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This is a Bill, not an Act. For current law, see the Acts databases.
CARE AND PROTECTION OF CHILDREN BILL 2007
Serial
112Care and Protection of Children Bill
2007Ms
Scrymgour
A
BILL
for
AN ACT
about
the care and protection of children, and for related purposes
NORTHERN TERRITORY OF
AUSTRALIA
CARE and protection of Children ACT
2007
____________________
Act No. of 2007
____________________
TABLE OF PROVISIONS
NORTHERN TERRITORY OF
AUSTRALIA
____________________
Act No. [ ] of 2007
____________________
AN ACT
[Assented to [ ]
2007]
[Second reading [ ]
2007]
The Legislative Assembly of the Northern Territory enacts
as follows:
Part
1.1 – preliminary matters
Short title
This Act may be cited as the Care and Protection of
Children Act 2007.
Commencement
This Act commences on the date fixed by the Administrator by
Gazette notice.
Act binds Crown
This Act binds the Crown in right of the Territory and, to
the extent the legislative power of the Legislative Assembly permits, the Crown
in all its other capacities.
Part
1.2 – what this Act is about
Objects
of Act
The objects of this Act are:
to promote the wellbeing of children,
including:
to protect children from harm and exploitation;
and
to maximise the opportunities for children to realise
their full potential; and
to assist families to achieve the object in paragraph (a);
and
to ensure anyone having responsibilities for children have
regard to the objects in paragraphs (a) and (b) in fulfilling those
responsibilities.
Overview
To achieve those objects, this Act provides for the
following:
measures for safeguarding the wellbeing of children (see
Chapter 2), in particular:
mandatory reporting requirements for children at risk of
harm or exploitation (see Part 2.1, Division 2); and
the powers of the CEO and other officers to take actions
for the wellbeing of children (see Parts 2.1 and 2.2); and
the powers of the Court to make orders for the wellbeing
of children (see Parts 2.3 and 2.4);
measures for the prevention of harm and exploitation of
children (see Chapter 3), in particular:
screening for child-related employment (see Part 3.1);
and
restriction of child employment (see Part 3.2);
and
prevention of child deaths (see Part
3.3);
the regulation of children's services (see Chapter
4);
the establishment of the office of Children's
Commissioner, the review teams and other administrative measures (see Chapter
5).
Part
1.3 – principles Underlying this Act
Principles
The underlying principles of this Act are set out in
sections to .
Anyone exercising a power or performing a function under
this Act must, as far as practicable, uphold those principles.
However, those principles do not affect the operation of
any law in force in the Territory.
Responsibility of society
Society as a whole has a responsibility in safeguarding the
wellbeing of children and in supporting families in fulfilling their role in
relation to children.
Role of
family
The family of a child has the primary responsibility for
the care, upbringing and development of the child.
In fulfilling that responsibility, the family should be
able to bring up the child in any language or tradition and foster in the child
any cultural, ethnic or religious values.
A child may be taken away from the child's family only if
there is no other reasonable way to safeguard the wellbeing of the
child.
As far as practicable, and consistent with section , if a
child is taken away from the child's family:
contact between the child and the family should be
encouraged and supported; and
the child should eventually be returned to the
family.
Treating child with respect
Each child is a valued member of society and is entitled
to be treated in a way that respects the child's dignity and
privacy.
Decisions involving a child should be
made:
promptly having regard to the child's circumstances;
and
in a way that is consistent with the cultural, ethnic and
religious values and traditions relevant to the child; and
with the informed participation of the child, the child's
family and other people who are significant in the child's
life.
Best interests of child
When a decision involving a child is made, the best
interests of the child are the paramount concern.
Without limiting subsection (1), consideration should be
given to the following matters in determining the best interests of a
child:
the need to protect the child from harm and
exploitation;
the capacity and willingness of the child's parents or
other family members to care for the child;
the nature of the child's relationship with the child's
family and other persons who are significant in the child's
life;
the wishes and views of the child, having regard to the
maturity and understanding of the child;
the child's need for permanency in the child's living
arrangements;
the child's need for stable and nurturing
relationships;
the child's physical, emotional, intellectual, spiritual,
developmental and educational needs;
the child's age, maturity, gender, sexuality and cultural,
ethnic and religious backgrounds;
other special characteristics of the
child;
the likely effect on the child of any changes in the
child's circumstances.
Child
participation
When a decision involving a child is made:
the child:
should be given adequate information and explanation in a
way that the child can understand; and
should be given the opportunity to respond to the proposed
decision; and
should be given the opportunity to express the child's
wishes and views freely; and
should be given assistance in expressing those wishes and
views; and
those wishes and views should be taken into account,
having regard to the child's maturity and understanding.
Aboriginal children
Kinship groups, representative organisations and
communities of Aboriginal people have a major role, through self-determination,
in promoting the wellbeing of Aboriginal children.
In particular, a kinship group, representative
organisation or community of Aboriginal people nominated by an Aboriginal
child's family should be able to participate in the making of a decision
involving the child.
An Aboriginal child should, as far as practicable, be
placed with a person in the following order of priority:
a member of the child's family;
an Aboriginal person in the child's community in
accordance with local community practice;
any other Aboriginal person;
a person who:
is not an Aboriginal person; but
in the CEO's opinion, is sensitive to the child's needs
and capable of promoting the child's ongoing affiliation with the culture of the
child's community (and, if possible, ongoing contact with the child's
family).
In addition, an Aboriginal child should, as far as
practicable, be placed in close proximity to the child's family and
community.
Part 1.4
– INterpretation
Definitions
In this Act:
"Aboriginal" means:
(a) a descendant of the Aboriginal people of Australia;
or
(b) a descendant of the indigenous inhabitants of the Torres
Strait Islands;
"Aboriginal customary law" means:
(a) customary law of the Aboriginal people of Australia;
or
(b) customary law of the indigenous inhabitants of the
Torres Strait Islands;
"Aboriginal tradition" means:
(a) tradition of the Aboriginal people of Australia;
or
(b) tradition of the indigenous inhabitants of the Torres
Strait Islands;
"action plan agreement", see section (1);
"administrative guidelines", means administrative guidelines
made under section (1);
"adult" means:
(a) a person at least 18 years of age; or
(b) a person apparently at least 18 years of age if the
person's age cannot be proved;
"advisor" means an advisor to the Committee mentioned in
section ;
"approved form" means a form approved by the CEO under
section ;
"assessment order" means an assessment order made under
section (a) or (b);
"authorised officer", see section (1);
"Authority" means the Screening Authority established by
section (1);
"candidate", see section (1);
"care plan", see section (2);
"carer", see section (1);
"caretaker", means a caretaker mentioned in section
;
"CEO" means the Chief Executive Officer of the
Department;
"child" means:
(a) a person less than 18 years of age; or
(b) a person apparently less than 18 years of age if the
person's age cannot be proved;
"child", for Court proceedings, see section
(2)(d);
"child", for Court order, see section
(2)(e);
"Child Deaths Register" means the Child Deaths Register
established by section (1);
"child deaths", see section ;
"child is in the CEO's care", see section
(1);
"child is in need of protection", see section
;
"child leaves the CEO's care", see section
(2);
"child protection order", for Part 2.4, see section
;
"child protection proceeding", for Part 2.4, see section
;
"child-related authority", see section (1);
"child-related employment", see section ;
"child-related services" means services
that:
are provided to one or more of the
following:
a child (whether or not in need of protection) or young
person who has left the CEO's care;
someone who is related to or is a family member of the
child or person;
an organisation representing the interests of the child or
person;
an organisation representing a community of which the
child or person is a member; and
are in the nature of social services that relate to one or
more of the following:
the prevention of harm to, or exploitation of, a
child;
the protection of a child;
services for the care or support of a child and the
child's family (including children's services and other domestic support
services);
a placement arrangement;
medical or other health-related services;
information and advisory services;
counselling services;
advocacy services;
mediation services;
"child-related work" see section (2);
"child welfare law", for Part 2.4, see section
;
"Children's Court", for Part 2.4, see section
;
"children's services", see section ;
"clearance notice", means a clearance notice issued under
section (3)(a);
"Commissioner" means the person holding or occupying the
office of Children's Commissioner established by section ;
"Commissioner's staff" means the staff of the Commissioner
as defined in section ;
"Committee" means the Child Deaths Review and Prevention
Committee established by section (1);
"complainant" means a person who makes a
complaint;
"complaint" means a complaint, or a part of a complaint,
made under section ;
"contact" includes:
(a) any form of physical contact; and
(b) any form of oral communication, whether face-to-face or
by other means; and
(c) any form of written communication;
"Convenor" means the person holding or occupying the office
of Convenor of the Committee mentioned in section (4);
"coordinator", of home-based services, see section
(2)(b);
"Court", see section (2)(a);
"Court order", see section (2)(c);
"Court proceedings", see section (2)(b);
"criminal history" means a criminal record as defined in
section 3(1) of the Criminal Records (Spent Convictions)
Act;
"customary law or tradition" includes:
(a) Aboriginal customary law; and
(b) Aboriginal tradition;
"daily care and control", of a child, see section
;
"daily care and control direction", see section
(1)(b);
"decision maker", see section (5);
"Department" means the Agency administering this
Act;
"educational institution", see section 61 of the
Education Act;
"engage", for child-related employment, see sections and
;
"exploitation", see section ;
"family", see section ;
"family matters jurisdiction", see section
;
"harm", see section ;
"health practitioner", see section 4 of the Health
Practitioners Act;
"health services", see section 4(1) of the Health and
Community Services Complaints Act;
"holder" means:
(a) for a clearance certificate – the person to whom
the certificate is issued; or
(b) for a licence – the person to whom the licence is
granted;
"home-based services", see section (1);
"home-based services provided for a home-based services
scheme", see section (2);
"home-based services not provided for a home-based services
scheme", see section (3);
"home order", for Part 2.4, see section ;
"home proceeding", for Part 2.4, see section
;
"hospital" includes:
(a) a hospital as defined in section 5 of the Medical
Services Act; and
(b) a private hospital as defined in section 4 of the
Private Hospitals and Nursing Homes Act;
"identity card" means an identity card issued under section
;
"interim care plan", see section (2);
"interim order", for Part 2.4, see section
;
"interstate law", for Part 2.4, see section
;
"interstate officer", for Part 2.4, see section
;
"investigation" means an investigation of a complaint by the
Commissioner under Part 5.1;
"licence" means a licence granted under section
;
"licence conditions", see section (1);
"local government council" means a municipal council or
community government council constituted under the Local Government
Act;
"long-term parental responsibility direction", see section
(1)(d);
"matter to which a complaint relates", see section
(3);
"mediation conference" means:
(a) for a conference arranged by the CEO – see section
;
(b) for a conference ordered by the Court – see
section or (1)(e);
"member" means a member of the Committee mentioned in
section ;
"misleading information" includes information that is
misleading because the information:
(a) does not contain relevant information;
or
(b) contains misinformation;
"obstruct", includes resist and hinder;
"operator of child-related services" means a person who
controls an operation for the provision of child-related
services;
"operator of children's services" means:
(a) a person providing services requiring a licence;
or
(b) a person providing services requiring registration;
or
(c) anyone else who controls an operation for the provision
of children's services;
"operator providing home-based services"
means:
(a) if the services are provided for a home-based services
scheme – the operator mentioned in section (2); or
(b) otherwise – the operator mentioned in section
(3);
"panel", means a review panel established under section
;
"parent":
(a) for Part 2.4, see section ; or
(b) otherwise – see section ;
"parental responsibility", see section ;
"participating State", for Part 2.4, see section
;
"placement arrangement", see section ;
"protected child", see section (2)(a);
"protection order" means an order made under section
(1);
"provisional protection", see section ;
"public authority" means any of the
following:
(a) an Agency;
(b) the Police Force;
(c) a local government council;
(d) an office or body (whether incorporated or not)
established for a public purpose by or under a law of the
Territory;
(e) any other entity established for a public purpose
(including a non-government organisation) that is prescribed by
regulation;
"registration" means the registration of a person under
section ;
"regulation" means a regulation made under this
Act;
"relative", see section ;
"required services", for a complaint, see section
(1);
"responsible Agency", for a complaint, see section
(3);
"responsible Minister", for a complaint, see section
(3);
"responsible service provider", for a complaint, see section
(1);
"reviewable decision", see section ;
"school", see section 4(1) of the Education
Act;
"sending State" for Part 2.4, see section ;
"service provider", see section (2)(b) and
(3);
"services requiring a licence", see section
;
"services requiring registration", see section
;
"short-term parental responsibility direction", see section
(1)(c);
"State", for Part 2.4, see section ;
"supervision direction", see section
(1)(a);
"team" means a review team established under section
;
"temporary placement arrangement" means an arrangement
mentioned in section ;
"temporary protection order" means a temporary protection
order made under section ;
"underlying principles of this Act", see section
;
"wellbeing of a child", see section ;
"working day":
(a) for Part 2.4, see section ; or
(b) otherwise – means a day that is not a Saturday,
Sunday or public holiday as defined in the Public Holidays
Act;
"young person who has left the CEO's care", see section
.
