therapeutic
protection place is taken to be in therapeutic protection.
Division 16.3.3 — Visits
by accredited people
This division provides an entitlement for children and
young people in therapeutic protection to contact with accredited people.
Clause 575 — Who is
an accredited person?
This clause lists persons considered to be accredited
persons for a child or young person in therapeutic protection.
Clause 576 —
Therapeutic protection—visits by accredited people must be
allowed
This clause requires the operating entity to ensure that
children and young people in therapeutic protection have reasonable
opportunities to receive visits from accredited people, in order to protect
their human rights.
Clause 577 —
Therapeutic protection—visits by accredited people
This clause allows visits by accredited people to occur
to a child or young person in therapeutic protection. Accredited persons are
outlined at clause 575 and include the Chief Executive, a lawyer, an Official
Visitor, a commissioner exercising functions under the Human Rights
Commission Act 2005 (for example, the Children and Young People
Commissioner), the Public Advocate and the Ombudsman.
Division 16.3.4 — Use of
force
The United Nations Rules for the Protection of
Juveniles Deprived of their Liberty (Rules 63-65) provides that instruments
of restraint and force:
• can only be used in
exceptional cases, where all other control methods have been exhausted and
failed, and only as explicitly authorised and specified by law and regulation;
• may be resorted to prevent self-injury,
injuries to others or serious destruction of
property;
• should not cause humiliation and
degradation, should be used restrictively and for the shortest possible period
of time;
• if used, medical and other
relevant personnel should be consulted and its use reported to a higher
administrative authority; and
• carrying and
use of weapons by personnel is prohibited in any facility where juveniles are
detained.
This division authorises the use of
force and prescribes for the proportionate use of force. The inappropriate use
of force could potentially cause injury to the child or young person, limits the
ability of individuals to move freely and is inherently degrading. It therefore
engages human rights, in particular sections 9(1) (right to life), 10(1)(b)
(cruel, inhuman or degrading treatment), 11(2) (protection of the child), 13
(freedom of movement) and 19(1) (humane treatment) of the Human Rights Act
2004.
Clause 578 —
Therapeutic protection—managing use of force
This clause sets out the obligations for the operating
entity in relation to the use of force in the therapeutic protection place
against a child or young person.
This
includes a requirement for the operating entity to make arrangements to ensure
that force is always used as a last resort and for a purpose that cannot be
achieved in any other way and in accordance with the rules set out in this
division and therapeutic protection standards.
Clause 579 —
Therapeutic protection—authorised use of force
This clause authorises the use of necessary and
reasonable force by a therapeutic protection person to prevent a child or young
person in therapeutic protection from inflicting self harm or harming someone
else or to prevent unlawful damage, destruction or interference with property.
Clause 580 —
Therapeutic protection—application of force
This clause sets out how force may be used, when
required. The therapeutic protection person can only use force (except in urgent
circumstances) if they believe the purpose cannot be achieved another way, must
give a warning about the use of force and allow time for it to be observed, and
use it in a way that reduces the risk of causing injury.
Clause 581 —
Therapeutic protection—medical examination after use of
force
This clause requires the operating entity to ensure the
child or young person receives a medical examination by a doctor (other than a
non-treating doctor) and appropriate health care if they are injured by the use
of force.
Sub-clause (2) requires the operating
entity to provide a child or young person with the opportunity to be examined by
a doctor or nurse (other than a non-treating doctor or non-treating nurse) after
the use of force in relation to the child or young person.
Clause 582 —
Therapeutic protection—monthly reports about use of force
This clause obliges the operating entity for a
therapeutic protection place to report to the Chief Executive after the end of
each month regarding incidents where force is used against a child or young
person in therapeutic protection.
Division 16.3.5 —
Searches
Searches of children and young people who are confined
in a therapeutic protection place are necessary to prevent the entry of items
that may harm the child or young person or other people within the place.
The Human Rights Act 2004 provides at section 9 that everyone has the
right to life. Public authorities have a positive duty to protect the life of a
person in the care or custody of the Territory. This search and seizure scheme,
involving the use of force in certain circumstances, will protect against the
unlawful admittance of dangerous things that could threaten the safety of
children and young people at a therapeutic protection
place.
Strip searches and searches of
body-cavities are inherently degrading, and therefore engage human rights law,
in particular sections 10(1)(b) (inhuman or degrading treatment), 11(2)
(protection of the child), 12 (privacy), and 19(1) (humane treatment) of the
Human Rights Act 2004.
To ensure that
searches of children and young people are proportionate to the necessary aim of
the searches, the division introduces a number of obligations on persons
conducting or assisting with a search. These obligations are introduced to
ensure that children and young people who are searched are treated humanely and
with respect for their inherent dignity, and are protected from unlawful or
arbitrary interferences with their
privacy.
This division replaces the search
scheme outlined at sections 399 to 401 of the 1999 Act for children and young
people in therapeutic protection with key amendments relating to least
restrictive approaches, the introduction of body searches, and rules to preserve
the dignity and privacy of the child or young person being searched.
Many of the safeguards outlined in this
division are based on those introduced as part of the Children and Young
People Amendment Act 2007, for the revised search and seizure scheme at the
youth detention place.
Subdivision 16.3.5.1 —
Application and definitions—div 16.3.5
Subdivision 16.3.5.1 sets out the meaning of different
types of searches that are authorised under this division.
Clause 583 —
Application—div 16.3.5
This clause sets out the application of the division.
The division applies to a child or young person who is in therapeutic
protection. A child or young person is in therapeutic protection if the child
or young person is confined under an interim or final therapeutic protection
order or in need of emergency therapeutic protection (see clause
571).
Clause 584 — What is
a scanning search?
This clause sets out the meaning of a scanning
search.
Clause 585 — What is
a frisk search?
This clause sets out the meaning of a frisk
search.
Clause 586 — What is
an ordinary search?
This clause sets out the meaning of an ordinary
search.
Clause 587 — What is
a body search?
This clause sets out the meaning of a body
search.
Clause 588 — What is
a strip search?
This clause sets out the meaning of a strip
search.
Clause 589 — What is
a dangerous thing?
This clause sets out the meaning of a dangerous thing,
as a thing that, if used by, or allowed to remain with, a child or young person
may cause serious damage to the health of the child or young person or someone
else or threaten the life of the child or young person or someone else.
Examples include matches and knives.
Subdivision 16.3.5.2 —
Searches generally
This part provides authority for personal searches of
children and young people who are confined at a therapeutic protection place,
including scanning, frisk, ordinary, strip and body searches.
Clause 590 —
Searches—intrusiveness
This clause obliges the person conducting a search under
this division to undertake the type of search that is commensurate with, and
proportionate to, the circumstances.
This
clause also invokes the principle of proportionality. The exercise of power
must be necessary and rationally connected to the objective, the least intrusive
in order to accomplish the object, and not have a disproportionately severe
effect on the person to whom it applies.
Clause 591 —
Searches—transgender or intersex child or young person
A number of clauses in this part require that a person
conducting a search, or present at a search, be the same sex as the child or
young person being searched. These provisions would have an ambiguous and
potentially discriminatory application where the child or young person being
searched is an intersex person or transgender person.
This clause provides guidance on how the
operating entity should determine the child or young person’s sex for the
purpose of conducting a search under this division.
Clause 572(7) requires that, the child or
young person’s sex is taken to be that entered in the therapeutic
protection register. For transgender or intersex children and young people who
elect to be identified as a certain sex under 572(2), that sex will be entered
in the register.
Sub-clause (2) however
envisages circumstances where a transgender or intersex child or young person
does not elect to be identified as a particular sex. In this circumstance, the
sub-clause allows the child or young person to require that a search be
conducted by a female or male, and the child or young person is taken to be
treated as that sex for the purposes of this division. For example, if the
child or young person chooses a female person to conduct the search, then the
child or young person is taken to be female for the purposes of this division.
This means that other same sex requirements in the division (such as being
present at a strip search or assisting at a body search) would need to be
fulfilled by a female.
Clause 592 —
Searches—use of force
This clause allows a therapeutic protection person to
use force that is reasonable and necessary to conduct or assist at a search
under this division, or to preserve anything seized or that may be seized during
the search. Force may only be used in accordance with division
16.3.4.
Subdivision 16.3.5.3 —
Scanning, frisk and ordinary searches
This subdivision outlines the authority to conduct
scanning, frisk and ordinary searches of children and young people in
therapeutic protection.
Clause 593 —
Directions for scanning, frisk and ordinary searches
This clause enables the operating entity to direct a
therapeutic protection person to conduct a scanning search, frisk search or
ordinary search of a child or young person at any time that the operating entity
believes is prudent for security or good order at a therapeutic protection
place.
Sub-clause (2) enables a therapeutic
protection person to conduct a scanning, frisk or ordinary search of a child or
young person if they suspect the child or young person is carrying a dangerous
thing or something that may be used by the child or young person to pose a risk
to the safety of the child or young person or others, or involve an offence or
pose a risk to security or good order at the therapeutic protection
place.
Dangerous thing is defined at clause 589
as a thing that, if used by, or allowed to remain with, a child or young person
may cause serious damage to the health of the child or young person or someone
else or threaten the life of the child or young person or someone else.
Examples include matches, knives and a drug.
Clause 594 —
Scanning, frisk and ordinary searches—requirements before
search
This clause obliges the therapeutic protection person
conducting a scanning, frisk or ordinary search to tell the child or young
person about the search and the reasons for the search and ask for their
cooperation.
Clause 595 — Frisk
and ordinary searches—privacy
This clause obliges the therapeutic protection person
conducting a frisk or ordinary search
to:
• for frisk and ordinary searches -
conduct the search in an area that provides reasonable privacy and ensure that
the search is not carried out in the presence or sight of someone whose presence
is not necessary for the search, including another child or young person;
and
• for frisk searches – ensure that
the person conducting the search is the same sex as the child or young person,
unless there is an imminent and serious threat to the personal safety of child
or young person or someone else and compliance would exacerbate the
threat.
Clause 596 —
Scanning, frisk and ordinary searches—clothing
This clause obliges the therapeutic protection person
conducting a scanning, frisk or ordinary search to ensure the child or young
person searched is left with or given reasonably appropriate clothing, if
clothing is seized because of the search.
Subdivision 16.3.5.4 —
Strip searches
Subdivision 16.3.5.4 authorises and sets out
requirements for strip searches of children and young people in therapeutic
protection, including to:
• Tell the child or
young person about the search, the reasons for the search and ask for their
cooperation.
• Ensure strip searches are
conducted by someone who is the same sex as the child or young
person.
• Allow searches to be carried out in
the presence of one or more persons who must be the same sex as the child or
young person.
• Ensure that the strip search
is carried out in the presence of a person who can support and represent the
interests of the child or young person; and whose presence is agreed to by the
child or young person. The operating entity can direct the person to leave if
they are preventing or hindering the
search.
• The operating entity must conduct
the search in a way that is appropriate to the child’s or young
person’s age, maturity, developmental capacity and any known
history.
• The search must be carried out in
an area that provides reasonable privacy and not in the presence of a child or
young person or someone of the opposite sex (except for certain listed
persons).
• A strip search must not involve
touching the child’s or young person’s
body.
• The visual inspection of the genital
area, anal area, buttocks and breasts, and the removal of clothes is limited to
that which is strictly necessary and reasonable for the search.
Clause 597 — Strip
searches—authorisation
This clause enables the operating entity to direct a
therapeutic protection person to conduct a strip search if the operating entity
suspects that the child or young person may be concealing a dangerous thing on
their person and a less intrusive search (scanning, frisk or ordinary search)
has failed to find the thing.
Dangerous thing
is defined at clause 589 as a thing that, if used by, or allowed to remain with,
a child or young person may cause serious damage to the health of the child or
young person or someone else or threaten the life of the child or young person
or someone else. Examples include matches, knives and a drug.
Sub-clause (2) requires the operating entity
to first ascertain whether a strip search is necessary, after considering any
information known about the child or young person’s age, maturity,
developmental capacity and known history (for example - history of abuse,
impairment and sexuality).
Clause 598 — Strip
searches—requirements before search
This clause sets out the rules that the therapeutic
protection person must comply with before a strip search is conducted, including
telling a child or young person about the search, the reasons for the search,
whether the child or young person will be required to remove any clothing, and
the reasons for this.
Sub-clause (4) obliges
the therapeutic protection person to seek the cooperation of the child or young
person for the search.
Clause 599 — Strip
searches—second therapeutic protection person must be
present
Sub-clause (1)(a) requires that a strip search be
conducted by a therapeutic protection person who is the same sex as the child or
young person.
Sub-clause (1)(b) requires that
the strip search be conducted in the presence of one or more therapeutic
protection persons who are the same sex as the child or young person, and
sub-clause (2) requires the number of therapeutic protection person present
during the search to be no more than is necessary and reasonable to ensure the
search is carried out safely and as effectively as possible. Sub-clause (3)
enables therapeutic protection people to assist in the search, if the person
conducting the search reasonably believes it is necessary and reasonable for the
search.
Sub-clause (4) allows therapeutic
protection people present at the search to be the opposite sex to the child or
young person being searched, if the operating entity reasonably believes there
is an imminent and serious threat to personal safety of the child or young
person and also reasonably believes that compliance with the same-sex
requirement would exacerbate that threat.
As
this is a limitation on the child or young person’s right to privacy and
dignity, the Bill introduces a new requirement at clause 632(2)(e)(iv) to record
(in the therapeutic protection register) searches when the same sex requirement
was not complied with, detailing the operating entity’s reasons for
believing the requirement did not apply.
Clause 600 — Strip
searches—support person must be present
This clause requires the search to be conducted in the
presence of someone who can support and represent the child or young
person’s interests and is acceptable to the child or young person. This
may include a therapeutic protection person or delegate of the Chief Executive
who is capable of fulfilling this
function.
Sub-clause (2) provides that if the
child or young person does not agree to the presence of a support person, or a
support person is directed to leave, then the search can continue in their
absence.
Clause 601 — Strip
searches—directing support person to leave
This clause allows the operating entity to direct a
support person present for a strip search to leave if they are acting in a way
that prevents or hinders the search from being undertaken
effectively.
Sub-clause (3) allows the search
to continue in this circumstance.
Clause 602 — Strip
searches—enforcing direction to leave
This clause allows the operating entity to direct a
therapeutic protection person to use force which is necessary and reasonable to
ensure compliance with a direction to leave a strip search under clause
601(2).
Clause 603 — Strip
searches—general rules
This clause requires the search to be conducted as
quickly as possible and in a way that provides reasonable privacy and is
appropriate to the child or young person’s sexuality, impairment or
history (for example - history of abuse).
Clause 604 — Strip
searches—privacy
Sub-clause (1) requires a strip search to be conducted
in a private area or an area that provides reasonable privacy for the child or
young person.
Sub-clause (2) requires the
entity to conduct a search in a way that provides reasonable privacy for the
child or young person.
Sub-clause (3) provides
a search must not be conducted in the presence of anyone who is of the opposite
sex, except if they are a support person or a therapeutic protection person
present at the search.
Clause 605 — Strip
searches—no touching body
This clause prohibits the touching of a child or young
person’s body during a strip search, subject to the use of force at
division 16.3.4.
Clause 606 — Strip
searches—visual inspection of body
This clause sets out the rules about the visual
inspection of a child or young person’s body during a strip search which
the therapeutic protection person must comply
with:
• The child or young person’s
genital area (or female child or young person’s breasts) must not be
searched unless it is necessary to do so;
and
• The search must not involve more visual
inspection of the child or young person’s body than is reasonably
necessary. Visual inspection of the child or young person’s genital area,
anal area, buttock and breasts must be kept to a minimum.
Clause 607 — Strip
searches—clothing
This clause sets out the rules about the child or young
person’s clothing during a strip search that the therapeutic protection
person must comply with:
• A search must not
involve the removal of more clothes, or the removal of more clothes at any one
time, than is reasonably necessary. A child or young person must not be more
than half undressed at one time;
• The child
or young person must be allowed to dress in private as soon as the whole search
process is finished; and
• If clothing is
seized, the child or young person must be offered adequate
replacements.
Subdivision 16.3.5.5 —
Body searches
Subdivision 16.3.5.5 authorises and sets out
requirements for body searches of children and young people in therapeutic
protection, including to:
• Tell the child or
young person about the search, the reasons for the search and ask for their
cooperation.
• Ensure body searches are
conducted by a non-treating doctor or in the presence of a non-treating nurse
who is the same sex as the child or young
person.
• Allow searches to be carried out in
the presence of one or more persons who must be the same sex as the child or
young person.
• Ensure that the body search
is carried out in the presence of a person who can support and represent the
interests of the child or young person; and whose presence is agreed to. The
operating entity can direct the person to leave if they are preventing or
hindering the search.
• The removal of
clothes is limited to that which is strictly necessary and reasonable for the
search.
• An authority for the doctor to
seize things (provided removing the thing would not cause injury to the child or
young person) and give the thing to the operating entity.
Clause 608 — Body
searches—directions
Body searches are at the most intrusive end of the
continuum of searches. This clause authorises contact with a child or young
person’s orifices to enable a physical search of the child or young
person’s orifices, known as a body search.
Sub-clause (1) enables the operating entity to
authorise a non-treating doctor to conduct a body search of a child or young
person if the operating entity reasonably suspects the child or young person has
ingested or inserted something that may be harmful to their health or wellbeing.
Sub-clause (2) requires the operating entity, in deciding to authorise a body
search, to give consideration to the child or young person’s age,
maturity, developmental and known history (for example - history of abuse,
impairment and sexuality).
A non-treating
doctor acting under this clause is immune from civil liability under clause 877
of the Bill if their conduct is engaged in honestly and without recklessness.
A non-treating doctor asked to exercise body
search functions under this chapter must not be the child or young
person’s treating doctor, except in an emergency – see clause 631.
Clause 609 — Body
searches—requirements before search
This clause sets out the rules that the operating entity
must comply with after a non-treating doctor is authorised to conduct a body
search and before the search is conducted, including telling a child or young
person about the search, the reasons for the search, whether the child or young
person will be required to remove any clothing, and the reasons for this.
Sub-clause (4) obliges the operating entity to
seek the cooperation of the child or young person for the
search.
Clause 610 — Body
searches—non-treating nurse must be present
This clause requires a non-treating nurse to be present
at a body search.
Sub-clause (2) requires that
at least one of the two medical persons present at the body search (non-treating
doctor or non-treating nurse) is the same sex as the child or young person. A
non-treating nurse asked to be present for body search functions under this
chapter must not be the child or young person’s treating nurse, except in
an emergency – see clause 631.
Clause 611 — Body
searches—another person may be present
Sub-clause (1) allows the operating entity to direct one
or more therapeutic protection persons to be present at the body search.
Sub-clause (2) requires the number of persons present during the search to be no
more than is necessary and reasonable to ensure the search is carried out safely
and as effectively as possible.
Sub-clause
(3) provides that any therapeutic protection person providing assistance must be
of the same sex, except if, under sub-clause (4) the operating entity reasonably
believes there is an imminent and serious threat to personal safety of the child
or young person and also reasonably believes that compliance with the same-sex
requirement would exacerbate that threat.
As
this is a limitation on the child or young person’s right to privacy and
dignity, the Bill introduces a new requirement at clause 632(2)(e)(iv) to record
(in the therapeutic protection register) searches when the same sex requirement
was not complied with, detailing the operating entity’s reasons for
believing the requirement did not apply.
Clause 612 — Body
searches—support person must be present
This clause requires a body search to be conducted in
the presence of someone who can support and represent the child or young
person’s interests and is acceptable to the child or young person. This
may include a therapeutic protection person or delegate of the Chief Executive
who is capable of fulfilling this
function.
Sub-clause (2) provides that if the
child or young person does not agree to the presence of a support person then
the search can continue in their absence.
Clause 613 — Body
searches—directing support person to leave
This clause allows the operating entity to direct a
person present for a body search to leave if they are acting in a way that
prevents or hinders the search from being undertaken effectively. Sub-clause
(3) allows the search to continue in this circumstance.
Clause 614 — Body
searches—touching body
This clause allows a non-treating doctor who is the same
sex as the child or young person and is authorised by the operating entity to
conduct the body search and a non-treating nurse present who is the same sex as
the child or young person to touch and examine the child or young person’s
body orifices for the search.
Clause 615 — Body
searches—clothing
This clause sets out the rules about the child or young
person’s clothing during a body search that must be complied with by a
person doing the search:
• A search must not
involve the removal of more clothes, or the removal of more clothes at any time,
than is reasonably necessary. A child or young person must not be more than half
undressed at one time;
• The child or young
person must be allowed to dress in private as soon as the whole search process
is finished; and
• If clothing is seized, the
child or young person must be offered adequate replacements.
Clause 616 — Body
searches—assistance
This clause allows a non-treating doctor conducting a
body search to ask the operating entity for assistance that the doctor believes
is reasonable and necessary for the search.
The operating entity is enabled to direct or
authorise a therapeutic protection person or someone else present for the search
to assist in its conduct.
Sub-clause (3)
provides that the person providing the assistance must be of the same sex,
except if, under sub-clause (4) the operating entity reasonably believes there
is an imminent and serious threat to personal safety of the child or young
person or someone else and also reasonably believes that compliance with the
same-sex requirement would exacerbate that threat.
As this is a limitation on the child or young
person’s right to privacy and dignity, the Bill introduces a new
requirement at 632(2)(e)(iv) to record (in the therapeutic protection register)
searches when the same sex requirement was not complied with, detailing the
operating entity’s reasons for believing the requirement did not
apply.
A person assisting under this clause is
immune from civil liability under clause 877 of the Bill if their conduct is
engaged in honestly and without recklessness.
Clause 617 — Body
searches—non-treating doctor may seize things
Sub-clauses (1) and (2) allow anything that may
jeopardise a child or young person’s health or wellbeing discovered during
a body search to be seized by the non-treating doctor, unless seizing the thing
would be likely to cause injury to the child or young person or someone else.
Sub-clause (3) requires anything seized by the non-treating doctor to be passed
on to the operating entity as soon as practicable.
Division 16.3.6 — Seizing
dangerous things
This division provides the powers and procedures for
seizing dangerous things at the therapeutic protection place.
Clause 618 —
Application-div 16.3.6
This clause sets out the application of the division.
The division applies to a child or young person who is in therapeutic
protection. A child or young person is in therapeutic protection if the child
or young person is confined under an interim or final therapeutic protection
order or in need of emergency therapeutic protection (see clause
571).
Clause 619 — Seizing
property—who is the owner?
This clause sets out who is the owner of a thing for
this division. An owner of a thing includes a person entitled to possession of
the thing. This clarifies that an owner of an item may be a person who is
entitled to possession, but not in possession of the item. For example, a child
or young person may be the owner of something mailed to them, intended as a
gift.
Clause 620 — Seizing
property—dangerous things may be seized
This clause authorises the operating entity to seize a
dangerous thing found during a search under this part, unless the child or young
person has written approval to possess the thing.
Dangerous thing is defined at clause 589 as a
thing that, if used by, or allowed to remain with, a child or young person may
cause serious damage to the health of the child or young person or someone else
or threaten the life of the child or young person or someone else. Examples
include matches and knives.
Clause 621 — Seized
property—must tell owner
This clause obliges the operating entity to notify
certain persons of things seized under this
part.
The owner or, if the owner can not be
located, the person in possession of the thing when it was seized, must be
notified in writing by the operating entity of the seizure, as soon as
practicable but not late than 7
days.
Sub-clause (2) sets out what must be in
the notice.
Clause 622 — Seized
property—forfeiture
This clause provides an explicit power for things seized
under clause 620 to be forfeited to the
Territory.
If an item is allowed to be
possessed by a person but the owner cannot be found, or the thing cannot be
returned to the owner, the item may be forfeited to the
Territory.
If an item may be used to commit an
offence, or is unsafe, the item may be forfeited to the
Territory.
Sub-clause (2) enables the operating
entity to make a decision about what to do with the forfeited item. For
example, weapons or drugs may be passed on to the police for destruction; other
items may be passed to the public trustee for sale; other items may be kept for
the general use of the therapeutic protection
place.
The Uncollected Goods Act 1996
provides for the disposal of abandoned goods.
Clause 623 — Seized
property—return
If something is seized under clause 620, but not
forfeited under clause 622, the operating entity is obliged to return the thing
to its owner at the end of 6 months after it was seized, or if a proceeding for
an offence involving the thing has commenced within that 6 months, then at the
end of that proceeding and any appeal.
If an
item is no longer required to be retained as evidence, the operating entity must
return it immediately to the owner.
Part 16.4 — Therapeutic
protection—administration
This part sets out powers and obligations for the
administration of a therapeutic protection place.
Division 16.4.1 —
Therapeutic protection places
This division addresses the declaration of therapeutic
protection places and the authorisation of operating entities for therapeutic
protection places, including mechanisms for suspension and revocation of
authorisations.
Clause 624 —
Therapeutic protection place—declaration
This clause enables the Minister to declare a
therapeutic protection place. The place cannot be used to accommodate young
detainees and must comply with therapeutic protection place standards.
Clause 625 —
Therapeutic protection place—exclusion of matters from declaration
etc
This clause enables the Chief Executive to exclude from
a declaration any matter that would disclose the location of a therapeutic
protection place to ensure the privacy of children and young people confined
there. The Chief Executive is required to disclose the location of the
therapeutic protection place to the persons who may have access to the register
under clause 633(1).
Clause 626 —
Therapeutic protection place—policies and procedures
This clause enables the Chief Executive to make
therapeutic protection place policies and operating procedures, consistent with
the Bill, to facilitate the effective and efficient management of therapeutic
protection places (by way of notifiable instrument).
Clause 627 —
Authorisation of operating entity for therapeutic protection
place
This clause contemplates that the Chief Executive may
not directly administer the therapeutic protection place and allows the Chief
Executive to authorise an operating entity for a therapeutic protection place.
In order to authorise an entity, the Chief
Executive must be satisfied that the entity is a suitable entity (in accordance
with part 2.4) and the entity complies with, and is likely to continue to comply
with, the therapeutic protection standards.
Clause 628 —
Suspension of operating entity’s authorisation
This clause allows the Chief Executive to suspend an
entity’s authorisation as an operating entity for a therapeutic protection
place. It is necessary for the Chief Executive to have authority to immediately
suspend, with effect, the authorisation of an operating entity for a therapeutic
protection place in circumstances where the Chief Executive reasonably suspects
that the entity is not a suitable entity to operate a therapeutic protection
place or the entity has not complied with, or continued to comply with, the
therapeutic protection standards.
Sub-clause
(2) reflects natural justice requirements that an entity must be given notice of
the Chief Executive’s intention to suspend the authorisation, including
the grounds and provide an opportunity for the entity to make a written
submission to the Chief Executive about the notice.
The Chief Executive must consider any written
submission provided in response and must either revoke the suspension or give
the entity notice of the Chief Executive’s intention to revoke the
authorisation.
Sub-clause (3) provides that a
suspension takes effect immediately.
Clause 629 —
Revocation of operating entity’s authorisation
This clause allows the Chief Executive to revoke an
entity’s authorisation as an operating entity for a therapeutic protection
place and is additional to the power conferred by section 180 of the
Legislation Act 2001. Section 180 of the Legislation Act provides
that the power to make a decision under a law includes the power to reverse or
change the decision, which is exercisable in the same way, and subject to the
same conditions, as the power to make the decision.
In order to revoke an entity’s
authorisation, the Chief Executive must be satisfied that the entity is not a
suitable entity to operate a therapeutic protection place or has not complied
with, or continued to comply with, the therapeutic protection
standards.
Sub-clause (3) reflects natural
justice requirements that an entity must be given notice of the Chief
Executive’s intention to revoke the authorisation, including the grounds
and provide an opportunity for the entity to make a written submission to the
Chief Executive about the notice. The Chief Executive must consider any written
submission provided in response.
Division 16.4.2 —
Therapeutic protection plan
This division provides for oversight of the therapeutic
protection plan by the Official Visitor or Public Advocate.
Clause 630 — Public
advocate and Official Visitor may be given therapeutic protection
plan
This clause requires the Chief Executive to promptly
give to the Public Advocate or Official Visitor a copy of a therapeutic
protection plan for a child or young person upon request by the Public Advocate
or Official Visitor. Therapeutic protection plan is outlined at clause 535 and
includes details of the therapeutic intervention being provided and the expected
results of that therapeutic intervention.
Division 16.4.3 —
Non-treating health professionals
Division 16.4.3 provides for non-treating health
professionals to exercise non-therapeutic functions under this chapter, such as
body searches.
Clause 631 — Health
professionals – not treating functions
This clause allows the operating entity to authorise a
health professional to exercise non-treating functions under the chapter for
children and young people in therapeutic protection. The authorisation may be
oral or written. Non-treating functions under the chapter are reports regarding
the identity of people who identify as being transgender or intersex (see clause
572) and body searches (see subdivision
16.3.5.5).
The operating entity is required to
ensure that a child or young person’s treating health professional is not
asked to exercise non-treating functions under this chapter in relation to the
child or young person, except in an emergency where there is an imminent and
serious threat to safety and compliance with the requirement would exacerbate
that threat. A treating health professional is defined at sub-clause (4) as
someone who has a professional relationship with the child or young person for
the provision of health services.
The clause
contemplates health professionals as set out in the Health Professionals Act
2004, as some tasks may not require a doctor only. For this chapter a
non-treating health professional includes a non-treating nurse and non-treating
doctor.
The purpose of distinguishing between
treating and non-treating health professionals is to prevent treating doctors
from having to engage in medical tasks that are related to the security of the
therapeutic protection place. This is necessary to meet human rights
requirements and protect the child or young person’s trust and confidence
in any doctor who provides
treatment.
International instruments set out
the principle that doctors and other people providing therapeutic services
cannot be involved in any custodial matters that are not directly therapeutic.
[Principles of Medical Ethics relevant to the Role of Health Personnel,
particularly Physicians, in the Protection of Prisoners and Child or young
persons against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, UN General Assembly resolution 37/194 of 18 December
1982.]
Division 16.4.4 —
Therapeutic protection register
Division 16.4.4 creates an obligation for the operating
entity to establish a therapeutic protection register containing certain details
related to children and young people in therapeutic protection. The purpose of
this division is to enable external oversight of the therapeutic protection
place and services provided to children and young people, while protecting the
privacy of each individual child or young person.
Clause 632 —
Therapeutic protection register
This clause requires the establishment of a therapeutic
protection register by the operating entity. The clause sets out what must be
in the therapeutic protection register. This includes details related to the
order, any reviews of the order, the therapeutic protection history, and details
of intrusive searches (strip and body searches) or force used on the child or
young person.
The information contained in
the register is not limited to the details outlined in the Bill. It may include
any other information the operating entity considers relevant, for example,
information about the child or young person’s daily needs, such as any
medication prescribed for them.
Clause 633 —
Therapeutic protection register—who may have access?
This clause sets out who may have access to the
therapeutic protection register. It authorises a wide range of persons to
provide external oversight of the information contained in the register in order
to ensure that the rights of children and young people in therapeutic protection
are protected.
Sub-clause (2) ensures that the
privacy of children and young people in therapeutic protection is protected by
creating a rule that the register may only be accessed by the persons in
sub-clause (1).
Clause 634 —
Therapeutic protection register—Public Advocate to inspect
In order to ensure there is at least one external agency
regularly oversighting the therapeutic protection register, this clause requires
the Public Advocate to inspect the therapeutic protection register at least once
every 3 months.
Chapter
17 — Care and protection—interstate transfer of orders and
proceedings
This chapter gives effect to a uniform national scheme
for the transfer of care and protection orders and proceedings between States
(including the Northern Territory and New Zealand). The chapter now reflects
that all States are now participating in the uniform
scheme.
Clause 851 in Chapter 25 allows the
Chief Executive to give information to any person who is exercising a function
under, or administering, a law of another State that corresponds or
substantially corresponds to a provision in this Act. It authorises the giving
of information that the Chief Executive reasonably believes is necessary to
allow the person to exercise the function or administer the law.
Part 17.1 —
Preliminary
This part defines certain terms to encompass Courts and
proceedings in the different jurisdictions to which transfers under the Chapter
may relate. This part also allows the Minister to declare for the purposes of
the Chapter that certain laws are ‘child welfare’ or
‘interstate laws’ and certain people are ‘interstate
officers’. This part continues to have the effect of section 299 of the
1999 Act and includes some amendments to bring the ACT scheme into alignment
with the uniform national scheme.
Clause 635 — Object
of ch 17
This clause describes the objects of this chapter in
terms of the desirability of arranging transfers of orders and proceedings for
the most timely protection of children and young people who move or proposed to
move between jurisdictions. This re-enacts section 298 of the 1999 Act. An
additional object has been added to recognise the desirability of an order
relating to the care and protection of a child or young person having effect,
and being enforced, in the State in which the child or young person resides.
This is intended to bring the Bill into alignment with the uniform national
scheme.
Clause 636 —
Definitions—ch 17
This clause sets out definitions for this
chapter.
Clause 637 — What is
a child welfare order?
This clause sets out the meaning of a child welfare
order. This replaces the term ‘child care and protection order’
which is a term used more generically across the Bill. Under the 1999 Act, a
child care and protection order related to an order with an aspect of parental
responsibility, however described. The Bill however expands this to include
supervision, contact and specific issues provisions in care and protection
orders (or equivalent orders in other jurisdictions) to allow these provisions
and orders to be transferred.
Clause 638 — What is
a child welfare proceeding?
This clause sets out the meaning of a child welfare
proceeding.
Clause 639 — What is
a child welfare law?
This clause sets out the meaning of a child welfare law.
The meaning of a child welfare law encapsulates the care and protection chapters
under the Bill or corresponding laws in other jurisdictions. It also includes a
law of a State declared by the Minister to be a corresponding law for this
chapter.
Clause 640 — What is
an interstate law?
This clause sets out the meaning of an interstate
law.
Clause 641 — Who is
an interstate officer?
This clause sets out the meaning of an interstate
officer.
Part 17.2 — Interstate
transfer of ACT child welfare orders
This part provides for the administrative and judicial
transfer of an ACT child welfare order to another State, including the Northern
Territory and New Zealand.
Division 17.2.1 —
Transfers of orders by Chief Executive
This division enables the Chief Executive to
administratively transfer orders made under a care and protection chapter to
another State, with the consent of certain persons affected by the transfer of
the order.
This division re-enacts and
continues to have the effect of sections 300 to 303 of the 1999
Act.
Clause 642 — Chief
Executive may transfer child welfare order
This clause enables the Chief Executive to
administratively transfer ACT orders (with conditions as appropriate) to another
State, if similar orders (and conditions) exist in the destination jurisdiction,
but only if the orders are not subject to appeal and where interstate officers
and certain people listed in clause 644, consent to the transfer of the order
(and any conditions in the order).
When
considering whether a similar order could be made in the other jurisdiction, the
Chief Executive is to disregard the period for which such an order may be made,
but on transferring, the Chief Executive is to set the period of the order as
the period remaining to run on the order in the ACT or as close a period to that
period as could be made in that jurisdiction.
Clause 643 — Chief
Executive transfer – considerations
This clause introduces a requirement for the Chief
Executive to have regard to certain matters in deciding to transfer a child
welfare order for a child or young person to another State. This new clause is
intended to more closely align the ACT scheme with the uniform national
scheme.
Clause 644 — Chief
Executive transfer—certain people must agree
This clause requires certain people to give their
consent to the transfer of the order (including any conditions of the order).
