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New South Wales
Children and Young Persons (Care and
Protection) Miscellaneous
Amendments Bill 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Children and Young Persons (Care and
Protection) Act 1998 No 157 2
4 Amendment of other Acts 2
5 Repeal of Act 2
Schedule 1 Amendments to Children and Young Persons (Care and
Protection) Act 1998 relating to parent and carer harm 3
Schedule 2 Amendments to Children and Young Persons (Care and
Protection) Act 1998 relating to reciprocal arrangements 6
Schedule 3 Miscellaneous amendments to Children and Young
Persons (Care and Protection) Act 1998 23
Schedule 4 Amendment of other Acts 37
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Children and Young Persons (Care and
Protection) Miscellaneous
Amendments Bill 2006
Act No , 2006
An Act to amend the Children and Young Persons (Care and Protection) Act 1998
to strengthen the protections it affords to children and young persons, to provide for
the transfer of child protection orders and proceedings between jurisdictions and to
make other miscellaneous amendments to that Act; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Children and Young Persons (Care and Protection) Miscellaneous
Clause 1 Amendments Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Children and Young Persons (Care and Protection)
Miscellaneous Amendments Act 2006.
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation,
except as provided by this section.
(2) Schedule 3 [6] commences on the commencement of Schedule 1 [7] to
the Children and Young Persons (Care and Protection) Amendment
Act 2005.
(3) Schedule 3 [10] and [11] commence on the commencement of
Schedule 1 [64] to the Children and Young Persons (Care and
Protection) Amendment Act 2006.
3 Amendment of Children and Young Persons (Care and Protection) Act
1998 No 157
The Children and Young Persons (Care and Protection) Act 1998 is
amended as set out in Schedules 1, 2 and 3.
4 Amendment of other Acts
The Acts specified in Schedule 4 are amended as set out in that
Schedule.
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
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Children and Young Persons (Care and Protection) Miscellaneous
Amendments Bill 2006
Amendments to Children and Young Persons (Care and Protection) Schedule 1
Act 1998 relating to parent and carer harm
Schedule 1 Amendments to Children and Young
Persons (Care and Protection) Act 1998
relating to parent and carer harm
(Section 3)
[1] Section 23 Child or young person at risk of harm
Insert after section 23 (e) before the note to the section:
(f) the child was the subject of a pre-natal report under section
25 and the birth mother of the child did not engage
successfully with support services to eliminate, or
minimise to the lowest level reasonably practical, the risk
factors that gave rise to the report.
[2] Section 25 Pre-natal reports
Omit the note to the section. Insert instead:
Note. The intentions of this section are:
(a) to allow assistance and support to be provided to the expectant
mother to reduce the likelihood that her child, when born, will
need to be placed in out-of-home care, and
(b) to provide early information that a child who is not yet born may
be at risk of harm subsequent to his or her birth, and
(c) in conjunction with section 23 (f) and section 27, to provide for
mandatory reporting if there are reasonable grounds to believe
that the child is at risk of harm subsequent to his or her birth.
[3] Section 106A
Insert after section 106:
106A Admissibility of certain other evidence
(1) The Children's Court must admit in proceedings before it any
evidence adduced that a parent or primary care-giver of a child or
young person the subject of a care application:
(a) is a person:
(i) from whose care and protection a child or young
person was previously removed by a court under
this Act or the Children (Care and Protection) Act
1987, or by a court of another jurisdiction under an
Act of that jurisdiction, and
(ii) to whose care and protection the child or young
person has not been restored, or
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Schedule 1 Amendments to Children and Young Persons (Care and Protection)
Act 1998 relating to parent and carer harm
(b) is a person who has been named or otherwise identified by
the coroner or a police officer (whether by use of the term
"person of interest" or otherwise) as a person who may
have been involved in causing a reviewable death of a
child or young person.
(2) Evidence adduced under subsection (1) is prima facie evidence
that the child or young person the subject of the care application
is in need of care and protection.
(3) A parent or primary care-giver in respect of whom evidence
referred to in subsection (1) has been adduced may rebut the
prima facie evidence referred to in subsection (2) by satisfying
the Children's Court that, on the balance of probabilities:
(a) the circumstances that gave rise to the previous removal of
the child or young person concerned no longer exist, or
(b) the parent or primary care-giver concerned was not
involved in causing the relevant reviewable death of the
child or young person,
as the case may require.
(4) This section has effect despite section 93 and despite anything to
the contrary in the Evidence Act 1995.
(5) In this section, reviewable death of a child or young person
means a death of a child or young person that is reviewable by the
Ombudsman under Part 6 of the Community Services
(Complaint, Reviews and Monitoring) Act 1993.
[4] Section 107 Examination and cross-examination of witnesses
Insert after section 107 (3):
(3A) Certain questions
For the purposes of this section, questions to a witness who is a
parent or a primary care-giver of a child or young person the
subject of a care application concerning the witness's previous
history of dealings with any child or young person are taken not
to be intrinsically offensive, scandalous or oppressive.
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Amendments to Children and Young Persons (Care and Protection) Schedule 1
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[5] Section 248 Provision and exchange of information
Insert after section 248 (1):
(1A) Information about the following may be furnished under this
section in the same way as information about a child or young
person or class of children or young persons may be furnished:
(a) an unborn child who is the subject of a pre-natal report
under section 25,
(b) the family of an unborn child the subject of such a report,
(c) the expected date of birth of an unborn child the subject of
such a report.
[6] Section 248 (3) and (4)
Insert "or (1A)" after "subsection (1)" wherever occurring.
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Schedule 2 Amendments to Children and Young Persons (Care and Protection)
Act 1998 relating to reciprocal arrangements
Schedule 2 Amendments to Children and Young
Persons (Care and Protection) Act 1998
relating to reciprocal arrangements
(Section 3)
[1] Section 229 Unauthorised removal of children and young persons
Insert after section 229 (1):
(1A) A person must not, by any conduct carried out within the State,
without lawful excuse remove a child or young person from the
care of a person into whose care and protection the child or young
person has been placed under a child protection order, or an
interim order, within the meaning of Chapter 14A (other than an
order under this Act).