Wellbeing of child
The wellbeing of a child includes the child's physical,
psychological and emotional wellbeing.
Harm to child
Harm to a child is any significant detrimental effect
caused by any act, omission or circumstance on:
the physical, psychological or emotional wellbeing of the
child; or
the physical, psychological or emotional development of
the child.
Without limiting subsection (1), harm can be caused by the
following:
physical, psychological or emotional abuse or neglect of
the child;
exploitation of the child;
exposure of the child to physical
violence.
Example for subsection (2)(c)
Physical violence witnessed by a child at the child's
home.
Exploitation of child
Exploitation of a child includes sexual and any other
forms of exploitation of the child.
Without limiting subsection (1), sexual exploitation of a
child includes:
sexual abuse of the child; and
involving the child as a participant or spectator in any
of the following:
an act of a sexual nature;
prostitution;
a pornographic performance.
Parent of child
A parent of a child is the child's father, mother or any
other person who has parental responsibility for the child.
A parent of an Aboriginal child includes a person who is
regarded as a parent of the child under Aboriginal customary law or Aboriginal
tradition.
However, any of the following must not be regarded as a
parent of a child:
the CEO;
a person who has responsibility for the care of the child
only on a temporary basis;
a person, such as a teacher or childcare worker, who has
responsibility in relation to the child because of a professional
relationship.
To
avoid doubt, a reference in this Act to the parents of a child includes a
reference to the parent of a child who has only one parent.
Relatives of child
A relative of a child is any of the
following:
a parent, grandparent or any other ancestor of the
child;
a step-parent of the child;
a sibling of the child;
an uncle or aunt of the child;
a cousin of the child;
a person who is related to the child in accordance
with:
any customary law or tradition applicable to the child;
or
any contemporary custom or practice.
To avoid doubt, a relationship covered by subsection (1)
may include a relationship that arises through common ancestry, adoption,
marriage, de facto relationship or any customary law or
tradition.
Family of child
The family of a child includes:
the relatives of the child; and
the members of the extended family of the child in
accordance with:
any customary law or tradition applicable to the child;
or
any contemporary custom or practice; and
anyone who is closely associated with the child or another
family member of the child.
When child is in need of protection
A child is in need of protection if:
the child has suffered or is likely to suffer harm or
exploitation because of an act or omission of a parent of the child;
or
the child is abandoned and no family member of the child
is willing and able to care for the child; or
the parents of the child fail to care adequately for the
child and no other family member of the child is willing and able to care for
the child; or
the parents of the child are dead and no other family
member of the child is willing and able to care for the child;
or
the child is not under the control of any person and is
engaged in conduct that causes or is likely to cause harm to the child or other
persons.
Daily care and control of child
A person has daily care and control of a child if the person
has all the powers, rights and responsibilities for the day-to-day care and
control of the child.
Parental responsibility for child
A person has parental responsibility for a child if the
person has all the powers, rights and responsibilities for the child that would
ordinarily be vested in the parents of the child.
Without limiting subsection (1), a person who has parental
responsibility for a child has:
daily care and control of the child; and
all the powers, rights and responsibilities about the
long-term care and development of the child.
Declared offences for Criminal Code
An offence against this Act is an offence to which Part IIAA
of the Criminal Code applies.
Note
Part IIAA of the Criminal Code states the general principles of criminal
responsibility (including burdens of proof and general defences) and defined
terms used for offences.
Chapter 2
– Safeguarding wellbeing of children
Part 2.1
– General obligations And powers
Objects
of Part
The objects of this Part are:
to oblige members of the public and people engaged in
child-related employment to report cases of children at risk of harm or
exploitation; and
to ensure the CEO and authorised officers have the power
to take appropriate actions to:
protect children who are in need of protection;
and
promote the wellbeing of children generally;
and
promote the wellbeing of young persons who have left the
CEO's care.
Note
A child who is the subject of the exercise of a power under this Chapter
may make a complaint to the Children's Commissioner about certain matters, see
section .
General
obligations about reporting
Reporting obligations
A person is guilty of an offence if the
person:
believes, on reasonable grounds, that a child has suffered
or is likely to suffer harm or exploitation because of an act or omission of a
parent of the child; and
does not, as soon as possible after forming that belief,
report (orally or in writing) to the CEO or a police officer:
that belief; and
any knowledge of the person forming the grounds for that
belief; and
any factual circumstances on which that knowledge is
based.
Maximum penalty: 200 penalty units.
A person who is engaged in child-related employment is
guilty of an offence if the person:
believes, on reasonable grounds, that a child has suffered
or is likely to suffer harm or exploitation because of an act or omission of
someone who is not a parent of the child; and
does not, as soon as possible after forming that belief,
report (orally or in writing) to a police officer:
that belief; and
any knowledge of the person forming the grounds for that
belief; and
any factual circumstances on which that knowledge is
based.
Maximum penalty: 200 penalty units.
It is a defence to a prosecution for an offence against
subsection (1) or (2) if the defendant has a reasonable excuse.
This section has effect despite any other provision in
this Act or another law of the Territory.
Protection of person making report
A person acting in good faith in making a report under
section is not civilly or criminally liable, or in breach of any professional
code of conduct:
for making the report; or
for disclosing any information in the
report.
In any proceedings before a court, except with the court's
leave:
the report or evidence of its contents is not admissible;
and
a person cannot be compelled to give evidence, or to
produce a record, about the report or the identity of the maker of the
report.
The leave may be granted only if:
the report, evidence or record is of critical importance
to the proceedings; and
failure to grant the leave would prejudice the proper
administration of justice.
What happens when police officer receives
report
A police officer must, as soon as practicable after
receiving a report under section (1), notify the CEO about the receipt of the
report.
The notification must include details in the
report.
What
happens when CEO receives report or notification
The CEO must record the receipt of a report under section
(1) or a notification about a report under section (1) in relation to a
child.
The CEO may inform the following persons about actions
that the CEO has taken or proposes to take for the child:
the maker of the report;
the police officer who gave the
notification.
Duties
of other persons
Each of the following persons must ensure everyone
providing services for a child under the person's control or direction is aware
of the obligations under section (1):
an operator of child-related services;
an operator of children's services;
the person in charge of a hospital or any other facility
for health services;
the person in charge of a school or any other educational
institution.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
Each person who engages another person in child-related
employment must ensure the other person is aware of the obligations under
section (2).
Maximum penalty: 200 penalty units or imprisonment for 2
years.
It is a defence to a prosecution for an offence against
subsection (1) or (2) if the defendant has a reasonable excuse.
Powers to inquire or investigate
Object of Division
The Object of this Division is to ensure the CEO and police
officers have the power to take steps to determine whether the wellbeing of a
child is at risk.
CEO may make inquiries
The CEO may make inquiries about a child if the CEO
receives information that raises concerns about the child's
wellbeing.
Note
The CEO may therefore exercise this power whether or not as a result of
a report under section (1) or a notification under section
(1).
On completing the inquiries, the CEO must decide whether
any further action should be taken for the child under this Part or Part
2.3.
Police may make inquiries
A police officer may make inquiries about a child if the
officer receives information that raises concerns about the child's
wellbeing.
Within 24 hours after completing the inquiries, the
officer must give a report of the inquiries to the CEO.
Giving information for inquiries
This section applies if inquiries about a child are being
made under section or by the CEO or a police officer (the "inquiring
officer").
The inquiring officer may, for the inquiries, request any
of the following persons to give the officer specified information about the
child:
a police officer;
a person employed or engaged by an
Agency;
an operator of child-related services;
an operator of children's services;
a health practitioner;
the person in charge of a hospital or any other facility
for health services;
the person in charge of a school or any other educational
institution;
a service provider for a protected child;
any other person prescribed by
regulation.
The person must comply with the request.
Maximum penalty: 200 penalty units.
It is a defence to a prosecution for an offence against
subsection (3) if:
the defendant has a reasonable excuse; or
the Commissioner of Police certifies in writing that
compliance with the request would:
prejudice the investigation of any unlawful conduct;
or
disclose a confidential source of information in relation
to the administration of law; or
prejudice the effectiveness of a method or procedure in
relation to the administration of law; or
facilitate a person's escape from lawful custody;
or
endanger the safety of a person.
CEO's power to investigate
The CEO may initiate an investigation to determine whether
a child is in need of protection.
The CEO may do so only if the CEO believes on reasonable
grounds the child might be in need of protection (whether or not inquiries about
the child have been made under section or ).
The investigation must be conducted by an authorised
officer.