This includes people who have daily care or long-term care responsibility, or
care and protection orders with residence provisions or contact provisions in
relation to a child or young person, the child or young person’s parents,
and the young person themselves if they are over school leaving age (15 years).
However these people are not required to agree if they cannot be found after
reasonable inquiry or do not have sufficient maturity or developmental capacity
to agree to the transfer.
The child or young
person may already live in the destination jurisdiction with a person who has a
care and protection order with a residence provision in their favour.
Similarly, someone who has a care and protection order with a residence or
parental responsibility provision for the child or young person may already be
living in the destination jurisdiction (but the child has not moved there yet).
In these circumstances, sub-clauses (2) and (3) provide that it is sufficient if
the relevant people simply consent to the child or young person living there,
and their specific agreement to the transfer of the order is not required. These
provisions are necessary to allow the child to move interstate before the order
is transferred.
Clause 645 — Chief
Executive transfer—certain people must be told
The Chief Executive is required to give certain persons
written notice of the decision to transfer within 3 days working days of the
decision. Those people include a young person (over 12 years old), parents with
parent parental responsibility, people with parental responsibility, and the
Public Advocate.
Clause 646 — Chief
Executive transfer—limited time for review
This clause enables a person to apply for judicial
review of the Chief Executive’s decision within 10 working days. Such an
application operates as a stay of the decision to transfer the
order.
Division 17.2.2 — Transfer
of orders by Childrens Court
This division enables the Childrens Court to transfer
orders made under a care and protection chapter to another
State.
This division re-enacts and continues to
have the effect of sections 304 to 309 of the 1999 Act.
Clause 647 —
Childrens Court transfer—application
Sub-clause (1) allows the Chief Executive to apply to
the Childrens Court to make an order transferring a child welfare order to
another State. Sub-clause (2) outlines who must be served with a copy of the
application. This is each party to the original proceeding and the Public
Advocate.
Clause 648 —
Childrens Court transfer—criteria
This clause enables the Childrens Court to transfer ACT
orders if the orders are not subject to appeal and where interstate officers
consent to the transfer.
Clause 649 —
Childrens Court transfer—interstate orders
This clause enables the Childrens Court to transfer ACT
orders (with conditions as appropriate) if similar orders (and conditions) exist
in the destination jurisdiction.
Unlike
administrative transfers, the Court may also transfer a child welfare order to
another jurisdiction if it is considered in the best interests of the child or
young person and if the order could be made in the State.
When considering whether a similar order could
be made in the other jurisdiction, the Court is to disregard the period for
which such an order may be made, but on transferring, the Court is to set the
period of the order as a period that could be made in that
jurisdiction.
This re-enacts section 304 of the
1999 Act.
Clause 650 —
Childrens Court transfer—considerations
This clause sets out matters that the Court must
consider in transferring an order to another State. These matters include
whether the Chief Executive or an interstate officer is better able to provide
for the care and protection of the child or young person and the desirability of
the order operating under the law of the jurisdiction in which the child or
young person lives. This re-enacts section 307 of the 1999 Act and has been
expanded for additional considerations outlined at (1)(a),(b),(c),(f) and (g) to
align with the uniform national scheme.
There
is also a new power at sub-clause (2) for the Childrens Court to consider
relevant reports of the Chief Executive.
Clause
851 in Chapter 25 allows the Chief Executive to give information to any person
who is exercising a function under, or administering, a law of another State
that corresponds or substantially corresponds to a provision in this Act. It
authorises the giving of information that the Chief Executive reasonably
believes is necessary to allow the person to exercise the function or administer
the law.
Clause 651 —
Childrens Court transfer—care plans
This clause requires the Court to consider a care plan
filed and served by the Chief Executive before making a transfer order. This
re-enacts section 308 of the 1999 Act.
Clause 652 —
Childrens Court transfer—appeal applications
This clause restricts the time a person can appeal on a
question of law to the Supreme Court against a transfer order of the Court to 10
working days, with such application to operate as a stay of the decision.
Clause 653 —
Childrens Court transfer—appeals
This clause empowers the Supreme Court to make an
interim care and protection order pending the determination of an appeal, which
may include remitting the matter to the Childrens Court for
rehearing.
Division 17.2.3 —
Interstate registration of ACT orders
This division provides for the interstate registration
of ACT orders that are transferred
interstate.
This division continues to have the
effect of sections 316, 319 and 320 of the 1999 Act.
Clause 654 —
Interstate registration of ACT orders—effect
This clause provides that, where registration of an
order is revoked under clause 655, the order in the sending State revives and
runs for the remainder of the period for which it would have run if there had
been no transfer. One practical effect of revival would be the Chief
Executive’s reporting obligations under part 14.13 for care and protection
orders with a parental responsibility or a supervision provision would apply as
from the date of the original order. Otherwise registration is to have the
effect of causing the order in the sending State to cease to have
effect.
Clause 655 —
Interstate registration of ACT orders—revocation
This clause requires the registrar of the Court to tell
the Chief Executive when the registration of a child welfare order transfer
order has been revoked. The Chief Executive is also required to inform other
persons in sub-clause (3).
Clause 656 —
Interstate registration of ACT orders—Childrens Court file
On transfer, and after the time for any appeal, review
or stay of such action, this clause requires the registrar of a transferring
Court to send to the relevant Court in the receiving state, any documents on the
sending Court’s file about the order or proceedings from that
Court.
Part 17.3 — Interstate
transfer of ACT child welfare proceedings
This part provides for the transfer of ACT care and
protection proceedings to another State.
This
part re-enacts and continues to have the effect of part 8.3 of the 1999
Act.
Clause 657 — Transfer
of ACT proceedings—applications
This clause allows the Chief Executive to apply for an
order to transfer a child welfare proceeding to the State Childrens Court of
another State. It requires the Chief Executive to give certain persons listed in
sub-clause (2) a copy of the application for transfer of
proceedings.
Clause 658 — Transfer
of ACT proceedings—criteria
This clause allows for the Childrens Court to transfer
proceedings to a State Childrens Court in another State if the relevant
interstate officers have consented, with such proceedings being discontinued in
the Court in the ACT when the transfer order is registered in the relevant
interstate Court.
Clause 659 — Transfer
of ACT proceedings—considerations
This clause provides that, in considering a transfer,
the Court is to have regard to whether there are or have been care and
protection proceedings concerning the child or young person in the proposed
destination jurisdiction, the place where matters giving rise to the proceedings
arose and the place where the child or young person, the person with
responsibility for day to day matters or significant other people are living or
likely to live.
Clause 660 — Transfer
of ACT proceedings—interim orders
This clause requires the Court to make interim orders
for up to 30 days for the care and protection of the child or young person when
making a transfer of proceedings order. Such orders may confer parental or
supervisory responsibility on a person (including a person in the other relevant
jurisdiction) or allow contact and may subsequently be varied, extended or
revoked by a relevant Court in the other jurisdiction.
Clause 661 — Transfer
of ACT proceedings—appeal applications
This clause restricts the time a party to the proceeding
can appeal to the Supreme Court (on a point of law) against an order of the
Childrens Court transfer of proceedings within 10 working days, with such
application to operate as a stay of the decision.
Clause 662 — Transfer
of ACT proceedings—appeals
This clause empowers the Supreme Court to make interim
orders pending the determination of an appeal. Final determination on appeal
may include remitting the matter to the Childrens Court for
rehearing.
Clause 663 — Transfer
of ACT proceedings—revocation of registration
This clause requires the registrar of the Childrens
Court to tell the Chief Executive when the registration of a child welfare
proceeding transfer order has been revoked. The Chief Executive is required to
tell persons listed.
Clause 664 — Transfer
of ACT proceedings—Childrens Court file
On transfer, and after the time for any appeal, review
or stay of such action, this clause requires the registrar of a transferring
Court to send to the relevant Court in the receiving state, any documents on the
sending Court’s file about the proceedings from that
Court.
Part 17.4 — ACT
registration of interstate child welfare orders
This part provides for the registration of interstate
child welfare orders in the ACT.
This part
continues to have the effect of part 8.4 of the 1999 Act.
Clause 665 — ACT
registration—interstate child welfare orders
This clause provides for the Chief Executive to file in
the Childrens Court orders from other participating jurisdictions for the
transfer of care and protection orders, together with any interim orders made on
transfer. However the Chief Executive cannot file such orders if the decision
to transfer a child or young person is subject to an appeal, review or stay or
the time for applying for an appeal or review has not lapsed.
Clause 666 — ACT
registration of interstate orders—interstate registrar
Under this clause, the registrar of the Childrens Court
(in which transferred orders are registered under clause 665) must notify the
relevant interstate Court and officer of the registration.
Clause 667 — ACT
registration of interstate orders—effect
This clause provides that registered orders are to be
treated as if they are orders made by the Court on the day of registration and
as orders which may be varied, revoked, extended or enforced accordingly.
Interim orders, made on transfer, are to be treated on registration in the ACT
as an interim care and protection order under the Act that may also be varied,
revoked, extended or enforced accordingly.
This
re-enacts section 317(1) and (2) of the 1999 Act.
Clause 668 — ACT
registration of interstate orders—application for
revocation
This clause allows the Chief Executive, the child or
young person concerned, a person with responsibility for day to day matters for
the child or young person or a person who was a party to the proceedings in the
sending State to make an application to revoke the registration of an interstate
child welfare order.
This re-enacts section
318(1) and (2) of the 1999 Act.
Clause 669 — ACT
registration of interstate orders—revocation
This clause limits the circumstances in which the
revocation of registration of interstate orders may be sought to situations
where the transfer order was subject to appeal, review or stay or the time for
such appeal, review or stay had not expired in the sending State. Revocation
does not prevent later re-registration (for example when the time for appeal,
review or stay has expired or when any such action has been dismissed).
This re-enacts section 318(3) (4) and (5) of
the 1999 Act.
Clause 670 — ACT
revocation of interstate orders—interstate registrar
Under this clause the registrar of the Childrens Court
must notify the relevant interstate Court and officer of the revocation of the
registration of an interstate child welfare order.
Part 17.5 — ACT
registration of interstate child welfare proceedings
This part provides for the registration of interstate
child welfare proceedings in the ACT. It continues to have the effect of part
8.4 in the 1999 Act.
Clause 671 — ACT
registration—interstate child welfare proceedings
This clause provides for the Chief Executive to file in
the Childrens Court, orders from other participating jurisdictions for the
transfer of interstate care and protection proceedings to the ACT, together with
any interim orders made on transfer. However the Chief Executive cannot file
such orders if the decision to transfer the proceeding is subject to a current
appeal, review or stay or the time commencing an appeal or review has not
lapsed.
This re-enacts section 315(2) and (3)
of the 1999 Act.
Clause 672 — ACT
registration of interstate proceedings—interstate
registrar
Under this clause the registrar of the Childrens Court
must notify the relevant interstate Court and officer about the registration of
an interstate proceedings transfer order or interim order.
Clause 673 — ACT
registration of interstate proceedings—effect
Sub-clause (1) provides that proceedings transferred
under this part are to be treated on registration as having commenced in the
Territory on the day of registration. This sub-clause re-enacts section 317(3)
of the 1999 Act.
Sub-clause (2) provides that
the Court is not bound by a finding of fact made in a Court from which an order
or proceeding was transferred, but allows for the Court to have regard to the
transcript of, or evidence led in, that other Court.
This sub-clause re-enacts section 322 of the
1999 Act.
Clause 674 — ACT
registration of interstate proceedings—application for
revocation
This clause allows the Chief Executive, the child or
young person concerned, a person with daily care responsibility for the child or
young person or a person who was a party to the proceedings in the sending State
to make an application to revoke the registration of an interstate child welfare
proceedings order or an interim order.
This
re-enacts section 318(1) and (2) of the 1999 Act.
Clause 675 — ACT
registration of interstate proceedings—revocation
This clause limits the circumstances in which the
revocation of registration of interstate orders may be sought to situations
where the transfer order was subject to appeal, review or stay or the time for
such appeal, review or stay had not expired in the sending State. Revocation
does not prevent later re-registration (for example when the time for appeal,
review or stay has expired or when any such action has been
dismissed).
This re-enacts section 318(3), (4),
(5) of the 1999 Act.
Clause 676 — ACT
registration of interstate proceedings—interstate
registrar
Under this clause the registrar of the Childrens Court
must notify the relevant interstate Court and officer of the revocation of the
registration of an interstate proceedings transfer order or interim order.
This re-enacts section 316(1) of the 1999
Act.
Part 17.6 — Interstate
transfer of child welfare orders and
proceedings—miscellaneous
This part relates to the transfer of orders and
proceedings from New Zealand to the ACT when the transfer relates to a Maori
child or young person.
Clause 677 — ACT
registration of interstate orders and proceedings—Maori children and young
people
When an order or proceeding concerning a Maori child or
young person is transferred to the ACT from New Zealand, this clause requires
the Childrens Court to have regard to maintaining and strengthening
relationships between the child or young person and his or her family, cultural
and community ties.
This re-enacts section 321
of the 1999 Act.
Chapter
18 — Care and protection—police assistance
This chapter confers powers on police to provide
assistance to the Chief Executive under the care and protection chapters. It
also deals with the issuing of safe custody warrants for a child or young person
subject to orders under the care and protection chapters.
Part 18.1 — Assistance in
carrying out orders etc
Clause 678 — Police
assistance
This clause enables the Chief Executive to request
police assistance for enforcing a care and protection order or interim care and
protection order, for enforcing a therapeutic protection order or interim
therapeutic protection order, for enforcing a DVPO final protection order or
DVPO interim protection order, for conducting an appraisal or a care and
protection assessment, whether under an appraisal or assessment order or not, or
taking emergency action.
Sub-clause (2)
requires the Chief Police Officer to comply with any request made by the Chief
Executive.
Clause 679 — Police
powers
This clause outlines powers conferred on police officers
when assisting the Chief Executive. Ordinarily these powers are exercised under
a warrant, but in more limited circumstances they could be exercised if the
police officer reasonably believes that the delay in obtaining a warrant would
prejudice the action or the safety of a child or young person.
For example, if the police officer was
attending premises where children were being held by a parent who is making
threats to harm the children and considered that the delay in obtaining a
warrant would place the children at risk of harm, then the officer could act to
enter premises.
This re-enacts section 192(3)
and (4) of the 1999 Act.
Clause 680 — Seized
things may be kept until matter completed
This clause provides that things seized under 679(1)(b)
may be kept until the action or any proceeding arising from the action is
finalised. This re-enacts section 192(8) of the 1999 Act.
Clause 681 —
Offence—failure to answer police questions
This clause creates an offence for failing to answer a
question asked by a police officer under clause 679(1)(d) to give relevant
information. The maximum penalty is 50 penalty units. This re-enacts section
192(6) of the 1999 Act.
Part 18.2 — Safe
custody
This part amends division 7.3.8 of the 1999 Act relating
to safe custody. The provisions relating to the issue of safe custody warrants
have been modernised in accordance with modern drafting
practice.
Clause 682 — Safe
custody—parental responsibility to Chief Executive
This clause clarifies that daily care responsibility for
a child or young person is transferred to the Chief Executive if they are taken
into safe custody by a police officer or the Chief Executive under this part.
This is a new clause to remove doubt about who has daily care responsibility
after the execution of a safe custody warrant.
Clause 683 — What is
a safe custody warrant?
This clause sets out the meaning of a safe custody
warrant for this part.
Clause 684 — Safe
custody warrant—application
This clause enables the Chief Executive or a police
officer to apply to a Magistrate for a safe custody warrant for a child or young
person if they reasonably believe that the criteria for issuing a warrant
(outlined at clause 685) are satisfied. This re-enacts section 270(1) and (2) of
the 1999 Act.
Sub-clause (3) provides that
the Magistrate may refuse to consider an application if it is incomplete.
Clause 685 — Safe
custody warrant—criteria
This clause provides authority for a Magistrate to issue
a safe custody warrant for a child or young person at stated premises if
satisfied that someone has contravened a certain order (appraisal order, interim
care and protection order, assessment order, care and protection order, DVPO
interim protection order, DVPO final protection order, therapeutic protection
order, interim therapeutic protection order) and as a consequence the child or
young person is in danger and the child or young person is at the premises or
may be within 14 days.
A safe custody warrant
may also be issued if a therapeutic protection order or interim therapeutic
protection order is in force and there are reasonable grounds for suspecting
that the child or young is absent without lawful authority from the therapeutic
protection place and the child or young person is at the premises, or may be at
the premises, within 14 days.
This re-enacts
section 270(1) of the 1999 Act.
Clause 686 — Safe
custody warrant—content
This clause outlines what must be included in a safe
custody warrant, including:
• the name of the
child or young person;
• the order for which
the safe custody warrant is issued;
• the
authority to use necessary and reasonable force and assistance in entering
stated premises;
• the hours in which the
premises may be entered;
• the date of expiry
of the warrant not later than 14 days after issue;
and
• when the Chief Executive’s daily
care responsibility for the child or young person ends.
Clause 687 — Safe
custody warrant—application made other than in person
This clause provides for an application for a safe
custody warrant by phone, fax or other means in urgent circumstances, for
examples, where a child or young person would be at risk if an officer left the
premises to seek a warrant in person.
Clause 688 — Safe
custody warrant—announcement before entry
This clause requires the Chief Executive or a police
officer executing the warrant to announce they are authorised to enter premises,
give anyone at the premises an opportunity to allow entry and identify
themselves to the occupier of the premises (or their apparent representative).
Compliance with this requirement is not necessary if the person executing the
warrant reasonably believes that immediate entry in required to ensure the
safety of anyone or to ensure the effective execution of the warrant.
Clause 689 — Safe
custody warrant—details of warrant to be given to occupier
etc
This clause requires the Chief Executive or police
officer executing the warrant to make available a copy of the warrant to the
occupier (or their apparent representative) and written notification of the
person’s rights and obligations.
Clause 690 — Safe
custody warrant—occupier entitled to be present etc
During the execution of the warrant, this clause permits
the occupier (or their apparent representative) to observe the execution of the
warrant, unless this would impede the warrant’s execution or are under
arrest and allowing observation would interfere with the objectives of the
warrant.
Clause 691 — Safe
custody warrant – placement of child or young person
This clause requires the placement of a child or young
person taken into custody under a safe custody warrant in a place stated in the
warrant or if there is no place stated in the warrant, in a place decided by the
Chief Executive. Under clause 686(2), the warrant may state where the child or
young person is to be placed by the person executing the warrant, if known by
the Magistrate at the time of issuing the warrant.
Clause 692 —
Offence—remove child or young person
This clause creates an offence for removing a child or
young person from a safe custody placement. The maximum penalty is 50 penalty
units, imprisonment for 6 months or both.
Clause 693 — Safe
custody—matter must be brought to Court promptly
This clause requires the Chief Executive to bring the
matter before the Childrens Court as soon as practicable and not later than one
working day following a child or young person being taken into safe custody
under a warrant.
Chapter
19 — Care and protection – provisions applying to all proceedings
under care and protection chapters
This chapter outlines procedures applying to proceedings
arising under the care and protection chapters.
The care and protection chapters in the Bill
are chapters 10 to 19 inclusive. Appraisal orders are dealt with in chapter 11.
Assessment orders, care and protection orders and interim care and protection
orders are dealt with in chapter 14. Therapeutic protection orders and interim
therapeutic protection orders are dealt with in chapter 16. Applications and
cross-applications for these orders must be made in accordance with the
procedural rules outlined in this chapter.
This
chapter includes procedures outlined at division 7.3.10 of the 1999
Act.
Part 19.1 —
Applications
This part outlines the form and content of applications,
including cross applications.
Clause 694 —
Application—includes cross-application
This clause provides that for this chapter an
application includes a cross application.
Clause 695 —
Application—must include statements, documents and reports
This clause re-enacts section 276 of the 1999 Act to
provide that an applicant is required to produce, with their application, a
written statement of the oral evidence that will be presented at the hearing and
a copy of any document or expert report that will be relied upon at the hearing
of the application.
Clause 696 —
Application—statements and reports to be signed etc
This clause re-enacts section 277 of the 1999 Act to
provide that documentation prepared specifically for use in applications must be
in affidavit form or at least signed, dated and bearing a statement that its
provider believes the content to be true and knowing it may be placed before the
Court.
Clause 697 —
Application—oral applications
This clause allows the Court to give leave for oral
applications and requires the Court to make directions as to preparation and
service of documentation, if any, relating to the oral
application.
Clause 698 —
Application—withdrawal or discontinuance
This clause allows for parties to withdraw from or
discontinue care and protection proceedings by filing and serving a notice to
that effect endorsed appropriately by any party who consents to the course of
action.
Part 19.2 —
Parties
This part outlines who the parties to an application
are, procedures for joining and removing parties, hearing applications in a
party’s absence, service of material and representation of parties.
However, representation of children and young people is dealt with in the
Court Procedures Act 2004, part 7A.
Clause 699 —
Parties—who are parties to an application?
This clause describes the parties to proceedings as the
applicant, the subject child or young person, any person served with the
application who participates in the proceeding other than as a witness or
representative, and a person required or allowed by the Court to attend and be
joined as a party.
However, the Public
Advocate, though served with all care and protection applications, is not
considered to be a party to care and protection proceedings unless the Public
Advocate has applied to be joined as a party. Clause 703(3) requires the Court
to join the Public Advocate as a party to the proceeding if the Public Advocate
applies.
Clause 700 —
Parties—hearing in party’s or other person’s
absence
This clause allows for the Court to grant leave for a
care and protection application to be heard ex parte, if service of the
application would place a child or young person at significant risk of
significant harm.
This clause engages the right
to a fair trial at section 21 of the Human Rights Act 2004, which is
aimed at ensuring the proper administration of justice by upholding the right to
a fair and public hearing. Hearing an application ex parte limits the
respondent's right to a fair trial or a fair hearing. This may involve an
acceptance at face value of the truth of the allegations, without the respondent
having been given a full opportunity to contest the allegations.
Ordinarily, the Bill requires that an
applicant is required to give certain people notice of any application in
relation to a child or young person (see for example, clause 444 in relation to
assessment orders). However, in certain limited circumstances, giving notice of
an application, for example by the Chief Executive to a parent or person with
parental responsibility, would endanger the child or young person. For example,
the Chief Executive, after receiving a child concern report which is deemed to
be a child protection report, may assess that a child has experienced severe
physical abuse by a parent and the parent has made threats to harm the child if
the child tells anyone. To protect the child or young person in these
circumstances, the Chief Executive may apply for an appraisal order by telephone
contact with the Childrens Court Magistrate. Giving notice to the parent of an
application for an appraisal order in these circumstances may place the child at
a significant risk of significant physical harm. In these circumstances, the
Chief Executive may seek an order from the Court to dispense with service of the
application under clause 722.
A person’s
right to fair trial needs to be balanced with the child or young person’s
right to protection from significant harm. This limitation on the right to a
fair trial is therefore reasonable and proportionate to the risk to the child or
young person.
Clause 835(2)(c) allows a person
who is not a party to seek the leave of the Court to appeal the making of any
order.
Clause 701 —
Parties—failure to attend proceeding
This clause provides that where a person has been served
with notice of the proceeding but fails to attend, the Court must adjourn the
proceedings to allow that person’s attendance or make orders it considers
appropriate (which may bind the person). This re-enacts section 281 of the 1999
Act.
Clause 702 —
Parties—Court may join affected party
This clause provides that if the Court is about to make
an order binding a person who is not a party, it may join the person as a party
or must at least give the person the opportunity to make submissions about the
order (even if the urgency of the case requires the Court to make the order
prior to hearing the submission). This re-enacts section 282 of the 1999
Act.
Clause 703 —
Parties—application to join party
This clause allows for people to apply to be joined in
proceedings, including by oral application. It requires the Court to join the
Public Advocate if the Public Advocate applies.
It also creates a rebuttable presumption in
favour of joining people who have been continuously caring for the child or
young person for 2 years or more. This is intended to include any persons
caring for the child or young person for this period and is not limited to
out-of-home carers. This recognises that persons who have been caring for a
child or young person for an extended period have a significant interest in any
care and protection proceedings for the child or young person who has been in
their care. This re-enacts section 283 of the 1999 Act.
Clause 704 —
Parties—filed material to be given to joined parties
Where a person has been joined in proceedings, this
clause requires the Court to give a direction as to what documentation is to be
provided to the joined party. This re-enacts section 284 of the 1999
Act.
Clause 705 —
Parties—application for removal of party
This clause allows a party to a proceeding to make
application for an order that another party be removed as a
party.
Clause 706 —
Parties—Court may remove party
This clause allows for the Court, on application or its
own motion (after having given the parties an opportunity to be heard), to
remove a previously joined party if it is no longer appropriate for the person
to be joined. This re-enacts section 285 of the 1999 Act.
Clause 707 —
Parties—notice of address for service
This clause requires each party to a proceeding under
the care and protection chapters to file with the Court, and serve on each other
party, a notice of address for service which is a written statement detailing
the party’s name and address for service of Court documents. This
re-enacts section 286 of the 1999 Act.
Clause 708 —
Parties—representation
This clause allows for parties to appear in Court in
person or represented by a lawyer or represented by another person, with the
leave of the Court.
The Chief Executive may
appear before the Childrens Court through a delegate or a person authorised to
appear on the Chief Executive’s behalf. The delegate or person authorised
to appear on the Chief Executive’s behalf is not required to be a lawyer.
A lawyer representing a party to a proceeding
under the care and protection chapters must file and give to each other party a
notice of address for service outlining that the lawyer acts for the party and
an address in the ACT for service of documents. In order to cease acting for a
party to a proceeding under the care and protection chapters, a lawyer must file
with the Court, and give to each other party, a written statement detailing
this.
Clause 709 —
Exclusion of people from hearings
This clause allows for the Court to exclude anyone from
the Courtroom for all or part of the hearing if it considers it appropriate,
including the child or young person subject to proceedings and parents (if they
have parental responsibility) or other persons with parental responsibility.
This re-enacts section 288(2) of the 1999 Act.
Part 19.3 — Burden of
proof
Clause 710 — Burden
of proof
This clause outlines the burden of proof for proceedings
under the care and protection chapters as the balance of probabilities. This
re-enacts section 197 of the 1999 Act.
Part 19.4 — Witnesses and
evidence
This part outlines procedures for summonsing witnesses
to give evidence in a proceeding under a care and protection chapter.
The part also establishes that the Childrens
Court is not bound by the rules of evidence for proceedings under the care and
protection chapters.
Clause 711 —
Procedures at hearings to be informal
In line with the principle at clause 9(d) of acting
without delay so as not to prejudice the wellbeing of the child or young person,
the clause exhorts the Court to act with as little formality, technicality and
delay as it can in proceedings under the care and protection chapters. This
re-enacts section 288(1) of the 1999 Act.
Clause 712 — Court
may call witnesses
This clause allows the Court, on its own motion, to call
a person as a witness if the Court considers that the person’s evidence
may be of assistance to the Court. This re-enacts section 292(1) of the 1999
Act.
Clause 713 — Court
may summons people to attend
In addition to any action the Court may take under
clause 712, this clause allows for the Court to issue summonses and warrants as
necessary to compel a person’s attendance before the Court.
Section 292(4) of the 1999 Act contained an
offence for failure to attend Court in answer to a summons. This is no longer
necessary as it is addressed by the Court Procedures Rules 2006:
• rule 2444 (Enforcement—failure of
individual to comply with subpoena) – this rule allows a Court to order a
warrant be issued for the individual’s arrest;
and
• rule 6612 (Failure to comply with
subpoena—contempt of Court) – this rule allows the Court to deal
with failure to comply with a subpoena as contempt of Court.
Clause 714 — Child or
young person as witness
This clause provides that a child or young person may
not be called as a witness in care and protection proceedings without the leave
of the Court, and if called as a witness, allows for the Court to regulate the
way in which evidence may be taken from the child or young person. This
re-enacts section 293 of the 1999 Act.
Clause 715 — Court
not bound by rules of evidence
This clause allows the Court to inform itself of matters
before it in any manner it considers appropriate, and in so doing the Court is
not bound by the rules of evidence (including the rule against hearsay). This
re-enacts section 291of the 1999 Act.
Clause 716 —
Restriction on taking evidence
In addition to regulating a child or young
person’s evidence under clause 714, the Court may also regulate the way in
which other witnesses are examined or cross-examined if necessary or convenient
to the proceedings to do so. This re-enacts section 294 of the 1999
Act.
Part 19.5 —
Orders
This part outlines making of orders, service of orders
and when the Court is required to provide a statement of reasons for its
decision.
Clause 717 —
Orders—obligations on people
This clause requires the Court to give a person a
reasonable opportunity to be heard before imposing an obligation on the person,
unless the person agrees to the order being made or the person cannot be found
after reasonable inquiry. This re-enacts section 199 of the 1999
Act.
Clause 718 —
Orders—by agreement
This clause allows for parties to file draft minutes of
consent orders endorsed appropriately by the parties and any person intended to
be bound by the proposed order. This re-enacts section 296 of the 1999
Act.
Clause 719 —
Orders—must be given to people
This clause requires the Court to serve its orders on
the Chief Executive and the Public Advocate, and each party or his or her lawyer
who has filed a notice of address for service. This re-enacts section 290 of
the 1999 Act.
Clause 720 —
Residence, contact and specific issues provisions – giving, amending or
extending directions
This clause requires the Childrens Court, when making,
amending or extending a care and protection order with a specific issues
provision, a contact provision that prohibits contact or a residence provision
which prohibits residence with a child or young person or allows residence in
accordance with certain conditions, to serve the order or revised order on the
affected person and certain other persons (Chief Executive, Public Advocate,
Chief Police Officer, other parties to the proceeding). This re-enacts section
248(2) of the 1999 Act.
Clause 721 —
Orders—statement of reasons
This clause allows a party to request written reasons
for a decision of the Childrens Court to make an order under the care and
protection chapters, including a therapeutic protection order, within 28 days of
the decision and requires the Childrens Court to give those reasons within 28
days of the request.
The clause also provides
for a party to request reasons about an extension, amendment or revocation of a
therapeutic protection order, given the intrusive nature of these
orders.
This re-enacts 289 section of the 1999
Act.
Clause 722 — Orders
about service
This clause enables a Court to make an order that
dispenses with, or shortens the time for, service of a notice, order or other
instrument under the care and protection chapters. This may be necessary, for
example where notice of an application to a parent or other person may put a
child or young person at risk of harm.
Part 19.6 —
Costs
This part includes clauses about costs and re-enacts
section 297 of the 1999 Act.
Clause 723 —
Costs—parties bear own unless Court orders otherwise
This clause provides that parties to a proceeding under
a care and protection chapter must bear their own costs unless a Court
exercising jurisdiction under the Act orders otherwise. This re-enacts section
297(3) of the 1999 Act.
Clause 724 —
Costs—frivolous, vexatious, dishonest application
This clause provides that costs may be ordered in a
proceeding for frivolous, vexatious or dishonest applications or exceptional
circumstances. This re-enacts section 297(4) of the 1999 Act.
Clause 725 —
Costs—parties bear own costs unless order otherwise
This clause provides that a Court exercising
jurisdiction under the Act may order costs if a hearing is adjourned because a
person failed to attend when required or contravened a direction or order of the
Court. This re-enacts section 297(7) of the 1999 Act.
Clause 726 —
Costs—how Court may share costs
This clause allows a Court that has made an order under
clauses 724 or 725 to order that costs may be paid or shared between the
parties. This re-enacts section 297(6) of the 1999 Act.
Chapter
20 — Childcare services
This chapter provides a regulatory framework for
childcare services in the Territory. Childcare services are childcare centres
and family day care schemes. The chapter specifically exempts other forms of
care for children from this regulatory framework (see clause
730).
The Bill introduces a number of
significant policy changes in the regulation of services providing care for
children in order to increase transparency and consistency, reduce
administrative burden, and improve quality of services provided. Key changes to
the 1999 Act include removal of the approval in principle requirement prior to
obtaining a childcare service licence, replacement of licence conditions with
standards, and more information for parents and interested persons with the
public reporting of compliance with
standards.
Under clause 875, if a person
suspects that a provision of this chapter or the childcare services standards
are being, or have been, contravened, then the person may report the suspicion,
and the reasons for the suspicion, to the Chief Executive.
Part 20.1 — Childcare
services—preliminary
This part outlines definitions for the Act and chapter
and objects and principles for the chapter. It also clarifies the application
of the chapter by exempting certain types of care for children from its
operation.
Clause 727 —
Definitions—Act and ch 20
This clause defines certain terms for the purposes of
the Act and this chapter. Some significant new terms
are—
‘Childcare services’
which replaces the term ‘childrens services’ in the 1999 Act. This
change is necessary to provide clarity regarding the nature of the services
being provided to children and to delineate from other types of services
provided to children under the
Act.
‘Childcare worker’ which means
a person who cares for a child for the childcare service. This replaces the
term in the 1999 Act of ‘a person working in the service’ to clarify
who is directly responsible for the care and supervision of the children for
offences at part 20.3. This is not intended to cover people who exclusively
provide other services at a childcare service, for example, cooking, cleaning,
or book-keeping.
Clause 728 —
Objects—ch 20
This clause sets out the objects of the chapter. The
objects of the chapter are to provide an effective licensing system for
childcare services and to impose standards for childcare services. This
re-enacts section 325 of the 1999 Act.
Clause 729 —
Principles—ch 20
This clause sets out principles which a person must
apply when making decisions or taking action under the childcare chapter. These
principles emphasise the importance of childcare services providing care that is
safe, positive and nurturing and childcare services promoting the educational,
social and developmental wellbeing of children. This re-enacts section 326 of
the 1999 Act.
The note to this clause clarifies
the interaction of these principles with the principles applying across the
Bill. A decision-maker making a decision under this chapter for a particular
child or young person must regard the best interests of the child or young
person as the paramount consideration (see clause 8). In making a decision
under this chapter otherwise than for a particular child or young person, the
decision-maker must consider the best interests of children and young people
(see clause 8).
Clause 730 —
Application—ch 20
This clause automatically exempts certain types of care
from the licensing operation of this chapter, including care provided at a
playgroup, at adjunct care, by a family member (not part of a family day care
scheme), by an out-of-home carer, school, home education, participation in
activities or club membership or at hospital. This re-enacts section 330 of the
1999 Act.
Part 20.2 — Childcare
services—important concepts
This part sets out concepts used in the childcare
chapter and the Act.
Clause 731 — What is
a childcare service?
This clause sets out the meaning of a childcare service
for this Act. It means a childcare service provided at a childcare centre as
defined at 732 or a family day care scheme as defined at 733. It re-enacts the
meaning of a ‘children’s service’ at section 327 of the 1999
Act. This terminology change was necessary to describe the nature of the
services being provided to children and to delineate from other types of
services provided to children under the Act.
Clause 732 — What is
a childcare centre?
This clause defines the meaning of a childcare centre by
reference to the number of children cared for at the centre for monetary or
other benefit, being:
• At least 5 children
not yet attending school or home education
or
• At least 8 children with up to 4
children not yet attending school or home
education.
This means that persons or services
providing care to 4 children under school age or 7 children (including up to 4
under school age) are not within the meaning of a childcare
centre.
A childcare worker’s own child is
to be counted for this ratio if other children are also being cared for (for
monetary or other consideration). Any children cared for in emergency,
unexpected or exceptional circumstances for less than 2 consecutive days are not
to be counted.
Clause 733 — What is
a family day care scheme?