Maximum penalty: 200 penalty units.
[2] Chapter 14A
Insert after section 231:
Chapter 14A Transfer of child protection
orders and proceedings
Part 1 Introductory
231A Purpose of Chapter
The purpose of this Chapter is to provide for the transfer of child
protection orders and proceedings between New South Wales
and another State or a Territory of Australia or between New
South Wales and New Zealand:
(a) so that children and young persons who are in need of
protection may be protected despite moving from one
jurisdiction to another, and
(b) so as to facilitate the timely and expeditious determination
of court proceedings relating to the protection of a child or
young person.
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231B Definitions
(1) In this Chapter:
child protection order, in relation to a child or young person,
means a final order made under a child welfare law or an
interstate law that gives:
(a) a Minister of the Crown in right of a State, or
(b) a government department or statutory authority, or
(c) a person who is the head of a government department or
statutory authority or otherwise holds an office or position
in, or is employed in, a government department or
statutory authority, or
(d) an organisation or the chief executive (by whatever name
called) of an organisation,
responsibility in relation to the parental or care responsibility for,
supervision of, or contact with, the child or young person,
however that responsibility is described.
child protection proceeding means any proceeding brought in a
court under a child welfare law for:
(a) the making of a finding that a child or young person is in
need of protection or any other finding (however
described) the making of which is under the child welfare
law a prerequisite to the exercise by the court of a power to
make a child protection order, or
(b) the making of a child protection order or an interim order
or for the variation or revocation or the extension of the
period of such an order.
child welfare law means:
(a) this Act, or
(b) a law of another State that, under an order in force under
subsection (2), is declared to be a child welfare law for the
purposes of this Chapter, or
(c) a law of another State that substantially corresponds to this
Act.
Children's Court:
(a) in relation to New South Wales--means the Children's
Court of New South Wales, and
(b) in relation to a State other than New South Wales--means
the court with jurisdiction to hear and determine a child
protection proceeding at first instance.
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Schedule 2 Amendments to Children and Young Persons (Care and Protection)
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home order means a child protection order made in New South
Wales.
interim order means:
(a) an order made under section 231N, or
(b) an equivalent order made under an interstate law.
interstate law means:
(a) a law of another State that, under an order in force under
subsection (3), is declared to be an interstate law for the
purposes of this Chapter, or
(b) a law of another State that substantially corresponds to this
Chapter.
interstate officer, in relation to a State other than New South
Wales, means:
(a) the holder of an office or position that, under an order in
force under subsection (4), is declared to be an office or
position the holder of which is the interstate officer in
relation to that State for the purposes of this Chapter, or
(b) the person holding the office or position to which there is
given by or under the child welfare law of that State
principal responsibility for the protection of children and
young persons in that State.
participating State means a State in which an interstate law is in
force.
proposed interstate order means a home order in the form in
which it is proposed to be transferred to another State.
sending State means the State from which a child protection
order or proceeding is transferred under this Chapter or an
interstate law.
State means:
(a) a State or a Territory of Australia, or
(b) New Zealand.
working day:
(a) in relation to a court, means a day on which the offices of
the court are open, and
(b) in relation to the Director-General, means a day on which
the principal office of the Department is open.
(2) The Governor may, by order published in the Gazette, declare a
law of a State (other than New South Wales) to be a child welfare
law for the purposes of this Chapter.
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(3) The Governor may, by order published in the Gazette, declare a
law of a State (other than New South Wales) to be an interstate
law for the purposes of this Chapter.
(4) The Governor may, by order published in the Gazette, declare an
office or position in a State (other than New South Wales) to be
an office or position the holder of which is the interstate officer
in relation to that State for the purposes of this Chapter.
Part 2 Transfer of child protection orders
Division 1 Administrative transfers
231C When Director-General may transfer order
(1) The Director-General may transfer a home order to a
participating State if:
(a) in his or her opinion a child protection order to the same or
a similar effect as the home order could be made under the
child welfare law of that State, and
(b) the home order is not the subject of an appeal to the District
Court, and
(c) the relevant interstate officer has consented in writing to
the transfer and to the terms of the proposed interstate
order, and
(d) any person whose consent to the transfer is required under
section 231D has so consented, and
(e) the child or young person who is the subject of the order
has not given written notice of opposition to the decision
to transfer the order in accordance with section
231F (3) (b) and the Director-General certifies in writing
that he or she made all reasonable efforts to ensure that the
child or young person had an opportunity to seek legal
advice in relation to the decision.
(2) The Director-General may include in the proposed interstate
order any conditions that could be included in a child protection
order of that type made in the relevant participating State.
(3) In determining whether a child protection order to the same or a
similar effect as the home order could be made under the child
welfare law of a participating State, the Director-General must
disregard the period for which it is possible to make such an order
in that State.
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(4) The Director-General must determine, and specify in the
proposed interstate order:
(a) the type of order under the child welfare law of the
participating State that the proposed interstate order is to
be, and
(b) the period for which it is to remain in force.
(5) The period must be:
(a) if the same period as that of the home order is possible for
the proposed interstate order under the child welfare law of
the participating State--that period (commencing on, and
including, the date of the registration of the interstate order
in that State), or
(b) in any other case--as similar a period as is possible under
that law, but in no case longer than the period of the home
order.
231D Persons whose consent is required
(1) If the home order is an order granting parental responsibility
wholly or partly to the Minister, an order granting care
responsibility to the Director-General, or an order for
supervision, consent to a transfer under this Division is required
from:
(a) the parents of the child or young person, and
(b) any other person who is granted contact with the child or
young person under the order, and
(c) any person who holds, solely or jointly, any aspect of
parental responsibility for the child or young person.
(2) However, if any of the persons referred to in subsection (1) (a),
(b) or (c) is residing, or intending to reside, in the relevant
participating State, consent to the transfer is not required from
that person or from any other of the persons referred to in those
paragraphs who consents to the child or young person residing in
that State.