On completing the investigation, the CEO must decide
whether any further action should be taken for the child under this Part or Part
2.3.
Police officer's power to investigate
A police officer may initiate an investigation to
determine whether a child is in need of protection.
The police officer may do so only if the officer believes
on reasonable grounds the child might be in need of protection (whether or not
inquiries about the child have been made under section or ).
The investigation must be conducted by that or another
police officer.
Within 24 hours after completing the investigation, the
officer who conducted the investigation must give a report of the investigation
to the CEO.
Access to child
For an investigation about a child under section or , the
officer conducting the investigation may request a person mentioned in section
(2) ("child-related authority") to allow the officer:
to have contact with the child; and
to do so without informing the parents of the
child.
The officer may do so only if the officer reasonably
believes:
not to inform the parents is in the best interests of the
child; or
to inform the parents might compromise the
investigation.
The person must comply with the request.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
It is a defence to a prosecution for an offence against
subsection (3) if the defendant has a reasonable excuse.
The officer must inform at least one of the parents of the
contact and the reasons for it as soon as practicable after it has
occurred.
However, subsection (5) does not apply
if:
the officer reasonably believes:
a person may be charged with an offence in relation to the
child; and
complying with the subsection might compromise the
investigation of the offence; or
the officer reasonably believes complying with the
subsection may expose the child to harm or exploitation; or
the child has requested that the parents not be informed
about the contact and the officer reasonably believes it is in the child's best
interests to comply with the request.
Access to information
For an investigation about a child under section or , the
officer conducting the investigation may request a child-related authority to
allow the officer:
to have access to specified information about the child;
and
to do so without informing the parents of the
child.
The officer may do so only if the officer reasonably
believes:
not to inform the parents is in the best interests of the
child; or
to inform the parents might compromise the
investigation.
The person must comply with the request.
Maximum penalty: 200 penalty units.
It is a defence to a prosecution for an offence against
subsection (3) if the defendant has a reasonable excuse.
Protection of persons providing access or
information
A person acting in good faith in complying with a request
under section (2), (1) or (1) is not civilly or criminally liable, or in
breach of any professional code of conduct, for complying with the
request.
CEO may
take action during inquiries or investigation
This Division does not prevent the CEO from taking another
action for a child under this Part, Part 2.2 or Part 2.3 while an action is
being taken for the child under this Division.
Object of Division
The object of this Division is to ensure the CEO has
sufficient power:
to perform the CEO's functions under this Act;
and
to take actions for the wellbeing of children generally
(including actions with the voluntary participation of parents and for children
who are not necessarily in need of protection).
What CEO may do generally
The CEO may take any action that is consistent with this
Act:
to promote the wellbeing of children generally;
or
to promote the wellbeing of young persons who have left
the CEO's care; or
to provide proper facilities for this Act (including the
acquisition and management of land and other property for this Act);
or
to undertake research, publication and collection of
information for the objects of this Act; or
to cooperate with other Agencies, non-government
organisations or other persons or bodies for an action mentioned in paragraph
(a), (b), (c) or (d); or
to facilitate that cooperation (including the creation of
procedures for that cooperation and the review of those
procedures).
The CEO must have regard to the objects and underlying
principles of this Act when acting under subsection (1).
CEO may
request assistance
The CEO may request a public authority to provide the CEO
with specified assistance for the exercise of a power or the performance of a
function under this Act.
The public authority must comply with the request if doing
so:
is consistent with its functions; and
does not unduly prejudice the performance of its
functions.
Child-related services
The CEO may enter into an arrangement
for:
the provision of child-related services;
and
research and development to be carried out for
child-related services; and
the funding (in whole or part) of the services or the
research and development.
However, the CEO must not do so unless the CEO is
satisfied:
if the arrangement relates to the provision of children's
services – the services are provided in accordance with Chapter 4;
and
the arrangement:
is consistent with the underlying principles of this Act;
and
furthers the objects of this Act.
This section does not limit section .
Coordination assistance
The CEO may provide assistance to persons or bodies in
coordinating their effort to provide services (including child-related services)
for a child or young person who has left the CEO's care, including assistance
in:
convening a meeting of the persons or bodies;
and
drawing up a plan for the provision of the
services.
This section does not limit section .
Temporary placement arrangement
The CEO may arrange for the temporary placement of a child
who is residing with the parents of the child.
The arrangement is for the child:
to be taken into the CEO's care for a period not exceeding
2 months specified by the CEO; and
to be placed under a placement arrangement subject to the
conditions specified by the CEO.
The CEO may enter into the arrangement only
if:
having regard to the wishes of the child, the CEO
reasonably believes the arrangement will safeguard the wellbeing of the child;
and
the parents agree to enter into the arrangement;
and
if the child is at least 15 years of age – the child
has consented to the arrangement.
The CEO has daily care and control of the child while the
arrangement is in force.
The arrangement may be extended for further
periods.
However:
each extended period must not exceed 2 months;
and
in any case – the arrangement must cease to be in
force 6 months after it was made.
The CEO may require the parents to make contributions
towards the maintenance of the child while the arrangement is in
force.
One or both of the parents may, at any
time:
terminate the arrangement; and
request the CEO to return the child to
them.
Subject to the operation of any other provisions in this
Act and any other law of the Territory, the CEO must comply with the request
within 48 hours after receiving the request.
This section does not limit section .
Note
Unlike a placement arrangement resulting from other circumstances, the
arrangement under this section is basically voluntary in nature.
Multiple arrangements
This Division does not prevent the CEO
from:
applying any provisions in this Division more than once
for a person; or
applying more than one provision in this Division for a
person (whether at the same time or at different times).
Object
of Division
The object of this Division is to ensure that, as far as
possible, the wellbeing of a child is safeguarded through agreements between the
parents of the child and other interested parties.
Mediation conference
The CEO may arrange for a mediation conference to be
convened for a child if:
concerns have been raised about the wellbeing of the
child; and
the CEO reasonably believes the conference may address
those concerns; and
the parents of the child are willing to participate in the
conference.
The CEO may do so whether or not the CEO has already taken
any other action for the child under this Part, Part 2.2 or Part
2.3.
The conference may be convened for any purposes relating
to those concerns as specified by the CEO.
Without limiting subsection (3), the conference may be
convened for one or more of the following purposes:
establishing the circumstances giving rise to those
concerns;
reviewing an arrangement that has been made for the care
of the child;
making recommendations about the care of the
child;
arriving at an agreement on the best means of safeguarding
the wellbeing of the child.
The CEO must appoint a person (the "convenor") who is
approved by the parents of the child and has the qualifications or experience
prescribed by regulation to convene the conference.
The convenor may invite the parents and other persons to
attend the conference as the convenor considers appropriate.
The regulations may make any provision for the conference,
including the following:
any procedural and reporting requirements for the
conference;
the appointment of a person to represent the interests of
the child in the conference;
the making of any agreement arising from the
conference;
the powers and functions of the convenor.
Provisional protection of child
Object of Division
The object of this Division is to ensure the CEO has the
power to take urgent action for children who might be in need of
protection.
When CEO may take child into provisional
protection
The CEO may take a child into provisional protection
if:
the CEO reasonably believes:
the child is in need of protection; and
the provisional protection is urgently needed to safeguard
the wellbeing of the child; and
no protection order or temporary protection order is in
force for the child.
Examples of urgency for subsection (1)(a)(ii)
1. The child is likely to suffer from harm or exploitation if the child
is left at the place where the child is found.
2. A parent of the child may remove the child from where the child
ordinarily resides if the parent becomes aware of a proposed application for a
temporary protection order or protection order for the child.
The CEO may take the child into provisional protection
whether or not an assessment order for the child is in force.
Effect of provisional protection
For the purposes of taking the child into provisional
protection, an authorised officer may:
at any time, enter a place where the officer reasonably
believes the child may be found; and
search the place in order to find the child;
and
stay at the place for as long as the officer considers
reasonably necessary to find the child; and
remove the child from the place; and
arrange for a medical examination of the child;
and
arrange for the provision of other medical services for
the child; and
make other arrangements for the care and protection of the
child; and
if the officer is a staff member of a hospital in which
the child is found – keep the child in the hospital for any of the
purposes mentioned in paragraphs (e) to (g).
However, the child may refuse to submit to any of the
examination mentioned in subsection (1)(e) if the child is of sufficient
maturity and understanding to make the decision.
The officer may use any reasonable force or assistance in
acting under subsection (1).
The officer must give a report to the CEO about any action
taken by the officer under subsection (1) as soon as practicable after taking
the action.
The CEO has daily care and control of the child while the
child is in provisional protection.
Duration of protection
The child must be in the CEO's care for a period
determined by the CEO that does not exceed 72 hours from the time the CEO
takes the child into provisional protection.
Subject to the operation of any other provisions in this
Act and any other law of the Territory, the CEO must return the child to a
parent of the child by the end of the period.
CEO may
take other action
This Division does not prevent the CEO from taking any other
action under this Part or Part 2.3 for the child while the child is in
provisional protection.
Note
Part 2.2 applies to the child while the child is in provisional
protection, see section .
Powers of
authorised officers
Subdivision
1 – Moving child to safe place
Object of Subdivision
The object of this Subdivision is to empower an authorised
officer to take action, on a temporary basis and only in limited circumstances,
to remove a child from a place where the wellbeing of the child is at
risk.
Application
This Subdivision applies to a child if:
the child is found at a place other than the child's usual
place of residence; and
the child is not under the direct supervision
of:
a parent of the child; or
a family member of the child; or
an adult capable of adequately supervising the child;
and
an authorised officer:
does not believe the child is in need of protection;
but
having regard to the circumstances in which the child is
found – reasonably believes there is a risk to the wellbeing of the child
if the child is not removed from the place.
Authorised officer may move child
The officer may:
enter the place to apprehend the child;
and
either return the child to the child's usual place of
residence or, if it is not practicable or appropriate to do so:
move the child to a safe place; and
keep the child at the safe place; and
make any arrangement for the care and protection of the
child at the safe place.
The officer may use any reasonable force or assistance in
acting under subsection (1).
The child may be cared for at the safe place until the
resumption of the care of the child by a person (a "responsible person") who has
daily care and control of the child.
The officer must, as soon as practicable after moving the
child:
take all necessary steps to inform a responsible person
about moving the child; and
if the officer is a police officer – inform the CEO
about moving the child.
The exercise of the officer's powers under subsection (1)
does not:
affect any power, right or responsibility of a responsible
person in relation to the child; or
prevent the officer or any other person from holding, at a
later time, the belief that the child is in need of protection.
In this section:
"safe place":
includes:
a place where the child may be temporarily kept for the
child's safety (including a part of a police station not normally used to detain
a person); and
a place specified by regulation; but
does not include a prison, lockup or any other place that
a person may be remanded in custody.
