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This is a Bill, not an Act. For current law, see the Acts databases.
Children and Young Persons (Care and
Protection) Amendment Bill 2010
No , 2010
A Bill for
An Act to amend the Children and Young Persons (Care and Protection) Act 1998
to make further provision in respect of the care and protection of, and the provision
of services to, children and young persons; and for other purposes.
Clause 1 Children and Young Persons (Care and Protection) Amendment Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Children and Young Persons (Care and Protection) 3
Amendment Act 2010. 4
2 Commencement 5
(1) Subject to subsection (2), this Act commences on a day or days to be 6
appointed by proclamation. 7
(2) Schedule 1 [22] commences on the date of assent to this Act. 8
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Children and Young Persons (Care and Protection) Amendment Bill 2010
Amendment of Children and Young Persons (Care and Protection) Act 1998 Schedule 1
No 157
Schedule 1 Amendment of Children and Young 1
Persons (Care and Protection) Act 1998 2
No 157 3
[1] Section 29 Protection of persons who make reports or provide certain 4
information 5
Omit section 29 (1) (d). Insert instead: 6
(d) the report, or evidence of its contents, is not admissible in 7
any proceedings (including any appeal arising from those 8
proceedings), other than the following: 9
(i) care proceedings in the Children's Court, 10
(ii) proceedings in relation to a child or young person 11
under the Family Law Act 1975 of the 12
Commonwealth, 13
(iii) proceedings in relation to a child or young person 14
before the Supreme Court or the Administrative 15
Decisions Tribunal, 16
(iv) proceedings before the Victims Compensation 17
Tribunal or the Guardianship Tribunal, 18
(v) proceedings under the Coroners Act 2009, and 19
[2] Section 29 (4A) (a) 20
Omit "serious offence alleged to have been committed against". 21
Insert instead "serious offence or reportable conduct alleged to have been 22
committed or done against". 23
[3] Section 29 (4B) (a) and (4C) (b) 24
Insert "or reportable conduct" after "serious offence" wherever occurring. 25
[4] Section 29 (6) 26
Insert in alphabetical order: 27
reportable conduct means: 28
(a) reportable conduct within the meaning of section 33 (1) of 29
the Commission for Children and Young People Act 1998, 30
or 31
(b) conduct occurring elsewhere than in New South Wales 32
that, if occurring in New South Wales, would be reportable 33
conduct under paragraph (a). 34
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Children and Young Persons (Care and Protection) Amendment Bill 2010
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998
No 157
serious offence means: 1
(a) a serious indictable offence within the meaning of the 2
Crimes Act 1900, or 3
(b) an offence committed elsewhere than in New South Wales 4
that, if committed in New South Wales, would be an 5
offence under paragraph (a). 6
[5] Section 38 Development and enforcement of care plans 7
Insert after section 38 (2): 8
(2A) Any such order may be made by the Children's Court without the 9
need for a care application under Part 2 of Chapter 5 and without 10
the need to be satisfied of the existence of any of the grounds 11
under section 71 if the Court is satisfied that: 12
(a) the proposed order will not contravene the principles of 13
this Act, and 14
(b) the parties to the care plan understand its provisions and 15
have freely entered into it, and 16
(c) in the case of a party other than the Director-General, the 17
party has received independent advice concerning the 18
provisions to which the proposed order will give effect. 19
[6] Section 45 Application to Children's Court for care order 20
Omit "the Director-General must, no later than 72 hours after the removal or 21
assumption of care responsibility, make a care application" from 22
section 45 (1). 23
Insert instead "the Director-General must make a care application". 24
[7] Section 45 (1A) 25
Insert after section 45 (1): 26
(1A) The care application must be made within 3 working days after 27
the day (the relevant day) on which the removal or assumption of 28
care responsibility occurs. If this would permit the care 29
application to be made more than 5 days after the relevant day, 30
the application must instead be made no later than on the fifth day 31
after the relevant day or (if the fifth day is not a working day) no 32
later than the first working day after that fifth day. A working day 33
is any day that is not a Saturday, Sunday or public holiday. 34
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Children and Young Persons (Care and Protection) Amendment Bill 2010
Amendment of Children and Young Persons (Care and Protection) Act 1998 Schedule 1
No 157
[8] Section 105 Publication of names and identifying information 1
Omit "section 11" from the Note to the section. 2