231E Director-General to have regard to certain matters
In determining whether to transfer a child protection order to a
participating State under this Division, the Director-General must
have regard to:
(a) all the matters referred to in section 9, and
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(b) whether the Director-General or an interstate officer is in
the better position to exercise powers and responsibilities
under a child protection order relating to the child or young
person, and
(c) the fact that it is preferable that a child or young person is
subject to a child protection order made under the child
welfare law of the State where the child or young person
resides, and
(d) any sentencing order under any Act, other than a fine, in
force in respect of the child or young person or any
criminal proceedings pending against the child or young
person in any court.
231F Notification to child or young person and his or her parents
(1) If the Director-General has decided to transfer a child protection
order to a participating State under this Division, the
Director-General must cause:
(a) the parents of the child or young person who is the subject
of the order, and
(b) any person having parental responsibility for the child or
young person who is the subject of the order, and
(c) if the child or young person concerned is of or above the
age of 12 years, the child or young person,
to be served with a notice of the decision as soon as practicable
but in any event no later than 3 working days after making it.
(2) A notice under subsection (1) served on a parent of, or a person
having parental responsibility for, the child or young person
must, in addition to providing notice of the decision, inform the
parent or person that:
(a) the parent or person may make a written request under
Division 2 of Part 2 of Chapter 5 of the Administrative
Decisions Tribunal Act 1997 for a written statement of
reasons for the decision, and
(b) the decision may be reviewed by the Administrative
Decisions Tribunal, whose decision may be appealed
against to the Appeal Panel of that Tribunal, and
(c) the parent or person may make an application for review
(and the notice must also provide details of how such an
application may be made).
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(3) A notice under subsection (1) served on the child or young person
must, in addition to providing notice of the decision, inform the
child or young person that:
(a) the child or young person may seek legal advice in relation
to the decision, and
(b) the child or young person may oppose the decision by
writing to the Director-General, within 28 days after the
date of service of the notice, and stating that the child or
young person opposes the decision, and
(c) if notice of opposition is given in accordance with
paragraph (b), the order cannot be transferred by the
Director-General under this Division.
(4) The Director-General must make all reasonable efforts to ensure
that a child or young person on whom a notice is served under
subsection (1) has an opportunity to seek legal advice in relation
to the decision to transfer the child protection order.
(5) Service of a notice on a person is not required under
subsection (1) if it cannot be effected after making all reasonable
efforts.
Division 2 Judicial transfers
231G When Children's Court may make order under this Division
The Children's Court may make an order under this Division
transferring a child protection order to a participating State if:
(a) an application for the making of the order is made by the
Director-General, and
(b) the child protection order is not subject to an appeal to the
District Court, and
(c) the relevant interstate officer has consented in writing to
the transfer and to the provisions of the proposed interstate
order.
231H Service of application
The Director-General must as soon as possible cause a copy of an
application for an order under this Division to be served on each
party to the proceedings in relation to the child protection order
concerned.
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231I Type of order
(1) If the Children's Court determines to transfer a home order under
this Division, the terms of the proposed interstate order must be
terms that could be terms of a child protection order made under
the child welfare law of the participating State and that the
Children's Court believes to be:
(a) to the same or a similar effect as the terms of the home
order, or
(b) otherwise in the best interests of the child or young person.
(2) The Children's Court may include in the proposed interstate
order any conditions that could be included in a child protection
order of that type made in the relevant participating State.
(3) In determining whether an order to the same or a similar effect as
the home order could be made under the child welfare law of a
participating State, the Children's Court must disregard the
period for which it is possible to make such an order in that State.
(4) The Children's Court must determine, and specify in the
proposed interstate order, the period for which it is to remain in
force.
(5) The period must be any period that is possible for a child
protection order of the type of the proposed interstate order under
the child welfare law of the participating State and that the
Children's Court considers to be appropriate (commencing on,
and including, the date of its registration in that State).
231J Children's Court to have regard to certain matters
(1) The Children's Court must not make an order under this Division
unless it has received and considered:
(a) an updated care plan, if a care plan under section 78 was
prepared in relation to the original care order, or
(b) in any other case, a report by the Director-General that
contains the matters required by the regulations to be
included in the report.
(2) In determining what order to make on an application under this
Division, the Children's Court must have regard to:
(a) the matters referred to in section 9, and
(b) whether the Director-General or an interstate officer is in
the better position to exercise powers and responsibilities
under a child protection order relating to the child or young
person, and
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(c) the fact that it is preferable that a child or young person is
subject to a child protection order made under the child
welfare law of the State where the child or young person
resides, and
(d) any information given to the Children's Court by the
Director-General or otherwise concerning any sentencing
order under any Act, other than a fine, in force in respect
of the child or young person or any criminal proceedings
pending against the child or young person in any court.
(3) The Director-General must provide to the Children's Court an
updated care plan or report referred to in subsection (1), in
accordance with the rules of the Children's Court.
(4) Other requirements concerning the hearing and the making of an
application, and the form of a care plan, under this Division may
be prescribed by the regulations.
231K Appeals
(1) A party to an application for an order under this Division who is
dissatisfied with an order of the Children's Court transferring, or
refusing to transfer, a child protection order to a participating
State, may, in accordance with the rules of the District Court,
appeal to the District Court against the order.
(2) An appeal under subsection (1):
(a) must be instituted, and (except where instituted by the
Director-General) written notice of it must be served on
the Director-General, within 10 working days after the day
on which the order complained of was made, and
(b) operates as a stay of an order transferring the child
protection order to a participating State.
(3) The District Court cannot extend the time limit fixed by
subsection (2) (a).
(4) Section 91 (2)(6) and (8) apply to an appeal under this section
as if the appeal were an appeal under section 91 and as if the term
"order" in section 91 (2) referred to the order to transfer or refuse
to transfer the child protection order.
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Part 3 Transfer of child protection proceedings
231L When Children's Court may make order under this Part
(1) The Children's Court may make an order under this Part
transferring a child protection proceeding pending in the
Children's Court to the Children's Court in a participating State
if:
(a) an application for the making of the order is made by the
Director-General, and
(b) the relevant interstate officer has consented in writing to
the transfer.
(2) The proceeding is discontinued in the Children's Court on the
registration in the Children's Court in the participating State, in
accordance with the interstate law, of an order referred to in
subsection (1).