This clause defines a family day care scheme. It relates
to a service that organises, coordinates and monitors home-based care for
children. This is distinct from individual family day care providers who
provide childcare in their own homes for other people’s children. It does
not apply to care provided to children for monetary or other benefit in the
children’s own homes or home-based arrangements such as nanny or
babysitting schemes.
Clause 734 — Who is
the proprietor of a childcare service?
This clause sets out the meaning of a proprietor of a
childcare service for this chapter. For licenced childcare services this is the
licenced proprietor for the service, re-enacting the current meaning of a
proprietor at section 324(b) of the 1999 Act. In other cases (for example,
unlicenced childcare services), a proprietor is the person who owns or operates
the childcare service.
Clause 735 — Who is a
controlling person for a childcare service?
This clause sets out who is a controlling person for a
childcare service in this chapter. A ‘controlling person’ is
intended to be a person or persons nominated by the proprietor as having
principal responsibility for managing and controlling the childcare service in
the proprietor’s absence or on behalf of the proprietor. The controlling
person must be a natural person. The controlling person may also be the
proprietor if the proprietor is a natural person, and not a
corporation.
Clause 736 —
Offence—fail to notify change of controlling person
This clause is a strict liability offence requiring
proprietors to notify the Chief Executive of changes to controlling people in
their service. It re-enacts section 352 of the 1999 Act.
Part 20.3 — Childcare
services—offences
This part creates offences for certain actions and
inactions by responsible persons for childcare services. A responsible person
for a childcare service is defined at clause 737 as a proprietor, a controlling
person or a person caring for a child for the childcare service.
The Bill contemplates that one or more of
these persons may be held liable for the offences contained in this part. This
is intended to allow discretion in prosecuting the most appropriate person
responsible considering all of the circumstances of the alleged contravention.
Clause 737 — Who is a
responsible person for a childcare service?
This clause creates a definition of responsible person
for a childcare service for this chapter. A responsible person for a childcare
service is a proprietor, a controlling person or a person caring for a child for
the childcare service.
It re-enacts section
366 (1)(a) and (b) from the 1999 Act and replaces ‘a person working in the
service’ to ‘a person caring for a child for the childcare
service’. This is intended to capture persons directly responsible for
the care and supervision of the children. This is not intended to cover people
who exclusively provide other services at the childcare service, for example,
cooking, cleaning or bookkeeping.
Clause 738 —
Offence—fail to protect child from injury
This clause re-enacts section 366(2) from the 1999 Act
and requires responsible persons (defined in 737) to take reasonable precautions
to ensure that a service is free from a hazard likely to cause injury. Failure
to do so is an offence of 50 penalty units, imprisonment for 6 months or both.
Sub-clause (2) is new and creates an exception
to the offence for a person caring for a child at the service, in circumstances
where they were unable to take the precaution or could not influence the
precaution to be taken (such as a fence being secure) which would otherwise be
the responsibility of the proprietor or controlling person.
Clause 739 —
Offence—fail to supervise child
This clause requires responsible persons (defined in
737) to take reasonable steps to ensure that a child being cared for by the
service is adequately supervised. Failure to do so is an offence of 50 penalty
units, imprisonment for 6 months or both. This re-enacts section 366(3) from
the 1999 Act.
Clause 740 —
Offence—unreasonably discipline child
This clause requires responsible persons (defined in
737) to not subject a child being cared for by the service to unreasonable
discipline. Failure to do so is an offence of 50 penalty units, imprisonment
for 6 months or both. This re-enacts section 366(4) from the 1999
Act.
Clause 741 —
Offence—fail to maintain buildings, equipment etc
This clause requires responsible persons (defined in
737) to take reasonable steps to ensure that the buildings, grounds, equipment
and furnishings used in the service are maintained in a safe, clean and hygienic
condition and in good repair. Failure to do so is an offence of 50 penalty
units, imprisonment for 6 months or both. This re-enacts section 366(5) from
the 1999 Act.
Part 20.4 — Childcare
services—childcare service licences
This part sets out the licensing scheme for childcare
services. It outlines the application process for new licences and renewal
process for existing licences, suspension and cancellation of licences,
offences, assessment and reporting requirements and enforcement powers. Further
enforcement powers are outlined at chapter 23.
Division 20.4.1 —
Childcare service licences—application, eligibility, etc
This division sets out the application process for new
childcare service licences.
Clause 742 —
Childcare service licence—proposed proprietor may apply
This clause enables a proposed proprietor to apply, in
writing, for a licence to operate a childcare service. The application must
include suitability details of the proposed proprietor and proposed controlling
person (if known at the time of the
application).
Where the controlling person is
not nominated at the time of application, the proprietor is required to nominate
a controlling person within 30 days of the licence
commencing.
Under section 343 of the 1999 Act,
only proprietors who had an approval in principle and operated a
children’s service continuously for two years, could apply for a licence.
This requirement has been removed in the Bill in order to streamline and reduce
the administrative burden on childcare services, reduce duplication and provide
for more equitable and consistent grounds by which licences are granted,
suspended and cancelled.
Clause 743 —
Childcare service licence—further information
This enables the Chief Executive to ask the proprietor
to give further information and allow the Chief Executive to inspect proposed
premises in order to make a decision about the application.
Clause 744 —
Childcare service licence—Chief Executive need not decide if no
information or inspection
This clause provides that if the Chief Executive’s
request for information or access to inspect premises is not met by the
proprietor, then the Chief Executive may refuse to assess the
application.
Clause 745 —
Childcare service licence—eligibility
This clause outlines the type of factors the Chief
Executive can take into account when deciding if someone is eligible to hold a
childcare service licence. This includes whether the proposed proprietor and
each controlling person are suitable entities and whether the proposed
proprietor and premises are complying with, and are likely to continue to comply
with, childcare services standards. The main differences from the 1999 Act are
that:
• the range of matters which the Chief
Executive may assess in deciding whether someone (including a proposed
proprietor or controlling person) is a suitable entity has been expanded at part
2.4; and
• current and future compliance with
standards replaces demonstrated compliance with conditions. This is intended to
cover for example, a standard about expected requirements at the time of the
application.
Clause 746 —
Childcare service licence—decision on application
This clause requires the Chief Executive to refuse or
grant a licence, based on the assessment in clause 745 of whether the proposed
proprietor is eligible for a licence. It further requires the Chief Executive to
notify the proposed proprietor within 30 days of receiving the completed
application (including any further information, references, results of tests or
medical examinations and inspection of premises). This clause re-enacts section
345 of the 1999 Act however section 345(3) required notification within 60 days
of receiving the complete application.
A
decision under this clause to refuse to give a proprietor a childcare service
licence is a reviewable decision (see clause 838, Table 2) and the proprietor
may apply to the Administrative Appeals Tribunal for a review of the decision.
Clause 747 —
Childcare service licence—content
This clause outlines the range of matters that must be
stated on the childcare licence. This clause does not limit the matters that
may be included on the licence.
Clause 748 —
Childcare service licence—childcare service standards
This clause requires a childcare service to be operated
in accordance with childcare services standards made by the Minister under
clause 886. Different sets of childcare services standards can be made for
different types of childcare services – for example standards that apply
to family day care schemes can be different to standards for childcare
centres.
Childcare services standards replace
licence conditions in the 1999 Act which were set out in policy documents. The
transition from conditions to standards is intended to provide a stronger and
more transparent legislative basis by which standards can be enforced.
Sub-clause (2) outlines the requirements for
issuing a temporary standards exemption and sets down maximum timeframes for
their use. This replaces section 349 of the 1999 Act which enabled the Chief
Executive to vary a condition of the licence. This clause enables a standard to
be varied for a limited time (6 months with an extension to 12 months). For
example, an exemption to a staffing standard to enable a non qualified staff to
act in a qualified position while recruiting to that position.
Clause 749 —
Childcare service licence—length
This clause enables the Chief Executive to give a
licence for up to a maximum of three years. This re-enacts clause 349(2) of the
1999 Act. This clause introduces a new power enabling the Chief Executive to
extend a licence that would otherwise expire during an application period.
Clause 750 —
Childcare service licence—extensions
This clause enables the Chief Executive to extend a
licence (that was originally granted for less than three years) to a maximum
period not exceeding 3 years from the date the licence originally commenced. In
order to approve the application for the extension, the Chief Executive must be
satisfied that the licenced proprietor would be eligible for the extended
licence under clause 745. If the licenced proprietor would not be eligible, the
Chief Executive must refuse to extend the licence. The Chief Executive is
required to tell the proprietor about the decision in writing within 30 days of
receiving the application.
A decision under
sub-clause (3) to refuse to extend a childcare service licence is a reviewable
decision (see clause 838) and the licenced proprietor may apply to the
Administrative Appeals Tribunal for a review of the decision.
Clause 751 —
Childcare service licence—amendment
This clause enables the proprietor to apply, in writing,
to the Chief Executive to amend a childcare service licence to reflect changes
in the premises where the childcare centre may operate, the maximum number of
children that may be cared for at the centre and the ages of children who may be
cared for at the centre.
The Chief Executive
may only amend the licence if satisfied that the proprietor and premises would
meet the childcare services standards under the proposed amendment. This is
required to allow variations to licences for operational changes and emergency
situations, for example, a service that needs to relocate temporarily due to
property damage from a storm.
An application to
amend a licence must be decided within 30 days. A decision under sub-clause (3)
to refuse to amend a childcare service licence is a reviewable decision (see
clause 838) and the licenced proprietor may apply to the Administrative Appeals
Tribunal for a review of the decision.
Clause 752 —
Childcare service licence—transfer
This clause enables the Chief Executive to transfer a
childcare service licence from a licenced proprietor to someone else, where
satisfied that the person would be eligible under this chapter. This can be
done on application by a proprietor. The Chief Executive is required to tell
the proprietor about the decision in writing within 30 days of receiving the
application. The transfer takes effect from a date specified by the Chief
Executive.
Under section 349(1)(a) of the 1999
Act, the Chief Executive was able to remove a proprietor from a licence, which
in effect transferred the licence to the remaining proprietor/s. This new
clause however allows the transfer of a licence to eligible persons, which may
include a current or new proprietor.
A
decision under sub-clause (3) to refuse to transfer a childcare service licence
is a reviewable decision (see clause 838) and the licenced proprietor may apply
to the Administrative Appeals Tribunal for a review of the decision.
Division 20.4.2 —
Childcare service licences—renewal
This division sets out the process for the renewal of a
childcare service licence in force.
Clause 753 —
Childcare service licence renewal—licenced proprietor may
apply
This clause enables a licenced proprietor to apply, in
writing, to renew a licence to operate a childcare service. The application
must be submitted in writing between 30 and 60 days before the licence ends.
This re-enacts section 346 of the 1999 Act. The Chief Executive may extend the
application time under this clause and extend the licence under clause 749 while
a decision is being made about the application.
Clause 754 —
Childcare service licence renewal—further information
This clause enables the Chief Executive to ask the
licenced proprietor to give the Chief Executive further information and allow
the Chief Executive to inspect proposed premises in order to make a decision
about the renewal of a childcare service licence.
Clause 755 —
Childcare service licence renewal—Chief Executive need not decide if no
information or inspection
This clause clarifies that if the Chief
Executive’s request for information or access to inspect premises is not
met by the licenced proprietor, then the Chief Executive does not need to decide
whether the proprietor is eligible for renewal of a licence in force. The
licence would then lapse at the expiry date.
Clause 756 —
Childcare service licence renewal—eligibility
This clause enables the Chief Executive to renew a
licence if the proprietor is eligible for a licence under clause 745 and has
complied with the childcare services standards during the period of the licence.
Sub-clause (2) contemplates circumstances
where the Chief Executive may wish to consider a broad range of factors in
determining whether a service has complied with the standards during the period
of the licence. The Chief Executive may take into account any periods of
noncompliance, or persistent noncompliance, with the childcare services
standards; actions taken to rectify any noncompliance with the childcare
services standards; and the future likelihood of compliance with the childcare
services standards.
The Chief Executive may be
satisfied that a service has complied with the standards notwithstanding that
the service received a compliance notice under clause 759 but immediately took
steps to remedy the non-compliance. The Chief Executive may therefore decide to
renew a licence if the proprietor was otherwise eligible.
Clause 757 —
Childcare service licence renewal—decision on application
This clause requires the Chief Executive to renew a
licence or refuse to renew a licence, based on the assessment in clause 756. It
further requires the Chief Executive to notify the proposed proprietor within 30
days of receiving the completed application (which includes any further
information, references, results of tests or medical examinations and inspection
of premises). This clause re-enacts section 347 of the 1999
Act.
A decision under sub-clause (3) to refuse
to renew a childcare service licence is a reviewable decision (see clause 838)
and the licenced proprietor may apply to the Administrative Appeals Tribunal for
a review of the decision.
Division 20.4.3 —
Childcare service licences—suspension and cancellation
This division outlines powers by which the Chief
Executive may enforce the requirements of this chapter.
Clause 758 — Who is
an affected child?
This clause sets out the meaning of an affected child
for this division.
Clause 759 —
Childcare service licence—compliance notices
This clause allows the Chief Executive to issue written
notices for non-compliance with the chapter or a childcare services standard
which direct the proprietor to take steps in the notice to comply with relevant
provisions or standards by a stated date. This re-enacts section 358(1)(a).
The Bill requires the Chief Executive to
inform a person with parental responsibility for each child who receives, or
enrolled to receive, care at the service about compliance notices issued (this
is a discretionary power under the 1999 Act). The Bill introduces a mechanism
by which the proprietors can appeal the notice within 7 days of receiving the
notice, before persons with parental responsibility are informed. The Chief
Executive may confirm, amend or revoke the notice in response to a
proprietor’s submission.
A decision
under this clause to confirm a compliance notice is a reviewable decision (see
clause 838) and the licenced proprietor may apply to the Administrative Appeals
Tribunal for a review of the decision.
Clause 760 —
Childcare service licence—suspension for noncompliance
This clause enables the Chief Executive to issue a
written notice directing the suspension of a childcare service from a stated
date, where the licenced proprietor has failed to take the steps outlined in the
compliance notice issued under clause 759. The proprietor must also be informed
that they can make a submission about the suspension within 30 days of receiving
the suspension notice (under the 1999 Act the timeframe was 7 days). The Chief
Executive can revoke the notice at any time or after considering a submission
from the proprietor under clause 761.
There is
a new requirement for the Chief Executive to tell a person with parental
responsibility for each child who receives, or enrolled to receive, care at the
service, about a suspension notice. This was a discretionary power under the
1999 Act.
A decision under this clause to
suspend a childcare service licence is a reviewable decision (see clause 838)
and the licenced proprietor may apply to the Administrative Appeals Tribunal for
a review of the decision.
Clause 761 —
Childcare service licence—ending noncompliance suspension
This clause requires the Chief Executive to consider a
submission from the proprietor about the suspension notice. After considering
the submission, the Chief Executive is required to confirm the suspension and
decide the length of the suspension or end the suspension. The proprietor and a
person with parental responsibility for each child who receives, or enrolled to
receive, care at the service must be told about the Chief Executive’s
decision. The notification of a parent was a discretionary power under section
358(5) of the 1999 Act.
A decision under this
clause to confirm suspension of a childcare service licence is a reviewable
decision (see clause 838) and the licenced proprietor may apply to the
Administrative Appeals Tribunal for a review of the decision.
Clause 762 —
Childcare service licence—suspension if children unsafe
In addition to other powers in this chapter, this clause
enables the Chief Executive to issue a written notice directing the immediate
suspension of a childcare service, where the Chief Executive reasonably believes
that children being cared for at the service are unsafe and the exercise of this
power is necessary to protect children. Written notice of the suspension must
be given to the proprietor. A person with parental responsibility for each
child who receives, or enrolled to receive, care at the service must be told
about the suspension. The notice can be revoked by the Chief Executive at any
time. This re-enacts section 359 of the 1999 Act. Removal of a child in
immediate danger is authorised under clause
777.
A decision under this clause to suspend a
childcare service licence is a reviewable decision (see clause 838) and the
licenced proprietor may apply to the Administrative Appeals Tribunal for a
review of the decision.
Clause 763 —
Childcare service licence—notice of intention to cancel
This clause enables the Chief Executive to cancel a
licence in certain circumstances including: where the licence was obtained
improperly, the proprietor has been convicted or found guilty of an offence
against this Act or ceases to be a suitable entity, or has operated the service
in a way that does not comply with a childcare services standard, or the
controlling person ceases to be a suitable
entity.
This clause enables the Chief Executive
to give a licenced proprietor written notice that the Chief Executive intends to
cancel the licence, reasons for this and provide the proprietor the opportunity
to make a submission about the notice within 21 days of receiving it. A person
with parental responsibility for each child who receives, or enrolled to
receive, care at the service must be told about the notice. This re-enacts
clause 350 in the 1999 Act.
Clause 764 —
Childcare service licence—cancellation
In the clause, after considering any submission received
by the proprietor, the Chief Executive is required
to:
• cancel the licence; or
• revoke the intention to cancel notice
issued under section 2637 (and inform the proprietor and a person with parental
responsibility for each child who receives, or enrolled to receive, care at the
service).
A decision under this clause to
cancel a childcare service licence is a reviewable decision (see clause 838) and
the licenced proprietor may apply to the Administrative Appeals Tribunal for a
review of the decision.
Clause 765 —
Childcare service licence—cancellation notice
This requires the Chief Executive to give the proprietor
a written notice which effectively cancels the licence from a stated date, if
the Chief Executive decides to cancel the licence under section 764. The notice
must be given at least 7 days before the cancellation date. A person with
parental responsibility for each child who receives, or enrolled to receive,
care at the service must be told about the notice. This re-enacts clause
350(4)(b) in the 1999 Act.
Clause 766 —
Offence—fail to return cancelled childcare service licence
This clause requires a licenced proprietor to return a
licence to the Chief Executive within 7 days of receiving a cancellation notice.
This re-enacts section 351 of the 1999 Act.
Clause 767 —
Childcare service licence—identity of childcare workers
protected
This clause is a new requirement for the Chief Executive
to protect the identity of an individual childcare worker when the Chief
Executive is required to tell persons with parental responsibility under this
division about non-compliance, suspension and cancellation
matters.
Division 20.4.4 —
Childcare service licence—offences
This division sets out offences and penalties applicable
to childcare service licences which re-enact offences at part 9.4 of the 1999
Act.
Clause 768 —
Offence—operate unlicenced childcare service
This clause makes it an offence to operate a childcare
service without a childcare licence. This re-enacts section 362 of the
Act.
Clause 769 —
Offence—advertise unlicenced childcare service
This clause makes it an offence to advertise a childcare
service for which there is no licence in force.
Sub-clause (3) is new and allows people who
have applied for a childcare licence to advertise the service on condition that
the advertisement clearly states that the service is not licenced. This clause
contemplates that services that are in the process of being established may
advertise for service users or staff prior to a licence being
granted.
Clause 770 —
Offence—operate childcare service when licence suspended
This clause makes it an offence for proprietors and
controlling persons for licenced childcare services to operate the service while
their licence is suspended under clauses 760 or 762.
The maximum penalty is 50 penalty units,
imprisonment for 6 months or both.
Clause 771 —
Offence—operate childcare service in contravention of
standards
This clause makes it an offence for licenced proprietors
and controlling persons to operate a service in contravention of the standards.
This replaces the offence of contravening a condition of the licence at section
364 of the 1999 Act as standards will replace conditions.
Division 20.4.5 —
Childcare service licences—register, assessment and
reporting
This division outlines the procedures for assessment and
reporting of compliance with standards by childcare services.
Clause 772 —
Childcare service licence—register
This clause requires the Chief Executive to establish a
register of childcare service licences. This clause does not preclude the
register also including other details about childcare service licences that the
Chief Executive considers appropriate, for example, changes in proprietors, and
licence expiry dates.
Clause 773 —
Assessing compliance with childcare services standards
This clause is a new requirement for the Chief Executive
to assess service compliance with standards at least once during the period of a
licence.
This clause contemplates the
establishment of an assessment tool (made by the Minister through a disallowable
instrument) for assessing childcare services compliance with
standards.
Clause 774 — Annual
childcare services standards report
This clause is a new requirement for the Chief Executive
to publish an annual report about temporary standards exemptions, amended or
confirmed compliance notices, compliance suspension notices, safety suspension
notices, intention to cancel or cancellation notices, compliance assessments
made during the financial year, any finding of guilt or convictions against this
chapter, and any submissions from licenced proprietors. The report must be in
accordance with a report requirement declared by the Minister under clause 775
and not identify a childcare worker, a child or someone who made a confidential
report about a childcare service (or allow their identity to be worked out).
The annual report will be notified on the legislation register.
Clause 775 — Annual
childcare services standards report—requirements
This clause is a new power enabling the Minister to make
requirements for a childcare services standards report by way of disallowable
instrument. The intention of this clause is to ensure transparency and fairness
about those matters which are included in a childcare services standard
report.
Clause 776 — Annual
childcare services standards report—consultation
This clause provides that information about an
assessment of non-compliance will be provided to the licenced proprietor before
it is published in the report. The proprietor will have 30 days to make a
submission about the information, which the Chief Executive must include in the
annual report. The notice about the annual report must not identify someone who
made a confidential report about a childcare service (or allow their identity to
be worked out).
Part 20.5 — Childcare
services—enforcement
This part includes enforcement powers in circumstances
where a child is in immediate danger at a childcare service. Further
enforcement powers for this chapter are contained in chapter
23.
Clause 777 — Removal
of child in immediate danger
This clause re-enacts the power at section 360 of the
1999 Act which enables the Chief Executive to remove a child or children (and
anything required for their care) from a service if the Chief Executive is
satisfied that there is an immediate danger to the health or safety of the child
or children. If the Chief Executive exercises this power, the Chief Executive
is to take all reasonable steps to inform a person with parental responsibility
for the child and must return the child to the care of the person or arrange for
the child to be cared for at another service. This clause introduces a new
requirement for the Chief Executive to return things required for the
child’s care to their owners when they are no longer needed.
It is intended that this power may be used in
urgent and serious circumstances where there is an immediate danger to the
health or safety of a child or children at the service. This is a high test and
will not be met in circumstances where the child is not at imminent risk and a
parent or person with parental responsibility for the child could attend and
remove the child themselves, for example, the outbreak of an infectious
disease.
Chapter
21 — Employment of children and young people
This chapter regulates employment for children and young
people aged under 18 years in the Territory.
Article 32 of the Convention on the Rights
of the Child (CROC) provides recognition of the rights of children to be
protected from economic exploitation and from performing any work that is likely
to be hazardous, or likely to interfere with their education, or to be harmful
to their health or physical, mental, spiritual, moral or social development.
In 2005, the Children at Work report by
the NSW Commission for Children and Young People found that children enjoy
working, it is important to them and it contributes to their development in many
ways. The report also found some trends of concern for children and young
people in the workplace including high levels of harassment and injury.
Research shows that while some work can support studies, work for long hours or
at too young an age can impact on educational performance and retention. An
Australian Council of Educational Research report concluded that students
working longer hours from younger ages (over five hours in year nine and over
ten hours in year eleven), negatively impacts on school completion and
continuing on to post-school
education[4].
A Queensland Review of Child Labour report indicates the negative effects
that long working hours can have on children include: high levels of fatigue,
negative effects on ability to concentrate, incomplete homework, poor results,
and lack of preparation for
exams[5].The
Bill seeks to achieve a balance between the need to protect children and young
people from the risk of harm in employment and the desirability of preserving
the right of children and young people to engage in and benefit from
employment.This chapter does not regulate
occupational health and safety for children and young people in employment as
this is addressed in the Occupational Health and Safety Act
1989.In making a decision under this
chapter in relation to a particular child or young person, the decision maker
must regard the best interests of the child or young person as the paramount
consideration. Also, in making a decision under this chapter otherwise than for
a particular child or young person, the decision-maker must consider the best
interests of children and young people in accordance with clause
8.Under clause 875 if a person suspects that a
provision of this chapter is being, or has been, contravened, then the person
may report the suspicion, and the reasons for the suspicion, to the Chief
Executive.
Part 21.1 — Important
concepts
Clause 778 — Ch 21
subject to Education Act 2004, s 13
This clause provides that the chapter is subject to
section 13 of the Education Act 2004. Section 13 of the Education Act
creates an offence for a person to employ a child or young person under 15 years
old when the child or young person is required to be at school, at a school
activity or at an approved education course.
The offence also applies where a child under
school leaving age is residing interstate or is enrolled in a school interstate.
For example, it is illegal to employ a child under school age in the ACT whether
or not the child's residential address or school is in the ACT or
NSW.
Clause 779 —
Definitions—ch 21
This clause outlines definitions for the chapter. It
provides a new definition of ‘contrary to the best interests of a child or
young person’ as set out at clause 781.
Clause 780 — When
does someone employ a child or young person?
This clause provides the meaning of employment for the
chapter. The definition of employment has been modernised in accordance with
current drafting practice and has been expanded to include not for profit
work.
The Bill introduces a legislative basis
for regulating work experience programs for children and young people under
school leaving age by including work experience (which has not been exempted
under part 21.2) in the definition of employment. The Minister may make
standards for work experience by way of a disallowable instrument under clause
886.
The definition of employment excludes
children and young people who participate in tobacco compliance testing under
part 6A of the Tobacco Act 1927.
Clause 781 — When is
employment contrary to the best interests of a child or young
person?
This clause outlines when employment is taken to be
contrary to the best interests of a child or young person. If employment is
contrary to the best interests of a child or young person, the Bill may operate
to prohibit a child or young person from engaging in the employment (see for
example, clause 798 which allows the Chief Executive to prohibit a child or
young person from engaging in employment that is contrary to their best
interests).
Employment will be contrary to
the best interests of a child or young person in any of the following
circumstances:
1. If the employment occurs
when the child or young person is required under the Education Act 2004
to attend a school, school activity or approved educational
course.
This category creates a nexus with
the requirement for compulsory school attendance under the Education Act
2004. It reflects that employers cannot employ anyone between 6 and 15
years of age during school hours, or at any other time that prevents or
interferes with their compulsory attendance at
school.
2. If the employment is likely to
prejudice the child or young person’s ability to benefit from education or
training they are participating in.
This
category considers the impact of employment on a child or young person’s
education and reflects the importance of providing optimal learning conditions
for children and young people to allow them to derive maximum benefit from
formal education and training.
This is not
intended to prohibit any interference with education or training. For example,
employment in the entertainment industry for a limited season out of school
hours may not be prejudicial to a child’s education or training, whereas
employment which caused a child to be continually tired and inattentive in the
classroom may constitute a ground for the Chief Executive to prohibit or make
conditions about the employment.
3. If the
employment is likely to harm the child or young person’s health, safety,
or personal or social development.
Health
and safety is intended to be construed broadly to incorporate all aspects of a
child or young person’s physical, mental and emotional health and safety.
This category would include, for example, circumstances where a child or young
person’s employment causes excessive tiredness, causes injury (for
example, through operating machinery) or places the child or young person at
risk of physical harm from over exertion.
Employment harmful to a child or young
person’s personal or social development recognises that employment may
negatively impact upon a child or young person’s social and developmental
opportunities, their capacity to engage in recreation or opportunities to learn
valuable social and cognitive skills outside the classroom. For example, a
child may be prohibited from engaging in employment of excessive hours leaving
no time for the child to play with friends and engage in sporting activities.
Part 21.2 — Work
experience programs—exemption
This part establishes a framework to exempt work
experience programs arranged by educational institutions from the operation of
this chapter, if they meet work experience standards made by the Minister under
clause 886. This part replaces the transitional arrangement introduced as part
of the Children and Young People Amendment Act 2006 which excluded all
work experience programs for children and young people arranged by educational
institutions from the operation of the employment provisions.
Clause 782 — Work
experience program – exemption from ch 21
This clause allows an educational institution to apply
for an exemption from this chapter for a work experience program conducted by
the educational institution.
The application is
required to be made in writing to the Chief Executive and include full details
of how the program complies with the work experience standards.
If educational institutions that organise or
arrange work experience programs for young people under school leaving age do
not have an exemption under this chapter, then those work experience programs
are subject to the employment provisions in this chapter, including the offence
to employ a child or young person under school leaving age (clause 794). The
only exceptions to that offence are employment in light work (clause 795) or
employment in a family business (clause 796). If the employment is declared
high-risk employment then the employer is required to obtain a permit from the
Chief Executive (clause 798). Work experience activities for children and young
people under school leaving age that do not meet these exemptions or
requirements for declared high risk employment would therefore be
unlawful.
Clause 783 — Work
experience program – decision on application
This clause enables the Chief Executive, following
receipt of an application, to exempt an educational institution’s work
experience program from the employment chapter if the Chief Executive reasonably
believes that the program complies with, and will continue to comply with, the
work experience standards.
An exemption may
be subject to stated conditions. For example, the Chief Executive may exempt a
program on condition that it requires employers to provide minimum levels of
training and supervision to students engaged in work experience programs.
Clause 784 — Work
experience program exemption – further information
This clause allows the Chief Executive to seek further
information about an application for an exemption or program at any time from an
educational institution after an application has been received or following a
decision to exempt the program. This is necessary to ensure that the Chief
Executive has all relevant information to decide the application and to ensure
ongoing compliance of the program with the
standards.
This clause also requires the
education institution to comply with the request for further
information.
Clause 785 —
Suspension of work experience program exemption
This clause enables the Chief Executive to immediately
suspend an educational institution’s exemption from the chapter by way of
written notice. This clause provides the educational institution with the
opportunity to make a submission about the suspension.
The suspension of an exemption under this
division would mean the work experience program would then be subject to the
employment provisions in this chapter, including the offence to employ a child
or young person under school leaving age (clause 794). The only exceptions to
that offence are employment in light work (clause 795) or employment in a family
business (clause 796). If the employment is declared high-risk employment then
the employer is required to obtain a permit from the Chief Executive (clause
798). Work experience activities for children and young people under school
leaving age that do not meet these exemptions or requirements for declared high
risk employment would therefore be unlawful.
A
decision under this clause to suspend a work experience program exemption is a
reviewable decision (see clause 838) and the educational institution may apply
to the Administrative Appeals Tribunal for a review of the decision.
Clause 786 —
Revocation of educational institution’s exemption
This clause enables the Chief Executive to immediately
suspend an educational institution’s exemption from the chapter by way of
written notice. This clause provides the educational institution with the
opportunity to make a submission about the suspension.
The revocation of an exemption under this
division would mean the work experience program would then be subject to the
employment provisions in this chapter, including the offence to employ a child
or young person under school leaving age (clause 794). The only exceptions to
that offence are employment in light work (clause 795) or employment in a family
business (clause 796). If the employment is declared high-risk employment then
the employer is required to obtain a permit from the Chief Executive (clause
798). Work experience activities for children and young people under school
leaving age that did not meet these exemptions or requirements for declared high
risk employment would therefore be unlawful.
A
decision under this clause to revoke a work experience program exemption is a
reviewable decision (see clause 838) and the educational institution may apply
to the Administrative Appeals Tribunal for a review of the decision.
Part 21.3 — Employment of
children and young people
This part sets out the general powers of the Chief
Executive and the Minister in relation to the employment of children and young
people aged up to 18 years. It re-enacts section 375 of the 1999 Act and
introduces a new requirement for employers to comply with standards made by the
Minister under clause 886 in relation to the employment of children and young
people.
Clause 787 — Chief
Executive may prohibit employment
The Bill remakes general supervisory powers for the
Chief Executive in relation to the employment of any child or young person in
the Territory.
Under this clause, the Chief
Executive is empowered to prohibit the employment of any child or young person
by way of notice given to an employer (called an employment prohibition notice)
if the Chief Executive believes that the employment is, or is likely to be,
contrary to the best interests of the child or young person.
A decision under this clause to prohibit an
employer from employing, or continuing to employ a child or young person, is a
reviewable decision (see clause 838) and the employer or the child or young
person may apply to the Administrative Appeals Tribunal for a review of the
decision.
Clause 788 —
Offence—contravene employment prohibition notice
This clause creates an offence for an employer, after
being given an employment prohibition notice, to engage in conduct that
contravenes the notice. An employer is liable to a penalty of $5000 (if charged
as an individual) or $25000 (if charged as a corporation), imprisonment for 6
months or both.
Clause 789 — Chief
Executive may state conditions of employment
Another supervisory power for the Chief Executive is
contained in this clause which empowers the Chief Executive to place conditions
on the employment of a child or young person by way of notice given to an
employer (called an employment conditions notice). This is to ensure that the
employment is not contrary to the best interests of the child or young person.
A decision under this clause to state
conditions in relation to a child or young person’s employment is a
reviewable decision (see clause 838) and the employer or the child or young
person may apply to the Administrative Appeals Tribunal for a review of the
decision.
Clause 790 —
Offence—contravene employment conditions notice
This clause creates an offence for an employer, after
being given an employment conditions notice, to engage in conduct that
contravenes the notice. An employer is liable to a penalty of $5000 (if charged
as an individual) or $25000 (if charged as a corporation).
Clause 791 — Children
and young people employment standards
This clause creates a new requirement for employers to
comply with standards made by the Minister under clause 886 in relation to the
employment of children and young people.
Part 21.4 —
Employment of children and young people under school-leaving age
This part sets out offences relating to the employment
of children and young people under school leaving age (15 years), including in
high risk employment declared by the Minister. It sets out an administrative
framework for the Chief Executive to give conditional consent to high risk
employment and includes new requirements on employers in relation to seeking
that consent.
Clause 792 — What is
light work?
This clause expands the meaning of light work to mean
work that is not contrary to the best interests of a child or young person.
Types of light work that were deemed an exhaustive list of light work in the
1999 Act have been translated to examples of light work in this clause, with the
exception of circus work, as some circus activities present a risk of physical
injury.
Under clause 794, it is an offence to
employ a child or young person under school leaving age, subject to certain
exceptions including employment in light work.
This amendment will have the effect of
allowing children and young people under school leaving age to work in a broader
range of light work activities than is presently permitted. The employer of the
child or young person has the responsibility of determining what is light work,
within the meaning set out by this clause. If the Chief Executive discovers
children and young people are working in employment that is contrary to their
best interests, the Chief Executive can prohibit the employment under clause 787
or state conditions of employment under clause 789, which the employer must
comply with.
Clause 793 — What is
high risk employment?
This clause creates a definition of high risk employment
which means employment declared to be high risk under clause 797(1).
Clause 794 —
Offence—employment of children and young people under school-leaving
age
This clause creates a prohibition on the employment of
children and young people under the age of 15 years. This prohibition is
subject to two exceptions, namely for light work and for family business
employment, outlined in clauses 795 and 796 respectively.
A work experience program for children and
young people under school leaving age is subject to this offence, if the
educational institution that arranges the program does not have an exemption
from the Chief Executive under this chapter.
Clause 795 —
Exception to s 794—employment in light work
This clause creates the first exception to the general
prohibition on the employment of children and young people under the age of 15
years. If the child or young person is engaged in light work for not more than
10 hours per week and the employment is not contrary to their best interests,
then the general prohibition is displaced.
If
the light work is for more than 10 hours per week, the proposed employer is
required to notify the Chief Executive about the employment at least 7 days
before it starts.
A duty to notify the Chief
Executive of a child or young person’s light work employment over 10 hours
in one week is placed on employers as employment for a lesser period does not
give rise to an expectation of harm to the child or young person.
Upon being notified, the Chief Executive may
exercise general powers at clauses 787 and 789 to prohibit or restrict the
proposed employment.