Insert instead "section 15A". 3
[9] Section 135C 4
Omit the section. Insert instead: 5
135C Voluntary out-of-home care 6
(1) Voluntary out-of-home care is out-of-home care in respect of a 7
child or young person that is arranged by a parent of the child or 8
young person, but does not include: 9
(a) out-of-home care that is provided by an individual in a 10
private capacity, or 11
(b) out-of-home care that is provided outside New South 12
Wales. 13
(2) Out-of-home care is provided by an individual in a private 14
capacity if it is provided by an individual who is not acting on 15
behalf of, or pursuant to an arrangement with, a body or 16
organisation. 17
[10] Section 156 Preliminary 18
Insert "or arranges" after "provides" in paragraph (b) of the definition of 19
relevant agency in section 156 (1). 20
[11] Section 156 (2) (a) 21
Omit the paragraph. Insert instead: 22
(a) arrangements for voluntary out-of-home care, and 23
[12] Sections 156A and 156B 24
Omit section 156A. Insert instead: 25
156A Provision of voluntary out-of-home care 26
(1) A child or young person must not remain in voluntary 27
out-of-home care for more than a total of 90 days in any period 28
of 12 months unless the care is: 29
(a) provided by or supervised by a designated agency, or 30
(b) supervised by the Children's Guardian. 31
(2) A child or young person must not remain in voluntary 32
out-of-home care for more than a total of 180 days in any period 33
of 12 months unless the designated agency responsible for 34
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Children and Young Persons (Care and Protection) Amendment Bill 2010
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998
No 157
providing or supervising the care of the child or young person, or 1
the Children's Guardian, has ensured that a plan has been 2
prepared that meets the needs of the child or young person under 3
the arrangement. 4
(3) A child or young person is, for the purposes of Parts 2 and 3 of 5
Chapter 3, taken to be at risk of significant harm if: 6
(a) the child or young person remains in voluntary 7
out-of-home care in contravention of subsection (1) or (2), 8
and 9
(b) the Children's Guardian has determined, in accordance 10
with any guidelines issued by the Director-General for the 11
purposes of this section, that the contravention is 12
significant. 13
(4) The Children's Guardian is to formulate intake procedures and 14
procedures relating to assessments and inter-agency 15
co-ordination in order to ensure: 16
(a) that children and young persons are not placed in voluntary 17
out-of-home care if adequate services can be provided to 18
enable them to remain with their families, and 19
(b) that proper case planning occurs for all children and young 20
persons placed in voluntary out-of-home care. 21
156B Restrictions on who may provide or arrange voluntary 22
out-of-home care 23
(1) A person must not provide voluntary out-of-home care for a child 24
or young person unless the person is: 25
(a) a relevant agency, or 26
(b) an individual who is authorised by a relevant agency or the 27
Children's Guardian to provide voluntary out-of-home 28
care. 29
(2) A person, other than a relevant agency or the Children's 30
Guardian, must not: 31
(a) arrange with a parent of a child or young person for the 32
child or young person to be placed in voluntary 33
out-of-home care, or 34
(b) advertise or hold himself, herself or itself out as being 35
willing to arrange for a child or young person to be placed 36
in voluntary out-of-home care. 37
Maximum penalty: 200 penalty units. 38
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Children and Young Persons (Care and Protection) Amendment Bill 2010
Amendment of Children and Young Persons (Care and Protection) Act 1998 Schedule 1
No 157
[13] Section 158 Physical restraint of child or young person 1
Omit section 158 (1). Insert instead: 2
(1) This section applies if, in the opinion of the relevant carer of a 3
child or young person, the child or young person is behaving in 4
such a manner that, unless restrained, he or she might seriously 5
injure himself or herself or another person. 6
[14] Section 158 (2) 7
Omit "the parent or the authorised carer". Insert instead "the relevant carer". 8
[15] Section 158 (5) 9
Omit "parent or an authorised carer". Insert instead "relevant carer". 10
[16] Section 158 (6) 11
Insert after section 158 (5): 12
(6) In this section, the relevant carer of a child or young person 13
means: 14
(a) a parent of the child or young person, or 15
(b) the authorised carer of the child or young person, or 16
(c) a person who is providing voluntary out-of-home care in 17
respect of a child or young person. 18
[17] Section 161 Financial assistance for children and young persons in 19
out-of-home care 20
Insert after section 161 (3): 21
(4) For the purposes of this section, out-of-home care is taken to 22