231M Children's Court to have regard to certain matters
In determining whether to make an order transferring a
proceeding under this Part, the Children's Court must have
regard to:
(a) the matters referred to in section 9, and
(b) whether any other proceedings relating to the child or
young person are pending, or have previously been heard
and determined, under the child welfare law in the
participating State, and
(c) the place where any of the matters giving rise to the
proceeding in the Children's Court arose, and
(d) the place of residence, or likely place of residence, of the
child or young person, his or her parents and any other
people who are significant to the child or young person (as
referred to in section 9 (g)), and
(e) whether the Director-General or an interstate officer is in
the better position to exercise powers and responsibilities
under a child protection order relating to the child or young
person, and
(f) the fact that it is preferable that a child or young person is
subject to a child protection order made under the child
welfare law of the State where the child or young person
resides, and
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(g) any information given to the Children's Court by the
Director-General or otherwise concerning any pending
criminal proceedings or sentencing order that is currently
in force (other than a fine) in respect of the child or young
person.
231N Interim order
(1) If the Children's Court makes an order transferring a proceeding
under this Part, the Children's Court may also make an interim
order.
(2) An interim order:
(a) may allocate parental responsibility for the child or young
person to any person solely or jointly, and
(b) may give responsibility for the supervision of the child or
young person to the interstate officer in the participating
State or any other person in that State to whom
responsibility for the supervision of a child or young
person could be given under the child welfare law of that
State, and
(c) remains in force for the period (not exceeding 30 days)
specified in the order.
(3) The Children's Court in the participating State may revoke an
interim order in accordance with the relevant interstate law.
231O Appeals
(1) A party to an application for an order under this Part who is
dissatisfied with an order of the Children's Court transferring, or
refusing to transfer, a child protection proceeding may, in
accordance with the rules of the District Court, appeal to the
District Court against the order.
(2) An appeal under subsection (1):
(a) must be instituted, and (except where instituted by the
Director-General) written notice of it must be served on
the Director-General, within 10 working days after the day
on which the order complained of was made, and
(b) operates as a stay of an order transferring the child
protection proceeding to a participating State.
(3) The District Court cannot extend the time limit fixed by
subsection (2) (a).
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(4) Section 91 (2)(6) and (8) apply to an appeal under this section
as if the appeal were an appeal under section 91 and as if the term
"order" in section 91 (2) referred to the order to transfer or refuse
to transfer the child protection proceeding.
Part 4 Registration
231P Filing and registration of interstate documents
(1) Subject to subsection (3), the Director-General must as soon as
possible file in the Children's Court for registration a copy of a
child protection order transferred to New South Wales under an
interstate law.
(2) Subject to subsection (3), the Director-General must as soon as
possible file in the Children's Court for registration a copy of an
order under an interstate law to transfer a child protection
proceeding to New South Wales, together with a copy of any
interim order made in relation to that order.
(3) The Director-General must not file in the Children's Court a copy
of a child protection order or of an order to transfer a child
protection proceeding if:
(a) the decision or order to transfer the child protection order
or the order to transfer the child protection proceeding (as
the case requires) is subject to appeal or review or a stay, or
(b) the time for instituting an appeal or seeking a review has
not expired,
under the interstate law.
231Q Notification by appropriate Children's Registrar
The appropriate Children's Registrar must immediately notify
the appropriate officer of the Children's Court in the sending
State and the interstate officer in that State of:
(a) the registration of any document filed under section 231P,
or
(b) the revocation under section 231R of the registration of
any document so filed.
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231R Revocation of registration
(1) An application for the revocation of the registration of any
document filed under section 231P may be made to the
Children's Court by:
(a) the Director-General, or
(b) the child or young person concerned, or
(c) a parent of the child or young person concerned, or
(d) a party to the proceeding in the Children's Court in the
sending State in which the decision to transfer the order or
proceeding (as the case requires) was made.
(2) The appropriate Children's Registrar must cause a copy of an
application under subsection (1) to be sent by post or given as
soon as possible to:
(a) the relevant interstate officer, and
(b) any person by whom such an application could have been
made.
(3) The Children's Court may revoke the registration of a document
filed under section 231P only if satisfied that it was
inappropriately registered because:
(a) the decision or order to transfer the child protection order
or the order to transfer the child protection proceeding (as
the case requires) was at the time of registration subject to
appeal or review or a stay, or
(b) the time for instituting an appeal or seeking a review had
not expired,
under the interstate law.
(4) The appropriate Children's Registrar must cause any document
filed in the Children's Court under section 231P to be sent to the
Children's Court in the sending State if the registration of the
document is revoked.
(5) The revocation of the registration of a document does not prevent
the later re-registration of that document.
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231S Effect of registration of transferred order
(1) On an order being registered in a participating State under an
interstate law, the child protection order made by the Children's
Court under this Act ceases to have effect.
(2) Despite subsection (1), an order that has ceased to have effect by
force of that subsection is revived if the registration of the child
protection order transferred from New South Wales is revoked in
the participating State under the interstate law.
(3) The period for which a child protection order is revived is the
balance of the period for which it would have remained in force
but for the registration of the transferred order.
231T Transfer of Children's Court file
The appropriate Children's Registrar must, subject to and in
accordance with the rules of the Children's Court (if any), cause
all documents filed in the Children's Court in connection with a
child protection proceeding, and an extract from any part of the
register that relates to a child protection proceeding, to be sent to
the Children's Court in a participating State if:
(a) the child protection order or proceeding is transferred to
the participating State, and
(b) the decision or order to transfer the child protection order
or the order to transfer the child protection proceeding (as
the case requires) is not subject to appeal or review or a
stay, and
(c) the time for instituting an appeal or seeking a review has
expired,
under this Chapter.
231U Hearing and determination of transferred proceeding
In hearing and determining a child protection proceeding
transferred to the Children's Court under an interstate law, the
Children's Court:
(a) is not bound by any finding of fact made in the proceeding
in the Children's Court in the sending State before its
transfer, and
(b) may have regard to the transcript of, or any evidence
adduced in, the proceeding referred to in paragraph (a).