Subdivision
2 – Powers of restraint, search and seizure
Application
This Subdivision applies to a child if:
an authorised officer or police officer is exercising the
officer's powers under section , or in relation to the child;
or
the child is in the CEO's care.
Restraint
An authorised officer may restrain the child if the
officer reasonably believes it is necessary to do so to prevent the child
from:
being harmed; or
harming others.
The officer may do so by using any reasonable force or
assistance.
Search
An authorised officer may search the child (including
anything found on or with the child) if the officer reasonably believes it is
necessary to do so to prevent the child from:
being harmed; or
harming others.
Without limiting subsection (1), the officer may search
for any of the following:
a firearm as defined in section 3 of the Firearms
Act;
a controlled weapon, offensive weapon or prohibited weapon
as defined in section 3 of the Weapons Control Act;
a dangerous drug as defined in section 3 of the Misuse
of Drugs Act;
alcohol;
any other drug or substance capable of intoxicating a
person.
If the officer reasonably believes it is necessary to do
so in the circumstances, the officer may designate another
person:
to conduct the search; or
to assist the officer in conducting the
search.
The designated person must conduct the search or provide
the assistance in accordance with any reasonable directions of the
officer.
The officer or designated person conducting the
search:
must be someone who is of the same gender as the child;
and
must conduct the search in the presence of an adult
who:
is of the same gender as the child; and
is nominated by the child or, if the child fails to do so,
by the officer.
The adult nominated by the officer:
must hold a clearance certificate that is in force;
and
must not be an authorised officer or police
officer.
The officer or designated person may use any reasonable
force or assistance in acting under this section.
However, this section does not authorise a search that
involves the removal of the child's clothing or an examination of the child's
body cavities.
Seizure
An authorised officer may seize anything found on or with
the child if the officer reasonably believes it is necessary to do so to prevent
the child from:
being harmed; or
harming others.
The officer may do so by using any reasonable force or
assistance.
An authorised officer (other than a police officer) who
seizes a thing mentioned in section (2)(a), (b) or (c) must, as soon as
practicable after seizing the thing, deliver it to a police
officer.
An authorised officer may, in accordance with the
regulations, destroy or otherwise dispose of anything seized under this section
to prevent the child from:
being harmed; or
harming others.
Recording and reporting
An authorised officer must, as soon as practicable after
exercising a power under this Subdivision:
record the exercise of the power; and
if the officer is a police officer – give the CEO a
report about the exercise of the power.
Warrant for access to child
A magistrate may, on the application of an authorised
officer, grant a warrant under this section if the magistrate is satisfied it is
reasonably necessary:
for exercising a power under section or in relation to a
child; or
for monitoring the wellbeing of a child for whom a
placement arrangement is in force.
The warrant authorises an authorised
officer:
to enter, at any time, a place where the officer
reasonably believes the child may be found; and
to search the place in order to find the child;
and
to stay at the place for as long as the officer considers
reasonably necessary to find the child; and
if the child is found – to stay at the place and
have contact with the child for as long as the officer considers reasonably
necessary for specified purposes (whether or not in the presence of someone
else).
Execution of warrant
In executing the warrant, an authorised
officer:
may use any reasonable force or assistance;
and
must produce the warrant (or a copy of it) if asked to do
so by a person at the place where the warrant is executed.
Without limiting subsection (1)(a), the officer may be
assisted by another authorised officer in executing the
warrant.
The other authorised officer may use any reasonable force
in providing the assistance.
Failure to comply with warrant
A person having the control of the place must comply with
the warrant.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
It is a defence to a prosecution for an offence against
subsection (1) if the defendant has a reasonable excuse.
Part 2.2
– Children in CEO's care
Division 1
– Preliminary matters
Object of Part
The object of this Part is to safeguard the wellbeing
of:
each child who is in the CEO's care; and
each young person who has left the CEO's
care.
When child is in CEO's care
A child is in the CEO's care if:
the child is under a temporary placement arrangement or in
provisional protection; or
the CEO otherwise has daily care and control of the child
under an order of the Court (for example, a protection order) or a law of the
Territory.
The child leaves the CEO's care when the child ceases to
be in the CEO's care.
Young person who has left CEO's care
A young person who has left the CEO's care is someone
who:
has left the CEO's care; and
is between 15 and 25 years of age; and
was last in the CEO's care for a continuous period of at
least 6 months; and
in the CEO's opinion, is unlikely to be in the CEO's care
again in the future.
Application
This Division applies to a child who is in the CEO's care
if:
a protection order for the child is in force;
or
the CEO has daily care and control of the child under a
court order prescribed by regulation.
CEO must prepare care plan
As soon as practicable after the child is taken into the
CEO's care, the CEO must prepare and implement a care plan for the
child.
The care plan is a written plan that:
identifies the needs of the child; and
outlines measures that must be taken to address those
needs; and
sets out decisions about daily care and control of the
child, including, for example:
decisions about the placement arrangement for the child;
and
decisions about contact between the child and other
persons.
Modification of care plan
The CEO may modify the care plan at any time if the CEO
considers it appropriate to do so.
Without limiting subsection (1), the CEO must modify the
plan if the child is about to leave the CEO's care.
The modified plan must:
identify the needs of the child in:
preparing to leave the CEO's care; and
the child's transition to other living arrangements after
leaving the CEO's care; and
outline measures that must be taken to assist the child in
meeting those needs.
Child's
wishes to be taken into account
In preparing or modifying the plan, the CEO must have regard
to the wishes of the child as the CEO considers reasonable and appropriate in
the circumstances.
Provision of care plan to interested parties
As soon as practicable after the CEO has prepared or
modified the plan, the CEO must ensure a copy of it is given to the following
persons:
the child;
each parent of the child;
the carer of the child;
any other person considered by the CEO to have a direct
and significant interest in the wellbeing of the child.
However, the CEO is not required to do so for a person if
the CEO considers it inappropriate or impracticable in the circumstances, having
regard to:
the wishes of the child; and
any risk of harm to the child; and
any other matters the CEO considers
relevant.
Review
of care plan
The CEO must conduct regular reviews of the plan as
follows:
the first review must be conducted within 2 months after
the child is first taken into the CEO's care;
a review must be conducted again every 6 months
afterwards.
In addition, the CEO must conduct a review of the plan
immediately after any of the following:
the death of a parent of the child;
the death of the carer of the child;
a change of the placement arrangement for the
child;
an extension or variation of a court order mentioned in
section (b) that relates to the child.
This section does not prevent a review of the plan at
other times.
In conducting a review, the CEO must have regard to the
views expressed by any of the following persons:
the child;
a parent of the child;
the carer of the child;
any other person considered by the CEO to have a direct
and significant interest in the wellbeing of the child.
The CEO must:
prepare a report of the review, and if the CEO considers
it appropriate to do so – give a copy of the report to any of those
persons; and
keep a record of the review and a copy of the
report.
For this section, a review of a care plan includes a
review of the operation and effectiveness of the plan.
Division 3
– Interim care plans
Application
This Division applies to a child if:
the child is in the CEO's care; but
Division 2 does not apply to the child.
CEO must prepare interim care plan
As soon as practicable after the child is taken into the
CEO's care, the CEO must prepare and implement an interim care plan for the
child.
The interim care plan is a written plan
that:
identifies the immediate needs of the child;
and
outlines measures that must be taken to address those
needs; and
sets out decisions about daily care and control of the
child, including, for example:
decisions about the placement arrangement for the child;
and
decisions about contact between the child and other
persons.
Division 4
– Placement arrangement
CEO must enter into placement arrangement
The CEO must enter into a placement arrangement with other
persons or bodies for a child who is in the CEO's care.
Note
Section sets out the principles that should be upheld in the placement
of Aboriginal children.
The CEO may cancel the arrangement and replace it by
another placement arrangement at any time.
Placement arrangement
A placement arrangement is:
an arrangement for placing a child who is in the CEO's
care with any of the following persons (the "carer"):
a parent of the child;
a family member of the child;
an individual approved by the CEO; or
any other arrangement for placing the child that the CEO
considers appropriate in the circumstances.
Without limiting subsection (1)(b), the arrangement can be
one under which the child is not directly supervised by an
adult.
The regulations may:
provide for the nomination and approval of an individual
as a carer; and
provide for the responsibilities of a carer;
and
specify the conditions for a placement arrangement,
including, for example, the standards required of a facility for the
arrangement.
Child
to be informed
Before placing a child under a placement arrangement, the
CEO must give the child any information and explanation about the arrangement as
the CEO considers appropriate in the circumstances.
Carer
to be informed
The CEO must give the carer of the child any information
about the child as the CEO considers appropriate for:
the care of the child; and
the safety of the child and other
persons.
However, the CEO must have regard to the child's wishes
before giving the information.
The carer must not disclose the information otherwise
than:
to a health practitioner for the care of the child;
or
in other circumstances approved by the
CEO.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
Parents
to be informed
The CEO must give the parents of the child any information
about the arrangement as the CEO considers appropriate in the
circumstances.
The CEO must have regard to the following in giving the
information:
the wishes of the child;
the safety of the child and other
persons.
This section has effect subject to section (which is
about the obligation to give information to the parents under a protection
order).
Payment
to carer
The CEO may make payments to the carer in accordance with
the arrangement.
Property of child
The Court may, on the CEO's application:
order the Public Trustee to take control of the property
of the child; and
make any other orders to give effect to the
order.
The CEO must:
give the child, the parents of the child and other persons
specified by the Court:
a copy of each of the orders; and
a written notice explaining the terms and effect of the
orders; and
give the child any additional explanation of the effect of
the orders if the CEO considers it appropriate to do so having regard to the
child's maturity and understanding.
Inspection of place where child resides
An authorised officer may, at any reasonable time, enter
the place where the child ordinarily resides under the arrangement to monitor
the wellbeing of the child.
The officer may make any reasonable request to a person
having the control of the place for the purposes of:
inspecting the place; or
having contact with the child.
The person must comply with the request.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
It is a defence to a prosecution for an offence against
subsection (3) if the defendant has a reasonable excuse.
Note
A warrant may be granted for monitoring the wellbeing of the child, see
section .
Authorised officer's power to apprehend child
If the child is absent from the place, an authorised
officer may apprehend the child in order to return the child to the
place.
The officer may, without a warrant:
at any time, enter a place where the officer reasonably
believes the child may be found; and
search the place in order to find the child;
and
stay at the place for as long as the officer considers
reasonably necessary to find and apprehend the child; and
apprehend the child; and
arrange for the return of the child.
The officer may use any reasonable force or assistance in
acting under this section.
Note
An authorised officer may exercise various powers in relation to the
child (see sections to ).
Division 5
– Young persons who have left CEO's care
Assistance for young person who has left CEO's
care
A young person who has left the CEO's care is entitled,
free of any charges, to the possession of any of the person's personal items
held by:
the Department; or
anyone who was a carer of the person; or
a party to a placement arrangement for the
person.