Clause 796 —
Exception to s 794—employment in family business
This clause creates the second exception to the general
prohibition on the employment of children and young people under the age of 15
years. This exception arises in circumstances where the child or young
person’s employer is a parent, or a company of which one of their parents
is a director or a partnership of which one of their parents is a partner.
This clause also provides that the family
business employment must be light work. While this requirement is expressed
differently to the test in the 1999 Act, this amendment has the same effect of
section 372 of 1999 Act, where children and young people under the age of 15
could be employed in family businesses, however that employment could not
constitute a breach of the Education Act 1937 or be likely to prejudice
the health, safety or personal or social development of the young child or their
ability to benefit from his or her training. Further the young child could not
be employed in dangerous employment, without a permit from the Chief Executive.
Clause 797 —
Declaration of high risk employment
The 1999 Act prohibited the employment of a child or
young person under school leaving age in activities dangerous to the health or
safety of the child or young person without the consent of the Chief Executive,
however the Act was silent on what dangerous activities were.
This clause replaces the concept of
‘dangerous employment’ in the 1999 Act with ‘high risk
employment’, which is an industry, occupation or activity declared by the
Minister. To declare an industry, occupation or activity as high risk, the
Minister must be satisfied that it is likely
to
harm a child’s or young person’s
health, safety, personal or social development (including by sexual or financial
exploitation).
This clause is not intended to
displace other laws that regulate health and safety in the workplace, such as
the Occupational Health and Safety Act 1989. It recognises that children
and young people are more vulnerable to harm in the workplace related to factors
such as their maturity and developmental capacity, inexperience and training.
The research indicates that young workers are less likely than older workers to
complain or to ask for training and are more likely to take risks than adults in
all spheres of activity.
It is an offence to
employ a child or young person in high risk employment, without a permit under
clause 801.
Clause 798 — High
risk employment – employer may apply for permit
This clause sets out new requirements on employers with
respect to applying for permits from the Chief Executive to employ children and
young people under school leaving age in high risk employment. An application
for a permit must be in writing and include the details of the employment and
how the employer proposes to protect the child or young person during the
employment. The employer is also required to seek the consent of a person with
parental responsibility.
The 1999 Act was
silent on the requirements of employers in seeking the consent of the Chief
Executive to employ children and young people in dangerous employment under
section 374. This clause sets out the minimum information requirements needed
to assess and manage the risk to the child or young person in the
workplace.
Clause 799 — High
risk employment permit – decision on application
This clause enables the Chief Executive to issue a
permit to employ a child or young person under school leaving age in declared
high risk employment. The permit may be subject to certain stated conditions
which the employer must comply with. Examples are provided of relevant
conditions.
If the Chief Executive believes
that the proposed employment is likely to harm the child or young person’s
health, safety, personal or social development, then the Chief Executive must
not permit the employment.
The Chief
Executive’s power to consent to dangerous employment was provided at
section 374 of the 1999 Act.
Clause 800 — High
risk employment permit – further information
This clause allows the Chief Executive to seek further
information about an application for a high risk employment permit at any time
from an employer after an application has been received or following the issue
of a high risk employment permit. This is necessary to ensure that the Chief
Executive has all relevant information to decide the application and to ensure
ongoing compliance of employment with any conditions set out in the
permit.
This clause also requires the employer
to comply with the request for further information as soon as
practicable.
Clause 801 — High
risk employment permit – content
This clause outlines what a high risk employment permit
must contain including the name of the employer, the child or young person to be
employed, the location of the premises where the employment is to be undertaken,
the length of the permit and any conditions to which the permit is subject.
Examples of conditions include supervision, training or protective
clothing.
Clause 802 —
Offence—employment of child or young person under school-leaving age in
high risk employment
This clause creates an offence to employ a child or
young person under school-leaving age in high risk employment. This offence
does not apply if there is a current high risk employment permit in force for
the child or young person.
The penalty of 200
penalty units, imprisonment for 2 years or both is consistent with the penalty
for the offence of employing a child or young person in activities dangerous to
their health or safety at section 374(4) of the 1999 Act.
Clause 803 —
Offence—contravene condition of permit
This clause creates an offence for persons who engage in
conduct that contravenes a condition of the Chief Executive’s permit to
employ a child or young person in high risk employment.
The maximum penalty of 100 penalty units,
imprisonment for 1 year or both is consistent with the maximum penalty for the
offence of failing to comply with a condition to which the Chief
Executive’s consent to dangerous employment is subject at section 374(5)
of the 1999 Act.
Chapter
22 — Research involving children and young people
The Bill introduces new provisions for the Chief
Executive to approve certain research projects. Research projects that require
the approval of the Chief Executive under this chapter involve the participation
of certain children and young people in the research project (including those in
the custody and care of the Chief Executive) or require the Chief Executive to
give the researcher access to protected or sensitive information about children
and young people. They also include projects that involve the participation of
a person who exercises a function under the Act or the research being conducted
at a place of care, detention place, or therapeutic protection
place.
The Minister may make research standards
for the Act under clause 886 by way of disallowable instrument.
Clause 804 —
Definitions—ch 22
This clause outlines the definitions for this chapter of
approved research project, ethics committee, researcher and research
project.
Clause 805 — What is
a research project?
This clause sets out the scope of research projects for
this chapter. A research project for this chapter means a project involving one
or more of the following:
• the Chief
Executive giving the researcher protected (including sensitive) information
about a child or young person. Protected and sensitive information are defined
at clauses 843 and 844 respectively.
• the researcher has recruited the
participation of certain children or young people through the Chief Executive;
including those who are the subject of proceedings under the Act, those for whom
a care and protection order is in force, those who are the subject of a child
concern report, those for whom the Chief Executive has parental responsibility
(for example, under a voluntary care agreement, or an appraisal order,
therapeutic protection order, or interim care and protection order with a
parental responsibility provision), and young
detainees.
• the researcher has recruited the
participation of a person who exercises a function under the Act, for example,
an authorised person or youth detention
officer.
• the researcher conducting the
research project at a place of care, place of detention or place of therapeutic
protection.
The following activities are
exempted from the scope of the research
chapter:
• activities conducted by the Chief
Executive as a quality assurance exercise or audit. For example, file reviews,
case studies, professional casework
supervision;
• the release of de-identified
protected information about a child or young person by the Chief Executive to a
researcher.
Clause 854 allows the Chief
Executive to give protected information to a researcher for an approved research
project.
Clause 806 — Approval
of research projects—generally
This clause authorises the Chief Executive to approve a
research project. The Chief Executive may only approve a research project if
satisfied that the project complies with, or is likely to comply with, the
research standards and the Chief Executive has given approval under clause 808
for the participation of a child or young person in the
project.
Under clause 809, the Minister may
approve an ethics committee for this chapter. This clause also enables the
Chief Executive to consider a recommendation made by that ethics committee in
deciding whether to approve the project.
Clause 807 — Research
standards – certain matters to be covered
This clause requires any research standards made by the
Minister under clause 886 to address the matters outlined at (1)(a) to (e) for
projects involving the participation of a child or young person which seek to
protect the child or young person’s welfare, health, safety and
privacy.
Any research standards made by the
Minister under clause 886 must also address the secrecy of protected information
given to researchers under clause 865.
Clause 808 — Approval
of research projects—child or young person to take part
In order to ensure that children and young people
participating in research projects are adequately protected, this clause
provides that the Chief Executive must be satisfied that the researcher and any
other person to have contact with children and young people for the project is a
suitable entity to have contact with children or young people in the way
proposed in the project. Part 2.4 allows the Chief Executive to approve an
entity as a suitable entity for a stated purpose under the Act if satisfied that
the entity is suitable for the purpose.
This
clause also requires the researcher to seek the written consent of a child or
young person with sufficient developmental capacity to consent or a person with
daily care responsibility for the child or young person for research projects
involving the participation of a child or young person. The research must also
inform the child or young person that consent can be refused and if consent is
given, the child or young person has an entitlement to withdraw from the project
at any stage of the project.
Clause 809 — Approval
of ethics committees
This clause enables the Minister to approve an ethics
committee for this chapter by way of a notifiable
instrument.
This clause does not preclude the
Minister from approving an existing ethics committee for this chapter, for
example, a university ethics committee.
Clause 810 —
Offence—researcher contravene approved standards
This clause introduces an offence for researchers who
carry out an approved research project in a way that does not comply with the
research standards. The maximum penalty is 50 penalty units.
Chapter
23 — Enforcement
This chapter outlines enforcement powers for functions
exercised under the Act by authorised persons or police officers. An authorised
person is a person to whom the Chief Executive has delegated a power under the
Act (see clause 26).
This chapter allows entry
to premises with the consent of the occupier of the premises or with a search
warrant issued by a Magistrate. This chapter also authorises entry to premises
without the consent of the occupier and without a warrant in certain defined
circumstances. These powers are limited to the following specific circumstances
where a child or young person is at imminent risk of significant harm or the
Chief Executive is inspecting a licenced childcare service or a declared
therapeutic protection place where children and young people are being cared
for:
• For an authorised person to assess
whether a child or young person, who the Chief Executive has daily care
responsibility for and is placed in out-of-home care, is being properly cared
for (see clause 814- Power to enter premises—ch 15 (Care and
Protection—Chief Executive has aspect of parental
responsibility));
• For an authorised person
or police officer to assess whether a child or young person is in need of
emergency care and protection or emergency therapeutic protection and take
emergency action for the child or young person (see clause 813 - Power to enter
premises—ch 13 (Emergency care and
protection));
• For an authorised person to
enter a therapeutic protection place (see clause 815(1) - Power to enter
premises—ch 16 (Therapeutic protection of children and young
people));
• For an authorised person to enter
premises if a licenced childcare service is operating on the premises (see
clause 816(2) - Power to enter premises—ch 20 (Childcare
services)).
Entry to premises without consent
of the occupier or a warrant issued by a judicial officer in these limited
circumstances is necessary to ensure the protection of a child or young person
at risk of immediate and significant harm or to fulfil the Chief
Executive’s duty of care to children and young people for whom the Chief
Executive has parental responsibility or to fulfil an inspectorate role for
licenced childcare services.
The Government
considers that the objective of protecting children and young people in these
circumstances overrides the fundamental legislative principle that power to
enter premises should be conferred only with a warrant issued by a judicial
officer.
The note to Chapter 23 makes clear
that in making a decision under this chapter in relation to a child or young
person, the decision-maker must regard the best interests of the child or young
person as the paramount consideration in accordance with clause 8. Also, in
making a decision under this chapter otherwise than for a particular child or
young person, the decision-maker must consider the best interests of children
and young people in accordance with clause 8.
Part 23.1 —
General
This part outlines definitions for the
chapter.
Clause 811 —
Definitions—ch 23
This clause outlines definitions for key terms used in
this chapter, such as ‘occupier of premises’, ‘offence’
and ‘connected with an offence’. An authorised person is defined at
clause 26 as a person to whom the Chief Executive has delegated functions under
the Act.
Part 23.2 — Powers of
authorised people
This part outlines the powers of authorised persons and
police officers for this chapter, including entry to premises without a warrant
in certain circumstances and general powers that can be exercised upon entry to
premises.
Clause 812 — Power to
enter premises—general
This clause provides that an authorised person may at
any reasonable time, enter premises that the public is entitled to use or that
are open to the public; or at any time, enter premises with the occupier’s
consent; or enter premises in accordance with a search
warrant.
An authorised person may, without the
consent of the occupier of premises, enter land around the premises to ask for
consent to enter the premises.
An authorised
person is not required to provide payment or an entry fee or other charge to
enter premises.
Any reasonable time includes,
but is not limited to, during business
hours.
This does not authorise entry into a
part of premises that is being used only for residential
purposes.
Clause 813 — Power to
enter premises—Chapter 13 (Care and protection and therapeutic protection
-emergency situations)
This clause provides for entry to premises by an
authorised person or police officer if it is reasonably believed that a child or
young person at the premises is in need of emergency care and protection or
emergency therapeutic protection and the entry is for the purpose of the
authorised person or police officer taking emergency action for the child or
young person.
In need of emergency care and
protection is defined at clause 402. A child or young person is in need of
emergency care and protection if the child or young
person—
• is in immediate need of care
and protection; or
• is likely to be in need
of immediate care and protection if emergency action is not
taken.
In need of emergency therapeutic
protection is defined at clause 403. A child or young person is in need of
emergency therapeutic protection
if—
• the child or young person meets
the criteria for a therapeutic protection order;
and
• the immediate placement of the child or
young person in a therapeutic protection place is necessary to ensure the child
or young person’s safety.
This entry may
occur at any time of the day or night. This clause authorises the authorised
person or police officer to use reasonable and necessary force to safeguard the
wellbeing of the child or young person.
This
clause is additional to clause 812 (power to enter premises – general)
which authorises entry to premises with the occupier’s consent or in
accordance with a search warrant.
Clause 814 — Power to
enter premises—ch 15 (Care and Protection—Chief Executive has aspect
of parental responsibility)
This clause provides that an authorised person may, at
any reasonable time, enter premises where a child or young person is living
if:
• the Chief Executive has daily care
responsibility for the child or young person and has placed the child or young
person with an out-of-home carer under clause 511;
and
• the purpose of the entry is to ensure
that the child or young person is being properly cared for.
This clause also provides for entry by
authorised persons if the Minister is deciding whether to approve the place as a
place of care and the residential care service has been asked to allow the Chief
Executive to inspect the place and the entity has agreed to the request.
Any reasonable time includes, but is not
limited to, during business hours.
This clause
is additional to clause 812 (power to enter premises – general) which
authorises entry to premises with the occupier’s consent or in accordance
with a search warrant.
Clause 815 — Power to
enter premises—ch 16 (Care and protection - therapeutic protection of
children and young people)
This clause provides that an authorised person may, at
any reasonable time, enter a therapeutic protection place which is not being
operated by the Chief Executive.
This clause
also provides for entry by authorised persons if the Minister is deciding
whether to declare the place as a therapeutic protection place and the operating
entity has been asked to allow the Chief Executive to inspect the place and the
entity has agreed to the request.
The clause
only authorises entry into a residential part of the premises at any reasonable
time if it is being used to operate the therapeutic protection
place.
Any reasonable time includes, but is not
limited to, during business hours.
This clause
is additional to clause 812 (power to enter premises – general) which
authorises entry to premises with the occupier’s consent or in accordance
with a search warrant.
Clause 816 — Power to
enter premises—ch 20 (Childcare services)
This clause provides that an authorised person may, at
any reasonable time, enter childcare service premises with the agreement of the
proposed proprietor in order to assess an application for a childcare service
licence or renewal of a childcare service
licence.
This clause also authorises an
authorised person to enter premises at any reasonable time if a licenced
childcare service is operating on the premises.
Any reasonable time includes, but is not
limited to, during business hours.
This clause
only authorises entry into a residential part of the premises if it is being
used to operate the childcare service.
This
clause is additional to clause 812 (power to enter premises – general)
which authorises entry to premises with the occupier’s consent or in
accordance with a search warrant.
Clause 817 —
Production of identity card
This clause provides that an authorised person must
produce his or her identity card when asked by the occupier or must leave the
entered premises. An authorised person must have an identity card under clause
26.
Clause 818 — Consent
to entry
The clause provides requirements for an authorised
person in seeking the consent of an occupier for entry to premises under the
general entry power at clause 812(1)(b).
An
authorised person must produce their identity card and inform the occupier of
the purpose of the entry and that anything found and seized under this chapter
may be used in evidence in Court and that their consent may be
refused.
If the occupier consents, the
authorised person must ask the occupier to sign a written acknowledgment (called
an acknowledgement of consent). This acknowledgement evidences that the
occupier was told the purpose of the entry; and that anything found and seized
under this chapter may be used in evidence in Court; and that consent may be
refused; that the occupier consented to the entry; and the time and date when
consent was given.
The authorised person is
required to give a copy of any acknowledgement of consent to the occupier
immediately after it is signed.
This clause
obliges a Court to find that the occupier did not consent to entry to the
premises by the authorised person under this chapter if the question arises in a
proceeding; and an acknowledgment of consent is not produced in evidence; and it
is not proved that the occupier consented to the entry.
Clause 819 — General
powers on entry to premises
This clause provides that an authorised person may
undertake certain activities while on premises under this chapter, including one
or more of the following:
• inspecting or
examining;
• taking measurements or conduct
tests;
• taking
samples;
• taking photographs, films, or
audio, video or other recordings;
• making
copies of, or take extracts from, a document kept at the premises;
• requiring the occupier, or another person
at the premises, to produce records or copies of records that the person has or
has access to that are reasonably required by the authorised person for the
Act;
• requiring the occupier, or another
person at the premises, to give the authorised person reasonable help to
exercise a power under this chapter.
An offence
is created for a person who fails to take all reasonable steps to comply with a
requirement made of the person under (1)(f) or (g). The maximum penalty is 50
penalty units.
Clause 820 — Duty to
give information or documents
This clause allows an authorised person to give a
written notice requiring a person to produce a document or information stated in
the notice that is required for this Act.
For
example, under clause 773 there is a requirement for childcare services to give
information requested by the Chief Executive that is needed to assess compliance
with childcare services standards.
Sub-clauses
(2) and (3) require a person to give the information or document within a
timeframe of not less than 14 days specified in the notice. An authorised
person may extend the timeframe that the information or document can be produced
in and the person may then produce the document or information in the extended
timeframe.
Sub-clause (4) creates an offence
for a person who fails to take all reasonable steps to comply with the notice to
produce within the specified timeframe. The maximum penalty is 50 penalty
units.
For example, in order to assess
compliance with standards, it may be necessary to inspect certain documents or
records (for example, log books) of a service that may or may not be held at the
premises. This clause allows an authorised person to require the production of
a document or documents in these circumstances as required for the
Act.
Clause 821 — Power to
require name and address
An authorised person may require a person to state the
person’s name and home address if the authorised person believes, on
reasonable grounds, that the person is committing or has just committed an
offence against this Act.
The authorised person
must tell the person the reason for the requirement and, as soon as practicable
thereafter, record the reason given by the person. The authorised person is
required to produce his or her identity card for
inspection.
The clause creates a strict
liability offence for a person to comply with a requirement made of the person
to state their name and home address if the authorised person tells the person
the reason for the requirement and produces his or her identity care for
inspection. The maximum penalty is 10 penalty units.
Clause 822 — Power to
seize things
This clause provides a power for an authorised person to
seize certain things after entry to premises with consent or with a warrant.
If the entry to premises occurs with the
occupier’s consent, the authorised person may seize anything at the
premises if—
• the authorised person
is satisfied, on reasonable grounds, that the thing is connected with an offence
against this Act; and
• seizure of the thing
is consistent with the purpose of the entry told to the occupier when seeking
the occupier’s consent.
If the entry to
premises occurs under a warrant, the authorised person may seize anything at the
premises that the warrant authorises them to
seize.
An authorised person who enters premises
under this chapter (whether with the occupier’s consent, under a warrant
or otherwise) may seize anything at the premises if satisfied, on reasonable
grounds, that—
• the thing is connected
with an offence against this Act; and
• the
seizure is necessary to prevent the thing from being concealed, lost or
destroyed; or used to commit, continue or repeat the
offence.
Following seizure of a thing, an
authorised person may remove it from the place of seizure to another place; or
may leave the thing at the place of seizure but restrict access to it.
An offence is created if a person interferes
with a seized thing, or anything containing a seized thing, to which access has
been restricted, if the person knows access to the thing has been restricted,
and the person does not have an authorised person’s approval to interfere
with the thing. The maximum penalty is 50 penalty units.
Part 23.3 — Search
warrants
This part outlines the issuing of search warrants and
entry to premises under search warrants.
Clause 823 — Warrants
generally
This clause allows an authorised person to apply to a
Magistrate, by way of sworn application stating the grounds, for a warrant to
enter premises.
In order to issue the search
warrant, the Magistrate must be satisfied there are reasonable grounds for
suspecting there is a particular thing or activity connected with an offence
against this Act; and the thing or activity is, or is being engaged in, at the
premises; or may be, or may be engaged in, at the premises within the next 14
days.
This clause outlines the details that
must be included on the warrant, including the premises authorised to be
entered, the offence for which it is issued, what may be seized under the
warrant, when the premises may be entered and the date of expiry of the warrant
(which must be within 14 days of issue).
Clause 824 —
Warrants—application made other than in person
This clause allows applications for warrants to be made
other than in person, for example, by electronic means in urgent
circumstances.
Clause 825 — Search
warrants—announcement before entry
This clause obliges an authorised person to take certain
action before entry to premises under a search warrant, including announcing
that the authorised person is authorised to enter the stated premises; giving
anyone at the premises an opportunity to allow entry to the premises and
identifying themselves to the occupier or apparent occupier of the
premises.
This obligation is waived in
circumstances where the authorised person reasonably believes that immediate
entry to the premises is necessary to ensure the safety of a person (including
the authorised person or an assisting person) or the effective execution of the
warrant.
Clause 826 — Details
of search warrant to be given to occupier etc
This clause obliges an authorised person or assisting
person to provide a copy of the warrant and written information about the rights
and obligations of the person to the occupier of the premises, or an apparent
representative of the occupier, if either person is present while the search
warrant is being executed.
Clause 827 — Occupier
entitled to be present during search etc
This clause confers a right on an occupier, or apparent
representative of an occupier, to observe the conduct of a search if either
person is present at the premises while the search warrant is being executed.
However, this right is waived in circumstances
where this would impede the effective conduct of the search or it would
interfere with the objectives of the search if the person is under arrest.
Part 23.4 — Return and
forfeiture of things seized
This part deals with things seized under this
chapter.
Clause 828 — Receipt
for things seized
This clause requires an authorised person to give a
receipt for anything seized under this chapter to the person from whom it was
seized as soon as practicable thereafter.
In
circumstances where it is not practicable to comply with this requirement, the
authorised person is obliged to leave the receipt at the place of seizure
secured in a conspicuous way.
This clause
requires the receipt to include certain details, including details of the seized
thing and contact details for the authorised person.
Clause 829 — Moving
things to another place for examination or processing under search
warrant
This clause contemplates circumstances in which it is
unclear whether a thing at the entered premises may be seized lawfully by the
warrant. In these circumstances, this clause enables the thing to be moved to
another place for examination or processing to determine whether it can be
seized.
Clause 830 — Access
to things seized
This clause provides that a person who would have been
entitled to inspect a seized thing if the seizure did not occur has a right,
after the seizure, to inspect the thing, or take extracts from it or copy it if
it is a document.
Clause 831 — Return
of things seized
This clause outlines when a seized thing must be
returned to its owner or when the Territory must pay compensation to the owner
for loss of the thing.
Part 23.5 —
Miscellaneous
Clause 832 — Damage
etc to be minimised
This clause obliges an authorised person to take all
reasonable steps to cause the least amount of inconvenience, detriment and
damage as is practicable in acting under this chapter.
Clause 833 —
Compensation for exercise of enforcement powers
This clause creates a right for a person to claim
compensation from the Territory because of loss or expense suffered because of
action under this chapter.
Chapter
24 — Appeals and review
Chapter 24 deals with appeals and reviews under the Act.
Chapter 11 of the 1999 Act dealt with appeals and review. Chapter 11 was
reviewed with the view to ensure compliance with the Human Rights Act
2004, particularly to ensure the right to appeal decisions is not unfairly
restricted.
The restriction on appeals under
chapter 7 (children and young people in need of care and protection) of the 1999
Act has been removed and the Bill has been drafted to allow appeals in
accordance with the rules of the Magistrates Court Act
1930.
Under the 1999 Act, application could
be made to the Administrative Appeals Tribunal for review of certain decisions
of the Chief Executive. This has been retained. In addition, certain new powers
under the Bill to make administrative decisions are also reviewable by the
Administrative Appeals Tribunal.
The note to
Chapter 24 makes clear that in making a decision under this chapter for a child
or young person, the decision-maker must regard the best interests of the child
or young person as the paramount consideration in accordance with clause 8.
Also, in making a decision under this chapter otherwise than for a particular
child or young person, the decision-maker must consider the best interests of
children and young people in accordance with clause 8.
Part 24.1 —
Appeals
This part sets out appeal mechanisms for decisions made
under the Bill.
Division 24.1.1 — Appeals
generally
Clause 834 — Appeals
to Supreme Court—generally
This clause limits the appellate jurisdiction of the
Supreme Court to those decisions made by the Childrens Court under the care and
protection chapters outlined at clause 835.
An
appeal right also lies to the Supreme Court for a DVPO protection order made by
the Childrens Court under this Act in accordance with the Domestic Violence
and Protection Orders Act 2001. DVPO protection order is defined at clause
457 to include a DVPO interim protection order and a DVPO final protection
order. Part 8 of the Domestic Violence and Protection Orders Act 2001
deals with reviews and appeals.
Division 24.1.2 —
Appeals—Care and protection chapters
This division outlines appeal rights for decisions made
under the care and protection chapters. The care and protection chapters are
outlined at clause 335 and are chapters 10 to 19 of the Bill.
Clause 835 — Appeals
to Supreme Court—care and protection chapters
This clause lists the types of appeals the Supreme Court
can hear under the care and protection chapters of the Bill and who is entitled
to make the appeal.
Sub-clause (1) provides
that any decision of the Childrens Court under the care and protection chapters
outlined at (a) to (h) may be appealed to the Supreme Court by a person
specified in sub-clause (2).
Sub-clause (2)
specifies that a party to the proceeding in which the decision was made or a
person named in the order or other decision may appeal to the Supreme Court
under this clause. Sub-clause (2)(c) also allows an appeal to be made by
another person with the leave of the Supreme Court. This contemplates
circumstances where a person may not be a party to the proceeding within the
definition outlined at clause 699 and the person may not be named in the order
made under the care and protection chapters, however, the person is affected by
the decision and should be conferred with appeal rights. For example, the
Childrens Court makes an appraisal order ex parte with a temporary parental
responsibility provision for a child under clause 382 as the Court is satisfied
that giving notice of the application to the child’s parents would place
the child at significant risk of significant harm. Sub-clause (2)(c) operates
to allow the child’s parents to seek leave to appeal the making of the
order, as they are not parties to the proceeding and they are not named in the
order.
Clause 836 —
Application of Magistrates Court Act
This clause ensures that the Magistrates Court Act
1930, part 4.5 (Civil appeals) applies in relation to a care and protection
chapter appeal under clause 835.
Clause 837 — Orders
that the Supreme Court may make
This clause limits the types of orders or other
decisions that may be made by the Supreme Court under a care and protection
chapter appeal in clause 835 to those orders or other decisions that were
available to the Childrens Court to make in the original proceeding being
appealed from.
Division 24.1.3 —
Administrative Appeals Tribunal review
This division provides for review by the Administrative
Appeals Tribunal of certain decisions made by the Chief
Executive.
Clause 838 — Review
of decisions – ch 15, ch 20 and ch 21
This clause outlines reviewable decisions by the
Administrative Appeals Tribunal and who may apply for a review of the decision,
as follows:
• Table 838.1 outlines reviewable
decisions for when the Chief Executive has an aspect of parental responsibility
(chapter 15);
• Table 838.2 outlines
reviewable decisions for the childcare services chapter of the Bill (chapter
20);
• Table 838.3 outlines what decisions
are reviewable decisions for the employment chapter of the Bill (chapter
21).
Sub-clauses (2) and (3) provide that the
Chief Executive must give written notice of reviewable decisions to the persons
specified in column 3 of the table and in accordance with the code of practice
in force under the Administrative Appeals Tribunal Act 1989, section 25B
(1).
Column 4 of the table outlines who may
apply to the Administrative Appeals Tribunal for a review of the
decision.
Clause 839 — Decision
to refuse to give childcare service licence must not be stayed or otherwise
affected pending outcome of review
This clause provides that a decision under clause 746(3)
(Childcare service licence—decision on application) to refuse to give a
childcare service licence is not a reviewable decision under section 39A(2) of
the Administrative Appeals Tribunal Act 1989 or section 16 of the
Administrative Decisions (Judicial Review) Act
1989.
This has the effect
of:
• restricting the Administrative Appeals
Tribunal from making an order staying or otherwise affecting the operation or
implementation of the Chief Executive’s decision to refuse to give a
childcare service licence, pending determination of an application for review by
the Administrative Appeals Tribunal;
and
• restricting the Supreme Court from
making an order or other decision to suspend the operation of the Chief
Executive’s decision to refuse to give a childcare service licence,
pending the appeal being heard by the Supreme
Court.
It is appropriate for this decision of
the Chief Executive not to be stayed or otherwise affected pending review or
appeal as the decision relates to the Chief Executive’s assessment that a
person is ineligible to hold a childcare service licence to operate a childcare
service.
This clause re-enacts section 385 of
the 1999 Act.
Chapter
25 — Information and secrecy and sharing
The collection and sharing of personal information about
children and young people (and people involved in their care) engages human
rights law, in particular sections 11(2) (protection of the child) and 12
(privacy) of the Human Rights Act 2004. The reforms set out in this
chapter seek to improve the balance between the need for information sharing in
protecting the interests of children and young people while still maintaining an
appropriate level of privacy
protection.
Appropriate information sharing is
necessary to:
• Protect and promote the
health, safety and wellbeing of all children and young people for whom there are
concerns about possible abuse or neglect, or are in the Chief Executive’s
care or custody;
• Develop proportionate
interventions that are based on a holistic assessment of the child or young
person’s circumstances and level of
risk;
• Facilitate early intervention and
practice for children and young people at risk in order to prevent, or reduce
the likelihood of, increased statutory intervention;
and
• Facilitate regular inter-agency
dialogue to protect and promote the best interests of children and young
people.
The 2007 Australian Law Reform
Commission Report, Review of Australian Privacy Law noted that a number
of bodies have identified instances where a child has been seriously injured or
killed by a parent where disclosure of information about the parent’s
behaviour to appropriate service providers could have helped to prevent the
injury or death. Reviews into child deaths in other jurisdictions have also
highlighted the need for increased collaboration through information sharing in
order to protect children from serious harm and death through abuse and
neglect.
Consultation on the review of the 1999
Act supported measures to enhance the delivery of coordinated and integrated
services to provide more effective and timely support to children, young people
and their families.
Stakeholders reported
that individuals working within agencies are often hesitant to share information
as there is some confusion regarding multi-layered privacy regulation at the
Federal, State and Territory level.
There are
often large amounts of personal information collected about children and young
people (and in some cases their families) who come into contact with child
protection, youth justice, childcare or employment regulation service systems.
A number of international guidelines relating to the rights of children make
reference to the need to protect privacy, including the Convention on the
Rights of the Child, the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice 1985 (the Beijing Rules) and the
United Nations Rules for the Protection of Juveniles Deprived of Their
Liberty. It is critical that information is collected, used and disclosed
in appropriate circumstances and to appropriate
persons.
To encourage better information
sharing practices between agencies, the Bill establishes criteria where
protected (including sensitive) information can be shared between persons and
agencies in particular circumstances. The framework will allow the Chief
Executive to release protected information (including sensitive information)
with, and request information from, relevant persons about children and young
people who are subject to actions under the Act including children and young
people who are (or may be) in need of care and protection, young offenders or
children and young people in the criminal justice system, children who use child
care services and children and young people engaged in
employment.
To enhance protection of personal
information, the Bill:
• Re-enacts secrecy
provisions and a tiered framework for the protection and release of information,
established by the Children and Young People Amendment Act
2006.
• Introduces a power for the
Minister to make standards regarding the giving and seeking of protected
information by the Chief Executive, to achieve greater transparency in
information sharing arrangements between government and non-government agencies
and persons. This will allow adoption of the same privacy protections and
simplify the task of developing information-sharing
protocols.
• Allows for Chief Executive
Instructions to be issued regarding the sharing of information between care team
members, which must be complied with. This will allow care team members to
share necessary information about a particular child or young person, in
compliance with privacy
requirements.
• Prohibits the release of
information about the identity of a person who has reported concerns for a child
or young person in the Territory or another state, or has reported suspected
contraventions of provisions of the Act (or statutory instruments under the
Act).
Further, the offence at section 61A of
the 1999 Act relating to the prohibition on publishing identifying material from
proceedings about children and young people and their family members is
relocated to the Criminal Code 2002 (see Schedule 1, clause 1.82 to the
Bill). The offence has been expanded to protect the identity of children and
young people who are, or have been, subject to interim or final orders under the
care and protection chapters, in the parental responsibility of the Chief
Executive or the subject of a child concern
report.
The note to Chapter 25 makes clear that
in making a decision under this chapter for a child or young person, the
decision-maker must regard the best interests of the child or young person as
the paramount consideration in accordance with clause 8. Also, in making a
decision under this chapter otherwise than for a particular child or young
person, the decision-maker must consider the best interests of children and
young people in accordance with clause 8.
Part 25.1 — Application
and definitions
This part sets out the application and definitions of
this chapter.
Clause 840 —
Application - ch 25
This clause establishes that provisions in this chapter
apply to young offenders and young detainees who are adults in the same way as
they would apply to those who are under 18 years old. This is necessary because
this chapter contains provisions relevant to young offenders and young
detainees, and references to child or young person throughout this chapter need
to also apply to young offenders and detainees who are over 18 and under 21, who
may be in the custody of the Chief Executive.
Clause 841 —
Definitions–– Act and ch 25
This part sets out definitions for this chapter and the
Act. For the Act, protected information is defined at clause 843 and sensitive
information is defined at clause 844. For the chapter, definitions of
‘divulge’, ‘information’ and ‘information
holder’ are included in this clause. Examples of information are included
for guidance and to clarify that information may be written or verbal, fact or
opinion.
Clause 842 — Who is
an information holder?
This clause outlines who an information holder is for
the chapter. Information holders include the Chief Executive, Official
Visitors, persons exercising a function under the Act, persons engaged in the
administration of the Act or persons previously occupying these roles.
Information holders also include anyone else given information by one of these
persons. This re-enacts section 405 of the 1999 Act.
Clause 843 — What is
protected information?
This clause defines protected information for the Act.
It provides that protected information is information about a person that is
disclosed to, or obtained by, an information holder because the person is, or
has been, an information holder.
Protected
information includes sensitive information set out in clause 844 unless
otherwise provided in the Bill. For example, clause 853 provides that an
out-of-home carer or a foster care service may give a person protected
information, but not sensitive information, about a child or young
person.
This clause re-enacts section 405A of
the 1999 Act.
Clause 844 — What is
sensitive information?
This clause defines sensitive information for the Act.
Sensitive information is care and protection
report information, care and protection appraisal information, interstate care
and protection information, family group conference information, contravention
report information and prenatal report information under clause 364. It also
includes any information prescribed by regulation as sensitive
information.
Sensitive information is treated
differently to all other protected information because it could identify a
person who made a report under the Bill, previous enactments or corresponding
interstate laws, and it is important that the Bill protects and promotes the
community’s confidence in reporting concerns about children and young
people or circumstances impacting upon their care, protection and wellbeing.
Part 25.2 — Offence to
record or divulge protected information
This part creates offences for the recording and
divulging of protected information and includes exceptions to the offences in
certain circumstances.
Clause 845 —
Offence—secrecy of protected information
Offences are created in certain circumstances where
information holders make or divulge a record of protected information about
someone else. This clause re-enacts the offence at section 405C of the 1999 Act
if a person makes a record and is reckless about the record being protected
information. Recklessness can be proven by intention, knowledge or recklessness
(see section 20(4) of the Criminal Code
2002).