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231V Disclosure of information
(1) Despite anything to the contrary in this Act, the Director-General
may disclose to an interstate officer any information that has
come to his or her notice in the exercise of functions under this
Act if the Director-General considers that it is necessary to do so
to enable the interstate officer to exercise functions under a child
welfare law or an interstate law.
(2) Any information disclosed to the Director-General under a
provision of a child welfare law or an interstate law that
substantially corresponds to subsection (1) must be taken for the
purposes of any provision of this Act relating to the disclosure of
information to have been information given directly to the
Director-General in New South Wales instead of to an interstate
officer.
231W Discretion of Director-General to consent to transfer
(1) If, under an interstate law, there is a proposal to transfer a child
protection order to New South Wales, the Director-General may
consent or refuse to consent to the transfer and the terms of the
proposed interstate order.
(2) If, under an interstate law, there is a proposal to transfer a child
protection proceeding to the Children's Court in New South
Wales, the Director-General may consent or refuse to consent to
the transfer.
231X Evidence of consent of relevant interstate officer
A document, or a copy of a document, purporting:
(a) to be the written consent of the relevant interstate officer
to:
(i) the transfer of a child protection order to a
participating State and to the terms of the proposed
interstate order, or
(ii) the transfer of a child protection proceeding pending
in the Children's Court to the Children's Court in a
participating State, and
(b) to be signed by the relevant interstate officer or his or her
delegate,
is admissible in evidence in any proceedings under this Chapter
and, in the absence of evidence to the contrary, is proof that
consent in the terms appearing in the document was duly given
by the relevant interstate officer.
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Part 6 Reciprocity generally
231Y Definitions
In this Part:
appropriate authority means a person who, pursuant to a child
protection order made under a child welfare law other than this
Act, is competent to take action equivalent to action that may be
taken pursuant to a child protection order made under this Act.
interstate ward means a child who is in New South Wales and
who, immediately before entering New South Wales, was subject
to a child protection order made under a child welfare law other
than this Act, being a child protection order that has not been
transferred to New South Wales under this Chapter.
231Z Arrangements for care
(1) The Minister:
(a) may make financial and other arrangements with an
appropriate authority for the care of:
(i) an interstate ward, or
(ii) a child or young person who is under the parental
responsibility of the Minister under this Act, and
(b) may, at the Minister's discretion, or in accordance with
any such arrangements, return an interstate ward to the
care of the appropriate authority for the interstate ward,
and
(c) must, if the appropriate authority for an interstate ward
requests the Minister to do so, return the interstate ward to
the care of that appropriate authority.
(2) The Minister is to provide for the accommodation, care and
maintenance, in accordance with the arrangements referred to in
subsection (1), of any interstate ward to whom such an
arrangement applies.
231ZA Declarations concerning parental responsibility: interstate ward
(1) The Minister may, at the request of an appropriate authority,
declare an interstate ward to be a child or young person under the
parental responsibility of the Minister under this Act.
(2) The Minister may revoke a declaration made under this section if:
(a) the child protection order to which the child or young
person concerned is subject is transferred to New South
Wales under this Chapter, or
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(b) an order of a court of competent jurisdiction provides for
the future care and protection of the child or young person
by a person other than the Minister, or
(c) the Minister has reasonable grounds to believe that the
child or young person has left New South Wales and will
not return.
(3) A declaration under this section ceases to have effect (despite any
other provision of this Act):
(a) on the day the declaration is revoked by the Minister, or
(b) on the rescission or variation of the child protection order
to which the child or young person is subject, or
(c) on the expiration of the period (if any) specified in that
child protection order,
whichever first occurs.
231ZB Declaration under law of jurisdiction other than NSW
(1) Any functions exercisable under this Act by any person in
relation to a child or young person who is subject to a child
protection order made under this Act are taken to be suspended
while a declaration concerning the child or young person is in
force under a provision of a child welfare law other than this Act
that corresponds to section 231ZA (1).
(2) However, those functions are taken not to be suspended in so far
as they may be exercised in accordance with any provision of the
child welfare law concerned.
[3] Section 245 Decisions that are reviewable by Administrative Decisions
Tribunal
Insert after section 245 (1) (f):
(f1) a decision of the Director-General to transfer a child
protection order to a participating State under Division 1 of
Part 2 of Chapter 14A,
[4] Section 255 Reciprocity between States and Territories
Omit the section.
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Schedule 3 Miscellaneous amendments to Children
and Young Persons (Care and
Protection) Act 1998
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order:
direct legal representative--see section 99A (1).
independent legal representative--see section 99A (2).
legal representative means an Australian legal practitioner.
[2] Section 29A
Insert after section 29:
29A Person who makes report is not prevented from helping child or
young person
For avoidance of doubt, it is declared that a person who is
permitted or required by this Part to make a report is not
prevented, by reason only of having made that report, from
responding to the needs of, or discharging any other obligations
in respect of, the child or young person the subject of the report
in the course of that person's employment or otherwise.
[3] Section 43 Removal of children and young persons without warrant
Omit "or who are on remand" from section 43 (5).
Insert instead ", who are on remand or who are subject to an order under
section 33 (1) (g) of the Children (Criminal Proceedings) Act 1987".
[4] Section 69 Interim care orders
Insert after section 69 (1):
(1A) The Children's Court may make an interim care order prior to
determining whether the child or young person is in need of care
and protection, if the Court is satisfied that it is appropriate to do
so.
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[5] Section 71A
Insert after section 71:
71A Effect of conduct outside New South Wales
For the purposes of this Act, it does not matter whether the
conduct constituting a reason referred to in section 71 occurred
wholly or partly outside the State.
[6] Section 96 Attendance of child or young person, parents and others
Insert after the note to section 96 (6):
(7) In this section:
parent of a child or young person includes a birth parent, or an
adoptive parent, of the child or young person who does not have
parental responsibility for the child or young person.
[7] Sections 9999D
Omit section 99. Insert instead:
99 Appointment of legal representative by Children's Court
(1) The Children's Court may appoint a legal representative to act for
a child or young person if it appears to the Children's Court that
the child or young person needs to be represented in any
proceedings before it.
(2) A legal representative for a child or young person who has not
been appointed by the Children's Court may appear only with its
leave.