include residential care and control of a child or young person 23
that is provided: 24
(a) by a relative of the child or young person who has, 25
pursuant to an order of the Children's Court, parental 26
responsibility for the child or young person at a place other 27
than the usual home of the child or young person, or 28
(b) by a person in accordance with an emergency care and 29
protection order made under section 46. 30
[18] Section 168 Access to personal information 31
Omit "child or young" from section 168 (1) and (3), wherever occurring. 32
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Children and Young Persons (Care and Protection) Amendment Bill 2010
Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998
No 157
[19] Section 168 (2) 1
Omit "child or young person". 2
Insert instead "person seeking access to information". 3
[20] Section 181 Functions relating to out-of-home care 4
Insert after section 181 (1) (e): 5
(f) to register organisations that provide or arrange voluntary 6
out-of-home care and to monitor their responsibilities 7
under this Act and the regulations. 8
[21] Section 185 Provision and exchange of information 9
Insert at the end of paragraph (c) of the definition of prescribed person in 10
section 185 (6): 11
, or 12
(d) a relevant agency within the meaning of section 156. 13
[22] Section 220 Regulations 14
Omit section 220 (a). Insert instead: 15
(a) the probity checks that may be made on the following: 16
(i) a person who is involved in the control and management of 17
a licensee or proposed licensee, 18
(ii) a person who is involved in the control and management of 19
the majority shareholder corporation of a licensee or 20
proposed licensee, 21
(iii) a person who is, or who is proposed to be, an authorised 22
supervisor for a children's service, 23
[23] Section 241 Powers exercisable on entry and inspection 24
Insert after section 241 (1): 25
(1A) A person who is authorised under this Act or the regulations, or 26
under a search warrant issued under this Act, to search for, 27
apprehend or remove a person in or from any premises or place 28
may take such photographs and films, and audio, video and other 29
recordings, as the person considers necessary. 30
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Children and Young Persons (Care and Protection) Amendment Bill 2010
Amendment of Children and Young Persons (Care and Protection) Act 1998 Schedule 1
No 157
[24] Section 245 Decisions that are reviewable by Administrative Decisions 1
Tribunal 2
Insert after section 245 (1A): 3
(1B) For the avoidance of doubt, subsection (1) (c) does not extend to 4
any decision in relation to: 5
(a) the preparation of a permanency plan, or 6
(b) the enforcement of a permanency plan that has been 7
embodied in, or approved by, an order or orders of the 8
Children's Court. 9
[25] Section 245I Commonwealth agencies 10
Insert after section 245I (a): 11
(a1) the Family Court of Australia, 12
[26] Schedule 3 Savings, transitional and other provisions 13
Insert in appropriate order in clause 1 (1): 14
Children and Young Persons (Care and Protection) Amendment 15
Act 2010 16
[27] Schedule 3 17
Insert at the end of the Schedule with appropriate Part and clause numbering: 18
Part Provision consequent on enactment of 19
Children and Young Persons (Care and 20
Protection) Amendment Act 2010 21
Provision of voluntary out-of-home care 22
A child or young person who was, immediately before the 23
substitution of section 156A by the Children and Young Persons 24
(Care and Protection) Amendment Act 2010, in voluntary 25
out-of-home care is taken for the purposes of that section to have 26
been placed in voluntary out-of-home care on the date of 27
substitution of that section. 28
Page 9
Children and Young Persons (Care and Protection) Amendment Bill 2010
Schedule 2 Amendment of other Acts and Regulation
Schedule 2 Amendment of other Acts and 1
Regulation 2
2.1 Children and Young Persons (Care and Protection) 3
Amendment (Children's Services) Act 2010 No 67 4
Schedule 1 [5], proposed section 220 5
Omit section 220 (11). Insert instead: 6
(11) The probity checks that may be made on the following: 7
(a) a person who is involved in the control and management of 8
a licensee or proposed licensee, 9
(b) a person who is involved in the control and management of 10
the majority shareholder corporation of a licensee or 11
proposed licensee, 12
(c) a person who is, or who is proposed to be, an authorised 13
supervisor for a children's service. 14
2.2 Children and Young Persons (Care and Protection) 15
Regulation 2000 16
Clause 40D Restriction on who may provide or arrange voluntary 17
out-of-home care 18
Omit the clause. 19
2.3 Children Legislation Amendment (Wood Inquiry 20
Recommendations) Act 2009 No 13 21
Schedule 1.3 [15], proposed section 172A 22
Omit the item. 23
Page 10
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