If a person makes the record knowing
it to be protected information, they are liable for prosecution unless an
exception applies. It is an offence if an information holder divulges protected
information and is reckless about the information being protected and the action
resulting in the information being
divulged.
Exceptions to these offences are
outlined at clauses 846 to 848.
Clause 846 —
Exception to s 845—information given under this Act
This clause provides an exception to the offence at
clause 845. It allows information holders to record or divulge protected
information that is recorded or
divulged:
• under this Act;
or
• in the exercise of a function, as an
information holder, under this Act.
Clause 847 —
Exception to s 845—information given under another
law
This clause provides a further exception to the offence
at clause 845. It allows information holders to record or divulge protected
(not including sensitive)
information:
• under another law in force in
the Territory; or
• in the exercise of a
function, as an information holder, under another law in force in the
Territory.
This exception re-enacts section
405E of the 1999 Act.
Clause 848 —
Exception to s 845—information given with agreement
This clause provides a further exception to the offence
at clause 845. It allows information holders to divulge protected (not
including sensitive) information with the consent of the person who the
information is about.
The Bill does not require
a person’s consent to be given in writing and their consent may therefore
be given verbally.
This re-enacts section 405F
of the 1999 Act.
Part 25.3 — Sharing
protected information
This part allows for the sharing of protected
information.
Division 25.3.1 —
Generally
This division enables the release of protected
information acquired under the Act in certain circumstances.
Clause 849 — Minister
or Chief Executive – giving information to person about the
person
This clause enables the Minister or Chief Executive to
give a person protected (including sensitive) information about the person.
This re-enacts section 29(1)(b) of the 1999
Act.
This is intended to facilitate the giving
of personal history information to a person who was previously in the care of
the Chief Executive, but is not limited to these circumstances.
Further provisions that facilitate the giving
of protected information by foster carers, foster care agencies and residential
care services to children and young people in out of home care are outlined at
division 15.4.3 of the Act.
Clause 850 — Minister
or Chief Executive – giving information in best interests of child or
young person
This clause enables the Minister or Chief Executive to
give protected (including sensitive) information about a child or young person
to any person if the Minister or Chief Executive considers giving the
information would be in the best interests of the child or young
person.
The Minister must consult with the
Chief Executive before exercising discretion to release information under this
clause. The intention of this is to allow the Chief Executive to advise the
Minister of circumstances not known to the Minister, where the release of the
information may not be in the child or young person’s best
interests.
This clause requires the Minister
and Chief Executive to form a view about whether the giving of the information
would be in the child or young person’s best interests.
This clause further clarifies that an
information sharing entity (defined at clause 858) may ask the Chief Executive
for information and the Chief Executive can release information to that entity
if the Chief Executive considers that giving the information would be in the
best interests of the child or young person. This is intended to facilitate
effective interagency communication and information sharing in the best
interests of a child or young person. However, the release of the information
is at the discretion of the Chief Executive and this clause does not require the
Chief Executive to release information.
Clause 851 — Chief
Executive - giving information to person under corresponding
provisions
This new clause allows the Chief Executive to give
information to any person who is exercising a function under, or administering,
a law of another State which corresponds or substantially corresponds to a
provision in this Act (for example, an interstate officer exercising child
protection, youth detention, child care regulation or child employment
regulation functions).
State is defined at
clause 841 for this chapter to include New Zealand to facilitate the sharing of
information under the care and protection transfer of orders and proceedings
scheme in chapter 17.
This clause authorises
the giving of information that the Chief Executive reasonably believes is
necessary to allow the person to exercise the function or administer the law.
Examples of when information could be given by the Chief Executive
include:
• An interstate child protection
officer who needs the information to perform his or her statutory child
protection responsibilities.
• An interstate
youth detention officer who needs the information to develop a pre-sentence
report for an offence committed in that State by a young resident of the
ACT.
• An interstate officer who needs the
information to assess the suitability of a prospective proprietor of a childcare
centre in that State.
• An interstate
statutory officer holder who needs the information in order to exercise
employment functions related to children and young people in that
State.
This clause expands section 323 of the
1999 Act which allowed the Chief Executive to give information to an interstate
officer which the Chief Executive considers necessary for the interstate officer
to perform functions under an interstate care and protection
law.
Clause 852 — Family
group conference facilitator – giving information in best interests of
child or young person
This clause enables a family group conference
facilitator to give the Chief Executive protected information about a child or
young person if the facilitator considers giving the information is in the best
interests of the child or young person. This re-enacts section 405H(2) of the
1999 Act.
The Chief Executive may appoint
family group conference facilitators by notifiable instrument under clause
78.
Clause 853 —
Out-of-home carer and foster care service – giving information necessary
for responsibilities
This new clause provides explicit authorisation for
out-of-home carers and foster care services to release protected information
(that is not sensitive information) about a child or young person if this is
necessary for the exercise of their care responsibilities for the child or young
person.
Out-of-home carer for a child or young
person is defined at clause 507 as a kinship carer, a foster carer or a
residential care service. Foster care service is defined at clause 514 as an
entity that recruits people to become foster carers, provides supports for
foster carers and is authorised by the Chief Executive under clause
516.
An example is a foster carer who gives
information about the parents of a child in their care to a school for the
purpose of enrolling the child at the school. Another example is a foster care
service giving information about a child or young person to a foster carer in
order for the foster carer to appropriately care for the child or young person.
Another example is a kinship carer who gives information about the immunisation
history of a child in their care to a childcare service who will be providing
care for the child.
The giving of the
information under this clause is subject to any directions made by the Chief
Executive, for example, to protect the privacy of the subject child or young
person or another person about whom the information relates.
Clause 854 — Chief
Executive – giving information to researcher
This new clause enables the Chief Executive to give a
researcher protected (including sensitive) information for an approved research
project.
Sub-clause (2) clarifies that the
information may also include information about another person who is not the
child or young person, for example a family member.
Clause 855 — Chief
Executive - giving information to authorised assessor
This clause allows the Chief Executive to give an
authorised assessor for a care and protection assessment protected (including
sensitive) information in relation to a person who is the subject of the
assessment.
The Chief Executive may authorise a
person to undertake a care and protection assessment under clause 437. These
persons are called authorised assessors.
Clause 856 — Certain
identifying information not to be given
This new clause prohibits the release of information
under this part that identifies or may identify a person as a reporter under
this Act or a reporter of an interstate care and protection report.
This clause has the objective of protecting
and promoting the community’s confidence in voluntarily reporting concerns
about a child or young person, or suspected contraventions of the Act.
Statutory authorities with responsibility to protect children rely upon members
of the public to report concerns about children. The consequences of not
establishing such a framework for protection of this information would be
diminished confidence by community members to report concerns for children and
young people, with a likely outcome of fewer reports being made voluntarily.
This could lead to diminished protection for children at risk.
Division 25.3.2 — Sharing
safety and wellbeing information
The 1999 Act at section 29 enabled the Chief Executive
to ask a defined entity for information relevant to the safety, welfare and
wellbeing of a child or young person.
This part
establishes an information sharing framework to allow the sharing of information
about a child or young person’s health, safety and wellbeing between
certain persons and agencies. It is intended that this framework will better
support collaborative, multi-agency responses to children and young
people.
Section 12(a) of the Human Rights
Act 2004 provides that everyone has the right not to have his or her
privacy, family, home or correspondence interfered with unlawfully or
arbitrarily. The proposed framework places limitations upon the right to
privacy to a degree necessary to protect the safety and wellbeing of children
and young people in recognition of their vulnerability and the need to ensure
their protection.
Clause 857 — What is
safety and wellbeing information?
This clause sets out what is safety and wellbeing
information. Safety and wellbeing information is information that is relevant
to the health, safety or wellbeing of a child or young person. Safety and
wellbeing information includes both protected and sensitive categories of
information.
Safety and wellbeing information
does not only include information about the child or young person. It may
include information about any person that is relevant to the health, safety or
wellbeing of a child or young person. For example, it may include information
about the mental health of a parent of a child that is relevant to the
child’s care and protection.
Examples
of safety and wellbeing information are included for guidance.
Clause 858 — Who is
an information sharing entity?
This clause sets out who is an information sharing
entity for this part. The list of persons and entities defined to be
information sharing entities is intentionally broader than the persons and
entities who were previously termed ‘defined entities’ under section
29(5) of the 1999 Act.
Information sharing
entities include community-based services providing services to the child or
young person or their family. It is immaterial whether the service is providing
services for profit. An example of a community-based service providing services
to the child or young person or their family would be a non-government agency
providing a parenting support service. Another example of a community-based
service is a for-profit childcare
service.
Information sharing entities also
include ACT education providers. ACT education provider is defined at clause 25
to include non-government schools.
The broader
scope of persons and entities deemed to be information sharing entities is
necessary to facilitate greater interagency information sharing and
collaboration for children and young people, particularly for children and young
people at risk of abuse or neglect.
The concept
of an information sharing entity relies on definitions set out in the
Legislation Act 2001 as
follows:
• administrative unit means an
administrative unit for the time being established under the Public Sector
Management Act 1994, section 13
(1).
• public employee means— (a) a
public servant; or (b) a person employed by a Territory instrumentality; or (c)
a statutory office-holder or a person employed by a statutory office-holder.
The Legislation Act 2001, further defines statutory office-holder as a
person occupying a position under an Act or statutory instrument (other than a
position in the public service).
• Territory
authority means a body established under an Act, but does not include a body
declared by regulation not to be a Territory
authority.
• Territory instrumentality means
a corporation that—(a) is established under an Act or statutory
instrument, or under the Corporations Act; and (b) is a Territory
instrumentality under the Public Sector Management Act
1994.
Clause 859 — Minister
or Chief Executive – giving safety and wellbeing information to
information sharing entity
This clause enables the Minister or Chief Executive to
give an information sharing entity protected information about a person which is
relevant to the safety and wellbeing of a child or young
person.
This clause also allows information
sharing entities to ask the Chief Executive for information that could be given
by the Chief Executive under this clause. However, the release of the
information is at the discretion of the Chief Executive and this clause does not
require the Chief Executive to release information to the information sharing
entity.
Clause 860 —
Information sharing entity – giving safety and wellbeing information to
Chief Executive
This new clause allows an information sharing entity to
give the Chief Executive safety and wellbeing information in relation to the
child or young person if the entity considers that giving the information is in
the best interests of the child or young
person.
This has the effect of creating lawful
authority for information sharing entities to give information to the Chief
Executive that would otherwise be prohibited by other legislation, including the
Privacy Act 1988 (Cwlth) and the Health Records (Privacy and Access)
Act 1997.
Under the 1999 Act, an
information sharing entity could only give information in response to a request
from the Chief Executive. This authority however does not rely solely on a
request from the Chief Executive.
Clause 861 — Chief
Executive – asking information sharing entity for safety and wellbeing
information
This clause enables the Chief Executive to request and
receive safety and wellbeing information from an information sharing entity.
Under section 28 the 1999 Act, a Territory
entity was required to comply promptly with a request from the Chief Executive.
This clause however extends the obligation to comply to all information sharing
entities and requires those entities to comply not later than 24 hours after the
entity receives the request if the Chief Executive tells the entity that the
situation is an emergency. This is necessary to enhance timely responses to
protect the safety and wellbeing of children and young people.
Clause 862 — Care
teams – sharing safety and wellbeing information
This clause enables the Chief Executive to declare that
the Chief Executive and a number of other persons and entities are a care team
for a child or young person. Examples are included to provide guidance about
who may be care team members. This reflects that a number of professionals,
agencies and persons have a role in the care and development of a child or young
person, particularly a child or young person subject to intervention under the
care and protection chapters.
This clause
authorises safety and wellbeing information to be shared between care team
members.
A person or entity may be included in
a care team if they are responsible for coordinating or delivering a service or
care to the child or young person, or his or her family members, under this Act
or for a criminal proceeding under another Territory law. An example of a care
team for a child under this Act would be a care team for a child subject to a
care and protection order and placed in out-of-home care. An example of a care
team for a young person subject to a criminal proceeding under another Territory
law would be a care team for a young person subject to a good behaviour order
under the Crimes (Sentence Administration) Act
2005.
Sub-clause (4) allows Chief Executive
Instructions to be issued regarding the sharing of information between care team
members, which must be complied with. This will allow care team members to
share necessary information about a particular child or young person. A care
team member who receives information under this clause becomes an information
holder and is therefore subject to the offence at clause 845 for divulging or
recording protected information.
Part 25.4 — Courts
and investigative entities
This part has the effect of creating rules for the
release of protected information by information holders to Courts and
investigative entities.
Clause 863 —
Definitions—pt 25.4
This clause includes definitions for this part of Court
and produce. A Court is defined to include a Tribunal. An investigative entity
is defined in the dictionary to mean an entity with the power to require the
production of documents or the answering of questions. Examples are included of
investigative entities.
Clause 864 — Giving
protected information to Court or investigative entity
If the new Act or another Territory law requires the
giving of protected information or a document to a Court or investigative
entity, then an information holder must give the information or document
required by law.
If the new Act or another
Territory law authorises the giving of protected information or a document to a
Court or investigative entity, then an information holder may, but need not,
give protected (including sensitive) information or document
required.
This clause continues to have the
effect of section 405G of the 1999 Act, but is expanded to clarify that Court in
this section includes a Court of the Commonwealth, State or another
Territory.
Clause 865 — Court
may order sensitive information to be given or produced
This clause enables a Court or Tribunal to compel an
information holder to divulge sensitive information to the Court in any
proceeding.
The Bill prevents the Court from
divulging sensitive information to parties to a proceeding, unless the Court is
satisfied that—
• the information is
materially relevant to the proceeding;
• if
the information is about a child or young person—the best interests of the
child or young person are protected.
In making
a decision to release information to the parties, the Court is required to have
regard to the importance of protecting the identity of a person who made a child
concern report, a confidential report or an interstate care and protection
report.
In deciding whether or not the
information should be disclosed to parties to a proceeding, the Court must allow
an information holder to be heard in relation to its disclosure and the Court
must deal with the information in a way that ensures it is not disclosed to
anyone else. The Court is required to give leave to a person to make a copy of
the information. If the Court refuses to order its disclosure, the Court must
return any document containing the information produced to the information
holder.
Clause 866 —
Investigative entity may divulge protected information etc
Sub-clause (1)(a) allows an investigative entity to
release protected information (including sensitive information) in relation to
an investigation it is undertaking to any other investigative entity.
An investigative entity is defined in the
dictionary as an entity with power to require
the
production of documents or the answering of
questions including, for example, the Chief Police Officer, the Human Rights
Commission, the Public Advocate and the
Ombudsman.
Sub-clause (1)(b) authorises an
investigative entity to release protected information (not including sensitive
information) in relation to an investigation it is undertaking, to any other
person, for example, in a publication. Sub-clause (2) allows the investigative
entity to release sensitive information in relation to an investigation it is
undertaking to any other person, but only if the entity is satisfied of the
following before divulging the sensitive
information:
• the information is materially
relevant to the investigation;
and
• disclosure of the information is in the
public interest; and
• if the information is
about a child or young person—the best interests of the child or young
person are protected; and
• the information
does not include information which identifies someone as a person who made a
child concern report, a confidential report or an interstate care and protection
report (or allows their identity to be worked
out).
Sub-clause (3) requires the investigative
entity to allow an information holder to be heard in relation to whether the
investigative entity makes a decision to release sensitive information under
sub-clause (2).
Part 25.5 — Admissibility
of evidence
This part deals with the admissibility into evidence of
child concern reports, confidential reports about a contravention of the Act,
family group conference information, and Court-ordered conference
information.
Clause 867 — How
child concern reports may be used in evidence
This clause sets out how child concern reports that have
been made honestly and without recklessness may be used in
evidence.
Sub-clause (2) provides that the
child concern report, or evidence of the content of the report, may only be
admitted in evidence in a proceeding before a Court or Tribunal if the report or
evidence is given by the reporter, the proceeding is a proceeding under the care
and protection chapters for the child or young person who is the subject of the
report, the proceeding is an appeal from a decision of the Childrens Court made
under the care and protection chapters or the proceeding is in relation to a
charge or allegation against a person for how a function under the Act has been
exercised.
Sub-clause (3) requires the Court or
Tribunal to give the Chief Executive an opportunity to make submissions before
admitting a report or evidence of a report into evidence.
Clause 868 —
Confidential report—not admissible in evidence
This clause provides that confidential reports made
under clause 875 about alleged contraventions of the Act are not admissible as
evidence in any proceeding in any Court or
Tribunal.
However, this is subject to two
exceptions. Firstly, a confidential reporter may give evidence about their
suspicion and their reasons for the suspicion in a proceeding before a Court or
Tribunal under clause 869. Secondly, under clause 870, evidence may be admitted
that a particular matter is contained in a confidential report or that
identifies a reporter if the reporter agrees in writing or the Court or Tribunal
give leave for the evidence to be admitted.
Clause 869 —
Confidential report—confidential reporter may give
evidence
This clause enables a confidential reporter to give
evidence in any proceeding in a Court or Tribunal about their suspicion
regarding an alleged contravention of the Act under clause 875, and their
reasons for the suspicion.
Clause 870 —
Confidential report—evidence admissible with agreement or
leave
This clause continues to have the effect of section
353(4) and (7) of the 1999 Act. It enables information in a confidential report
or which identifies a confidential reporter, to be admissible in a Court
proceeding if the confidential reporter agrees, in writing, to the admission of
the evidence; or the Court gives leave for the evidence to be given.
To give leave, the Court must be satisfied
that it is necessary to ensure the safety and wellbeing of a child or young
person or be in relation to a charge or allegation made against someone about
the exercise of the person’s functions under this Act; or to decide
whether the report was made honestly and without recklessness.
Clause 871 — Things
said at conference not admissible in care and protection
proceedings
This clause renders anything said or done at a family
group conference arranged under section 80(2) inadmissible in evidence in
proceedings other than for the purpose of establishing in proceedings under the
care and protection chapters that an agreement was or was not reached.
This is intended to allow parties to
participate in a family group conference in good faith and in the knowledge that
there is a prohibition on the later use in care and protection proceedings of
any information disclosed, or discussed, at the conference.
This clause continues to have the effect of
section 180(2) of the 1999 Act.
Clause 872 — Interim
matters—things said at Court-ordered meeting
This clause continues to have the effect of section
252(3) of the 1999 Act and provides that evidence of anything said or done at a
Court-ordered meeting is admissible in the proceeding to which it relates only
if the parties to the proceeding agree to the evidence being admitted or the
Childrens Court gives leave for the evidence to be
admitted.
This is intended to allow parties to
participate in a Court-ordered meeting in good faith to identify and resolve
matters in dispute, and in the knowledge that any information disclosed, or
discussed, at the meeting can only be admitted in the relevant care and
protection proceedings with their agreement or with the leave of the
Court.
Part 25.6 — Protection of
people who give information
This part provides certain protections for people who
give information under the new Act.
Clause 873 —
Protection of people giving certain information
This clause provides that the persons listed in
sub-clause (2) who give information honestly and without recklessness do not by
giving the information breach confidence, professional etiquette or ethics, or a
rule of professional conduct, and do not incur civil or criminal liability.
Clause 874 —
Interaction with other laws
This clause outlines the interaction of the chapter with
other laws which relate to information sharing. It provides that the chapter
does not limit a power or obligation under another law to give relevant
information. It also clarifies that the chapter has the effect of creating
lawful authority for information sharing that would otherwise be prohibited by
other legislation, including the Privacy Act 1988 (Cwlth) and the
Health Records (Privacy and Access) Act 1997.
Chapter
26 — Miscellaneous
This chapter contains miscellaneous provisions. The
note to Chapter 26 makes clear that in making a decision under this chapter for
a child or young person, the decision-maker must regard the best interests of
the child or young person as the paramount consideration in accordance with
clause 8. Also, in making a decision under this chapter otherwise than for a
particular child or young person, the decision-maker must consider the best
interests of children and young people in accordance with clause
8.
Clause 875 —
Confidential report of contravention of act
This clause provides for a person to make a confidential
report to the Chief Executive of their suspicion that a provision of the Act is
being contravened or has been contravened. This includes any statutory
instruments made under the Act, including standards (see section 104,
Legislation Act 2001).
Under the
Territory Records Act 2002, the Chief Executive is obliged to keep a
written record of each report received under this clause.
Clause 868 provides that confidential reports
made under this clause about alleged contraventions of the Act are not
admissible as evidence in any proceeding in any Court or Tribunal. However, this
is subject to the two exceptions outlined at clauses at 869 and
870.
Clause 876 —
Offence—tattoo child or young person without agreement
This clause re-enacts the strict liability offence at
section 388 of the Act for tattooing a child or young person without the written
agreement of a person with daily care responsibility or long-term care
responsibility. The maximum penalty is 50 penalty units.
The clause includes a new defence to a
prosecution for the offence if the defendant proves that the person had shown to
them a document of identification prior to tattooing the person and the
defendant had no reasonable grounds for believing that the document was not a
genuine document of identification. Document of identification is defined for
this clause at sub-clause (4).
Clause 877 —
Protection of officials from liability
This clause provides for protection of certain people
from civil liability in the exercise of functions under the Act for conduct
exercised honestly and without recklessness. Any civil liability is displaced
from the person to the Territory. This clause re-enacts section 407 of the 1999
Act.
Clause 878 — ACT
child welfare services must assist Public Advocate
The clause provides that the Public Advocate may make a
request of an ACT child welfare service for information or assistance and the
child welfare service must comply promptly with the request. An ACT child
welfare service is an administrative unit, a Territory authority, a statutory
office holder, a Territory instrumentality, a public employee or a police
officer. This clause re-enacts section 45 of the 1999 Act.
Clause 879 —
Notification of location of child or young person
This clause provides that a person in charge, or
occupier, of a hospital, police station or refuge may tell a parent or someone
else with parental responsibility for a child or young person their location, or
tell a police officer that the child or young person is at a hospital or refuge
only if the person believes on reasonable grounds that it is in the best
interests of the child or young person to do so.
This clause remakes section 411 of the 1999
Act, however, the clause now requires that the person making the notification
forms a belief on reasonable grounds that it is in the best interests of the
child or young person for a parent, person with parental responsibility or
police officer to be notified of the child or young person’s location.
For example, a person in charge of a refuge
may consider that it is not in the best interests of a young person to notify
the young person’s parent that the young person is at the refuge as the
young person has requested that their parent not be informed because they are
being sexually abused by that parent.
Clause 880 —
Evidentiary certificates—Chief Executive—parental
responsibility
This clause provides that a certificate signed by the
Chief Executive stating that the Chief Executive had or shared parental
responsibility for a particular child or young person is evidence of the
contents of the certificate.
Clause 881 —
Evidentiary certificates—Chief Executive—custody etc
This clause provides that a certificate signed by the
Chief Executive stating the matters in (1)(a) to (i) is evidence of the contents
of the certificate.
Sub-clause (3) enables a
certificate setting out the results of an analysis performed for the purposes of
this Bill and signed by an analyst to be taken as evidence of the analysis and
the facts drawn from the analysis, for example, the results of a drug
test.
Sub-clause (5) obliges a Court to accept
these certificates as proof of the facts stated, unless there is contrary
evidence.
Clause 882 —
Appointment of analyst for Act
This is a new clause to provide for the Chief Executive
to appoint analysts for drug testing and other relevant tasks under the Bill.
The instrument of appointment is a notifiable instrument.
Clause 883 — Chief
Police Officer delegations
This clause allows the Chief Police Officer to delegate
any of the Chief Police Officer’s functions under the Bill to a police
officer. This may include functions such as escorting a young
detainee.
Clause 884 —
Determination of fees
This clause re-enacts section 416 of the 1999 Act and
allows the Chief Executive to set fees for the administration of the Act. Part
6.3 of the Legislation Act 2001 contains provisions about the making of
fees.
Any disallowable instrument setting a fee
must be tabled in the ACT Legislative Assembly to allow Assembly members to
consider if they wish to move a motion of disallowance. If the declaration is
allowed, it must also be notified before becoming enforceable.
Clause 885 — Approved
forms
This clause allows the Chief Executive to approve forms
for the Act (other than forms for the Childrens Court). In circumstances where
the Chief Executive approves a form for a specific purpose, the form is required
to be used. Any form approved must be notified on the Legislation
Register.
Clause 886 —
Standard-making power
This clause provides that the Minister may make the
following standards under the new
Act:
• family group conference
standards;
• drug testing
standards;
• out-of-home care
standards;
• therapeutic protection
standards;
• childcare services
standards;
• children and young people
employment standards;
• work experience
standards;
• research standards;
and
• information sharing
standards.
Standards are intended to prescribe
further detail in relation to the above areas, consistent with, and subordinate
to, the new Act.
The existence of a standard
making power does not oblige the Minister to make standards about the
matter.
Each standard is a disallowable
instrument.
Clause 887 —
Regulation-making power
This clause provides that the Executive may make
regulations for the Act in relation to:
• the
duties of people in charge of detention places;
and
• the health and safety (including
medical examinations) of children or young people, and other people including
young detainees who are adults, at detention places;
and
• managing injuries, establishing a
system for compensation for a permanent injury and payments of death benefits
for injuries sustained by young detainees in the course of detention or by young
offenders in the course of community service work;
and
• travel and transport arrangements for
children or young people and other people including young detainees who are
adults performing community service work;
and
• the discipline and security (including
the use of force, inspection of mail, and the use of video surveillance and
other monitoring devices) at or for detention places;
and
• the safety, management and good order
of detention places.
The existence of a
regulation making power does not oblige the Executive to make regulations about
the matter.
A regulation may include offences
for contraventions of the regulation. Any penalties attached to these offences
must not be more than 10 penalty units.
Clause 888 —
Legislation amended
This clause outlines that the Act will amend the
legislation in schedule 1, namely the Corrections Management Act 2007,
the Court Procedures Act 2004, the Crimes Act 1900, the Crimes
(Sentence Administration) Act 2005, the Crimes (Sentencing) Act 2005,
the Criminal Code 2002, the Evidence (Miscellaneous Provisions) Act
1991 and the Magistrates Court Act 1930.
Schedule
1 - Children and Young People Bill 2008
Outline
Schedule one of the Children and Young People Bill
provides for modern criminal justice laws that apply to children and young
people.
The amendments focus on rehabilitation,
flexibility and consistency in sentencing.
The
amendments provide a sentencing methodology consistent with the United
Nations Convention on the Rights of the Child (the CRC) and Australian
common law that applies to all people under the age of 18, where the primary
focus is rehabilitation.
The amendments also
empower all ACT Courts to use Court procedures and practices appropriate for
young offenders, again consistent with the
CRC.
The changes will also enabling sentencing
courts to tailor sentences to the specific rehabilitative needs of young
offenders.
The International Covenant on Civil
and Political Rights (ICCPR) provides in Article 14(4), which broadly
corresponds to section 22(3) of the Human Rights Act 2004 1994,
that:
“In the case of juvenile
persons, the procedure shall be such as will take account of their age, and the
desirability of promoting their
rehabilitation.”
The CRC and the
United Nations Standard Minimum Rules for the Administration of Juvenile
Justice ("The Beijing Rules") General Assembly resolution 40/33, 1985,
expand upon this principle.
Article 17 of the
Beijing Rules sums up the key policy considerations for criminal justice
matters.
17.1 The disposition of the
competent authority shall be guided by the following principles:
( a ) The reaction taken shall always be in
proportion not only to the circumstances and the gravity of the offence but also
to the circumstances and the needs of the juvenile as well as to the needs of
the society;
( b ) Restrictions on the
personal liberty of the juvenile shall be imposed only after careful
consideration and shall be limited to the possible minimum;
( c ) Deprivation of personal liberty
shall not be imposed unless the juvenile is adjudicated of a serious act
involving violence against another person or of persistence in committing other
serious offences and unless there is no other appropriate response;
( d ) The well-being of the juvenile
shall be the guiding factor in the consideration of her or his case.
17.2 Capital punishment shall not be imposed
for any crime committed by juveniles.
17.3
Juveniles shall not be subject to corporal punishment.
17.4 The competent authority shall have the
power to discontinue the proceedings at any time.
The UN commentary on the Beijing Rules notes
that the main difficulty in formulating international guidelines for the
adjudication of children and young people stems from the fact that most criminal
justice systems have contradictory philosophical sources for sentencing
offenders. For example, rehabilitation versus just desert, or therapeutic
jurisprudence versus punishment.
The UN
comments that:
“It is not the
function of the Standard Minimum Rules for the Administration of Juvenile
Justice to prescribe which approach is to be followed but rather to identify one
that is most closely in consonance with internationally accepted principles.
Therefore the essential elements as laid down in rule 17.1, in particular in
subparagraphs (a) and (c), are mainly to be understood as practical guidelines
that should ensure a common starting point; if heeded by the concerned
authorities . . . they could contribute considerably to ensuring that the
fundamental rights of juvenile offenders are protected, especially the
fundamental rights of personal development and education”.
This Schedule of the Children and Young People
Bill will create a set of laws that invoke the policy articulated by the CRC and
the Beijing Rules and is also consistent with Australia’s common law on
the sentencing methodology that applies to children and young
people.
Rehabilitation of young offenders is
the starting point for both the CRC and Australian common law. Australian
common law places considerable emphasis on rehabilitation as the starting point
for sentencing courts when deciding upon an appropriate sentence for a young
offender. In R v Voss [2003] NSWCCA 182 the NSW Court of Criminal Appeal
cited with approval common law principles laid down in previous cases such as
Wilcox [1979] (NSW, unreported 15 August 1979), such
as:
. . . in the case of a youthful
offender... considerations of punishment and general deterrence of others may
properly be largely discarded in favour of individualised treatment of the
offender, directed to his rehabilitation.
In
Victoria, R v Mills [1998] 4 VR 235 is a leading case that also places
rehabilitation as the priority principle when sentencing a young offender. In
that case Batt JA noted that when sentencing young
people:
(i) Youth of an offender,
particularly a first offender, should be a primary consideration for a
sentencing court where that matter properly
arises.
(ii) In the case of a youthful
offender, rehabilitation is usually far more important than general deterrence.
This is because punishment may in fact lead to further offending. Thus, for
example, individualised treatment focussing on rehabilitation is to be
preferred. (Rehabilitation benefits the community as well as the
offender).
The principle of rehabilitation
being the starting point for sentencing children and young people does not mean
that principles such as community safety or accountability, are never
considered. Sentencing courts would consider applying those principles in cases
of serious offences or serious recidivism, having firstly considered the
principle of rehabilitation.
For example, in
DPP v SJK & GAS [2002] VSCA 131, the Victorian Court of Appeal
considered sentences imposed upon two boys (aged 16 and 15 years old at the time
of the offence) who had both pleaded guilty to manslaughter of an elderly
woman.
The Court of Appeal
noted:
“When youth is raised for
sentencing considerations, the focus is usually placed upon the offenders
prospects of rehabilitation, but this is by no means the only basis upon which
it assumes relevance. For at least a century, the attribution of criminal
responsibility and the response in terms of the dispositions handed down upon
offenders has increasingly reflected developing ideas and understandings
concerning personal responsibility, moral culpability and accountability. In the
case of young people, to some extent, the law incorporates an acknowledgment of
aspects of immaturity. By reason of the stage of development that an offender
may have reached, he or she may not fully appreciate the seriousness and real
consequences of the offending actions. However, it does not follow that this is
always the situation or that, as teenagers, offenders cannot be held
appropriately accountable for their conduct in engaging in serious criminal
activity”.
The ACT Supreme Court has also
advocated the view taken by NSW and Victorian Courts. In Thorn v Laidlaw
[2005] ACTCA 49 the Court of Appeal
noted:
“The role of rehabilitation
is particularly relevant in relation to young offenders, a point recently
reiterated by the New South Wales Court of Appeal in R v AEM Snr; KEM; MM
[2002] NSWCCA 58. Beazley JA, Wood CJ at CL and Sully J observed at [97]
that:
It is well accepted that in the case
of youth, general deterrence and public denunciation usually play a subordinate
role to the need to have regard to individual treatment aimed at rehabilitation:
see R v DAR (unreported New South Wales Court of Criminal Appeal, 2
October, 1997;) R v Mazzilli [2001] NSWCA
117”.
A sentencing methodology that
reflects the CRC discussion and Australian common law is encapsulated in the
foreshadowed amendments to the Crimes (Sentencing) Act 2005. These
amendments create a new chapter in the Act that specifically deals with
sentencing children and young people.
The
amendments to the Crimes (Sentencing) Act 2005 also includes specific
dispositions relevant to children and young people, such as education and
training conditions, accommodation orders and supervision conditions. Relevant
amendments to the Crimes (Sentence Administration) Act 2005 to administer
these orders, and other orders in a manner consistent with the interests of
children and young people are also included in this
schedule.
The schedule also includes amendments
that address the specific needs and interests of children and young people in
criminal proceedings.
Article 40, 3 of the
United Nations Convention on the Rights of the Child maintains
that:
3. States Parties shall seek to
promote the establishment of laws, procedures, authorities and institutions
specifically applicable to children alleged as, accused of, or recognized as
having infringed the penal law . . .
The
Committee on the Rights of the Child, in its General Comment no.10 (2007), wrote
that parties to the convention should establish Courts for children and young
people as separate units or as part of existing Court structures [para 31]. In
the context of the right to a fair trial, the Committee invites parties to
include further procedures that would apply to young people because of their age
that would not be applicable to adults.
In T
and V v the United Kingdom (2000) 30 EHRR 121 the European Court of Human
Rights discussed the kinds of procedural safeguards that should be considered
for the trial of children and young people and indicated that these safeguards
should apply to all Courts:
85. It
follows that, in respect of a young child charged with a grave offence
attracting high levels of media and public interest, it would be necessary to
conduct the hearing in such a way as to reduce as far as possible his or her
feelings of intimidation and inhibition. In this connection it is noteworthy
that in England and Wales children charged with less serious crimes are dealt
with in special Youth Courts, from which the general public is excluded and in
relation to which there are imposed automatic reporting restrictions on the
media . . . Moreover, the Court has already referred to the international
tendency towards the protection of the privacy of child defendants . . . It has
considered carefully the Government’s argument that public trials serve
the general interest in the open administration of justice . . . and observes
that, where appropriate in view of the age and other characteristics of the
child and the circumstances surrounding the criminal proceedings, this general
interest could be satisfied by a modified procedure providing for selected
attendance rights and judicious
reporting.
86. The Court notes
that the applicant’s trial took place over three weeks in public in the
Crown Court. Special measures were taken in view of the applicant’s young
age and to promote his understanding of the proceedings: for example, he had the
trial procedure explained to him and was taken to see the Courtroom in advance,
and the hearing times were shortened so as not to tire the defendants
excessively. Nonetheless, the formality and ritual of the Crown Court must at
times have seemed incomprehensible and intimidating for a child of eleven, and
there is evidence that certain of the modifications to the Courtroom, in
particular the raised dock which was designed to enable the defendants to see
what was going on, had the effect of increasing the applicant’s sense of
discomfort during the trial, since he felt exposed to the scrutiny of the press
and public. The trial generated extremely high levels of press and public
interest, both inside and outside the Courtroom, to the extent that the Judge in
his summing-up referred to the problems caused to witnesses by the blaze of
publicity and asked the jury to take this into account when assessing their
evidence . . . [references omitted.]