(3) The Children's Court may withdraw its leave at any time and for
any reason (including the child or young person informing the
Children's Court that he or she does not wish to be represented
by the legal representative).
99A Legal representative to act as independent legal representative or
direct legal representative
(1) A legal representative for a child or young person is to act as a
direct legal representative if:
(a) the child or young person is capable of giving proper
instructions, and
(b) a guardian ad litem has not been appointed for the child or
young person.
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(2) A legal representative for a child or young person is to act as an
independent legal representative if:
(a) the child or young person is not capable of giving proper
instructions, or
(b) a guardian ad litem has been appointed for the child or
young person.
Note. Section 100 (4) provides that a legal representative of a child or
young person for whom a guardian ad litem has been appointed is to act
on the instructions of the guardian ad litem.
99B Child under 12 presumed incapable of giving proper instructions
(1) There is a rebuttable presumption that a child who is less than 12
years of age is not capable of giving proper instructions to his or
her legal representative.
(2) However, the Children's Court may, on the application of a legal
representative for a child who is less than 12 years of age, make
a declaration that the child is capable of giving proper
instructions.
99C Child 12 or older and young person presumed capable of giving
proper instructions
(1) There is a rebuttable presumption that a child who is not less than
12 years of age, or a young person, is capable of giving proper
instructions to his or her legal representative.This presumption is
not rebutted merely because the child or young person has a
disability.
(2) However, the Children's Court may, on the application of a legal
representative for a child who is not less than 12 years of age, or
a young person, make a declaration that the child or young person
is not capable of giving proper instructions.
99D Role of a legal representative
Without limiting the role of a legal representative for a child or
young person in proceedings before the Children's Court:
(a) the role of a direct legal representative includes the
following:
(i) ensuring that the views of the child or young person
are placed before the Children's Court,
(ii) ensuring that all relevant evidence is adduced and,
where necessary, tested,
(iii) acting on the instructions of the child or young
person, and
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(b) the role of an independent legal representative includes the
following:
(i) if a guardian ad litem has been appointed for the
child or young person--acting on the instructions of
the guardian ad litem,
(ii) interviewing the child or young person after
becoming the independent legal representative,
(iii) explaining to the child or young person the role of
an independent legal representative,
(iv) presenting direct evidence to the Children's Court
about the child or young person and matters relevant
to his or her safety, welfare and well-being,
(v) presenting evidence of the child's or young person's
wishes (and in doing so the independent legal
representative is not bound by the child's or young
person's instructions),
(vi) ensuring that all relevant evidence is adduced and,
where necessary, tested,
(vii) cross-examining the parties and their witnesses,
(viii) making applications and submissions to the
Children's Court for orders (whether final or
interim) considered appropriate in the interests of
the child or young person,
(ix) lodging an appeal against an order of the Children's
Court if considered appropriate.
[8] Section 148 Disclosure of information concerning placement to parents
Omit the section.
[9] Chapter 8, Part 2, Division 1A
Insert after section 149A:
Division 1A Disclosure to parents and significant
persons of information concerning
placement in out-of-home care
149B Definitions
(1) In this Division, parent, in relation to the child or young person
concerned, means:
(a) the person (other than the Minister or the
Director-General) who had parental responsibility for the
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child or young person immediately before the child or
young person was placed in out-of-home care, and
(b) if the person referred to in paragraph (a), or the Minister or
the Director-General, had parental responsibility for the
child or young person pursuant to an order of the
Children's Court--the person who had parental
responsibility for the child or young person immediately
before the order of the Children's Court was made.
(2) A reference in this Division to a person who is significant to a
child or young person is a reference to a person referred to in
section 9 (g).
149C Disclosure to parents and significant persons
(1) The designated agency responsible for the placement of a child or
young person in out-of-home care must, in accordance with this
Division, disclose information concerning the placement of the
child or young person to the following persons:
(a) the birth parents and adoptive parents (if any) of the child
or young person,
(b) any other person who is significant to the child or young
person and who makes a written request for the
information.
(2) The information must be disclosed as soon as practicable after the
placement of the child or young person.
(3) This section is subject to sections 149E (Consent of authorised
carer to disclosure of high level identification information) and
149I (Refusal to disclose information concerning placement).
149D Type and amount of information to be disclosed
When considering the type and amount of information to be
disclosed under this Division, the designated agency must have
regard to:
(a) the wishes of the child or young person and authorised
carer concerned, and
(b) any guidelines prepared by the Children's Guardian in
relation to disclosure, which may include, but are not
limited to, any guidelines relating to the following:
(i) particular classes of people, in addition to parents
and including persons significant to the child or
young person, who should normally receive
information concerning placement,
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(ii) particular types of information concerning
placement that should normally be disclosed,
(iii) guidance as to any persons who should not receive
information concerning placement,
(iv) guidance as to how the child or young person
concerned is to participate in any decision-making
processes relating to the disclosure of information
concerning the authorised carer of the child or
young person.
149E Consent of authorised carer to disclosure of high level
identification information
(1) Except as provided by this section (and despite section 149C), a
designated agency must not disclose high level identification
information concerning the placement of a child or young person
unless:
(a) the designated agency has contacted the authorised carer of
the child or young person concerned and requested the
consent of that authorised carer to the disclosure, and
(b) the authorised carer has consented in writing to the
disclosure.
(2) The information may be disclosed even though the authorised
carer of the child or young person concerned has refused to
consent to the disclosure, or has not consented to the disclosure
within 28 days after being requested to do so under this section,
if the designated agency:
(a) believes on reasonable grounds that the disclosure will not
pose any risk to the safety, welfare or well-being of:
(i) the child or young person concerned, or
(ii) the authorised carer of the child or young person, or
(iii) any member of the family or household of the
authorised carer of the child or young person, and
(b) complies with sections 149F and 149G.