The CEO must ensure the person is provided with
child-related services and other services the CEO considers
appropriate.
Without limiting subsection (2), the CEO may assist the
person in obtaining any of the following:
accommodation;
education or training;
employment;
legal services;
health services;
counselling services.
In addition, the CEO may give financial assistance to the
person for any of the following purposes:
the person's education or training;
obtaining and furnishing the person's
accommodation;
living in close proximity to the place where the person is
or will be:
undertaking education or training; or
employed or seeking employment.
The financial assistance must be given on terms and
conditions the CEO considers appropriate in the circumstances.
In this section:
"personal items", of a person, includes the
following:
(a) the person's birth certificate;
(b) school reports or other reports relating to the person's
education or training;
(c) photographs belonging to the person;
(d) anything else prescribed by
regulation.
Part 2.3
– Court's powers for Children
Division 1
– Preliminary matters
Object
of Part
The object of this Part is to create an appropriate
judicial process for safeguarding the wellbeing of children, particularly
children who are or might be in need of protection.
The object is to be achieved by:
establishing the family matters jurisdiction of the Local
Court (see Division 2); and
making provision for the jurisdiction,
including:
the power of the Court to make various orders for children
(see Division 4); and
other procedural matters (see Divisions 3 and 5 to
7).
Division 2
– Family matters jurisdiction
Establishment
The Local Court is invested with a jurisdiction (the
"family matters jurisdiction") to hear and determine an application for any of
the following:
a temporary protection order;
an assessment order;
a protection order;
an order or decision under Part 2.4;
any other order or decision the Court may make for a child
under this Act (other than sections and );
any order or decision relating to an order or decision
mentioned in paragraph (a), (b), (c), (d) or (e).
In this Act:
the Court is the Local Court exercising its family matters
jurisdiction; and
Court proceedings are proceedings in the Court;
and
a Court order is an order of the Court;
and
the child to whom Court proceedings relate is the child
for whom the proceedings are instituted; and
the child to whom a Court order relates is the child for
whom the order is made.
Exercise of jurisdiction
The family matters jurisdiction may be exercised only by
magistrates directed by the Chief Magistrate to do so.
In making the direction, the Chief Magistrate must take
into account the expertise of particular magistrates relating to matters arising
under this Act.
The jurisdiction must be exercised by a magistrate sitting
alone.
Paramount consideration
The Court must regard the best interests of a child as
paramount in exercising the family matters jurisdiction for the
child.
Without limiting subsection (1), the Court must give
priority to the child if the rights of the child conflict with the rights of an
adult.
Jurisdiction not affected by other
proceedings
The exercise of the family matters jurisdiction in any
Court proceedings is not affected by any criminal proceedings
against:
the child to whom the Court proceedings relate;
or
any other party to the Court proceedings.
Subsection (1) has effect whether or not the criminal
proceedings arose out of the same facts as the Court
proceedings.
Sittings of Court
The Court may hold several sittings at the same
time.
The Court must:
ensure Court proceedings are separate from other
proceedings of the Local Court or proceedings of another court;
and
conduct Court proceedings at a place approved by the
Minister administering the Local Court Act (the "relevant
Minister").
The relevant Minister must ensure the approved
place:
provides adequate and appropriate facilities for Court
proceedings; and
is separated from places in which other proceedings of the
Local Court or proceedings of another court are being
conducted.
Division 3
– Court proceedings
Nature
of proceedings
Court proceedings must be conducted with as little
formality and legal technicality as the circumstances permit.
Subject to any directions of the Court, the Court is not
bound by the rules of evidence.
Parties
to proceedings
The following are parties to the
proceedings:
the child to whom the proceedings relate;
each parent of the child;
the CEO;
each person proposed to be given daily care and control
of, or parental responsibility for, the child under a Court
order;
any other person considered by the Court to have a direct
and significant interest in the wellbeing of the child.
This section has effect subject to section (which is
about the parties to proceedings for a protection order).
Standard of proof
If the Court is required to be satisfied of a matter in the
proceedings, the matter must be established on the balance of
probabilities.
Expedition
The proceedings must be conducted as expeditiously as
possible to minimise their effect on the child.
For subsection (1), the Court:
may set a timetable for each matter to which the
proceedings relate, having regard to the age and developmental needs of the
child; and
may give such directions the Court considers appropriate
to ensure the timetable is kept.
Restrictions on publication
A person is guilty of an offence if the
person:
publishes a report of:
any of the proceedings; or
the results of any of the proceedings;
and
is not authorised to do so by the Court or a law in force
in the Territory.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
Understanding proceedings
The Court must, as far as practicable, ensure each party
to the proceedings understands the nature and purposes of the
proceedings.
For subsection (1), the Court may direct that the services
of a person (such as an interpreter) be provided to a party to the
proceedings.
Restrictions on attendance
Except as otherwise directed by the Court, a person must not
attend any of the proceedings if:
the person is not a party to the proceedings;
or
the Court has ordered the person not to attend the
proceedings.
Maximum penalty: 50 penalty units or imprisonment for 6
months.
Appearance of parents
Except as otherwise directed by the Court, the parents of
the child must attend the proceedings.
The Court may order the parents to attend the
proceedings.
This section has effect subject to sections and (which
relate to the making of a temporary protection order or protection order in the
absence of the parents).
Right
of representation
A party to the proceedings may be represented by a legal
practitioner or any other person.
The Court may adjourn the proceedings until a party has a
reasonable opportunity to obtain the representation.
Hearing
of applications together
The Court may hear 2 or more applications together
if:
a party to any of the applications asks the Court to do
so; and
the Court considers it in the interests of justice to do
so.
The Court may do so even if the applications have
different parties.
Division 4
– Orders for children
Subdivision
1 – Temporary protection order
Applying for temporary protection order
The CEO may apply to the Court for a temporary protection
order for a child if:
the CEO reasonably believes:
the child is in need of protection; and
the proposed order is urgently needed to safeguard the
wellbeing of the child; and
no protection order is in force for the
child.
The CEO may make the application:
whether or not an assessment order is in force for the
child; and
whether or not the child is in provisional
protection.
How
application is made
The application may be made to the Court in any way the
Court considers reasonable in the circumstances (including, for example,
telephone, fax or other electronic means).
The CEO must specify in the application:
why the CEO considers the proposed order is necessary;
and
the proposed arrangement for the care and protection of
the child under the order.
Any information in support of the application must be in
the form of a sworn statement.
However, if the application is made by telephone, fax or
other electronic means:
the Court may allow the application to be made before the
statement is sworn; but
the CEO must send the sworn statement to the Court not
later than the day after the day of the application.
For subsection (4), the Court may give any directions
about the application as the Court considers appropriate in the
circumstances.
Making of order
The Court must, immediately after the application is
made:
make the temporary protection order if the Court is
satisfied there are reasonable grounds for believing:
the child is in need of protection; and
the proposed order is urgently needed to safeguard the
wellbeing of the child; or
dismiss the application if the Court is not so
satisfied.
As soon as practicable after making the decision, the
Court must give the CEO a copy of:
the order if the Court decides to make the order;
or
otherwise – a statement of the reasons for not
making the order.
Without limiting subsection (2), the Court may give the
copy by sending it to the CEO by fax or other electronic means.
The Court must keep a record of:
the application (whether or not a written application is
given to the Court); and
any information given to the Court for the application;
and
the decision on the application; and
the reasons for the decision.
To avoid doubt, the Court may decide the application in
the absence of the parents of the child.
Notice
of order
As soon as practicable after the order is made, the CEO
must:
give a copy of the order to each parent of the child;
and
inform the child about the order; and
explain the effect of the order to the
child.
The CEO may give the copy to a parent of the
child:
by personally serving the copy on the parent;
or
if the CEO considers it impracticable to do so,
by:
leaving it at the parent's last known address;
or
sending it by post to that address.
In addition, the CEO may give a copy of the order to the
child if the CEO considers it appropriate to do so having regard to the child's
maturity and understanding.
Effect
of order
The order:
gives daily care and control of the child to the CEO while
the order is in force; and
except as provided by section (2) and (3) – is in
force for 14 days from the time it is made.
Authorised officer's powers
To give effect to the order, an authorised officer
may:
at any time, enter a place where the officer reasonably
believes the child may be found; and
search the place in order to find the child;
and
stay at the place for as long as the officer considers
reasonably necessary to find and apprehend the child; and
apprehend the child; and
remove the child from the place; and
arrange for a medical examination of the child;
and
arrange for the provision of other medical services for
the child; and
make other arrangements for the care and protection of the
child.
However, the child may refuse to submit to any of the
examination mentioned in subsection (1)(f) if the child is of sufficient
maturity and understanding to make the decision.
The officer may use any reasonable force or assistance in
acting under subsection (1).
The officer must give a report to the CEO about any action
taken by the officer under subsection (1) as soon as practicable after taking
the action.
What happens when order ceases to be in force
Subject to the operation of any other provisions in this
Act, the CEO must return the child to a parent of the child when the order
ceases to be in force.
The CEO may return the child to a parent of the child
before the order ceases to be in force:
under an agreement arising from a mediation conference
under section ; or
if the CEO considers it appropriate to do so in the
circumstances.
If the CEO returns the child under subsection
(2):
the CEO must notify the Court about returning the child;
and
the order ceases to be in force when the Court is so
notified.
Other
action for child while order in force
This Subdivision does not prevent any of the following
from happening while the temporary protection order is in
force:
an inquiry or investigation under Part 2.1 in relation to
the child;
an application for an assessment order for the
child;
an assessment order being in force for the
child;
an application for another temporary protection order for
the child;
an application for a protection order for the
child.
However, the CEO must not apply for another temporary
protection order for the child while an existing temporary protection order (the
"existing order") for the child is in force if:
the existing order was made when a previous temporary
protection order (the "previous order") was in force; and
the existing order took effect immediately after the
previous order ceased to be in force; and
the CEO did not return the child to a parent of the child
before or when the existing order took effect.
Subsection (2) does not prevent an application for a
temporary protection order for the child after:
a temporary protection order for the child has ceased to
be in force; and
the CEO has returned the child to a parent of the
child.
Subdivision
2 – Assessment order
Applying for assessment order
The CEO may apply to the Court for an assessment order for
a child to authorise the carrying out of an assessment if:
a protection order is not in force for the child;
and
the CEO reasonably believes the proposed assessment is
necessary for determining whether the child is in need of protection;
and
the proposed assessment cannot be carried out without the
order.
For subsection (1), an assessment
includes:
any assessment of the child for determining whether the
child is in need of protection; and
any assessment of a parent of the child for determining
whether the parent is capable of exercising parental responsibility for the
child.
Without limiting subsection (2), an assessment may
involve:
a medical or psychological examination of the child or a
parent of the child; and
the taking and examination of samples from the child or a
parent of the child.
