Children and Young Persons (Care and
Protection) Amendment Bill 2005

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Children and Young Persons (Care and
Protection) Act 1998 (the Principal Act):

(a) to make explicit provision for the Children’s Court to issue notices requiring
the attendance of children and young persons and their parents before the
Children’s Court and subpoenas for the attendance of witnesses to give
evidence and produce documents to the Court, and

(b) to enable the Children’s Court to issue notices requiring the attendance before
the Children’s Court of persons who have or have had care responsibility for
a child or young person and requiring other persons to attend to give
information concerning the whereabouts of children and young persons, and

(c) to enable the Children’s Court to issue warrants for the arrest of children,
young persons, parents and other persons who do not appear as required by
such notices and witnesses who do not comply with such subpoenas, and

(d) to enable the Children’s Court, a Children’s Registrar or other Registrar of the
Children’s Court and certain authorised justices to grant bail to such persons,
and

(e) to enable the Children’s Court or any of those persons to issue warrants of
commitment to correctional centres, detention centres and other places of
security where bail is not dispensed with or granted, and

(f) to require a care plan to be presented to the Children’s Court and for the Court
to be satisfied as to its terms before the Court makes an order giving an
authorised carer sole parental responsibility for a child or young person under
section 149, and

(g) to provide for the prescription by the regulations of medical treatments as
special medical treatments for the purposes of section 175, and

(h) to repeal section 176 (Special medical examinations), and
        (i) to make it clear that community based and private children’s services are
exempt from the requirements of the State Records Act 1998, and

(j) to provide as a ground on which a search warrant in respect of the presence of
a child or young person may be applied for, and issued, under section
233 (1) (a) of the Principal Act that a child or young person is at risk of serious
harm, and

(k) to enable the regulations to exempt certain centre based children’s services
from the requirement that they be licensed and to regulate the services so
exempted, and

(l) to enable the regulations to apply, adopt or incorporate, wholly or in part and
with or without modifications, any standard, rule, code, specification or other
document prescribed or published by any person or body (whether of New
South Wales or elsewhere) and as in force at a particular time or from time to
time, and

(m) to clarify certain provisions concerning the removal of children and young
persons from, and search for children and young persons in, premises and
places, and

(n) to make provision of a savings and transitional or consequential nature.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the Children
and Young Persons (Care and Protection) Act 1998 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to the Children’s
Court Act 1987 set out in Schedule 2.

Schedule 1 Amendment of Children and Young
Persons (Care and Protection) Act 1998
Compelling attendance and the giving of evidence
Schedule 1 [5]–[7] amend section 96 and Schedule 1 [8] inserts a new Part
(proposed sections 109–109X) in Chapter 6 to achieve the objects set out in
paragraphs (a)–(e) of the Overview.

Section 96 of the Principal Act currently enables the Children’s Court to require the
attendance in proceedings before it with respect to a child or young person of the
child or young person and of any parent of the child or young person. Schedule 1
[5]–[7] amend section 96 to expand the persons whom the Children’s Court may
require to attend such proceedings to include any other person who has, or has had,
care responsibility for the child or young person and, if the whereabouts of the child
or young person is unknown to the Children’s Court, of any person the Children’s
Court has reasonable cause to believe knows, or has information concerning, the
whereabouts of the child or young person. The Children’s Court may require the
attendance at proceedings by issue of a care proceedings attendance notice under
proposed section 109A (to be inserted by Schedule 1 [8]). If a person fails to attend
when required to do so by such a notice the Children’s Court will be able to issue a
warrant for the person’s arrest to compel attendance under proposed section 109B (to
be inserted in the Principal Act by Schedule 1 [8]).

Section 109 of the Principal Act currently applies the provisions of the Criminal
Procedure Act 1986 relating to warrants and subpoenas for the attendance of
witnesses in proceedings before a Local Court for offences punishable on summary
conviction to the attendance of witnesses in proceedings before the Children’s Court
and production of documents in proceedings before the Children’s Court in the same
way as those provisions apply to the attendance of witnesses in proceedings for such
offences.