149F Disclosure of high level identification information without consent
of authorised carer
(1) Before disclosing high level identification information without
the consent of the authorised carer of the child or young person
concerned, the designated agency:
(a) must provide written reasons to the authorised carer as to
why it believes that the disclosure of the information will
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not pose any risk of the kind referred to in section
149E (2) (a), and
(b) if the child or young person concerned is 12 years of age
or older--must provide a copy of the written reasons to the
child or young person (unless the agency considers that it
is not in the child or young person's best interests to do so),
and
(c) if the child concerned is less than 12 years of age--must
supply a copy of the written reasons to any person
nominated by the child (unless the agency considers that it
is not in the child's best interests to do so or that the child
is too young to nominate a person), and
(d) must ensure that a copy of the written reasons is retained
on the designated agency's file for the purpose of
disclosing them to the child after he or she reaches the age
of 12 (unless the agency considers that it is not in the
child's best interests to do so).
(2) The designated agency must also give the authorised carer a
written notice stating:
(a) that the information will not be disclosed within the period
of 21 days after the date of the notice, and
(b) that the decision to disclose the information may be
reviewed by the Administrative Decisions Tribunal:
(i) on the application of the authorised carer, or
(ii) on the application of the designated agency (on
behalf of the authorised carer) at the request of the
authorised carer made before the expiry of the
21-day period referred to in paragraph (a).
149G Application for review of decision to disclose high level
identification information
(1) If a designated agency decides to disclose high level
identification information under this Division despite the
authorised carer's refusing, or failing to give, consent to the
disclosure, the authorised carer:
(a) may apply to the Administrative Decisions Tribunal for a
review of the decision to disclose the information, or
(b) may, within the time allowed under section 149F (2) (b)
(ii), request the designated agency to apply to the
Administrative Decisions Tribunal, on behalf of the
authorised carer, for a review of the decision to disclose
the information.
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(2) The designated agency must comply with any request made in
accordance with subsection (1) (b) and, before doing so, must
carry out an internal review of the decision in accordance with
section 53 of the Administrative Decisions Tribunal Act 1997 as
modified by section 149H and the regulations (if any).
(3) If an application is made to the Administrative Decisions
Tribunal under this section, the designated agency must not
disclose the information to which the application relates
otherwise than in accordance with the final determination of the
application (unless the application is withdrawn by or at the
request of the authorised carer).
149H Modification of Administrative Decisions Tribunal Act 1997
(1) If an application for a review of a decision to disclose high level
identification information under this Division is to be made by a
designated agency at the request of, and on behalf of, an
authorised carer:
(a) the designated agency is taken to be an interested person
for the purposes of the ADT Act, and
(b) the following provisions of the ADT Act do not apply in
relation to the application:
(i) Division 2 (Duty to give reasons on request) of
Part 2 of Chapter 5,
(ii) section 53 (2) (Requirements for an application),
(iii) Division 2 (Effect of pending applications on
reviewable decisions) of Part 3 of Chapter 5, and
(c) a reference in section 58 (1) of the ADT Act to receiving
notice of an application is to be construed as a reference to
the making of an application, and
(d) a reference in section 58 of the ADT Act to the giving of
reasons under section 49 of that Act is to be construed as a
reference to the provision of reasons to the authorised carer
under section 149F of this Act, and
(e) the application is taken, after it is made, to have been made
by the authorised carer.
(2) The regulations may further modify the application of the ADT
Act in relation to an application referred to in subsection (1).
(3) In this section, the ADT Act means the Administrative Decisions
Tribunal Act 1997.
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149I Refusal to disclose information concerning placement
(1) Despite section 149C, a designated agency must refuse to
disclose information concerning placement under this Division,
or must impose conditions on the disclosure, if it believes on
reasonable grounds that the disclosure of the information would
adversely affect the safety, welfare or well-being of:
(a) the child or young person concerned, or
(b) an authorised carer of that child or young person, or
(c) any member of the family or household of the authorised
carer of that child or young person.
(2) If a designated agency decides to refuse to disclose information
concerning placement under this Division, it must give written
notification of the decision:
(a) to the parents of the child or young person, and
(b) to any other person who is significant to the child or young
person and who has made a written request for the
information.
(3) For the purposes of deciding whether or not to refuse to disclose
information concerning placement, or to disclose such
information subject to conditions, the designated agency must
have regard to:
(a) the wishes of the child or young person concerned, and
(b) any guidelines prepared by the Children's Guardian (as
referred to in section 149D (b)).
149J Disclosure not contravention of confidentiality or contravention of
privacy law
A disclosure of information concerning placement made in good
faith under this Division does not constitute a contravention of
any provision as to confidentiality in this Act or a contravention
of the Health Records and Information Privacy Act 2002 or the
Privacy and Personal Information Protection Act 1998.
149K No conflict with court order
(1) This Division does not authorise a disclosure of information
concerning placement if that disclosure is prevented by an order
of any court or tribunal.
(2) This Division does not prevent a disclosure of information
concerning placement if that disclosure is required by an order of
any court or tribunal.
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[10] Section 168 Access to personal information
Insert after section 168 (1):
(1A) In this section, a reference to records kept by a designated agency
includes a reference to records formerly kept by the agency and
delivered to the Director-General as referred to in section 170
(2A).
[11] Section 170 Retention of records
Insert at the end of section 170 (3):
However, subsection (2A) applies despite the provisions of that
Act.
[12] Section 199 Definitions
Insert in alphabetical order:
exempt premises means:
(a) any premises belonging to a class of premises prescribed
by the regulations for the purposes of this paragraph, and
(b) in relation to any provision of this Chapter, any premises
declared to be exempt premises for the purposes of that
provision by an order of the Minister published in the
Gazette, being an order that is in force.
[13] Section 199, definition of "home based children's service"
Insert "by the carer" after "provided".
[14] Section 199 (2)
Insert at the end of section 199:
(2) The Minister may make orders of the kind referred to in
paragraph (b) of the definition of exempt premises in
subsection (1).