The CEO may make the application:
whether or not the child is in the CEO's care;
and
whether or not the CEO has applied for a temporary
protection order or protection order for the child.
How
application is made
The CEO must specify in the application:
why the CEO considers the proposed assessment is
necessary; and
details of the proposed assessment; and
any of the following directions that the CEO seeks from
the Court:
a direction restricting a specified person's contact with
the child while the assessment order is in force;
a direction requiring a child-related authority to give
the CEO specified information about the child.
When
Court may hear application
The Court must not hear the application unless the Court is
satisfied:
the CEO is entitled to make the application under section
; and
either:
the CEO has taken reasonable steps to obtain the consent
of at least one of the parents of the child for the proposed assessment;
or
it is not practicable for the CEO to do
so.
Court
to consider certain matters
In deciding the application, the Court must
consider:
whether the proposed assessment is necessary;
and
whether the assessment is likely to provide information
needed to determine whether the child is in need of protection;
and
whether any distress caused by the assessment to the child
will be outweighed by the value of the information to be obtained from the
assessment; and
any distress caused to the child by a previous assessment
of the same or a similar nature; and
any other matters the Court considers
relevant.
Order of Court
The Court may:
make an assessment order authorising the carrying out of
the proposed assessment or any other specified assessment for determining
whether the child is in need of protection; or
make an assessment order covered by paragraph (a) that
includes one or more of the following directions (whether or not they were
sought by the CEO):
a direction restricting a specified person's contact with
the child while the order is in force;
a direction requiring a child-related authority to give
the CEO specified information about the child; or
dismiss the application.
Notice
of order
As soon as practicable after the order is made, the CEO
must give each party to the proceedings (except the child):
a copy of the order; and
a written notice:
explaining the effect of the order; and
stating the party may appeal against the order under
Division 6 within 28 days after it is made; and
stating how the appeal may be instituted.
The CEO may give the copy and notice:
by personally serving them on the party;
or
if the CEO considers it impracticable to do
so:
by leaving them at the party's last known address;
or
by sending them by post to that address.
The CEO:
must explain the effect of the order and notice to the
child; and
may give a copy of the order and notice to the child if
the CEO considers it appropriate to do so having regard to the child's maturity
and understanding.
Effect
of order
The order has effect for 28 days.
On the CEO's application, the Court may extend the order
for a further period that does not exceed 28 days.
However, the order cannot be extended
again.
The order authorises:
the making of an assessment specified in the order;
and
if the order includes a direction mentioned in
section (b) – the actions specified in the direction;
and
the giving of information obtained from the assessment to
the CEO and other specified persons.
Despite any law of the Territory, a person acting in good
faith in giving information under the order is not civilly or criminally liable,
or in breach of any professional code of conduct, for giving the
information.
Refusal to submit to assessment
The child may refuse to submit to any assessment that
relates to the child if the child is of sufficient maturity and understanding to
make the decision.
A parent of the child may refuse to submit to any
assessment that relates to the parent.
What
happens after assessment
The CEO must give the Court the result of the assessment
in a report in the approved form.
Without limiting subsection (1), the report must state
whether or not the CEO believes the child is in need of protection on the basis
of the result.
CEO
may take other action
This Subdivision does not prevent the CEO from doing any of
the following while the assessment order is in force:
taking another action under this Part for the
child;
taking an action under Part 2.1 for the
child.
Subdivision
3 – Protection order
Applying for protection order
The CEO may apply to the Court for a protection order for
a child if the CEO reasonably believes:
the child
is in need of protection; or
would be in need of protection but for the fact that the
child is currently in the CEO's care; and
the proposed order is the best means to safeguard the
wellbeing of the child.
The CEO may make the application:
whether or not the child is in the CEO's care;
and
whether or not an application for a temporary protection
order or assessment order for the child has been made; and
whether or not a temporary protection order or assessment
order for the child is in force.
Note
The provisions about a protection order in this Part are part of a
system for the transfer of such orders and related proceedings between
jurisdictions, see Part 2.4.
How
application is made
The CEO must specify in the application:
the proposed order; and
when the order is proposed to have effect;
and
why the CEO considers the order is necessary;
and
the proposed arrangement for the care and protection of
the child under the order.
Directions in protection order
The proposed order must specify one or more of the
following directions:
a direction (a "supervision direction") requiring one or
more of the following:
that a person must do, or refrain from doing, a specified
thing directly related to the protection of the child;
that the CEO must supervise the protection of the child in
relation to specified matters;
a direction (a "daily care and control direction") giving
daily care and control of the child to a specified person;
a direction (a "short-term parental responsibility
direction") giving parental responsibility for the child to a specified person
for a specified period not exceeding 2 years;
a direction (a "long-term parental responsibility
direction") giving parental responsibility for the child to a specified person
for a specified period that:
exceeds 2 years; and
ends before the child turns 18 years of
age.
Without limiting subsection (1)(a)(i), a supervision
direction may:
require a person not to have any direct or indirect
contact with the child; or
require a person not to have any direct or indirect
contact with the child except when a specified person or a person belonging to a
specified group is present.
Notice of application
As soon as practicable after applying for the order, the
CEO must:
give a copy of the application to each parent of the
child; and
a written notice stating:
when and where the application is to be heard;
and
that the application may be heard and decided in the
absence of the parent.
The CEO may give the copy and notice:
by personally serving them on the parent;
or
if the CEO considers it impracticable to do
so:
by leaving them at the parent's last known address;
or
by sending them by post to that address.
The CEO:
must explain the effect of the application and notice to
the child; and
may give a copy of the application and notice to the child
if the CEO considers it appropriate to do so having regard to the child's
maturity and understanding.
Parties to proceedings
The parents of the child are the respondents in the
proceedings for the application.
The other parties to the proceedings are:
the child; and
the CEO; and
a person proposed to be given daily care and control of,
or parental responsibility for, the child under the order; and
any other person who:
has applied to the Court to be a party to the proceedings;
and
is considered by the Court to have a direct and
significant interest in the wellbeing of the child.
Hearing in absence of parents
The Court may hear the application in the absence of a
parent of the child if the Court is satisfied the CEO has given the parent a
notice that complies with section (1).
However, this section does not limit the Court's power to
exclude the parent or anyone else from Court proceedings.
Court-ordered mediation conference
Before deciding the application, the Court may order a
mediation conference to be convened for the purposes specified by the
Court.
Without limiting subsection (1), the conference may be
convened for one or more of the following purposes:
establishing the circumstances giving rise to the
application;
reviewing an arrangement that has been made for the care
of the child;
making recommendations about the arrangement for the care
of the child;
arriving at an agreement on the best means of safeguarding
the wellbeing of the child.
The Court:
must appoint someone (the "convenor") who has the
qualifications or experience prescribed by regulation to convene the conference;
and
may direct that:
the conference be convened at a specified time and place;
and
specified persons (including parties to the proceedings
and any other persons) are to attend the conference.
A person required to attend the conference may be
represented by someone appointed by the person.
The regulations may make any provision for the conference,
including the following:
any procedural and reporting requirements for the
conference;
the appointment of a person to represent the interests of
the child in the conference;
the making of any agreement arising from the conference;
the powers and functions of the convenor.
Order of Court
The Court may:
make a protection order for the child:
as proposed by the CEO; or
specifying other directions mentioned in section as the
Court considers appropriate; or
dismiss the application.
The Court may make any order for an agreement arising from
a mediation conference for the child.
When Court must make order
The Court must make the protection order if the Court is
satisfied:
the child:
is in need of protection; or
would be in need of protection but for the fact that the
child is currently in the CEO's care, and
the order is the best means of safeguarding the wellbeing
of the child.
Court
to consider certain matters
In making the decision, the Court must
consider:
any matters arising from a mediation conference for the
child; and
the wishes of the following:
the child;
a parent of the child;
a person proposed to be given daily care and control of,
or parental responsibility for, the child under the order;
any other person considered by the Court to have a direct
and significant interest in the wellbeing of the child; and
if the CEO proposes that daily care and control of, or
parental responsibility for, the child be given to a person (including, for
example, the CEO):
any report or recommendation given to the Court by the CEO
about the proposal; and
whether there is another person who is better suited to be
given daily care and control of, or parental responsibility for, the child;
and
the needs of the child for long-term stability and
security; and
any other matters the Court considers
relevant.
Without limiting subsection (1)(c), the Court must not
give a person who is not a parent of the child parental responsibility for the
child under a
long-term parental responsibility
direction unless the Court is satisfied:
giving the responsibility to the person is the best means
of safeguarding the child's wellbeing; and
there is no one else who is better suited to be given the
responsibility.
Extraterritoriality
To avoid doubt, the Court may make a protection order for
the child even if the circumstances causing the child to be in need of
protection occurred:
outside the Territory or Australia; or
partly in the Territory and partly outside the Territory
or Australia.
Duration of order
The order has effect as specified by the Court unless the
Court extends, varies or revokes the order under section or .
In any case, the order must cease to have effect when the
child turns 18 years of age.
Notice
of order
As soon as practicable after the order is made, the CEO
must give each party to the proceedings (except the child):
a copy of the order; and
a written notice:
explaining the effect of the order; and
stating the party may appeal against the order under
Division 6 within 28 days after it is made; and
stating how the appeal may be instituted.
The CEO may give the copy and notice:
by personally serving them on the party;
or
if the CEO considers it impracticable to do
so:
by leaving them at the party's last known address;
or
by sending them by post to that address.
The CEO:
must explain the effect of the order and notice to the
child; and
may give a copy of the order and notice to the child if
the CEO considers it appropriate to do so having regard to the child's maturity
and understanding.
Obligations to supervise protection of child
If the order includes a supervision direction requiring
the CEO to supervise the protection of the child in relation to specified
matters, the CEO must, while the order is in force, maintain reasonable contact
with:
the child; and
the parents of the child; and
any other person who is residing with the
child.
For subsection (1):
the parents of the child or any other person who has daily
care and control of the child must:
keep the CEO informed about where the child is residing;
and
allow an authorised officer to have reasonable contact
with the child; and
an authorised officer may, at any reasonable time, enter a
place where the child is located to have contact with the child;
and
an authorised officer may, at any reasonable time, enter
the place where the child ordinarily resides to inquire about the specified
matters; and
the CEO may, by written notice, require a parent of the
child or a person residing with the child to do or refrain from doing a
specified thing for the supervision direction.
The notice must state the reasons for the
requirement.
An authorised officer may use any reasonable force or
assistance in acting under this section.
Obligations of person under order
If the protection order gives daily care and control of,
or parental responsibility for, the child to a person who was not a parent of
the child, the person:
must give the parents of the child information
about:
where the child is residing; and
any arrangement that has been made for the care of the
child; and
must provide opportunity for the child to have contact
with the parents and other family members of the child as often as is reasonable
and appropriate in the circumstances.