The
clauses amending the Court Procedures Act 2004 intend to create a
framework for Court procedures and practices that apply to children and young
people in the criminal and civil jurisdictions. The provisions contemplate both
the Childrens Court and the Supreme Court and will enable ACT Courts’
rules committee to develop rules of Court that are consistent with the
CRC.
DETAIL
Part 1.1 — Corrections
Management Act
Part 1.1 amends the Corrections Management Act 2007.
Clauses 1.1 to 1.14 relate to chapter four of the Corrections Management
Act 2007. Chapter four of the Corrections Management Act 2007
provides custodial powers and obligations when detainees are held at a
police cell or a Court cell.
The amendments
below stipulate the limitations, obligations and powers that are relevant to
children and young people who are held in custody at a Court or police cell. A
child or young person who has not been admitted to a detention place for young
people cannot be held in a Court or police cell for longer than 12 hours.
Clause 1.1 — Section
6(3)
Section 6 of the Corrections Management Act 2007
sets out the classes of people to whom the Act applies. This Bill includes
provisions for the custody of young detainees. Consequently, new section 6(3)
clarifies that only chapter four of the Corrections Management Act 2007
applies to young detainees in any way.
Clause 1.2 — Section
29, new definitions
New definitions are cast for section 29 to clarify the
different uses of Chief Executive for chapter four of the Corrections
Management Act 2007. The Chief Executive responsible for adults would be
the Chief Executive assigned to administer the Corrections Management Act
2007 under the Public Sector Management Act 1994 Administrative
Arrangements.
The Chief Executive responsible
for children and young people who are detained would be the Chief Executive
assigned to administer the foreshadowed Children and Young People Act 2008
under the Public Sector Management Act 1994 Administrative
Arrangements.
The definition of young detainee
in the foreshadowed Children and Young People Act 2008 is incorporated
into chapter four. In this way the custodial laws applying to adults and young
people have a common definition distinguishing adults from young
people.
Clause 1.3 — New
section 29(2)
Clause 1.3 creates a new section 29(2)(a) to ensure that
any mention of ‘correctional centre’ in the chapter is also
interpreted to mean a reference to a ‘detention place’ for young
people if the custody relates to a young
detainee.
New section 29(2)(b) ensures that a
reference to ‘corrections officer’ in the chapter is also
interpreted to mean a reference to a youth detention officer under the
foreshadowed Children and Young People Act 2008 if the custody relates to
a young detainee.
‘Young detainee’
is discussed at clause 1.2 above and at clause 94 in the main body of this
Bill.
Clause 1.4 — Section
30(2)
Section 30(2) currently sets a time limit in police
cells for adults only. Clause 1.4 creates a time limit for adult detainees and
young detainees. Young detainees, who have not been admitted to a detention
place, may not be held at a police cell for longer than twelve hours. For
adults the maximum time is 36 hours.
For future
reference in later sections, the clause uses the in-text definition of
‘allowed period’ to denote the alternative maximum time limits for
adults and young people.
Clause 1.5 — Section
30(3)
Clause 1.5 substitutes the term ‘allowed
period’ for ’36 hours’ in section 30(3). This will allow the
alternative maximum time limits (see clause 1.4 above) to be applied depending
upon the age of the person in custody. For young people, the amendment would
have the effect of enabling the Chief Police Officer to transfer a young person
to a detention place for admission if the allowed period of twelve hours was
reached.
Clause 1.6 — Section
31(2)
Clause 1.6 amends section 31(2) to stipulate that 31(2)
only applies to adults, as the search and seizure powers listed in 31(2) are not
powers appropriate for young people.
Clause 1.7 — New
section 31(3)
New section 31(3) sets out the custodial search powers
the police may use for young people in police custody. The powers listed in
31(3)(a) to (e) are references to the parts in the main body of this
Bill.
New section 31(3) would not alter the
search and seizure powers that exist for the purposes of investigating offences.
Section 32 of the Corrections Management Act 2007 clarifies that these
powers remain unaltered.
Clause 1.8 — New
section 31A
New section 31A stipulates a set of critical obligations
upon custodians for the detention of young people. These obligations are
derived from international human rights jurisprudence on the treatment of young
people in detention, such as the Beijing Rules discussed in the outline. The
intention of this provision is to highlight these particular obligations, it is
not intended to exhaust the obligations that might also be required by human
rights law.
Clause 1.9 — Section
33(2)
Clause 1.9 inserts a note that draws attention to the
provision in the main body of this Bill that would prohibit young people in
custody being placed in the same room as an adult who is also in custody. (See
clause 801 in the main body of the Bill.)
Clause 1.10 — Section
33(3)
Section 33(3) currently sets a time limit in police
cells for adults only. Clause 1.10 creates a time limit for adult detainees and
young detainees. Young detainees, who have not been admitted to a detention
place, may not be held at a Court cell for longer than twelve hours. For adult
detainees the maximum time is 36 hours.
For
future reference in later sections, the clause uses the in-text definition of
‘allowed period’ to denote the alternative maximum time limits for
adults and young people.
Clause 1.11 — Section
33(4)
This clause enables the relevant time limits in section
33(3) are applied according to the age of the person, without having to re-state
the time limits.
Clause 1.12 — Section
33(5)
Clause 1.12 ensures that the appropriate custodial
protections, obligations and powers apply depending upon the age of the person
held in a Court cell.
For adults it is the
provisions of the Corrections Management Act 2007, for young people it
would be the provisions set out in this Bill.
Clause 1.13 — New
section 33A
New section 31A stipulates a set of critical obligations
upon custodians for the detention of young people. These obligations are
derived from international human rights jurisprudence on the treatment of young
people in detention, such as the Beijing Rules discussed in the outline. The
intention of this provision is to highlight these particular obligations, it is
not intended to exhaust the obligations that might also be required by human
rights law.
Clause 1.14 — Section
34(6)
Clause 1.14 ensures that the appropriate custodial
protections, obligations and powers apply depending upon the age of the person
if there is some reason that detainees would need to be temporarily held outside
of a corrections facility or detention
place.
For adults it is the provisions of the
Corrections Management Act 2007, for young people it would be the
provisions set out in this Bill.
Part 1.2 Court Procedures
Act
The Court Procedures Act 2004 provides a
statutory framework for creating common practice and procedure for ACT Courts.
The Act creates a rule-making power for both the ACT Supreme Court and ACT
Magistrates Court, allowing for the creation of common Court
rules.
Article 40, 3 of The United Nations
Convention on the Rights of the Child maintains
that:
3. States Parties shall seek to
promote the establishment of laws, procedures, authorities and institutions
specifically applicable to children alleged as, accused of, or recognized as
having infringed the penal law . . .
The
Committee on the Rights of the Child, in its General Comment no.10 (2007), wrote
that parties to the convention should establish Courts for children and young
people as separate units or as part of existing Court structures [para 31]. In
the context of the right to a fair trial, the Committee invites parties to
include further procedures that would apply to young people because of their age
that would not be applicable to adults.
In T
and V v the United Kingdom (2000) 30 EHRR 121 the European Court of Human
Rights discussed the kinds of procedural safeguards that should be considered
for the trial of children and young people and indicated that these safeguards
should apply to all Courts:
85. It
follows that, in respect of a young child charged with a grave offence
attracting high levels of media and public interest, it would be necessary to
conduct the hearing in such a way as to reduce as far as possible his or her
feelings of intimidation and inhibition. In this connection it is noteworthy
that in England and Wales children charged with less serious crimes are dealt
with in special Youth Courts, from which the general public is excluded and in
relation to which there are imposed automatic reporting restrictions on the
media . . . Moreover, the Court has already referred to the international
tendency towards the protection of the privacy of child defendants . . . It has
considered carefully the Government’s argument that public trials serve
the general interest in the open administration of justice . . . and observes
that, where appropriate in view of the age and other characteristics of the
child and the circumstances surrounding the criminal proceedings, this general
interest could be satisfied by a modified procedure providing for selected
attendance rights and judicious
reporting.
86. The Court notes
that the applicant’s trial took place over three weeks in public in the
Crown Court. Special measures were taken in view of the applicant’s young
age and to promote his understanding of the proceedings: for example, he had the
trial procedure explained to him and was taken to see the Courtroom in advance,
and the hearing times were shortened so as not to tire the defendants
excessively. Nonetheless, the formality and ritual of the Crown Court must at
times have seemed incomprehensible and intimidating for a child of eleven, and
there is evidence that certain of the modifications to the Courtroom, in
particular the raised dock which was designed to enable the defendants to see
what was going on, had the effect of increasing the applicant’s sense of
discomfort during the trial, since he felt exposed to the scrutiny of the press
and public. The trial generated extremely high levels of press and public
interest, both inside and outside the Courtroom, to the extent that the Judge in
his summing-up referred to the problems caused to witnesses by the blaze of
publicity and asked the jury to take this into account when assessing their
evidence . . . [references omitted.]
The
clauses amending the Court Procedures Act 2004 intend to create a
framework for Court procedures and practices that apply to children and young
people in the criminal and civil jurisdictions. The provisions contemplate both
the Childrens Court and the Supreme Court.
Clause 1.15 — New part
7A
Division 7A.1
— General
Section 69 re-states the existing law that the law of
criminal proceedings in chapter 3 of the Magistrates Court Act 1930 and
the relevant rules that would apply to the Magistrates Court also apply to the
Childrens court. Likewise, the rules for civil proceedings used by the
Magistrates Court apply to the Childrens
Court.
Section 69 is not intended to be
interpreted in a manner that excludes the creation of specific rules or practice
directions for children and young people. It is envisaged that the rules
committee authorised by the Court Procedures Act 2004 could make specific
rules for proceedings involving children and young
people.
Section 71 obliges parents to attend
Court proceedings if their child is the subject of proceedings. The parent must
attend all proceedings.
The section
contemplates notification of a parent and enables the Court to issue a warrant
to secure the parent’s attendance of the proceedings. A warrant may only
be issued if the parent is notified of the proceeding but fails to
attend.
Section 71(5) provides exceptions to
the obligation for a parent to attend. If the person no longer has parental
responsibility for the child, as set out in clause 15 of this Bill, the parent
is not obliged to attend.
In a criminal
proceeding, the parent might also be a victim of an offence allegedly committed
by their child. In addition, there may be grounds to believe that parent may
also engage in inappropriate behaviour or have an abusive relationship with the
child. In these cases, the parent may be excluded from the obligation to
attend. The exercise of section 72(2) (discussed below) would also
apply.
The section does not apply to chapter 11
of the Bill.
Section 72 restricts public access
to Court proceedings involving children and young people. Consistent with the
Convention on the Rights of the Child, Court proceedings are closed to
the public. However, in the interests of fair trial, section 72 also authorises
who may be present at proceedings involving children or young
people.
Section 72 substantially remakes the
existing law, with two additions. The section entitles relevant victims to
attend proceedings (j) and people who are involved in circle sentencing to
attend (k).
Section 72(2) empowers the Court to
exclude victims from attending if the victim’s behaviour, or expected
behaviour is inappropriate, or there is something inappropriate about the
victim’s relationship with the child or young person. For example, there
may be evidence that the victim is an abusive relationship with the young
person. Another example may be that the victim and young offender know each
other and there is evidence that the victim of the offence has intimidated or
threatened the young person.
Section 72(3)
emphasises that the Public Advocate and the Chief Executive may make submissions
about a person who should be required or permitted to attend, under 72(l), or
submissions about a victim’s attendance under
72(2).
Section 73 empowers the Court to excuse
parties from attending proceedings. In some cases children are very emotionally
affected by attending a hearing, and may not be able to engage in any
constructive or rational way.
Example: Tony is
a 13 year-old person with an intellectual disability. Having been charged with
an offence he is before the Childrens court. Tony is crying and appears to be
bewildered by proceedings. He is not in a frame of mind to be able to have a
rational discussion with his solicitor, nor appropriately acknowledge the Court.
Tony’s solicitor seeks leave from the Court to allow his client to be
excused from the hearing.
Section 74 remakes
existing section 25 and allows the Childrens Court to hear two or more
applications about a particular child or young person, or related children or
young people where that would be in the best interests of each child or young
person
Section 74A reflects the intention of
clause 14.2 of the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice ("The Beijing Rules") General Assembly
resolution 40/33, 1985. Clause 14.2 of the Beijing Rules states
that:
“The proceedings shall be
conducive to the best interests of the juvenile and shall be conducted in an
atmosphere of understanding, which shall allow the juvenile to participate
therein and to express herself or himself
freely”.
While the Beijing Rules apply to
criminal proceedings, section 74A upholds the right of a child, or young person,
to participate in either civil or criminal proceedings where they are the
subject of proceedings.
Section 74A(2) enables
a child or young person to seek assistance from the Chief Executive of the
foreshadowed Children and Young People Act to enable the person to
meaningfully participate in
proceedings.
Section 74B obliges the Court to
take reasonable steps to ensure that the parties to a proceeding, where a child
is a party, understand the nature and purpose of the proceeding and any relevant
rights of appeal.
Section 74C authorises
particular officials to appear, be heard and call witnesses in proceedings where
a child or a young person is a party. The officials empowered by this section
are: the Chief Executive responsible for the Children and Young People
Act, an authorised person under the Children and Young People Act,
the Public Advocate, or a person authorised by the Public
Advocate.
Section 74D provides the Court with a
power to order a general report about a child or young person during criminal
proceedings. Exercising this section does not prevent the use of pre-sentence
reports in part 4.2 of the Crimes (Sentencing) Act
2005.
Section 74E enables a child or young
person to be represented by a lawyer, litigation guardian, or both, when the
child or young person is a party to legal
proceedings.
The person’s advocate must
relate the child’s views that are relevant to proceedings to the
Court.
The person’s advocate must either
act on the child’s instructions or act in the best interests of the
person. The person’s advocate must tell the Court whether they are acting
on instructions or in the best interests of the
person.
It is the Government’s intention
that the meaning of litigation guardian is akin to its meaning in a civil law
context. The guardian acts on behalf of the child or young person but is not a
party to an action.
Section 74F stipulates that
a person may only act as a litigation guardian if they have leave from the
Court.
Section 74G ensures that the issue of
legal representation of a child or young person is considered by the Court. If
a child or young person does not have legal representation, the Court must be
satisfied that the child or young person has had the opportunity to obtain
representation and that the best interests of the child or young person will
still be met.
Section 74H provides the Court
with a procedural power to make an order or direction to enable a child or young
person before the Court to get legal
representation.
Section 74I obliges the rule
making committee established under section 9 of the Court Procedures Act 2004 to
consider the youth justice principles at section 94 of the foreshadowed
Children and Young People Act.
As
discussed in the introduction to this part, the European Court of Human Rights
discussed the particular procedural safeguards that are appropriate for children
and young people in T and V v the United Kingdom (2000) 30 EHRR 121. The
Government’s intent with new section 74I is to enable the rule-making
committee to make rules for the purposes of criminal proceedings involving
children and young people that are consistent with the youth justice principles,
and would be consistent with the UN Convention on the Rights of the
Child.
Division 7A.1 —
General
New section 74J provides definitions for division
7A.2.
Section 74K enables the Court to dismiss
or adjourn proceedings against a child or young person if the Court is satisfied
that the person is in need of care and
protections
The United Nations Standard
Minimum Rules for the Administration of Juvenile Justice ("The Beijing
Rules") General Assembly resolution 40/33, 1985,
states:
17.4 “The competent
authority shall have the power to discontinue the proceedings at any
time”.
Commentary on article 17.4
notes:
“The power to discontinue the
proceedings at any time (rule 17.4) is a characteristic inherent in the handling
of juvenile offenders as opposed to adults. At any time, circumstances may
become known to the competent authority which would make a complete cessation of
the intervention appear to be the best disposition of the case”.
If the Court exercises the power in section
74K, the Court must provide a statement of reasons to the Chief Executive of the
foreshadowed Children and Young People Act and the Public Advocate. Subsection
(4) requires the Chief Executive of the foreshadowed Children and Young People
Act to treat the statement of reasons as a mandatory report of
abuse.
Section 74L requires the Chief Executive
to report back to the Court and the Public Advocate what action the Chief
Executive has taken to the statement of reasons provided by the Court under
section 74K.
Subsection (3) enables the Chief
Executive to satisfy the obligation to report back if the Chief Executive makes
an application for care and protection order and provides a copy of the
application to the Public Advocate.
Section 74M
empowers the Court to dismiss proceedings following an adjournment in 74K and a
report in 74L, providing that the Court is satisfied that any action taken by
the Chief Executive is in the best interests of the child or young person. If
the Chief Executive has already made an application for a care and protection
order, the Court may also dismiss
proceedings.
Section 74M(3) enables the Court
to continue criminal proceedings, make other diversionary orders, or otherwise
dispose of the matter if the Court considers it appropriate to do so. The
availability to the Court of the discretion set out in (2) is not intended to
negate the discretion available to the Court in (3).
Clause 1.16 —
Dictionary, new definitions
Clause 1.16 adds the definition of ‘young
person’ to the dictionary of the
Court
Procedures Act 2004. The definition is the same as that used in the main
body of the Bill.
Part 1.3 — Crimes Act
1900
Clause 1.17 — New
division 10.7
This clause adds a new Division to the Crimes Act
1900 which details procedures that police need to observe when investigating
and dealing with offences suspected to have been committed by a child or young
person. In light of the vulnerability of children and young people in the
criminal justice system, in many instances these provisions provide procedural
safeguards that go beyond those that must be observed when investigating
offences that are suspected of having been committed by
adults.
Section 252A gives an issuing officer
the power to issue a warrant for the arrest of a child under 10. The issuing
officer can only issue the warrant if they believe on reasonable grounds that
that the child is or has carried out conduct that makes up the physical elements
of an offence, or the child’s conduct poses a risk to community safety or
the child.
If the warrant is to be issued on
the basis of clause 252A(1)(a), the issuing officer has to have to have a
reasonable belief that the child has engaged in conduct that makes up the
elements of the offence. It does not require the issuing officer to believe
that the child has committed an offence. This wording is used because, given
that the age of criminal responsibility is 10 and above (see section 25 of the
Criminal Code 2002), meaning that children under 10 cannot commit an offence, it
is not possible to suspect that a child known to be under 10 has committed an
offence. It follows that, if a police officer (or for that matter an issuing
officer) are aware or reasonably suspect that a person with respect to whom an
application for an arrest warrant has been made, it will not be possible for a
warrant to be issued under section 219 of the Crimes Act 1900, being the
section most commonly relied upon for the issue of an arrest warrant under that
Act.
When applying for a warrant under
this section, a police officer is required to provide the issuing officer with
an affidavit setting out the reasons why the warrant is sought. If the issuing
officer issues a warrant, the issuing officer must write on the warrant the
reasons that they have relied upon as justifying the issue of the
warrant.
Nothing in section 252A is intended to
displace the common law rules governing the validity and form of a warrant (see
Ousley v The Queen (1997) 192 CLR
69).
Once a warrant has been issued under
section 252A, section 213 of the Crimes Act 1900 authorises police to
arrest the person without a copy of the warrant in their physical possession.
If this occurs, the police officer should show the person a copy of the warrant
as soon as practicable. Also, once a warrant has been issued under section 252A
of the Crimes Act 1900, section 220 of that Act allows police to
use necessary and reasonable force to enter premises to arrest the
person.
Section
252B provides a power to police officers to arrest children under 10
without a warrant, and sets out the grounds that must be satisfied before such
an arrest can be made.
Sub-clause 252B(1)(a)(i)
requires the police officer to have a reasonable belief that the child has
engaged in conduct that makes up the elements of the offence. It does not
require the issuing officer to believe that the child has committed an offence.
This wording is used because, given that the age of criminal responsibility is
10 and above (see section 25 of the Criminal Code 2002) and children under 10
therefore cannot commit an offence, it is not possible to suspect that a child
known to be under 10 has committed an offence. It follows that, if a police
officer knows or reasonably suspects that a person is under 10 years of age, it
will not be open to them to use the ordinary power of arrest in section 212 of
the Crimes Act 1900.
Section 252C
requires a police officer who has apprehended a child under 10 under section
2132 or 252B to take the child to a parent or someone exercising daily or
long-term care responsibilities. If it is not practicable or appropriate for
the police officer to leave the child with one of these people, the police may
place the child with another appropriate person or agency, after having
consulted with the Chief Executive about the
placement.
Section 252D provides a definition
for “committed” and “under restraint” for subdivision
10.7.2.
A child or young person will be taken
to have committed an offence if they committed it with one or more other people.
A child or young person is “under
restraint” if any of the circumstance described in clause 252E
apply.
Section 252E describes the circumstances
when a child or young person will be taken to be under restraint in subdivision
10.7.2. When a child is under restraint, other sections in subdivision 10.7.2
require the police to follow procedures intended to protect the interests of the
child or young person and ensure the integrity of any evidence
collected.
The concept of being under restraint
extends beyond being under arrest or in lawful detention and includes
circumstances where a child or young person is in the company of a police
officer in relation to the investigation of an offence or possible offence. The
section needs to be read in conjunction with section
252F
The broad definition of the term under
restrain is intended to engage the procedural rights and safeguards afforded to
children and young people in circumstances where children or young people are
more likely to make admissions or incriminating comments. These safeguards are
intended to assist in ensuring that any admissions or statements made by a child
or young person during the course of an investigation are made voluntarily and
are reliable, and to ensure the integrity of other evidence obtained from the
chid or young person in the course of an
investigation.
Section 252F replaces existing
section 77 of the Act and expands on the term “in the company of a police
officer” contained in section 252E(c), and is based on section 139(5) of
the Evidence Act 1995 (Cth) and the definition of “protected
suspect” in section 23B(2) of the Crimes Act 1914 (Cth).
The clause excludes specific instances of
contact between young people and police involving minor traffic offences from
falling within the concept of ‘Being in the company of a police
officer” in section 252F as these instances are not considered to be of a
nature that warrant extra protection.
Section 252G is based on existing section 79 and
deals with police interviews of children and young people in circumstances where
a police officer suspects that a children and young people may have committed
certain offences or where a police officer suspects that a child or young person
may be implicated in the commission of certain offences. The provision makes it
clear that a police officer must not interview the child or young person or
cause the child or young person to do anything in relation to the investigation
of an offence (such as participate in a line-up or provide a forensic sample)
unless one of the specified adults is present. If one of the persons listed is
present, the police can only interview the child or young person or cause them
to do something if authorised by another law. This requirement is intended to
ensure that the child or young person’s legal rights and interests are
protected, and assumes that the child or young person will not always be in a
position to effectively protect their own legal rights and
interests.
Sub-section (3) makes clear that a
police officer is not required to allow a person to be present who the officer
reasonably believes is an accomplice to the child or young person. Nor is the
police officer required to take steps to locate one of the persons if the
officer reasonably believes the person is an accomplice to the child or young
person.
Sub-section (4) provides for cases of
emergency.
Section 252H is based on existing
section 80 and provides that a police officer must take all reasonable steps to
contact a parent or responsible person of a child or young person if the child
or young person is taken under restraint. The requirement applies whether or not
the parent or responsible person lived in the ACT.
Section 252I prevents police from charging a
child or young person at a police station unless they are satisfied that
proceeding by summons would not achieve one of the purposes referred to in
section 212(1)(b) of the Crimes Act. This clause is intended to ensure that any
detention of a child or young person should only be used as a measure of last
resort and for the shortest appropriate time. The section needs to be read in
light of sections 18 and 20 of the Human Rights Act 2004, and is intended
to give effect to Article 37(b) of the United Nations Convention on the
Rights of the Child.
Section 252J is based
on existing section 83 and requires the police officer who charges a child or
young person to take all reasonable steps to tell the parent or responsible
person about the charge. This must be done
promptly.
Section 252K obliges a person that
charges a child or young person with an offence to promptly tell either a parent
of the child or young person of that fact, or if the parents of the child don't
exercise parental responsibility, someone else who has daily or long-term care
responsibility for the child or young person. In informing that person about
the fact the child or young person has been charged, the person laying the
charge must tell them the terms of the charge, where the child or young person
is being (and will be) held, and when the child or young person will next be
taken before a Court.
Clause 1.18 — Section
300, new definition of Magistrates
Court
This clause amends the dictionary for Part 13 of the
Crimes Act to provide that a reference to the Magistrates Court is a
reference to the Childrens court. This reiterates section 287 of the
Magistrates Court Act 1930 and is intended to make it clear that
proceedings and issues about an accused’s fitness to plead which covered
by Part 13 of the Crimes Act can be dealt with by the Childrens
court.
Clause 1.19 — Section
375
Section 375 is a key section in creating the
jurisdiction of the Childrens Court to hear and decide criminal cases, and must
be read together with Chapter 4A of the Magistrates Court Act 1930.
Indeed, the jurisdiction of the Childrens Court to exercise certain powers
and functions given to it in Chapter 4A of the Magistrates Court Act 1930
are contingent on the Court having jurisdiction to hear a matter summarily
under section 375.
Although the section has
been amended, it remains unchanged insofar as it applies to offences alleged to
have been committed by adults. The only change to the section is that it now
gives the Childrens Court jurisdiction to summarily hear and decide any charge
for an offence not punishable by life imprisonment by a person under the age of
18 at the time the offence was alleged to have been committed. As is the case
with people dealt with as adults, if the Childrens Court does proceed under this
section and find an offence proved, the maximum penalty it can impose is two
years imprisonment.
Before the Childrens Court
decides whether to hear an indictable offence summarily, it must have regard to
the criteria enumerated in subsection
375(10).
The definition of “Magistrates
Court” in subsection 375(13) applies only to section 375, and aids in
clarifying the differences in jurisdiction of the Court when dealing with people
aged under 18 years at the time the alleged offence was
committed.
Clause 1.20 —
Dictionary, new definitions
This clause amends the dictionary to provide that the
definition of “daily care responsibility” and “long-term care
responsibility” in the Children and Young People Act 2008 applies to
the Crimes Act.
Part 1.4 — Crimes
(Sentence Administration) Act 2005
Clause 1.21 — Section
95(1)
This clause will amend subsection 95(1) of the Crimes
(Sentence Administration) Act 2005 to provide that the section will not
apply to young offenders.
Clause 1.22 — Section
96(1)
This clause will amend subsection 96(1) of the Crimes
(Sentence Administration) Act 2005 to provide that the section will not
apply to young offenders.
Clause 1.23 — New
section 102(4)
This clause will amend subsection 102(4) of the
Crimes (Sentence Administration) Act 2005 to provide that the section
will not apply to young offenders.
Clause 1.24 — Section
172(1)(b)
This clause will amend subsection 172(1)(b) of the
Crimes (Sentence Administration) Act 2005 to remove the word phrase young
offender. As a young offender will be covered by the definition of offender,
the Sentence Administration Board will still be able to provide advice with
respect to a young offender upon request from the Minister.
Clause 1.25 — Section
172(2)
This clause will amend sub-section 172(1)(b) of the
Crimes (Sentence Administration) Act 2005 to remove the current
definition of “young offender”, which is to be superseded by the
definition of “young offender” in section 133B of the Crimes
(Sentencing) Act 2005.
Clause 1.26 — Section
213, definition of registered
victim
This clause amends the definition of “registered
victim” in section 213 of the Crimes (Sentence Administration) Act
2005. The new definition reflects that there will be two separate victims
registers; one for adult offenders and one for young offenders.
Clause 1.27 —
Sections 215 and 216
This clause amends section 215 of the Crimes
(Sentence Administration) Act 2005 to create a victims register for the
victims of crimes committed by
adults.
Throughout the Crimes (Sentence
Administration) Act 2005 there are references to registered victims. In the
main, these references are about obtaining victims’ views during relevant
deliberations about an offender’s release, and informing registered
victims about the release of offenders or other relevant
matters.
The relevant Chief Executive for the
purpose of this section is the Chief Executive that administers the Crimes
(Sentence Administration) Act 2005.
If a
victim, or an advocate on the victim’s behalf, requests to be registered
on the register, the Chief Executive must register that
person.
Once registered, the victim must be
told about the role of the Sentence Administration Board, the rights the victim
has to information about offenders and the rights the victim has to information
about an offender’s parole.
Section 215
will not apply to a victims of a crime committed by a young
offender.
Section 215A creates a separate but
similar victims register for the victims of crimes committed by young offenders.
This register will be in substantially similar terms to the one created under
section 215. The relevant Chief Executive for the purposes of this section is
the Chief Executive that administers the Children and Young People Act
2008.
Section 216 provides explicit
authority for the Chief Executive to disclose information about sentenced
offenders to victims of the offender in question. The Chief Executive must be
satisfied that the disclosure is
appropriate.
Examples of disclosures are
provided to remove any doubt.
Clause 215(2)
ensures that parents of victims who are under 15 years-old are privy to the
information that can be disclosed.
Section 216A
provides a separate but similar authority to that contained in section 216 for
the relevant Chief Executive to disclose information about sentenced offenders
to victims of the offender in question. However, the circumstances in which
identifying information about a young offender may be released are far more
limited than they are for adult offenders. Identifying information about a
young offender cannot be released unless the relevant offence was a domestic
violence offence, or an offence that involves causing harm, or threatening to
cause harm, to another person.
The further
limitations applying to when identifying information about a young offender can
be disclosed, as opposed to when information about adult offenders can be
disclosed, are intended to give effect to Articles 8 and 21 of the United
Nations Minimum Standard Rules for the Administration of Juvenile Justice,
which emphasise the need to keep information about individual young offenders
confidential to prevent stigmatisation and reduce the prospects for the young
offender’s rehabilitation and reintegration into the
community.
The ability of the Chief Executive
to release information when the offence committed was a personal violence
offence balances the needs of victims against the interests of young offenders.
Given personal violence crimes are ordinarily more serious than other crimes and
can have a more significant and direct effect on a victim, it is considered
justifiable that identifying information about young offenders be disclosed in
relation to violent crimes. This consideration becomes more acute when there is
cause to suspect that a young offender convicted of a violent crime might engage
in further offending behaviour against a previous victim.
Clause 1.28 — Section
314A, new dot point
This clause amends section 314A of the Crimes
(Sentence Administration) Act 2005 to make it clear that nothing in
the Children and Young People Act 2008, or anything else contained in any
of the other Acts mentioned in the section, effects or modifies the nature and
availability of the common law as it relates to the prerogative of mercy. Any
provisions in the Crime (Sentence Administration) Act 2005 or any other
Act that relate to remissions or pardons are in addition to, and not in place
of, the common law as it relates to the prerogative of mercy.
Clause 1.29 — New
chapter 14A
This clause creates a new Chapter 14A to the Crimes
(Sentence Administration) Act 2005 that sets out particular provisions
dealing with the administration of sentences imposed on young
offenders.
Section 320A explains the purpose of
Chapter 14A and provides that, unless otherwise specified in Chapter 14A, the
provisions of the Crimes (Sentence Administration) Act 2005 apply to the
administration of an adult sentence also apply to the administration of a young
offender’s sentence.
Section 320B
provides that when a decision maker is making a decision under the Act in
relation to a young offender, or is considering whether or not to make a
decision in relation to a young offender, the decision maker must make the
decision in a manner consistent with the best interests of the young offender.
What is and is not in the young offender’s best interests is to be
determined by reference to the young offender principles contained in section 94
of the Children and Young People Act
2008.
Section 320C provides that a
reference in the Crimes (Sentence Administration) Act 2005 to a
correction centre is, in relation to a sentence of imprisonment for a young
offender, a reference to a detention place. This means that provisions in the
Act applying to the administration and management of prisoners in an adult
correctional facility also apply to young offenders in a detention facility
unless Chapter 14A provides otherwise.
Section
320D provides that where the Crimes (Sentence Administration) Act 2005
provides that a decision is to made, or a function is to be exercised by the
Chief Executive, if the decision or function is to be exercised in relation to a
young offender, then a reference to the Chief Executive is to be taken as a
reference to the Chief Executive that administers the Children and Young
People Act 2008.
Section 320E specifies
which government agency is to administer a community-based sentence imposed on a
young offender after they have turned 18. The section provides that the Chief
Executive responsible for administering the Crimes (Sentence Administration)
Act 2005 and the Chief Executive responsible for administering the
Children and Young People Act 2008 must work out between them who is
going to administer the sentence.
The section
is intended to ensure that a flexible approach can be taken to administering the
sentence. For example, if a young offender that had just turned 18 had served
two years of a community based sentence and had one month left to serve, the
Chief Executives could decide that, in the interests of continuity, it would be
best for the Chief Executive responsible for the Children and Young People
Act 2008 to continue to administer the sentence. Similarly, if a young
offender was sentenced for offences of a sexual nature just before they turned
18 but had subsequently turned 18, the Chief Executives may decide that, in
light of specialist programs for dealing with sexual offenders provided by the
Chief Executive responsible for administering the Crimes (Sentence
Administration) Act 2005, it would be best for the young offender’s
sentence to be administered by that Chief
Executive.
In determining which Chief Executive
should administer the sentence, regard must be had to the best interests of the
young offender. This will invariably be influenced by the nature of supervision
each Chief Executive can provide, and the type and availability of programs they
can offer.
Section 320F provides that, if an
authorised person under the Children and Young People Act 2008 believes
on reasonable grounds that a young offender has breached any of the young
offenders good behaviour obligations, the authorised person may make a written
report to the sentencing court about their
belief.
Section 320G provides that where a
person is required to be dealt with by a Court for a breach of a sentence
imposed on the person as a young offender, the breach must be dealt with by the
same Court that imposed the sentence, irrespective of the age of the person at
the time the breach is to be dealt with. This requirement is intended to ensure
continuity in the way the Court deals with the person, and acknowledges the
“case management” role that sentencing courts often undertake.
Section 320H provides that a young offender
who is serving a sentence of imprisonment under the supervision of the Chief
Executive responsible for administering the Children and Young People Act
2008 is not eligible to have their sentence transferred under Chapter 11 of
the Crimes (Sentence Administration) Act 2005. Chapter 11 of that Act
can only apply to young offenders who are serving a sentence of imprisonment
under the supervision of the Chief Executive responsible for administering the
Crimes (Sentence Administration) Act
2005.
Section 320I provides that a young
offender who is under 18 and is subject to community-based sentence is not
eligible to have that sentence transferred under Chapter 12 of the Crimes
(Sentence Administration) Act 2005.
Part 14A.2 — Young
Offenders – Accommodation Orders
Section 320J provides makes it a condition of an
accommodation order that the young offender follow the reasonable and lawful
directions of certain people that the order may require the young offender to
live with. A failure to follow the reasonable direction is to be taken to be a
contravention of the accommodation
order.
Section 320K provides that the Court
that sentenced a young offender to an accommodation order may re-sentence the
young offender if they breach the accommodation order, or a condition of the
accommodation order.
If the Court does decide
to re-sentence the offender, in re-sentencing the young offender the Court must
take into account the fact that the previous accommodation order was made, and
anything done under the order, and any other order made and done in relation to
the offence.
Also, in re-sentencing the young
offender, the Court must not impose a penalty that, when taken together with
anything done under or time served under a penalty already imposed in relation
to the offence, would be greater than the maximum penalty the Court could have
imposed in relation to the offence. This section is to be read in light of the
sentencing methodology contained in the Crimes (Sentencing) Act 2005, and
is intended to be applied in a manner that does not interfere with the right
against double jeopardy contained in section 24 of the Human Rights Act
2004.
Clause 1.30 —
Dictionary, new definitions
This clause adds further definitions to the Dictionary
in the Crimes (Sentence Administration) Act 2005. It provides that a
reference to accommodation order in the Act is to have the same meaning as is
provided under section 113V of the Crimes (Sentencing) Act 2005. It also
provides that a reference to the Chief Executive (CYP) in the Crimes (Sentence
Administration) Act 2005 is a reference to the Chief Executive responsible for
the Children and Young People Act 2008.