Schedule 1 [8] repeals section 109 and inserts a new Part 2 (proposed sections
109–109X) into Chapter 6 of the Principal Act.

Proposed section 109 contains definitions for the purposes of the new Part.

Proposed section 109A provides for issue of care proceedings attendance notices.

Proposed section 109B enables the Children’s Court to issue a warrant to arrest a
person if it is satisfied that there are substantial reasons to do so and that it is in the
interests of the safety, welfare or well-being of a child or young person the subject of
care proceedings to do so. Circumstances in which such a warrant may be issued
include (but are not limited to) a person failing to attend the proceedings as required
by a care proceedings attendance notice or where a child, young person or parent
absconds from such proceedings. The Children’s Court or a Registrar (defined as a
Children’s Registrar or other Registrar of the Children’s Court or an authorised
justice within the meaning of the Bail Act 1978) may (if bail is not dispensed with or
granted) commit an adult who is arrested to a correctional centre or other place of
security, a young person who is arrested to a detention centre or other place of
security or place a child who is arrested in the care responsibility of the
Director-General.

Proposed section 109C explicitly provides for the Children’s Court, a Children’s
Magistrate or such a Registrar to issue a subpoena to give evidence, a subpoena for
production or a subpoena both to give evidence and for production at the request of
a party to proceedings in the Children’s Court.

Proposed section 109D makes provision with respect to service of subpoenas.

Proposed section 109E provides for the reimbursement of a person who is
subpoenaed for the reasonable expenses of complying with the subpoena.

Proposed section 109F ensures that a document or thing cannot be required to be
produced by subpoena unless it is specified or sufficiently described and is a
document or thing that could be required to be produced in the Supreme Court.

Proposed section 109G enables a person who is not a party who is subpoened for
production to produce the document or thing without attending the proceedings.

Proposed section 109H enables the Children’s Court to set aside a subpoena, wholly
or in part.

Proposed section 109I provides for inspection of subpoenaed documents and things.

Proposed section 109J sets out the action that may be taken if a person fails, without
reasonable excuse, to comply with a subpoena. The Children’s Court may issue a
warrant for the arrest of the person and provision is made for the issue of warrants of
commitment in certain circumstances.

Proposed section 109K enables the Children’s Court to issue a warrant for the
committal of a person to a correctional centre, detention centre or other place of
security if the person has been subpoenaed to give evidence or for production and
refuses without reasonable excuse to take an oath, answer questions or produce the
document or thing.

Proposed sections 109L–109Q make provision for the issue, form, duration,
execution and revocation of arrest warrants to compel attendance as referred to in
proposed section 109B.

Proposed sections 109R–109T provide for the form of warrants and execution of
warrants of commitment and states the effect of defects in them.

Proposed section 109U applies the Bail Act 1978 with necessary modifications to a
person brought before the Children’s Court, a Children’s Magistrate or a Registrar of
the Children’s Court or an authorised justice within the meaning of that Act after
being arrested under the new Part. The provision enables the Children’s Court or
such a Children’s Magistrate or a Registrar to grant court bail.

Proposed section 109V provides for the review of bail decisions of the Children’s
Court or a Registrar.

Proposed section 109W provides for the sealing and signing of warrants.

Proposed section 109X enables the Children’s Court to make rules with respect to
subpoenas under the new Part.

Schedule 1 [4] inserts a heading into Chapter 6 as a consequence of the insertion of
the new Part.

Schedule 1 [1] inserts definitions of Registrar and rules into the Principal Act for the
purposes of the new Part and other provisions.