Subsection (1) has effect subject to any contrary
direction of the Court.
Extension of order
The CEO may, before the order ceases to be in force, apply
to the Court for the order to be extended for a further specified
period.
The order may be extended more than once.
This Subdivision applies to an application for an
extension of the order in the same way as it applies to the application for the
order.
However, in considering the application, the Court may
take into account:
any contravention of the order by a person;
and
any contravention of this Act in relation to the child by
a person.
Variation and revocation of order
Before the order ceases to be in force, a party to the
proceedings for the making of the order may apply to the Court for the order to
be:
varied; or
revoked; or
revoked and replaced by a new protection
order.
However, a parent of the child must not:
apply for the order to be replaced if the proposed new
order will give parental responsibility for the child to a different person;
or
without the leave of the Court – apply for the order
to be varied or revoked if a similar application has been decided by the
Court.
The Court may only grant the leave if the Court is
satisfied the parent has new evidence to present to the Court.
An application under subsection (1) must be made as if it
were an application for a protection order.
This Subdivision applies to the application with the
following changes:
as soon as practicable after making the application, the
applicant must give a copy of the application to the CEO and each parent of the
child (except a parent who is the applicant);
section (1) and (2) does not apply to the CEO, but the CEO
must comply with (3) as soon as practicable after receiving the copy of the
application;
in considering the application, the Court may take into
account:
any contravention of the order by a person;
or
any contravention of this Act in relation to the child by
a person.
The Court may revoke the order only if the Court is
satisfied the order is no longer necessary.
Court may adjourn proceeding
The Court may only adjourn proceedings for an application
of an assessment order or protection order.
However, the Court may not adjourn proceedings for an
application under section or .
The Court must:
to the greatest extent possible, avoid granting
adjournments; and
may grant adjournments only if the Court
considers:
doing so is in the best interests of the child to whom the
proceedings relate; or
there are other strong reasons for doing
so.
In deciding the period of adjournment, the Court must have
regard to the principle that it is in the best interests of the child for the
application to be decided as soon as possible.
The Court:
must state its reasons for the adjournment;
and
may give directions to the parties to the proceedings
about what they must do or refrain from doing during the
adjournment.
Order on adjournment
On granting the adjournment, the Court may make one or
more of the following orders:
an order giving daily care and control of the
child:
to the CEO if the proceedings relate to an assessment
order; or
to the CEO or a family member of the child if the
proceedings relate to a protection order;
an order that a report about the child and the child's
family be prepared and filed in the Court;
an order authorising a medical examination of the child
and the filing of a report of the examination in the Court;
an order restricting the contact between the child and
specified persons;
an order that a mediation conference be convened for the
child.
Each of the orders has effect during the
adjournment.
The Court may, without limiting what may be addressed by a
report prepared for subsection (1), specify matters that must be addressed by
the report.
The child may refuse to submit to any of the examination
mentioned in subsection (1)(c) if the child is of sufficient maturity and
understanding to make the decision.
Without limiting subsection (1)(d), an order mentioned in
that subsection may:
direct a person not to have any direct or indirect contact
with the child; or
direct a person not to have any direct or indirect contact
with the child except when a specified person or a person belonging to a
specified group is present; or
require the CEO to supervise any contact between the child
and a specified person.
The Court must not require the CEO to supervise any
contact between the child and a specified person unless the CEO agrees to do
so.
Section (which is about mediation conference) applies for
subsection (1)(e) in relation to proceedings for an assessment order with any
necessary changes.
Appeal to Supreme Court
A party to any Court proceedings may appeal to the Supreme
Court against any order or decision of the Court (the "original decision"),
other than a temporary protection order.
The appellant must do so by filing a notice of appeal with
the Registrar of the Supreme Court within 28 days after the original decision is
made.
The notice must specify:
the grounds for the appeal; and
the facts on which the appeal is based.
The appellant must serve a copy of the notice on each of
the other parties to the proceedings.
Stay
of decision
The Supreme Court may stay the original decision to secure
the effectiveness of the appeal.
A stay:
may be given on any conditions specified by the Supreme
Court; and
operates for the period specified by the Supreme Court;
and
may be revoked or amended by the Supreme
Court.
However, the period of the stay must not extend beyond the
time when the Supreme Court decides the appeal.
Hearing appeal
An appeal against an assessment order:
must be conducted as a new hearing; and
is not limited by the evidence before the Court when the
order was made.
Except as the Supreme Court otherwise directs, an appeal
against any other order or decision must be decided on the evidence before the
Court when the order or decision was made.
Power
of Supreme Court
The Supreme Court may:
confirm the original decision; or
vary the original decision; or
set aside the original decision; or
set aside the original decision and replace it with a new
order or decision.
Division 7
– Other procedural matters
Application
This Division applies to any Court proceedings other than
proceedings for a temporary protection order.
Medical practitioner may disclose information
Section 12(2) of the Evidence Act does not apply to
the proceedings.
Note
Section 12(2) of the Evidence Act prohibits the disclosure
by a medical practitioner of certain information.
Legal
representative of child
The Court may order the child to whom the proceedings
relate be separately represented by a legal practitioner if the Court considers
doing so is in the best interests of the child.
Without limiting subsection (1), the Court may do so
if:
the application relating to the proceedings is opposed by
a parent of the child; or
the child opposes the application.
The Court may make any orders it considers necessary for
subsection (1).
A legal practitioner may represent more than one child in
the same proceedings.
However, if the Court considers the legal practitioner
should not do so because of any actual or potential conflict of interests, the
Court may order a child be separately represented.
The legal representative of a child must:
act in the best interests of the child regardless of any
instructions from the child; and
present the views and wishes of the child to the
Court.
For subsection (6), the legal representative
may:
interview the child; and
explain to the child the role of the legal representative;
and
present evidence to the Court about the best interests,
and the views and wishes, of the child; and
cross-examine other parties to the proceedings and their
witnesses; and
make applications and submissions to the Court for the
child; and
lodge an appeal against a decision of the Court for the
child.
The Court may make any orders it considers necessary to
ensure the legal representative is appropriately qualified for the
representation.
Attendance of child
The Court may:
order a child to attend the proceedings (whether or not
the proceedings relate to the child); or
make any other order in relation to the attendance of the
child in the proceedings.
In addition, the Court may make orders in relation to the
following:
taking a written statement from the
child;
presenting to the Court the statement and a report
prepared under section for the child.
The Court may:
receive the statement and report as evidence;
and
give them the weight the Court considers
appropriate.
However, the Court must have regard to the following when
acting under subsection (3):
the age of the child;
the intellectual capacity of the child;
the capacity of the child to understand the duty to speak
the truth;
the extent to which the child may have been influenced by
another person in making the statement or giving information for the
report.
The Court must take into account the wishes of the child
when making an order under this section.
Apart from this section, the child is not required to give
evidence in any Court proceedings.
Submissions from other persons
The Court may hear submissions from a
person:
who is a family member of the child; or
whom the Court considers is able to inform the Court on
matters relevant to the proceedings.
A legal practitioner may make the submissions for the
person.
Report required by Court
The Court may order a report to be prepared about the
wellbeing of the child.
Without limiting subsection (1), the Court may specify in
the order one or more of the following:
the person who must prepare the report;
the matters that must be addressed in the
report;
the persons who must give information for the
report;
that the child, a parent of the child or another person be
interviewed for the report.
A person must not contravene the order.
Maximum penalty: 50 penalty units or imprisonment for 6
months.
It is a defence to a prosecution for an offence against
subsection (3) if the defendant has a reasonable excuse.
A person is not civilly or criminally liable, or in breach
of any professional code of conduct, for:
giving information for the report; or
preparing the report; or
giving the report to the Court.
The Court must, as soon as possible after receiving the
report:
take all reasonable steps to ensure each party to the
proceedings is given a copy of the report; and
give such other directions about the report as the Court
considers appropriate.
However, the Court may decide not to give a copy of the
report to a party to the proceedings if the Court considers it inappropriate to
do so in the circumstances.
Confidentiality
A person who has a copy of the report must not disclose
any information in it to another person.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
Subsection (1) does not apply if the information is
disclosed:
with the leave of the Court; or
to the person's legal representative; or
otherwise for the purposes of this Act.
Examination and cross-examination of
witnesses
A witness may be examined and cross-examined in any Court
proceedings as the Court considers appropriate.
If the Court regards a question directed at a witness as
offensive, the Court may:
disallow the question; or
excuse the witness from answering the
question.
If the Court regards an examination or cross-examination
of a witness as oppressive or repetitive, the Court may:
disallow the examination or cross-examination;
or
excuse the witness from the examination or
cross-examination.
Part 2.4
– Transfer of orders and proceedings
Division 1
– Preliminary matters
Object
of Part
The object of this Part is to enable orders in the nature of
protection orders and related proceedings to be transferred between different
jurisdictions, so that:
children may be protected under the orders when moving
from one jurisdiction to another; and
the proceedings may be determined
expeditiously.
Definitions
In this Part:
"child protection order", for a child, means a final court
order made under a child welfare law, or in force under an interstate law,
that:
(a) is of the same or a similar nature as a protection
order; and
(b) gives responsibility (however described) in relation to
the child to:
(i) a Minister of the Crown in right of the Territory or a
State; or
(ii) a government department or statutory authority, or the
chief executive officer (however described) of, or someone employed or engaged
in, the department or authority; or
(iii) an organisation or the chief executive officer
(however described) of the organisation;
"child protection proceeding" means a proceeding in a court
under a child welfare law for:
(a) a finding (however described, and includes a finding
that a child is in need of protection) that is a prerequisite to the making of a
child protection order; or
(b) the making of a child protection order or interim order;
or
(c) the extension, variation or revocation of a child
protection order;
"child welfare law" means:
(a) a law of a State that substantially corresponds to the
provisions in Part 2.3 that relate to a protection order; or
(b) a child welfare law specified by regulation under
section (1);
"Children's Court", for a State, means a court that has the
jurisdiction to hear and determine a child protection proceeding at first
instance in the State;
"home order" means a protection order;
"home proceeding" means any proceeding in the Court for the
making of, or relating to, a protection order;
"interim order" means:
(a) an order made under section ; or
(b) an equivalent order made under an interstate
law;
"interstate law" means:
(a) a law of a State that substantially corresponds to the
provisions in this Part; or
(b) an interstate law specified by regulation under
section (2);
"interstate officer", for a State, means:
(a) the person holding or occupying the office or position
that has the principal responsibility for the protection of children in the
State under the child welfare law of the State; or
(b) the person holding or occupying the office or position
specified in the regulations under section (3) for the State;
"parent", for a child to whom a home order or child
protection order relates, includes anyone who would have parental responsibility
for the child if the order had not been made;
"participating State" means a State in which an interstate
law is in force;
"sending State" means the State from which a child
protection order or child protection proceeding is transferred under an
interstate law;
"State" means:
(a) a State or another Territory of the Commonwealth;
or
(b) New Zealand;
"working day" means:
(a) for a court – a day on which the court's offices
are open; or
(b) for the CEO – a day on which the Department's
principal office is open.