Clause 1.31 —
Dictionary, definition of offender, paragraph (a)
This clause amends the definition of offender in the
Dictionary to the Crimes (Sentence Administration) Act 2005 to make
it clear that a reference to an offender in the Act includes a reference to a
young offender that has been convicted or found guilty of an
offence.
Clause 1.32 —
Dictionary, definition of victims
register
This clause omits the definition of victims register
from the Dictionary to the Crimes (Sentence Administration) Act
2005.
Clause 1.33 —
Dictionary, new definition of young
offender
This clause amends the Dictionary in the Crimes
(Sentence Administration) Act 2005 to provide that a reference to a young
offender in the Act is a reference to a person who has been convicted or found
guilty of an offence by a Court which was committed when the person was under 18
years of age.
This definition reflects the
intention that the approach that the Courts should take when dealing with young
offenders will, for the most part, turn on how old the offender was when they
committed the offence, and not how old they are when they are before the
Court.
Part 1.5 Crimes (Sentencing) Act
2005
Clause 1.34 — Section
7(2) new note
This clause introduces a new note to section 7(2) of the
Crimes (Sentencing) Act 2005 (Sentencing Act) to draw attention to
new section 133C in clause 1.75 (discussed below). Clause 133C requires the
Court to consider rehabilitation as the primary purpose of sentencing young
people and allows the Court to give that purpose more weight than the other
purposes in section 7.
Clause 1.35 — Section
8, definition of offender, paragraph (a)
This clause extends the meaning of offender in the
Sentencing Act to include young offenders. Young offender is defined in
new section 133B, clause 1.75. A young offender is a person who has convicted
or found guilty of an offence and was under 18 years old when the offence was
committed.
Clause 1.36 — Section
9, note 1, first dot point
This clause amends the note in section 9 of the
Sentencing Act to also contemplate imprisonment at a detention place if a
young offender is sentenced to imprisonment. New section 133H, clause 1.75,
requires young offenders to be detained at a detention place, rather than a
prison, if the young offender is sentenced to imprisonment. The obligation
applies to people who are under 21 at the time of imprisonment.
Clause 1.37 — Section
9, note 1, new dot point
This clause adds the disposition of accommodation order
to the list of dispositions available to the sentencing court in section 9 of
the Sentencing Act. An accommodation order is a specific order for young
offenders.
Clause 1.38 — Section
10(2), new note 2
This clause inserts a note into section 10 that draws
attention to new section 133G. New section 133G provides further matters that
must be considered by a sentencing court if the Court is sentencing a young
offender to imprisonment.
Clause 1.39 — Section
10(3), note
This clause amends the note in 10(3) that draws
attention to new section 133G. New section 133G provides further matters that
must be considered by a sentencing court if the Court is sentencing a young
offender to imprisonment.
Clause 1.40 — Section
12(4), new note
This clause inserts a note into section 12 that draws
attention to new section 133H. New section 133H obliges sentencing notices and
orders to be given to the parents of young offenders or people with parental
responsibilities for young offenders.
Clause 1.41 — Section
13(3)(a), new note
This clause inserts a note into section 13 that draws
attention to the effect of new section 133J. New section 133J removes any
obligation to include a condition of giving security for a good behaviour order
imposed upon a young offender.
Clause 1.42 — Section
13(3), new note
This clause inserts a note into section 13(3) that
points to the additional conditions that may be included in good behaviour
orders imposed young offenders, as set out in new section 133J.
Clause 1.43 — Section
14(6), new note
This clause inserts a note into section 14 that draws
attention to new section 133H. New section 133H obliges sentencing notices and
orders to be given to the parents of young offenders, or people with parental
responsibilities for young offenders.
Clause 1.44 — Section
16(6), new note
This clause inserts a note into section 16 that draws
attention to new section 133H. New section 133H obliges sentencing notices and
orders to be given to the parents of young offenders, or people with parental
responsibilities for young offenders.
Clause 1.45 — Section
17(5), new note
This clause inserts a note into section 17 that draws
attention to new section 133H. New section 133H obliges sentencing notices and
orders to be given to the parents of young offenders, or people with parental
responsibilities for young offenders.
Clause 1.46 — Section
23(1), new note
Section 23 of the Sentencing Act sets out the
criteria for a Court to make a non-association or place restriction order. This
clause inserts a note into section 23 that points to further consideration the
Court must contemplate when imposing such an order upon a young offender. The
extra consideration is set out in new section 133G.
Clause 1.47 — Section
25(2), new note
This clause inserts a note into section 25 that draws
attention to new section 133H. New section 133H obliges sentencing notices and
orders to be given to the parents of young offenders, or people with parental
responsibilities for young offenders.
Clause 1.48 — Section
29(1)(a), new note
This cause replaces the existing note, with a note that
includes a reference to a detention place. If young offenders are sentenced to
imprisonment, new section 133H will require the person to be detained at a
detention place. Adults sentenced to imprisonment are required to be detained
at a correction centre.
Clause 1.49 — Section
29(1), example 2,
2nd
dot point
This clause omits the reference to detention at a
correctional centre, as the amendments to the Sentencing Act in this
schedule will create an obligation to imprison young people at a detention
places rather than a correction centre.
Clause 1.50 — Section
31(c), example
This clause omits the reference to detention at a
correctional centre, as the amendments to the Sentencing Act in this
schedule will create an obligation to imprison young people at a detention
places rather than a correction centre.
Clause 1.51 — Section
33(1), new note
Section 33 of the Sentencing Act lists particular
matters a sentencing court must consider when sentencing a person. This clause
introduces a note to section 33 that draws attention to further matters listed
in new section 133D that apply when a young offender is
sentenced.
Clause 1.52 — Section
40A, new note
Section 40A of the Sentencing Act lists
presentence report matters a Court may seek to include in a presentence report.
This clause introduces a note that draws attention to additional presentence
report matters listed in new section 133E that apply to young
offenders.
Clause 1.53 — New
section 41(7)
This clause introduces a new subsection to section 41
that defines Chief Executive in a way that enables the relevant Chief Executive
to prepare a presentence report. For young offenders the relevant Chief
Executive will be the Chief Executive responsible for the foreshadowed
Children and Young People Act. For adults the Chief Executive is the
Chief Executive responsible for the Sentencing Act.
Clause 1.54 — New
section 43(1)(b)(iiia)
This clause introduces a new subsection that enables a
presentence report assessor to ask a parent, or someone with parental
responsibility, for information about a young offender. The introduction of
this subsection enables the assessor to ask for information, but does not oblige
the parent or person with parental responsibility, to disclose the
information.
Clause 1.55 — New
section 43(1A)
This clause applies to young offenders who subsequently
become an adult when a pre-sentence report is being conducted. The clause will
protect the person’s right to privacy by preventing the assessor from
seeking information from the person’s parents unless the young offender
gives consent.
Clause 1.56 — New
section 64(3) definition of excluded sentence of imprisonment, new paragraph
(f)
This clause excludes a sentence of imprisonment imposed
upon a young offender from the parole provisions. Instead of using the adult
parole system, the sentencing court must consider making a combination sentence
of imprisonment and a good behaviour order with a supervisory condition, as
discussed in clause 1.75 new section 133G. This method of supervision in the
community reflects current practice exercised by the Childrens
court.
Clause 1.57 — New
section 77(1A)
Section 77 of the Sentencing Act lists criteria
that determine if an offender is eligible for periodic detention. This Bill
will enable a sentencing court to allow a young offender to serve a sentence of
imprisonment by way of periodic detention, if during the sentence of
imprisonment the young offender turns 18.
This
clause limits young offenders’ eligibility for periodic detention to those
young offenders who turn 18 during their sentence of
imprisonment.
Clause 1.58 — Section
82(1)(c)
Young offenders sentenced to imprisonment will be
obliged to be kept in custody at a detention place, consistent with chapter six
of this Bill. This clause amends section 82 to enable the section to
contemplate the place of imprisonment for both adult offenders and young
offenders.
Clause 1.59 — Section
84(1) new note
This clause inserts a note into section 84 that draws
attention to new section 133J. New section 133J obliges sentencing notices and
orders to be given to the parents of young offenders, or people with parental
responsibilities for young offenders.
Clause 1.60 — Section
84(5)
This clause introduces a new subsection to section 84
that defines Chief Executive in a way that enables the relevant Chief Executive
to be notified of a sentence of imprisonment. For young offenders the relevant
Chief Executive will be the Chief Executive responsible for the foreshadowed
Children and Young People Act. For adults the Chief Executive is the
Chief Executive responsible for the Sentencing Act.
Clause 1.61 — Section
85, note 1
This clause amends the note to section 85 of the
Sentencing Act that recites the minimum and maximum hours of community
service that can be imposed upon adult offenders. The amendment adds the
minimum and maximum hours that can be imposed upon young offenders. Clause
1.75, new section 133L, sets the minimum and maximum hours that apply to young
offenders.
Clause 1.62 — Section
91(1), new note
Section 91 of the Sentencing Act prescribes the
hours of community service work that can be imposed upon an adult offender.
This clause adds a note to section 91 that draws attention to new section 133L
that sets out the minimum and maximum hours that apply to young
offenders.
Clause 1.63 — Section
92(3), new note
Section 92 of the Sentencing Act stipulates the
maximum hours of community service work that can be imposed upon an adult
offender when concurrent or consecutive orders are involved. This clause adds a
note to section 92 that draws attention to new section 133L that sets the
minimum and maximum hours that apply to young offenders.
Clause 1.64 — Section
103(1), new note
This clause inserts a note into section 103 that draws
attention to new section 133J. New section 133J obliges sentencing notices and
orders to be given to the parents of young offenders, or people with parental
responsibilities for young offenders.
Clause 1.65 — Section
103(4)
This clause introduces a new subsection to section 103
that defines Chief Executive in a way that enables the relevant Chief Executive
to be notified of a good behaviour order. For young offenders the relevant
Chief Executive will be the Chief Executive responsible for the foreshadowed
Children and Young People Act. For adults the Chief Executive is the
Chief Executive responsible for the Sentencing Act.
Clause 1.66 — Section
113(1) note
This clause removes the current note from this part of
the section. Clause 1.67 reinserts the note.
Clause 1.67 — Section
113(2) new notes
This clause reinserts the existing note in section 113,
which states that one notice may be given for combination
sentence.
This clause inserts another note into
section 113 that draws attention to new section 133J. New section 133J obliges
sentencing notices and orders to be given to the parents of young offenders, or
people with parental responsibilities for young offenders.
Clause 1.68 — Section
121(2), note
This clause inserts a note into section 121 that draws
attention to new section 133J. New section 133J obliges sentencing notices and
orders to be given to the parents of young offenders, or people with parental
responsibilities for young offenders.
Clause 1.69 — New
section 126(5), note
This clause introduces a new subsection to section 126
that defines Chief Executive in a way that enables the relevant Chief Executive
to initiate a review of a deferred sentence order. For young offenders the
relevant Chief Executive will be the Chief Executive responsible for the
foreshadowed Children and Young People Act. For adults the Chief
Executive is the Chief Executive responsible for the Sentencing
Act.
Clause 1.70 — New
section 127(3)
This clause introduces a new subsection to section 127
that defines Chief Executive in a way that enables the relevant Chief Executive
to be notified of a deferred sentence order. For young offenders the relevant
Chief Executive will be the Chief Executive responsible for the foreshadowed
Children and Young People Act. For adults the Chief Executive is the
Chief Executive responsible for the Sentencing Act.
Clause 1.71 — Section
129(5), new note
This clause inserts a note into section 129 that draws
attention to new section 133J. New section 133J obliges sentencing notices and
orders to be given to the parents of young offenders, or people with parental
responsibilities for young offenders.
Clause 1.72 — New
section 129(7)
This clause introduces a new subsection to section 129
that defines Chief Executive in a way that enables the relevant Chief Executive
to be notified of an amended deferred sentence order. For young offenders the
relevant Chief Executive will be the Chief Executive responsible for the
foreshadowed Children and Young People Act. For adults the Chief
Executive is the Chief Executive responsible for the Sentencing
Act.
Clause 1.73 — Section
130(4), new note
This clause inserts a note into section 130 that draws
attention to new section 133J. New section 133J obliges sentencing notices and
orders to be given to the parents of young offenders, or people with parental
responsibilities for young offenders.
Clause 1.74 — New
section 130(6)
This clause introduces a new subsection to section 130
that defines Chief Executive in a way that enables the relevant Chief Executive
to be notified of a deferred sentence order that is cancelled by the sentencing
court. For young offenders the relevant Chief Executive will be the Chief
Executive responsible for the foreshadowed Children and Young People Act.
For adults the Chief Executive is the Chief Executive responsible for the
Sentencing Act.
Clause 1.75 — New chapter
8A
Chapter 8A
— Sentencing young offenders
As discussed in the outline to Schedule 1 (above) this
new chapter sets out a sentencing methodology that reflects the policies
articulated by the CRC and Australian common law. New chapter 8A of the
Crimes (Sentencing) Act 2005 specifically deals with Courts’
sentencing decisions that apply to children and young
people.
The provisions, especially new sections
133C and 133D, are intended by the Government to be the particular expression of
the CRC that applies to the task of sentencing. For the sake of clarity in
statutory interpretation, the encapsulation of the CRC in the young offender
principles at clause 94 of the Children and Young People Bill is not intended to
be a statutory alternative, or substitute, for the effect of new sections 133C
and 133D. The Government considers new Chapter 8A would be justiciable on the
grounds of inconsistency with the Human Rights Act 2004 and relevant
human rights jurisprudence, which would naturally consider the terms of CRC. It
is not intended that the principles of the Children and Young People Bill would
create grounds for review that are abstract from human rights jurisprudence and
Australian common law.
The amendments to the
Crimes (Sentencing) Act 2005 also include specific dispositions relevant
to children and young people, such as education and training conditions,
accommodation orders and supervision conditions.
Part 8A.1
General
Section 133A stipulates that new chapter 8A of the
Crimes (Sentencing) Act 2005 consists of provisions that apply
particularly to children and young people. Any sections, parts, and chapters
that are unaltered by chapter 8A, or other amendments in this Schedule, would
apply to young offenders in the same manner as they apply to
adults.Section 133B provides a definition for
young offender that will be used for the Chapter and the Crimes (Sentencing)
Act 2005. A young offender is a person who has been found guilty or
convicted by a Court and was under the age of 18 years old at the time the
offence was committed.The intent of this
definition is to emphasise that the sentencing court should be sentencing the
person according to their status at the time of the offence. For example, if a
person committed an offence at the age of 15 but were not tried for the offence
until they reached the age of 19, the sentencing court should consider the
offending behaviour in the context of the person being a 15 year-old at the time
of the offence, rather than as a 19
year-old.However, this is not intended to
prevent the sentencing court from contemplating any sentencing considerations in
section 33 of the Crimes (Sentencing) Act 2005 relevant to a young
offender’s current age. For example, employment, whether the person has
dependents, if the offender has made any reparation for the offence
etc.Section 133C modifies the purposes of
sentencing set out in section 7 of the Crimes (Sentencing) Act 2005 in a
manner that is consistent with human rights law and Australian common
law.The International Covenant on Civil and
Political Rights (ICCPR) provides in Article 14(4), which broadly corresponds to
section 22(3) of the Human Rights Act 2004 1994,
that:“In the case of juvenile persons,
the procedure shall be such as will take account of their age, and the
desirability of promoting their
rehabilitation.”In Thorn v
Laidlaw [2005] ACTCA 49 the ACT Court of Appeal
noted:The role of rehabilitation is
particularly relevant in relation to young offenders, a point recently
reiterated by the New South Wales Court of Appeal in R v AEM Snr; KEM; MM
[2002] NSWCCA 58. Beazley JA, Wood CJ at CL and Sully J observed at [97]
that: It is well accepted that in the case
of youth, general deterrence and public denunciation usually play a subordinate
role to the need to have regard to individual treatment aimed at rehabilitation:
see R v DAR (unreported New South Wales Court of Criminal Appeal, 2
October, 1997; R v Mazzilli [2001] NSWCA
117.New section 133C modifies section 7 by
obliging a sentencing court to consider the purpose of rehabilitation when
sentencing a young offender. The new section reflects the common law discretion
to give more weight to the purpose of rehabilitation than any other purpose set
out in section 7(1).The purposes of sentencing
set out in section 7(1) represent the purposes articulated by Courts and
Parliaments accrued over centuries of law. New section 133C aims to maintain
continuity with this law and the particular common law that applies to young
offenders.New section 133C(2) invokes the
sentencing principle of individualised justice. The new section does not intend
to codify the sentencing principle, but intends to emphasise a sentencing
court’s regard for the principle of individualised justice when sentencing
young offenders. This emphasis is consistent with the Australian jurisprudence,
such as R v Voss [2003] NSWCCA 182 and R v Mills [1998] 4 VR
235.The Australian Law Reform Commission sums
up the principle of individualised
justice:5.21 The principle of
individualised justice requires the Court to impose a sentence that is just and
appropriate in all the circumstances of the particular case. Courts have
consistently recognised the importance of this sentencing principle. For
example, in Kable v Director of Public Prosecutions, Mahoney ACJ
stated that ‘if justice is not individual, it is nothing’.
(Kable v Director of
Public Prosecutions (1995) 36 NSWLR 374,
394). Individualised justice can be attained only if a judicial officer
possesses a broad sentencing discretion that enables him or her to consider and
balance multiple facts and circumstances when sentencing an offender. This broad
discretion is required because sentencing is ultimately ‘a synthesis of
competing features which attempts to translate the complexity of the human
condition and human behaviour to the mathematics of units of punishment usually
expressed in time or money’
(Weininger v The
Queen (2003) 212 CLR 629, [24]). [ALRC,
Same Crime, Same Time: Sentencing of Federal Offenders, Report 103,
2006.]Section 133D adds particular sentencing
considerations for young offenders that must be considered by a sentencing court
along with the existing considerations in section 33 of the Crimes
(Sentencing) Act 2005.These new
considerations are tailored for the particular nature of children and young
people, being people who are inherently immature and inexperienced compared to
adults.Section 133D(1)(a) accounts for the
individual issue of maturity if a young offender is found guilty of a crime. A
Court must consider the young offender’s maturity relative to an adult in
a similar situation. A young offender’s immaturity would be a factor that
emphaises the need for rehabilitation and parsimony in
sentencing.Section 133D(1)(b) enables the
Court to consider the young offender’s individual state of development in
the context of the offending behaviour. For example, while a young person may
be 17 years of age their state of development may not have progressed to a
degree expected of most 17 year-olds. State of development may be akin to
maturity in many cases, but can also reflect the ability, inability, or
limitations, of the young person to engage with the world and the
community.Section 133D(1)(c) allows the young
offender’s family circumstances to be considered. In some cases offending
behaviour by children or young people can be triggered by family circumstances
or evolve in a context of dysfunctional family life. This subsection requires
the Court to consider that context when sentencing a young
offender.Section 133E enables youth justice
workers preparing pre-sentence reports to examine, inquire and report on the
matters set out in section 133D.Section 133F
enables the Chief Executive responsible for the Children and Young People
Act to advise the Court on the availability of resources needed to implement
a particular sentence a sentencing court is considering to impose upon a young
offender.Section 133G sets out particular
limitations and qualifications that apply if a Court is sentencing a young
offender to imprisonment. Any sentence of imprisonment upon a young offender
must be for the shortest appropriate term and as a last
resort.If a Court decides to impose a sentence
of imprisonment the Court must consider making a combination sentence that also
imposes a good behaviour order with a supervision condition following the period
of imprisonment.This provision replaces the
existing statutory remission scheme. A statutory remissions scheme administered
by the Executive is inconsistent with human rights, primarily because of the
distinction between the fair trial requirements for administrative and criminal
proceedings.In Engel v Netherlands
(1979–80) 1 EHRR 647 the European Court of Human Rights determined a set
of criteria that enables sanctions imposed upon a person by a state to be
characterised as either criminal or administrative. Any sanction imposed by a
state requires commensurate fair trial protections under human rights law.
However, the extent of the fair trial protections required depends upon whether
the sanction is objectively characterised as criminal or administrative. The
criteria for characterisation were:•
the
classification of the offence in domestic
law;•
the nature of the offence;
and•
the severity of the
punishment.This precedent was followed in
Ezeh and Connors v United Kingdom (2004) 39 EHRR 1, where the Court
characterised the power of a prison authority to add days to a sentence without
further reference to a Court as a criminal matter, not an administrative
one.The case of Campbell and Fell v United
Kingdom (1985) 7 EHRR 165, also followed the criteria in Engel, when
the Court considered whether the character of charges laid in a prison
discipline process were criminal or administrative in
nature.In Campbell and Fell the Court
also examined the issue of the practice of granting and cancelling remissions.
The Court noted the English law on the issue that determined that statutory
remission was a legitimate expectation that the prisoner would be released
earlier than the nominal term of imprisonment. The European Court noted Lord
Justice Waller in the UK decision of R v Board of Visitors of Hull Prison; ex
parte St Germain (No.1) [1979] QB 425
that:Whether it [full remission] is a
right or a privilege a prisoner can expect to be released on that date unless he
is ordered to forfeit some remission. Lord Reid quoted deprivation ‘of
rights or privileges’ as being of equal importance, and I respectfully
agree with him. Whether remission is a right or a privilege is in my opinion
immaterial. It is only necessary to consider the case of [X], who was ordered to
forfeit 720 days. As a result he would have to serve nearly two years beyond his
earliest date of release. It was a very substantial privilege which he had lost.
([1979] 1 All England Law Reports, pp.
723j-724b)The European Court also decided in
Campbell and Fell that: . . . that
deprivation of liberty liable to be imposed as a punishment was, in general, a
penalty that belonged to the “criminal” sphere . . . the Court is of
the opinion that the forfeiture of remission which Mr Campbell risked incurring
and the forfeiture actually awarded involved such serious consequences as
regards the length of his detention that these penalties have to be regarded,
for Convention purposes, as “criminal”. By causing detention to
continue for substantially longer than would otherwise have been the case, the
sanction came close to, even if it did not technically constitute, deprivation
of liberty and the object and purpose of the Convention require that the
imposition of a measure of such gravity should be accompanied by the guarantees
of Article 6. ((1985) 7 EHRR 165, para
72.)Consequently, decisions concerning
remissions therefore must be dealt with by an independent body. A process that
enables the Executive to grant and revoke remissions administratively would be
inconsistent with human rights jurisprudence that requires a standard of fair
trial akin to a criminal procedure.As
mentioned in the note to the section, there is also no provision to apply the
adult parole system to young offenders. Given the small number of young
offenders, the Government has decided at this stage not to construct a parole
system for young offenders but instead formalise the current practice of the
Childrens court.The effect of combining a
sentence of imprisonment and a good behaviour order with a supervision condition
meets the rehabilitative goal of supervising a young person’s return to
the community akin to a parole system. If a young person breaches their good
behaviour order, the person is brought before the sentencing court, and the
Court’s sentencing jurisdiction is
re-enlivened.Section 133G(4) prohibits the
imposition of a life sentence upon a person who committed an offence when they
were under 18 years old.Section 133H
distinguishes the place of imprisonment for young offenders from the place of
imprisonment for adult offenders.This new
section obliges the Executive to imprison young offenders who are not yet 21
years old at a facility for children and young people, a ‘detention
place’. However, the section is subject to division 5.2.3 of the
Children and Young People Act (discussed in the main body of this Bill),
which enables the Chief Executive to transfer people over 18 to an adult
facility in certain circumstances. Division 5.2.3 also requires adults reaching
the age of 21 to be transferred from a youth facility to an adult
facility.The new Section only applies to young
offenders, namely people who committed an offence when they were under 18
years-old. A person who committed an offence after turning 18, but was not 21
years-old at the time of sentencing, would still be required to serve a sentence
of imprisonment at an adult
facility.Provisions governing a detention
place are at chapter 6 of the Children and Young People
Bill.Section 133I adds further qualifications
to non-association and place restriction orders set out in part 3.4 of the
Crimes (Sentencing) Act 2005.Any
non-assocation order or place restriction order being considered by a sentencing
court for a young offender must not interfere with the young offenders access to
education or public transport.Section 133J
obliges the sentencing court to provide copies of sentencing orders and notices
to young offenders’ parents and people who have parental
responsibility.Section 133K enables any
references in the Crimes (Sentencing) Act 2005 to a correctional centre
to be interpreted as a detention place if the provision is being exercised in
relation to a young offender who is ordered to serve
imprisonment.Likewise, a reference to a
corrections officer should be interpreted as being a reference to a youth
detention officer defined in the Children and Young People
Bill.
Part 8A.2 Young offenders
— good behaviour
orders
Division
8A.2.1 — Young offenders — good behaviour orders
generally
Section 133L modifies the condition of community
service that can be imposed as part of a good behaviour order. Currently
section 92 of the Sentencing Act stipulates the minimum and maximum hours
of community service work that can be imposed upon an adult offender. New
section 133L sets a different number of minimum and maximum hours that the
sentencing court can impose upon young
offenders.
For young offenders, community
service must be at least 20 hours and not more than 200 hours. In setting
community service hours, the sentencing court must also ensure that the
community service does not interfere with the young offender’s access to
education and training. For example, for a young offender attending school, the
Court would need to consider an amount of community service that would not
impinge upon normal school hours. Likewise, for a young offender attending
technical college or another similar institution, the Court would need to
consider the time the young offender is required to attend the
institution.
The new section also limits the
maximum time a community service condition to 12
months.
New section 133L(3) ensures that any
concurrent or consecutive good behaviour order imposing community service upon a
young offender does not result in a combined maximum number of hours greater
than 200 hours.
New section 133M modifies the
conditions that can be imposed as part of a good behaviour order when applied to
young offenders. The effect of (1) is to remove the condition of giving
security for complying with a good behaviour order. The Government considers
children and young people as having little or no capacity to provide monetary
security for compliance with a good behaviour
order.
The effect of (2) is to provide the
sentencing court with two further conditions when sentencing young offenders.
An education and training condition and a supervision condition are sentencing
dispositions specifically available for young offenders that are not available
to adults.
Division 8A.2.2 — Good
behaviour orders — education and training conditions
This division sets out the eligibility and suitability
for imposing an education and training condition as part of a good behaviour
order.
Section 133N defines an education and
training condition.
Section 133O specifies that
the division applies if the Court considers imposing an education and training
condition as part of a good behaviour
order.
Section 133P stipulates that the
condition can only be made as part of a good behaviour order imposed upon a
convicted young offender.
Section 133Q sets out
the criteria that must be satisfied before the Court may impose a education and
training condition. The Court must be satisfied that the particular training or
education proposed is suitable for the young offender; that it is appropriate
the young offender engage in the proposed education or training; and there is
actually a place in an educational institution or program available for the
young offender.
Section 133R sets out the
criteria the Court must consider to ascertain if the young offender is suitable
for an education or training condition. The pre-sentence report provides the
Court with information and recommendations about young offenders’
suitability for education or training. If the Court decides to act contrary to
any recommendation the pre-sentence report, subsection (4) obliges the Court to
record its reasons for the decision. A record of reasons will provide enable
youth justice officers administering the sentence with the rationale for the
sentence.
Section 133S stipulates that the
Court may only impose an education or training condition for a maximum of 3
years.
Section 133T ensures that in the rare
circumstance that a young offender is subject to two or more good behaviour
orders with education or training conditions, the maximum time for the condition
remains 3 years.
Division 8A.2.3 — Good
behaviour orders — supervision conditions
This division sets out the detail of supervision
conditions that can be imposed upon young offenders, as enabled by new section
133M.
New section 133U defines supervision
condition. A supervision condition requires the young offender to comply with
directions given by the Chief Executive or the Chief Executive’s delegate.
A supervision condition also triggers the Chief Executive’s powers to
require information from agencies or other entities involved in directly
supervision the young offender. For example, if the young offender was involved
in a rehabilitation program, the Chief Executive may require relevant
information from the program to assist with the supervision of the young
offender.
The Chief Executive contemplated by
the definition is the Chief Executive responsible for administering the
sentence. In some cases sentenced young offenders who turn 18 may have their
sentences administered by the adult system. (See new section 320I under clause
1.30 above.)
New section 133V obliges the
sentencing court to impose a supervision condition if the Court is also imposing
either a community service condition, a rehabilitation condition or education
and training condition as part of a good behaviour order. 133V(2) aims to
clarify that it is not the Government’s intention that the circumstances
in (1) are the only circumstances where a supervision condition can be imposed
as part of a good behaviour order. 133V is not intended to prevent the
sentencing court from imposing a supervision condition alone as part of a good
behaviour order.
Section 133W sets a maximum
period for supervision conditions of three
years.
Section 133X stipulates that in the
event that two or more good behaviour orders are made in relation to a young
offender that include supervision conditions, the total period of supervision
must not be longer than three years.
Division 8A.3 — Young
offenders — accommodation orders
Section 133Y defines what an accommodation order is. An
accommodation order is a Court order that requires a young offender to live at a
specific place, or with a specific person. An accommodation order can be
require the young offender to live at a place or with a person either within the
Act, or outside of it. The order itself can provide where the young offender
must live, or who they must live with, or the order can empower the Chief
Executive responsible for administering the order to make that decision. If the
order leaves it to the Chief Executive to make the decision, the Chief Executive
can change the terms of the order as circumstances require. A person can be
subject to more than one accommodation order at any given point in
time.
The Chief Executive contemplated by the
definition is the Chief Executive responsible for administering the sentence.
In some cases sentenced young offenders who turn 18 may have their sentences
administered by the adult system. (See new section 320I under clause 1.30
above.)
Section 133Z provides that the Court
can make an accommodation order in relation to a young offender if that young
offender has been convicted of an
offence.
Section 133ZA sets out a number of
criteria that must be satisfied before the Court can make an accommodation
order.
Section 133ZB(1) sets out a number of
criteria that the Court must have regard to before making a young offender
order. These include any pre-sentence report or relevant sentencing
information, any medical records provided to the Court, and any other admissible
material that the Chief Executive responsible for administering the Children
and Young People Act 2008 provides.
The
criteria listed in section 133ZB are not exhaustive, and the Court may have
regard to other relevant matters in deciding whether to impose an accommodation
order.
Subsection 133ZB(3) provides that the
Court may make, or decline to make, an accommodation order notwithstanding any
recommendation or indication in a pre-sentence report or other evidence on the
appropriateness of making such an order. However, subsection 133ZB(4) provides
that if the Court makes, or declines to make, an accommodation order against a
recommendation in a pre-sentence report, the Court must record its reasons in
writing for its decision to make, or not make, an accommodation order.
Subsection 133ZB(5) provides that a failure to comply with subsection 133ZB(4)
will not invalidate an accommodation order that is
made.
Section 133ZC provides that an
accommodation order must not be longer than three
years.
Section 133ZD provides that if a young
offender is the subject of an accommodation order, and the Court makes a further
accommodation order, the Court may direct how the new order and the existing
order work together. For example, the Court might direct that to the extent
that to the extent the two order are inconsistent, the second order is to
prevail. Subsection 133ZD(2) provides that the new order must not last longer
than three years.
Clause 1.76 — Section
136(4), definition or criminal justice
entity, paragraph (c)
This clause amends section 136 of the Crimes
(Sentencing) Act 2005 to provide that the Chief Executive responsible for
that Act and the Chief Executive responsible for the Children and Young
People Act 2008 are criminal justice entities for the purpose of that
section.
Clause 1.77 —
Dictionary, new definition of accommodation order
This clause inserts a new definition of accommodation
order into the Sentencing Act. Accommodation orders are dispositions specific
to children and young people. The order is discussed at new part 8A.3
above.
Clause 1.78 —
Dictionary, definition of
at
To remove any doubt, a definition of ‘at’ is
included in the dictionary. The definition includes a person being
‘in’ a correctional centre or detention place.
Clause 1.79 —
Dictionary, new definitions
This clause adds a definition of ‘Chief Executive
(CYP)’, who is the Chief Executive responsible for the Children and
Young People Act.
A ‘detention
place’ is the term used for the facility that will be used to detain
children and young people. The facility is authorised and defined in the
Children and Young People
Act.
‘Education and training
condition’ is defined in the dictionary by reference to new section 133N.
An education and training condition is a condition of a good behaviour order
available only for children and young people. It is discussed above under new
Division 8A.2.2.
Clause 1.80 —
Dictionary, definitions of presentence report matter
This clause re-makes the definition of
‘pre-sentence report matter’ to include the new matters relevant to
young offenders set out in new section 133E.
Clause 1.81 —
Dictionary, new definitions
This clause adds new definitions that are relevant to
young offenders. A ‘supervision condition’ is a condition of a good
behaviour order available only for children and young people. It is discussed
above under new Division 8A.2.3.
A new
definition of ‘young offender’ is also included. Young offender is
discussed at new section 133B above.
Part 1.6 — Criminal Code
2002
Clause 1.82 — New
Section 712A
This clause creates a new offence in the Criminal
Code 2002 of publishing information that identifies someone else as a person
who is or was a child or young person the subject of a children’s
proceeding. The offence is punishable by a maximum penalty of 300 penalty
units, three years imprisonment, or both.
As no
fault elements are specified in the offence, and the offence has a conduct
element (publishing), and an element consisting of a result (identifying the
subject of children’s proceedings), section 22 of the Criminal Code
provides that there will be two fault elements, being intention and
recklessness. In order to prove the offence, the prosecution will need to show
that the defendant intended to publish information, and was reckless as to
whether the information identifies someone (other than the defendant) as a
person who is or was a child or young person the subject of a children’s
proceeding.
Anyone who is prosecuted for this
offence and published information pursuant to a function in another law (which
is defined in the Legislation Act 2001 to include a duty, power or
obligation) will be able to raise the defence of lawful authority contained in
section 42 of the Criminal Code
2002.
Subsection712A provides that
information that identifies someone includes information that discloses the
name, address or suburb of the person, or of a family member of the person, or
would allow the identity of the person as a child or young person the subject of
children’s proceedings could be worked out.
Subsection 712A(4) makes it clear that the mere
fact that a person is entitled to attend a children’s proceeding does not
authorise that person to publish identifying information. This would mean, for
example, if a victim of crime attended a children’s proceeding and
subsequently disclosed identifying information to another person without lawful
authority, they could be committing the
offence.
Subsection 712A(5) defines a number of
terms used in the offence. The term children’s proceeding is defined
broadly to express the Government’s intention to contemplate any
proceeding listed where a child or young person was the subject of proceedings.
It is immaterial whether the proceeding was bought before this offence is
enacted. For example, a proceeding relating to an application for an interim
care and protection order which was bought under the Children and Young
People Act 1999 and heard in May of 2004 would be a proceeding to which the
offence relates.
Similarly, the definition of
publish is very broad. The definition is intended to capture not only media
publication, but any communication of information between the defendant and
another person where there is no law authorising that communication, and the
communication identifies someone else as a person who is, or was, a child or
young person the subject of a children’s
proceeding.
The offence intends to give effect
to Rule 21.1 of the 1985 United Nations Minimum Rules for the Administration
of Juvenile Justice, and protect the privacy of children and young people
involved in children’s proceedings. Although there is a public interest
in the general nature of children’s proceedings being made public, there
is no inherent right for the public to know the name, or identifying details, of
a child or young person who is the subject of children’s proceedings. Any
interest the public might have of knowing all the details of such a proceeding
is overwhelmingly outweighed by the need to protect the child or young
person’s privacy, and prevent any prejudice to the rehabilitation and
future development in life of the child or young
person.