Orders for sole parental responsibility—care plan must be provided
Under section 149 of the Principal Act an authorised carer who, for a continuous
period of not less than 2 years, has the care of a child or young person for whom the
Minister has parental responsibility may apply to the Children’s Court for an order
awarding the authorised carer sole parental responsibility for the child or young
person. Schedule 1 [9] inserts proposed section 149AA to require a care plan to be
presented to the Children’s Court and for the Children’s Court to be satisfied as to its
terms before it makes such an order.

Special medical treatment
Schedule 1 [10] amends the definition of special medical treatment in section 175
of the Principal Act to enable medical treatments for the purpose of contraception or
menstrual regulation to be prescribed by the regulations instead of being specified in
the Act.

Special medical examinations
Section 176 of the Principal Act imposes certain functions on the Children’s
Guardian relating to the carrying out of special medical examinations (that is, vaginal
or anal examinations or penile examinations involving the insertion of any thing into
the penis) of a child or young person who resides in out-of-home care in accordance
with an order of the Children’s Court. Schedule 1 [11] repeals the section. Such
examinations are now rarely, if ever, performed and parental responsibility for
children in out-of-home care is generally imposed on the Minister under section 81
of the Principal Act or on a delegate of the Minister not the Children’s Guardian.

Exemption of certain children’s services from State Records Act 1998
The State Records Act 1998 sets down certain obligations of public offices of the
State with respect to the creation, management, protection and preservation of their
records. Public offices are defined in that Act to include services exercising any
functions of a branch of the Government and this may inadvertently require private
individuals and bodies supplying children’s services to comply with those
obligations even though the Act does not generally apply to such individuals or
bodies. Schedule 1 [12] inserts proposed section 218A into the Principal Act to make
it clear that such persons or bodies are exempt from the requirements of the State
Records Act 1998.

Powers of search and removal of children and young persons in need
of care and protection
Under section 233 (1) (a) of the Principal Act the Director-General or a police officer
may apply to an authorised justice for a search warrant if he or she has reasonable
grounds for believing there is a child or young person “in need of care and
protection” on premises. However, under section 233 (2) (a), an authorised justice to
whom such an application is made may issue the search warrant only if satisfied on
reasonable grounds that a child or young person may be “at immediate risk of serious
harm” (and that the making of an apprehended violence order would not be sufficient
to protect the child or young person). Schedule 1 [14] and [15] amend section
233 (1) (a) and (2) (a), respectively, to provide instead that an application for a search
warrant may be made if the Director-General or a police officer is satisfied on
reasonable grounds that a child or young person may be at risk of serious harm and
may be issued if the authorised justice is satisfied on reasonable grounds that a child
or young person may be “at risk of serious harm” (and that the making of an
apprehended violence order would not be sufficient to protect the child or young
person). Schedule 1 [19] contains a savings provision that is consequential on the
amendments to section 233.

Clarification of certain powers
Schedule 1 [2] and [3] amend section 48 of the Principal Act to make it clear that an
order for the removal of a child under the section may authorise removal of the child
from any one or more premises or places specified or described in the order not only
from one specified premises or place.

Schedule 1 [16] amends section 233 (4) to make a similar clarification with respect
to the issue of search warrants issued under that section with respect to children or
young persons in need of care and protection.

Regulation-making powers
Schedule 1 [13] amends section 220 of the Principal Act to achieve the object set out
in paragraph (k) of the Overview. The amendment will enable the regulations to
exempt certain centre based children’s services (for example, short term child care
services in shopping centres) from the requirement that they be licensed while
imposing minimum standards with which they must comply.

Schedule 1 [17] amends section 264 of the Principal Act to achieve the object set out
in paragraph (l) of the Overview.

Schedule 1 [18] amends Schedule 3 to the Principal Act to enable the making of
regulations of a savings and transitional nature.

Schedule 2 Amendment of Children’s Court Act 1987
Schedule 2 contains an amendment to the Children’s Court Act 1987 to enable rules
to be made by the Governor with respect to the proceedings under the Principal Act.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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