[15] Section 200 Meaning of "children's services"
Omit section 200 (2) (d). Insert instead:
(d) a service involving medical or clinical care provided by a
hospital,
(d1) a regular child-minding service:
(i) that is provided in connection with a hospital, health
service or a recreational or commercial facility, and
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(ii) that is provided by or on behalf of the person
conducting the hospital, health service or
recreational or commercial facility, and
(iii) that is provided to care for children only:
(A) while a sibling of the child being cared for is
being treated at the hospital or health service,
or
(B) while the children's parents or authorised
carers are visiting or being treated at the
hospital or health service or are using the
recreational or commercial facility,
[16] Section 200 (3)
Omit the subsection. Insert instead:
(3) In this section:
hospital means:
(a) a private hospital or day procedure centre licensed under
the Private Hospitals and Day Procedure Centres
Act 1988, or
(b) a hospital or an authorised hospital within the meaning of
the Mental Health Act 1990, or
(c) a public hospital within the meaning of the Health Services
Act 1997.
[17] Section 219 Time for instituting proceedings
Omit the section.
[18] Section 245 Decisions that are reviewable by Administrative Decisions
Tribunal
Insert after section 245 (1) (i):
(j) a decision of a designated agency to disclose high level
identification information concerning the placement of a
child or young person,
(k) a decision of a designated agency to refuse to disclose
information concerning the placement of a child or young
person.
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[19] Section 245 (1A)
Insert after section 245 (1):
(1A) Sections 2931 of the Community Services (Complaints, Reviews
and Monitoring) Act 1993 do not apply in respect of a review of
a decision referred to in subsection (1) (j) or (k).
[20] Section 246 Separation of children and young persons from offenders
Omit the second paragraph of the note.
[21] Section 246 (2) and (3)
Insert after the note to section 246:
(2) Subsection (1) does not apply in respect of a child or young
person who:
(a) is on remand, or
(b) is subject to an order under section 33 (1) (g) of the
Children (Criminal Proceedings) Act 1987.
(3) If a child or young person in the care responsibility of the
Director-General or in the parental responsibility of the Minister
under this Act is detained by the police on a warrant issued for his
or her arrest, the child or young person cannot be held in a
detention centre (within the meaning of the Children (Detention
Centres) Act 1987) pending his or her appearance in court.
[22] Section 258A
Insert after section 258:
258A Time for instituting proceedings
(1) Proceedings for an offence under this Act or the regulations may
be commenced not later than 6 months after the offence was
alleged to have been committed.
(2) Proceedings for an offence against this Act or the regulations
may also be commenced:
(a) in the case of an offence against Chapter 12 or against a
regulation made in relation to children's services--within
but not later than 2 years after the Director-General
became aware of the alleged offence, or
(b) in any other case--within but not later than 6 months after
the Director-General became aware of the alleged offence.
Page 34
Children and Young Persons (Care and Protection) Miscellaneous
Amendments Bill 2006
Miscellaneous amendments to Children and Young Persons (Care and Schedule 3
Protection) Act 1998
(3) If subsection (2) is relied on for the purpose of commencing
proceedings for an offence, the court attendance notice or
application must contain particulars of the date on which
evidence of the alleged offence first came to the attention of the
Director-General and need not contain particulars of the date on
which the offence was alleged to have been committed. The date
on which evidence first came to the attention of the
Director-General is the date specified in the court attendance
notice or application, unless the contrary is established.
(4) This section applies despite anything in the Criminal Procedure
Act 1986 or any other Act.
(5) In this section:
evidence of an offence means evidence of any act or omission
constituting the offence.
[23] Schedule 3 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Children and Young Persons (Care and Protection)
Miscellaneous Amendments Act 2006
[24] Schedule 3
Insert (with appropriate numbering) at the end of the Schedule:
Part Provisions consequent on enactment of
Children and Young Persons (Care and
Protection) Miscellaneous Amendments
Act 2006
Definition
In this Part:
amending Act means the Children and Young Persons (Care and
Protection) Miscellaneous Amendments Act 2006.
Legal representation
Section 99 as in force before its repeal and re-enactment by the
amending Act continues to apply to any proceedings before the
Children's Court that were pending (but not finally determined)
before that repeal and re-enactment.
Page 35
Children and Young Persons (Care and Protection) Miscellaneous
Amendments Bill 2006
Schedule 3 Miscellaneous amendments to Children and Young Persons (Care and
Protection) Act 1998
Admissibility of certain evidence
Sections 106A and 107 (3A), as inserted by the amending Act,
extend to apply in respect of proceedings before the Children's
Court that were pending (but not finally determined) immediately
before the commencement of the section concerned.
Exempt premises
Premises that were exempt premises within the meaning of
section 200 (3) (b) or (c) immediately before the repeal of those
paragraphs by the amending Act are taken to be exempt premises
within the meaning of section 199 as amended by the amending
Act.
Institution of proceedings
Section 258A, as inserted by the amending Act, extends to apply
in respect of offences alleged to have been committed before the
commencement of that section.
Page 36
Children and Young Persons (Care and Protection) Miscellaneous
Amendments Bill 2006
Amendment of other Acts Schedule 4
Schedule 4 Amendment of other Acts
(Section 4)
4.1 Child Protection (International Measures) Act 2006 No 12
Section 4 Application of Act
Insert after section 4 (2):
(3) This Act does not apply in relation to matters dealt with under an
arrangement with New Zealand under Chapter 14A of the
Children and Young Persons (Care and Protection) Act 1998.
(4) To the extent that this Act and an arrangement referred to in
subsection (3) are inconsistent in providing for the exercise of
jurisdiction by a New South Wales authority or a competent
authority in a Convention country, this Act prevails.
4.2 Children and Young Persons (Care and Protection)
Amendment Act 2005 No 93
Schedule 1 Amendment of Children and Young Persons (Care and
Protection) Act 1998
Insert at the end of section 109B of the Children and Young Persons (Care and
Protection) Act 1998 (as proposed to be inserted by Schedule 1 [8]):
(6) In this section:
parent of a child or young person includes a birth parent, or an
adoptive parent, of the child or young person who does not have
parental responsibility for the child or young person.
Page 37
Children and Young Persons (Care and Protection) Miscellaneous
Amendments Bill 2006
Schedule 4 Amendment of other Acts
4.3 Children and Young Persons (Care and Protection)
Amendment Act 2006 No 60
[1] Schedule 1 Amendments
Omit "section 99 (3)" from section 96 (2A) in Schedule 1 [33].
Insert instead "section 99C (1)".
[2] Schedule 1
Omit Schedule 1 [35][38].
Page 38
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