Subsection 712A(3) details a number of
circumstances when the offence will not apply. It is considered that if the
circumstances described in 712A(3) exist, the public interest in having access
to the information outweighs the subject of the person’s right to
privacy.
Part 1.7 — Evidence
(Miscellaneous Provisions) Act 1991
Clause 1.83 — New
Division 1.84
The section is based on section 88 of the Children
and Young People
Act 1999 and creates a
presumption that evidence that has been obtained in contravention of, or as a
consequence of, a contravention of Part 1C of the Crimes Act 1914 (Cth)
or Part 10 of the Crimes Act 1900 should be excluded.
Upon an objection from the accused under this
section, the burden will be on the accused to prove that the evidence was
obtained unlawfully. If the Court is satisfied on the balance of probabilities
that the evidence was obtained unlawfully, there is a presumption that it will
be excluded unless the prosecution can satisfy the Court of the matters stated
in section 81A(2).
If it is established that
evidence that has been obtained in contravention of, or as a consequence of, a
contravention of Part 1C of the Crimes Act 1914 (Cth) or Part 10 of the
Crimes Act 1900, the legal test for its admission is significantly more
rigorous than that contained in section 138(1) of the Evidence Act 1995
(Cth).
The high threshold is based on the
particular vulnerability of children and young people in the criminal justice
system and the need to ensure compliance with procedural safeguards protecting
their rights and interests, and general public policy considerations on the need
for authorities to adhere to the rule of law. Such considerations were
articulated by Stephen and Aiken JJ in Bunning v Cross (1978) 141 CLR 54
at 74 when they cautioned against “the undesirable effect of curial
approval, or even encouragement, being given to the unlawful conduct of those
whose task it is to enforce the law”. The same point was made by Clark J
of the US Supreme Court in Mapp v Ohio 367 US 643, 658 (1961) in the
context of the Courts power to exclude illegally obtained evidence when the
stated that:
“The criminal goes free
if he must, but it is the law that sets him free. Nothing can destroy a
government more quickly than its failure to observe its own laws... As Mr
Justice Brandeis, dissenting, said in Olmes v The United
States:
Our Government is the potent, the
omnipresent teacher. For good or for ill, it teaches its whole people by its
example... If the Government becomes a lawbreaker, it breads contempt for the
law; it invites every man to become a law unto himself; it invites
anarchy”.
Subsection 81A(3) lists a
number of factors that the Court must have regard to in deciding whether it is
in the public interest to admit evidence under subsection
81A(2).
This section is in addition to section
138 of the Evidence Act 1995 (Cth), and does not limit the application of
section 138 as it relates to illegal or improperly obtained evidence not
concerning Part 1C of the Crimes Act 1914 (Cth) or Part 10 of the
Crimes Act 1900.
Part 1.8 — Magistrates
Court Act 1930
This part makes a number of consequential amendments to
the Magistrates Court Act 1930 creating a division of the Magistrates
Court to be known as the Childrens court, and detailing the jurisdiction and the
powers of that Court.
Clause 1.84 — New
chapter 4A
This clause creates a new Chapter 4A of the
Magistrates Court Act 1930 which creates a division of the Magistrates
Court to be known as the Childrens
court.
Section 287 provides that the
Magistrates Court is to be known as the Childrens Court when exercising
jurisdiction under section 288 of the Magistrates Court Act 1930,
or is constituted by a Magistrate acting under section 291C or 291D(2) of
the Act. It is important to emphasise that the Childrens Court will be part of
the Magistrates Court, and not separate from it. As such, a reference to the
Magistrates Court will include a reference to the Childrens Court, and the
powers and jurisdiction provided to the Magistrates Court apply to the Childrens
Court, unless another provision in the Magistrates Court Act or any other
Territory law provide otherwise.
As the
Childrens Court is part of the Magistrates Court, it may use the seal of the
Magistrates Court.
Section 288 creates the
jurisdiction of the Childrens Court. The Childrens Court has jurisdiction to
hear any criminal prosecution of a person who was under 18 years of age when
they were alleged to have committed an offence, irrespective of how old the
person is when they are bought before the Court. The Court does not, however,
have jurisdiction to deal with the prosecution of a crime punishable by life
imprisonment. The Court also has jurisdiction and to deal with applications and
proceedings under the Children and Young People Act 2008.
As part of its criminal jurisdiction, the
Childrens Court is to be responsible for hearing bail applications for children
and young people.
Subsection 288(1)(a) needs to
be read together with Part 4A.3 of the Magistrates Court Act 1930 and
section 375 of the Crimes Act 1900. The jurisdiction created in section
288 is subject to section 375(1) of the Crimes Act 1900. That is to say,
the Childrens Court does not have the power to hear a criminal matter summarily
unless it is open to the Court to do so under section 375 of the Crimes Act
1900. To be clear, the maximum penalty that the Childrens Court can impose
upon hearing a matter summarily is two years
imprisonment.
Subsection 288(1)(b) gives the
Childrens Court the jurisdiction to hear and decide any application or other
proceedings under the Children and Young People Act
2008.
Section 289 specifies how people aged
under 18 when they were alleged to have committed an offence are to be dealt
with if they are jointly charged with a person who was an adult at the time the
offence was alleged to have been committed. Sub-section 289(1) provides that in
such a circumstance, the child is to be taken to have been charged separately,
which will mean they are to be dealt with in the Childrens Court unless the
matter is to be dealt with on indictment, or the Childrens court has remanded
the matter to the Supreme Court for
sentencing.
Sub-section 289(2) provides an
exception to sub-section 289(1) when dealing with committal proceedings. The
sub-section provides that, if a person was a child or young person at the time
they were alleged to have committed an offence is jointly charged with a person
who was an adult at the time the offence was alleged to have been committed, the
Magistrate may order that the child or young person be subject to the same
committal processes as their
co-accused.
Section 290 that the Chief
Magistrate is responsible for the way in which the Childrens Court goes about
conducting its business. The section also enables the Chief Magistrate to make
arrangements for appointing and assigning Magistrates to conduct the business of
the Childrens Court. The section requires the Chief Magistrate to consult the
other Magistrates before making
arrangements.
Section 291 provides that that
all criminal proceedings that the Childrens Court has jurisdiction to hear under
section 288 of the Magistrates Court Act 1930 must be heard by the
Childrens Court. Put differently, all matters which the Magistrates Court has
jurisdiction to hear must be heard by the Childrens Court if the accused is a
child or young person. This is subject to sections 291C and 291D. This
exception acknowledges that the Childrens Court Magistrate may not be available
from time to time and there will be a need for other Magistrates to undertake
the work of the Childrens Court.
This section
does not prevent a Magistrate other than the Childrens Court Magistrate from
admitting a child or young person to bail under the Bail Act 1992. It is
envisaged that this exception will be primarily utilised when the Magistrates
Court sits on a Saturday morning to hear bail applications.
Part 4A.2 — Childrens
Court Magistrate
Part 4A.2 deals with the assignment of Magistrates to
deal with the work of the Childrens
Court.
Section 291A requires the Chief
Magistrates to appoint a Magistrate to be the Childrens Court Magistrate. The
Chief Magistrate can appoint himself or herself as the Childrens Court
Magistrate. The appointment is to be for a period of two years, and must be
revoked if the Childrens Court Magistrate requests in writing that the
appointment be revoked.
Section 291B provides
that an acting Childrens Court Magistrate can only be appointed is there is no
Childrens Court Magistrate, i.e. there is an ongoing vacancy, or is absent from
duty or cannot exercise the functions of the Childrens court Magistrate for
another reason. This section acknowledges that the Childrens Court Magistrate
may not be available from time to time and there will be a need for other
Magistrates to undertake the work of the Childrens Court. When a Magistrate
other than the Childrens Court exercises jurisdiction under section s 291B, then
the proceedings are to be taken to be heard in, or dealt with by, the Childrens
Court.
Section 291C is based on existing
section 53A and allows a Magistrate to be assigned to deal with a Childrens
Court matter in instances where there is a conflict of interests or the
likelihood of a prejudicial delay. The clause sets out criteria which must be
satisfied before such an assignment can be made. Importantly, one of those
criteria is that the Chief Magistrate’s decision to appoint another
Magistrate to hear a matter made in accordance with the best interests of the
accused.
Section 291D is based on existing
section 53B and allows a Magistrate to continue to hear and finally decide a
matter that they have commenced if during the matter they cease to be the
Childrens Court Magistrate or to hold an assignment under section 291B (Acting
Childrens Court Magistrate) or 291C (Assignment of other Magistrates for
Childrens Court matters). This section acknowledges that, in light of the case
management role undertaken by the Childrens court, it might be in the young
offender’s best interests to have the same Magistrate continue to preside
over their matter in the interests of continuity and that Magistrates unique
understanding of any circumstances relevant to the matter.
Part 4A.3 — Criminal
proceedings
Section 291E is based on existing sections 89, 91 and 93
and enables the Childrens Court to deal with indictable matters summarily if it
is satisfied that it can be properly disposed of this way, the child or young
person agrees and the offence is not punishable by imprisonment for life. Where
this does not occur reasons must be
recorded.
Section 291E must be read in
conjunction with section 375 of the Crimes Act 1900. If the Childrens
Court does not have the power to hear a matter summarily under section 375 of
the Crimes Act 1900, or has the power to hear a matter summarily under
section 375 but declines to, then the Court must deal with the matter under Part
3.5 of the Magistrates Court Act 1930.
Section 291F is based on existing sections
89 and 91 and lists the matters the Childrens Court must consider in making a
decision where a case can be properly disposed of summarily. This section must
be read together with section 291E(1)(a). Where the Childrens Court considers
that a term of imprisonment exceeding two years may be an appropriate sentence
if the offence is proved it should decline to dispose of the offence
summarily.
Section 291F is a procedural
safeguard that allows the Childrens Court may adjourn a hearing to allow the
child or young person, their parent or responsible person to get legal
advice.
Section 291G applies if the Childrens
Court convicts a child or young person of an indictable offence. The section
allows the Childrens Court to send a young person to the Supreme Court for
sentencing as is that Court had convicted the young person. The Childrens Court
must consider any report under section 74D of the Court Procedures Act
2004 and may only exercise the power if it is satisfied that the young
person should be sentenced because of his or her character or history. Also,
given that the Childrens Court cannot impose a sentence of more than two years
imprisonment, it may refer a matter to the Supreme Court if it considers that a
sentence of more than two years imprisonment might be
appropriate.
Statutory
Instruments under the Children and Young People Bill 2008
This table provides an overview of statutory instruments
under the Children and Young People Bill 2008.
|
Clause
No
|
Clause Heading
|
Instrument
|
Statutory Instrument
Type
|
Who Can Make
|
|
Chapter 2 Administration
|
|
38
|
Official visitors—appointment
|
The Minister must appoint at least 1 Official
Visitor.
The Minister may appoint a person as
an Official Visitor only if satisfied that the person has suitable
qualifications or experience to exercise the functions of an Official
Visitor.
Certain Ministerial appointments
require consultation with an Assembly committee and are disallowable (see
Legislation Act, div 19.3.3).
|
Disallowable Instrument
|
Minister
|
|
43
|
Complaints guidelines
|
The Minister may make guidelines, consistent with this
part, about the handling of complaints by Official
Visitors.
The guidelines must include a
schedule that sets out—
• each
detention place, therapeutic protection place and place of care that an Official
Visitor must inspect; and
• how often the
Official Visitor must inspect each place.
|
Notifiable Instrument
|
Minister
|
|
Chapter 3 Family group
conferences
|
|
78
|
Family
group conference facilitators—appointment
|
The Chief Executive may appoint a person as a
facilitator (a family group conference facilitator) for this
chapter.
However, the Chief Executive may
appoint a person to be a family group conference facilitator only if
satisfied—
• that the person has
suitable qualifications and experience to exercise the functions of a family
group conference facilitator; and
• if the
person is not a public employee—that the person is a suitable entity to be
a family group conference facilitator.
|
Notifiable Instrument
|
Chief Executive
|
Chapter 5 Criminal matters –
transfers
|
|
114
|
General
agreements with other jurisdictions
|
The Minister may enter into an agreement (a transfer
agreement) with a Minister of a State, or a person authorised to enter into
a transfer arrangement for the Minister, providing generally for the transfer of
young offenders—
• from or to the ACT;
or
• through the ACT from a State to another
State.
A transfer agreement relating to a State
must not be entered into unless a declaration under subsection (3) has been
notified under the Legislation Act in relation to the
State.
The Minister may, in writing, declare
that a State has enacted legislation dealing with the interstate transfer of
young offenders.
A declaration is a notifiable
instrument.
|
Notifiable Instrument
|
Minister
|
Chapter 6 Criminal matters – detention
places
|
|
141
|
Detention
places—declaration
|
The Minister may declare a place to be a detention
place.
|
Notifiable Instrument
|
Minister
|
|
142
|
Youth
detention policies and operating procedures
|
The Chief Executive may make youth detention policies
and operating procedures, consistent with this Act, to facilitate the effective
and efficient management of detention services for young
detainees.
|
Notifiable Instrument
|
Chief Executive
|
|
143
|
Exclusion
of matters from notified youth detention policies etc
|
The Chief Executive may exclude from a youth detention
policy or operating procedure notified or available for inspection in accordance
with section 142 any matter that the Chief Executive believes on reasonable
grounds would be likely to
disclose—
• information that may
endanger public safety or security or good order at a detention place;
or
• anything prescribed by
regulation.
If subsection (1) applies to a
youth detention policy or operating
procedure—
• the policy or procedure
must contain a statement about the effect of this section;
and
• the excluded matter must be available
for inspection, on request, by any of the
following:
• a
judge;
• a Magistrate;
• a member of the Legislative
Assembly;
• a commissioner exercising
functions under the Human Rights Commission Act
2005;
• the Public
Advocate;
• the
Ombudsman;
• an Official
Visitor;
• anyone to whom this section
applies because of a declaration under subsection
(3).
The Minister may declare that this section
applies to a stated person. A declaration is a notifiable
instrument.
|
Notifiable Instrument
|
Minister
|
|
146
|
Prohibited areas
|
The Chief Executive may, in writing, declare an area of
a detention place to be a prohibited area if the Chief Executive believes on
reasonable grounds that the declaration is necessary or prudent to ensure 1 or
more of the following:
• the safety of anyone
at the detention place;
• security or good
order at a detention place;
• that the best
interests of detainees are protected.
|
Notifiable
Instrument
(Legislation Act
2001)
|
Chief Executive
|
|
147
|
|
The Chief Executive may declare a thing to be a
prohibited thing if the Chief Executive believes on reasonable grounds that the
declaration is necessary or prudent to ensure security or good order at a
detention place.
|
Notifiable Instrument
|
Chief Executive
|
|
148
|
|
This section applies if the Chief Executive believes on
reasonable grounds that an emergency (including an imminent emergency) exists in
relation to a detention place that threatens or is likely to
threaten—
• good order or security at
the place; or
• the safety of anyone at the
place or elsewhere.
The Chief Executive may declare
that an emergency exists in relation to the detention place for a stated period
of not more than—
• 3 days;
or
• if another period is prescribed by
regulation—the period prescribed.
To remove
any doubt, the Chief Executive may make declarations for 2 or more
consecutive periods under this section in relation to the same
emergency.
A declaration
commences—
• when it is made;
or
• if it provides for a later
commencement—on that later commencement.
The
first declaration in relation to an emergency is a notifiable
instrument.
A declaration for a second or
subsequent consecutive period in relation to the same emergency is a
disallowable instrument.
An instrument under
subsection (5) or (6) must be notified under the Legislation Act not later than
the day after the day it is made.
|
Notifiable
Instrument
- initial
declaration
Disallowable
Instrument - subsequent declarations
|
Chief Executive
|
|
165
|
Requirements and
considerations about placement and separation of young
detainees
|
A youth detention policy or operating procedure may make
provision, consistent with this section, in relation to the placement and
separation of young detainees, including separation
for—
• use of facilities;
and
• participation in education or other
activities.
|
Notifiable Instrument
|
Chief Executive
|
|
166
|
Food and drink
|
A youth detention policy or operating procedure may
include provision for any of the following:
• the nutritional standards to be met by
food and drink for young detainees;
• the
provision of nutritional advice about food and drink provided to young
detainees;
• the appointment of a
nutritionist.
|
Notifiable Instrument
|
Chief Executive
|
|
170
|
Treatment of convicted and
non-convicted young detainees
|
Without limiting section 142 (Youth detention policies
and operating procedures), the Chief Executive must make a youth detention
policy or operating procedure providing for different treatment of convicted
young detainees and non-convicted young detainees.
|
Notifiable Instrument
|
Chief Executive
|
|
173
|
|
An operating procedure may include provision regulating
the following in relation to young detainees’ telephone
calls:
• the times for making or receiving
calls;
• the frequency and length of
calls;
• payment for the cost of calls
made.
|
Notifiable Instrument
|
Chief Executive
|
|
174
|
Mail
|
(6) An operating procedure may include provision
regulating the following in relation to young detainees’
mail:
• the way mail is sent or
received;
• the provision of writing and
other material for sending mail;
• the
storage, and return to the detainee, of mail for which a direction is given
under subsection (4).
|
Notifiable Instrument
|
Chief Executive
|
|
179
|
|
A regulation may make provision in relation to health
services for young detainees, including provision about the
following:
• the provision of health service
clinics for young detainees;
• appointments
for young detainees with health
professionals;
• rehabilitation for young
detainees who suffer personal injury arising out of or in the course of their
detention;
• security arrangements for young
detainees visiting health professionals or health facilities, particularly
outside detention places.
|
Regulation
|
Executive
|
|
185
|
Health reports
|
The Chief Executive must ensure that a treating doctor
assesses the report from a relevant Chief Executive and includes a statement of
the young detainee’s condition (the health schedule) in the young
detainee’s case management plan (if
any).
A youth detention policy or operating
procedure may include provision in relation to the health schedule, including
provision in relation to any of the
following:
• the content of the schedule and,
in particular, any statement about the young detainee’s health risks and
treatment regime;
• the people who may access
the health schedule and the circumstances for access.
|
Notifiable Instrument
|
Chief Executive
|
|
190
|
Property of young detainees
|
A youth detention policy may make provision in relation
to a young detainee’s property, including provision in relation to the
following:
• storage of the
property;
• access to, and use of, the
property;
• transfer of the
property;
• compensation for loss of, or
damage to, the property;
• return of the
property to the young detainee.
|
Notifiable Instrument
|
Chief Executive
|
|
193
|
Trust accounts of young
detainees
|
The Chief Executive must ensure that money belonging to
a young detainee is held for the detainee in a trust
account.
The Chief Executive may deduct amounts
from a young detainee’s trust account for payment of any fine or
reparation that must be paid as a result of disciplinary action against the
young detainee.
A regulation may make provision
in relation to the operation or maintenance of trust accounts.
|
Regulation
|
Executive
|
|
200
|
Monitoring ordinary mail
|
However, the Chief Executive may make a youth detention
policy or operating procedure in relation to reading a random selection of young
detainees’ ordinary mail.
|
Notifiable Instrument
|
Chief Executive
|
|
207
|
Designation of safe rooms
|
The Chief Executive may, in writing, declare a part of a
detention place to be a safe room.
The Chief
Executive may declare a part of a place under subsection only if satisfied
that—
• its design will minimise the
harm that a young detainee can do to himself or herself while in the room;
and
• it allows monitoring of, and
communication with, the young detainee by the Chief Executive and health
professionals (other than a non-treating health professionals).
|
Notifiable Instrument (Legislation Act
2001)
|
Chief Executive
|
|
222
|
|
The Chief Executive must make a youth detention policy
or operating procedure in relation to the use of force, including provision in
relation to the following:
• the
circumstances, and by whom, force may be
used;
• the kinds of force that may be
used;
• the use of
restraints.
|
Notifiable Instrument
|
Chief Executive
|
|
225
|
|
The use of force under this division includes the use of
restraint.
The Chief Executive must ensure, as
far as practicable, that the use of force involving a restraint is proportionate
to the circumstances, and in particular
that—
• the circumstances are
sufficiently serious to justify the use; and
• the kind of restraint is appropriate in
the circumstances; and
• the restraint is
used appropriately in the circumstances.
The Chief
Executive must also ensure that restraints are only used under this
division—
• by youth detention
officers; and
• in accordance with a youth
detention policy or operating procedure that applies to their
use.
In applying force under this division, a youth
detention officer may use a restraint, including any of the
following:
• body
contact;
• handcuffs, restraint jackets and
other restraining devices;
• anything else
prescribed by regulation.
|
Notifiable Instrument
|
Chief Executive
|
|
227
|
|
The Chief Executive may declare conditions that apply in
relation to visits to a detention place.
|
Disallowable Instrument
|
Chief Executive
|
|
233
|
Chief executive may allow
young child to stay with young detainee
|
This section applies to a young detainee
if—
• the young detainee has a child
who is under 6 years old and not enrolled in school;
and
• before being detained, the young
detainee was the primary caregiver for the child or was having contact with the
child.
The Chief Executive may, by direction, allow
the young detainee to have contact with, or care for, the child in a detention
place.
• However, the Chief Executive must
not give a direction under subsection (2) unless the Chief
Executive—
• has carried out a care and
protection appraisal of the child; and
• is
satisfied that it is in the best interests of the child for the young detainee
to have contact with, or care for, the child in the detention
place.
The Chief Executive may make a youth
detention policy or operating procedure about the arrangements to apply in
relation to a young detainee having contact with, or caring for, a child in a
detention place.
|
Notifiable Instrument
|
Chief Executive
|
|
235
|
|
A person is taken to provide a positive test sample
for alcohol or a drug if, when directed under this Act to provide a test
sample—
• the person fails to provide a
test sample in accordance with the direction;
or
• the person provides an invalid test
sample; or
• for a young detainee—the
young detainee provides a test sample that shows that the young detainee has
taken alcohol or a drug.
The Chief Executive
may exempt a drug from the application of this
part.
An exemption is a notifiable
instrument.
|
Notifiable Instrument
|
Chief Executive
|
|
238
|
Alcohol
and drug testing—youth detention officers
|
A regulation may make provision in relation to alcohol
and drug testing of youth detention officers whose duties bring them into
contact with detainees.
In particular, a regulation
may make provision in relation to any of the
following:
• the circumstances for testing,
including when and where tests may be
conducted;
• the conduct of the
tests.
|
Regulation
|
Executive
|
Chapter 7 Criminal matters – search and seizure at
detention places
|
|
248
|
Searches—use of search
dog
|
The Chief Executive may direct a youth detention officer
to use a search dog to assist a youth detention officer in conducting a search
under this chapter.
Without limiting subsection
(1), the Chief Executive may give the direction if the Chief Executive believes
on reasonable grounds that the assistance of the dog would minimise the
intrusiveness of the search by the youth detention
officer.
The youth detention officer and search
dog may enter, and remain at any place, to assist in the conduct of a search
under this chapter.
An operating procedure may
make provision in relation to the use of search dogs under this
chapter.
|
Notifiable Instrument
|
Chief Executive
|
Chapter 8 Criminal matters – discipline at detention
places
|
|
293
|
Reporting and investigation procedures
|
The Chief Executive must make reporting and
investigation procedures, consistent with this Act, about the making, recording
and investigation of allegation
reports.
Without limiting subsection (1), the
reporting and investigation procedures
must—
• require allegation reports to
be made in writing and given to an administrator;
and
• require the administrator to whom an
allegation report is given, and any investigator who investigates the alleged
behaviour breach, to be a different person to the youth detention officer who
makes the allegation report; and
• require a
young detainee to be told about an alleged behaviour breach in language and a
way he or she can understand; and
• allow a
young detainee to contact 1 or 2 support people for assistance in responding to
an alleged behaviour breach; and
• require a
young detainee to be told that he or she has the right to contact 1 or 2 support
people for assistance in responding to an alleged behaviour
breach.
|
Notifiable Instrument
|
Chief Executive
|
|
296
|
Behaviour
management framework
|
The Chief Executive must establish a behaviour
management framework for dealing with minor behaviour
breaches.
Without limiting subsection (1), the
behaviour management framework must provide for the
following:
• any behaviour management
consequences imposed on a young detainee to be a reasonable and proportionate
response to the minor behaviour breach;
• how privileges can be withdrawn for minor
behaviour breaches;
• review by the Chief
Executive (including on request by a young detainee) of decisions to impose
behaviour management consequences for minor behaviour breaches.
|
Notifiable Instrument
|
Chief Executive
|
|
308
|
Appointment
of external reviewers
|
The Minister must appoint at least 1 external
reviewer.
A person may be appointed as an
external reviewer only if the person is a Magistrate and consents, in writing,
to the appointment.
The Magistrates Court
Act 1930, section 7G (Magistrates not to do other work) does not
apply to the appointment of a Magistrate as an external
reviewer.
The Legislation Act, division 19.3.3
(Appointments—Assembly consultation) does not apply to the appointment of
an external reviewer.
An appointment is a
notifiable instrument.
|
Notifiable Instrument
|
Minister
|
Chapter 14 – Care and protection – care and
protection orders
|
|
437
|
Care
and protection assessment—authorisation of assessors
|
The Chief Executive may authorise a person to carry out
care and protection assessments (an authorised
assessor).
The Chief Executive may authorise a
person only if the Chief Executive considers the person is suitably qualified to
carry out care and protection assessments.
An
authorisation is a notifiable instrument.
|
Notifiable Instrument
|
Chief Executive
|
Chapter 15 – Care and protection—Chief
Executive has aspect of parental responsibility
|
|
524
|
Approval
of places of care
|
The Minister may approve a place operated by a
residential care service as a place of care for this Act if satisfied
that—
• the residential care service
complies with, and is likely to continue to comply with, the out-of-home care
standards; and
• the place complies with, and
is likely to continue to comply with, the out-of-home care
standards.
The Minister may ask the residential
care service to allow the Chief Executive to inspect the place where the
residential care service proposes to operate the place of
care.
If the Minister asks the residential care
service to allow the Chief Executive to inspect the place but the residential
care service does not allow the Chief Executive to inspect the place, the
Minister need not decide whether to approve the place as a place of
care.
An approval remains in force until revoked by
the Minister.
If the Minister approves a place
operated by a residential care service as a place of care, the residential care
service may care for and accommodate children and young people at the
place.
An approval is a notifiable
instrument.
|
Notifiable Instrument
|
Minister
|
|
Chapter 16 Care and protection—therapeutic
protection of children and young people
|
|
533
|
What
is a risk assessment?
|
For this chapter: risk assessment, for a child or
young person, means an assessment by the Chief Executive about
whether—
• there will be a significant
risk of significant harm to—
• the
child or young person; or
• someone else;
and
• the risk of harm arises from the
child’s or young person’s conduct;
and
• the risk of harm will be
imminent.
The Chief Executive may make risk
assessment guidelines.
A risk assessment guideline
is a notifiable instrument.
A risk assessment must
be carried out in accordance with the risk assessment
guidelines.
|
Notifiable Instrument
|
Chief Executive
|
|
624
|
Therapeutic
protection place—declaration
|
The Minister may declare a place to be a therapeutic
protection place for this Act.
However, the
Minister may declare a place to be a therapeutic protection place only if the
place—
• is not used to accommodate
young detainees; and
• complies with the
therapeutic protection standards.
|
Notifiable Instrument
|
Minister
|
|
626
|
Therapeutic
protection place—policies and procedures
|
The Chief Executive may make therapeutic protection
place policies and operating procedures, consistent with this Act, to facilitate
the effective and efficient management of therapeutic protection
places.
Each therapeutic protection place policy or
operating procedure is a notifiable instrument.
|
Notifiable Instrument
|
Chief Executive
|
Chapter 17 Care and protection—interstate transfer
of orders and proceedings
|
|
639
|
What
is a child welfare law?
|
In this Act: child welfare law
means—
• the care and protection
chapters; or
• a law of a State that
corresponds to the care and protection chapters;
or
• a law of a State declared by the
Minister under subsection (2) to be a child welfare law for this
chapter.
The Minister may, in writing, declare a
law of a State to be a child welfare law for this chapter if satisfied that the
law corresponds, or substantially corresponds, to the care and protection
chapters.
A declaration is a notifiable
instrument.
|
Notifiable Instrument
|
Minister
|
|
640
|
What
is an interstate law?
|
In this
chapter:
interstate law
means—
• a law of a State that
corresponds to this chapter; or
• a law
declared by the Minister under subsection (2) to be an interstate law for
this chapter.
The Minister may, in writing, declare
a law of a State to be an interstate law for this chapter if satisfied that the
law corresponds or substantially corresponds to this
chapter.
A declaration is a notifiable
instrument.
|
Notifiable Instrument
|
Minister
|
|
641
|
Who
is an interstate officer?
|
In this
chapter:
interstate officer, for a State,
means—
• the person holding the
position that has the main responsibility, under the child welfare law of the
State, for the protection of children and young people in the State;
or
• the holder of a position in the State
that is declared by the Minister under subsection (2) to be an interstate
officer position for the State for this
chapter.
The Minister may, in writing, declare a
position in a State to be an interstate officer position for the State for this
chapter.
A declaration is a notifiable
instrument.
|
Notifiable Instrument
|
Minister
|
Chapter 20 Childcare services
|
|
748
|
Childcare
service licence—childcare service standards
|
A childcare service licence is subject to the condition
that the service must be operated in a way that complies with the childcare
services standards.
The Chief Executive may exempt
a childcare service from 1 or more childcare services standards (a temporary
standards exemption) if the Chief Executive believes on reasonable grounds
that—
• the exemption is not likely to
prejudice the safety and educational, social and developmental wellbeing of a
child or children being cared for by the service;
and
• the exemption is not likely to impact
on the childcare service’s promotion of the educational, social and
developmental wellbeing of children;
and
• the childcare service has taken, or is
taking, steps to comply with any childcare service standard included in the
exemption; and
• the exemption will not
result in the proprietor of the childcare centre failing to take all reasonably
practicable steps to protect the health, safety and welfare of employees of the
childcare service.
A temporary standards exemption
must not include information that identifies a childcare worker or would allow
the identity of a childcare worker to be worked
out.
A temporary standards exemption must be for
not longer than 6 months.
The Chief Executive
may extend a temporary standards exemption if the total period of the exemption
is not longer than 12 months.
A temporary standards
exemption may be conditional.
The Chief Executive
may revoke a temporary standards exemption at any time on reasonable
grounds.
A temporary standards exemption is a
notifiable instrument.
|
Notifiable Instrument
|
Chief Executive
|
|
773
|
Assessing
compliance with childcare services standards
|
At least once during the period of a childcare service
licence, the Chief Executive must assess the childcare service’s
compliance with the childcare services
standards.
The Minister may make childcare services
assessment requirements.
A childcare services
assessment requirement is a disallowable
instrument.
An assessment must be carried out in
accordance with the childcare services assessment requirements.
|
Disallowable Instrument
|
Chief Executive
|
|
774
|
Annual childcare services
standards report
|
The Chief Executive must, for each financial year,
prepare a report (a childcare services standards report) about the
compliance of licenced childcare services with the childcare services
standards.
A childcare services standards report
must include—
• any temporary standards
exemptions under section 748(2); and
• any
compliance notices confirmed or amended under section 759(4);
and
• any compliance suspension notices given
under section 760;and
• any safety suspension
notices given under section 762(2); and
• any
intention to cancel notices or cancellation notices given under section 764 or
section 765; and
• any assessments made by
the Chief Executive under section 773 during the financial year to which the
report relates; and
• if no assessment was
made by the Chief Executive under section 773 during the financial year to which
the report relates for a childcare service—the date the service was last
assessed and the year the service is to be assessed;
and
• any submissions that the Chief
Executive is required to include under section 776 in a childcare services
standards report; and
• if a proprietor,
controlling person or childcare worker for a childcare service was found guilty
of, or convicted of an offence against this chapter—details of the
offence.
A childcare services standards report
must comply with the childcare services standards report
requirements.
|
Notifiable Instrument
|
Chief Executive
|
|
775
|
Annual childcare services
standards report—requirements
|
The Minister may make childcare services standards
report requirements.
|
Disallowable Instrument
|
Minister
|
Chapter 21 Employment of children and young
people
|
|
797
|
Declaration
of high risk employment
|
The Minister may declare employment in an industry,
occupation or activity to be high risk employment if satisfied that it is likely
to harm a child’s or young person’s health, safety, personal or
social development (including by sexual or financial
exploitation).
|
Notifiable Instrument
|
Minister
|
Chapter 22 Research involving children and young
people
|
|
809
|
Approval
of ethics committees
|
The Minister may approve a stated committee as an ethics
committee for this chapter.
|
Notifiable Instrument
|
Minister
|
Chapter 26 Miscellaneous
|
|
882
|
Appointment
of analyst for Act
|
The Chief Executive may appoint analysts for this
Act.
|
Notifiable Instrument
|
Chief Executive
|
|
884
|
|
The Chief Executive may determine fees for this
Act.
|
Disallowable Instrument
|
Chief Executive
|
|
885
|
|
The Chief Executive may approve forms for this Act
(other than for use in relation to the Childrens Court).
|
Notifiable Instrument
|
Chief Executive
|
|
886
|
|
The Minister may make standards for this
Act.
The standards may make provision for the
following:
• the conduct of family group
conferences and the implementation of family group conference agreements
(family group conference
standards);
• the conduct of drug testing
under a drug use provision in a care and protection order (drug testing
standards);
• the care to be provided for
children and young people by out-of-home carers (out-of-home care
standards);
• the operation of
therapeutic protection places and services (therapeutic protection
standards);
• the operation of childcare
services (childcare services
standards);
• employers of children and
young people (children and young people employment
standards);
• the requirements for the
operation of work experience programs (work experience
standards);
• research involving children
and young people (research standards);
• the giving and seeking of protected
information by the Chief Executive under chapter 25 (information sharing
standards).
|
Disallowable Instrument
|
Minister
|
|
887
|
|
The Executive may make regulations for this
Act.A regulation may make provision
for—• the duties of people in charge
of detention places; and• the health and
safety (including medical examinations) of children or young people, and other
people, at places of detention;
and• any
of the following in relation to injuries suffered by children or young people,
and other people, that arise out of, or in the course of, their detention, or
the performance of community service:
• injury
management;• compensation for a permanent
injury;• vocational
rehabilitation;• death benefits;
and• travel and transport arrangements for
children or young people, and other people, performing community service;
and• the discipline and security (including
the use of force, inspection of mail, and the use of video surveillance and
other monitoring devices) at or for places of detention;
and• the safety, management and good order
of places of detention.A regulation may also
prescribe offences for contraventions of the regulation and prescribe maximum
penalties of not more than 10 penalty units for offences against the
regulation.
|
Regulation
|
Executive
|
[1]
Bringing them Home: Report of the National Inquiry into the Separation of
Aboriginal and Torres Strait Islander Children from Their Families, 1997,
HREOC.[2]
Australian Catholic University, Institute of Child Protection Studies (2005)
Placement Planning - a review of the literature, unpublished,
[3][4]
Smith, E., & Green, A. (2001). School students learning from their paid
and unpaid work. Canberra: Australian Council for Educational
Research.[5]
The Commission for Children and Young People and Child Guardian, Queensland
Review of Child Labour, April 2005
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