Child welfare law, interstate law and interstate
officer
A regulation may specify a law of a State that
substantially corresponds to the provisions in Part 2.3 that relate to a
protection order to be a child welfare law.
A regulation may specify a law of a State that
substantially corresponds to the provisions in this Part to be an interstate
law.
A regulation may specify an office or position in a State
to be an office or position the holder or occupier of which is the interstate
officer of the State.
Division 2
– Transfer of child protection orders
Subdivision
1 – Transfer by CEO
When CEO may transfer order
The CEO may transfer a home order to a participating State
if:
the child to whom the order relates is residing, or is
about to reside, in the State; and
no application has been made for the transfer under
Subdivision 2; and
the order is not subject to an appeal and the time for
instituting an appeal has expired; and
the CEO considers the wellbeing of the child will not be
adversely affected by the transfer, having regard to the wishes
of:
the child; and
each parent of the child; and
each person who has access to the child under the order;
and
any other person considered by the CEO to have a direct
and significant interest in the wellbeing of the child; and
the CEO considers a child protection order having the same
or a similar effect as the home order can be made under the child welfare law of
the State; and
the CEO considers it appropriate for the interstate
officer of the State to exercise powers and responsibilities under a child
protection order for the child; and
the interstate officer has consented in writing to the
transfer and the matters specified by the CEO under section for the transfer;
and
each person whose consent to the transfer is required
under section has consented to the transfer.
Terms of transfer
The CEO must specify in the decision the period for which
the transferred order is to be in force.
The period must be the lesser of:
the period for which the home order would remain in force
if it is not transferred; and
the maximum period for which a child protection order of
the participating State that has the same or a similar effect as the home order
can be in force in the State.
The CEO may also specify in the decision provisions to be
included in the transferred order to the extent to which they can be included in
a child protection order mentioned in subsection (2)(b).
Persons whose consent is required
Consent of each of the following persons to the transfer
is required:
if the CEO considers the child has sufficient maturity and
understanding to give the consent – the child;
each parent of the child;
each person who has access to the child under the
order.
However, consent from a person mentioned in subsection
(1)(b) or (c) is not required if:
the person cannot be found after a reasonable attempt has
been made to find the person; or
the person is residing, or is about to reside, in the
participating State.
In obtaining the consent of a person, the CEO must ensure
the person is informed of:
the person's right to apply under section for a review of
the CEO's decision and the time within which the application may be made;
and
the CEO's right to apply to the Court for an order for the
transfer of the home order under section .
Notice of decision
The CEO must give a notice of the decision to transfer the
home order to each of the following persons:
if the child is at least 10 years of age and the CEO
considers the child has sufficient maturity and understanding to comprehend the
transfer and its consequences – the child;
each parent of the child;
each person who has access to the child under the
order;
any other person considered by the CEO to have a direct
and significant interest in the wellbeing of the child.
The CEO must give the notice:
as soon as practicable; and
in any case not later than 3 working days after the
decision is made.
The notice must state:
the date of the decision; and
details of the order that will apply to the child in the
participating State; and
that the person is entitled to apply for a review of the
decision under section and the time within which the application may be
made.
Review of decision
A person to whom the CEO has given a notice of the
decision may apply to the Court for a review of the decision.
The application must be made within 10 working days after
the person receives the notice.
The review is a review:
of the merits of the decision; and
on the grounds specified in the
application.
The application stays the decision until the application
is decided.
The Court may:
affirm the decision; or
vary the decision; or
set aside the decision; or
set aside the decision and replace it by the Court's
decision.
Subdivision
2 – Transfer by Court
When CEO may apply to Court for transfer
The CEO may apply to the Court for an order transferring a
home order to a participating State if:
the child to whom the order relates is residing, or is
about to reside, in the State; and
the order is not subject to an appeal and the time for
instituting an appeal has expired; and
the CEO considers the wellbeing of the child will not be
adversely affected by the transfer, having regard to the wishes
of:
the child; and
each parent of the child; and
any other person who has access to the child under the
order; and
any other person considered by the CEO to have a direct
and significant interest in the wellbeing of the child; and
the CEO considers a child protection order having the same
or a similar effect as the home order can be made under the child welfare law of
the State; and
the CEO considers it appropriate for the interstate
officer of the State to exercise powers and responsibilities under a child
protection order for the child; and
the interstate officer has consented in writing to the
transfer and any of the following matters proposed by the CEO for the
transfer:
the period for which the transferred order is to be in
force;
provisions to be included in the transferred order;
and
one or more of the following apply:
a person whose consent to the transfer is required under
section has refused or failed to do so;
the CEO considers the transferred order should include
provisions different from those that are included in the home
order;
the CEO considers that, if the CEO were to make a decision
to transfer the order, a person is likely to apply for a review of the decision
under section ;
the CEO otherwise considers it appropriate for the Court
to decide whether or not to transfer the order.
Service of application
The CEO must, as soon as practicable after making the
application, give a copy of the application to:
each party to the proceedings relating to the home order
(other than the CEO); and
each person who has access to the child under the order;
and
any other person considered by the CEO to have a direct
and significant interest in the wellbeing of the child.
When Court may hear application
The Court must not hear the application
unless:
the Court is satisfied the CEO is entitled to make the
application; and
the CEO has given the Court a report that
includes:
a history of the care of the child by the CEO;
and
any criminal history of the child; and
details of any sentencing order imposed on the child that
is in force; and
any recommendations by the CEO concerning the proposed
transfer; and
any other information prescribed by
regulation.
Court
must consider certain matters
The Court must not decide the application unless it has
considered:
the report mentioned in section (b); and
all of the following matters:
the place or likely place of residence for the child and
other persons mentioned in section ;
how the wellbeing and interests of the child might be
affected by the transfer;
the matters mentioned in section (f)(i) and (ii) that are
proposed by the CEO;
whether a child protection order having the same or a
similar effect as the home order can be made under the child welfare law of the
participating State;
whether it is appropriate for a child protection order for
the child to be in force under the child welfare law of the
State;
whether it is appropriate for the interstate officer of
the State to exercise powers and responsibilities under the child protection
order;
wishes expressed by the child;
wishes expressed by other persons mentioned in section
.
Order of Court
The Court may, by order:
transfer the home order to the participating State;
or
dismiss the application.
If the Court transfers the order to the State, the Court
must specify in the transferred order the period for which it is to be in
force.
The period must not be longer than the maximum period for
which a child protection order of the State that has the same or a similar
effect as the transferred order can be in force in the State.
The Court may also specify provisions to be included in
the transferred order to the extent to which they can be included in a child
protection order mentioned in subsection (3).
However, in specifying the matters mentioned in
subsections (2)
to (4), the Court must be
satisfied:
the transferred order will have the same or a similar
effect as the home order; and
the interstate officer of the State has consented in
writing to the matters; and
the transferred order is in the best interests of the
child.
Division 3
– Transfer of child protection proceedings
When CEO may apply to Court for transfer
The CEO may apply to the Court for an order transferring a
home proceeding to a participating State if:
the child to whom the proceeding relates is residing, or
is about to reside, in the State; and
the interstate officer of the State has consented in
writing to the transfer.
Service of application
The CEO must, as soon as practicable after making the
application, give a copy of the application to:
each party to the home proceeding (other than the CEO);
and
each person who has access to the child under an order of
the Court; and
any other person considered by the CEO to have a direct
and significant interest in the wellbeing of the child.
When Court may hear application
The Court must not hear the application
unless:
the Court is satisfied the CEO is entitled to make the
application; and
the CEO has given the Court a report that
includes:
a history of the care of the child by the CEO;
and
any criminal history of the child; and
details of any sentencing order imposed on the child that
is in force; and
any recommendations by the CEO concerning the proposed
transfer; and
any other information prescribed by
regulation.
Court
must consider certain matters
The Court must not decide the application unless the Court
has considered:
the report mentioned in section (b); and
all of the following matters:
the place of residence or likely place of residence for
the child and other persons mentioned in section ;
the place where any of the matters giving rise to the
proceeding arose;
how the wellbeing and interests of the child might be
affected by the transfer;
whether any other proceedings relating to the child are
pending, or have previously been heard and determined, under the child welfare
law of the participating State;
whether it is appropriate for a child protection order for
the child to be in force under the child welfare law of the
State;
whether it is appropriate for the interstate officer of
the State to exercise powers and responsibilities under the child protection
order;
wishes expressed by the child;
wishes expressed by other persons mentioned in section
.
Order of Court
The Court may, by order:
transfer the home proceeding to the participating State;
or
dismiss the application.
If the Court transfers the proceeding to the State, the
proceeding is discontinued in the Court on the registration of the transfer in
the Children's Court of the State under the interstate law.
Interim order
If the Court transfers the proceeding to the participating
State, the Court may also make an interim order providing for one or more of the
following:
giving daily care and control of, or parental
responsibility for, the child to a specified person under specified
conditions;
giving the responsibility for the supervision of the
wellbeing of the child to:
the interstate officer of the State; or
any other specified person in the State to whom the
responsibility could be given under the child welfare law of the
State.
The interim order remains in force for a specified period
not exceeding 30 days.
The Children's Court of the State may extend, vary or
revoke the interim order under the interstate law of the State.
Division 4
– Registration
Subdivision
1 – Transfer of orders and proceedings to
Territory
Filing of documents for transfer of child protection
order
The CEO must file in the Court:
a copy of each child protection order transferred to the
Territory under an interstate law; and
the decision or order to transfer the
order.
The CEO must do so as soon as practicable after the
decision or order is made.
However, the CEO must not do so if, under the
interstate
law:
the decision or order is subject to a review, appeal or
stay; or
the time for seeking a review, or instituting an appeal,
of the decision or order has not expired.
Filing of documents for transfer of child protection
proceeding
The CEO must file in the Court:
a copy of each order made under an interstate law to
transfer a child protection proceeding to the Territory; and
any interim order relating to the
proceeding.
The CEO must do so as soon as practicable after the order
to transfer the proceeding is made.
However, the CEO must not do so if, under the
interstate
law:
the order is subject to a review, appeal or stay;
or
the time for seeking a review, or instituting an appeal,
of the order has not expired.
Registration of transfer
A Registrar of the Court must register the transfer of a
child protection order or child protection proceeding if the CEO files documents
for the transfer under section or .
The Registrar must do so in a way decided by the
Court.
Effect of registration
If the transfer of a child protection order is registered,
the transferred order is taken for all purposes to be a home order from the day
of the registration.
If the transfer of a child protection proceeding is
registered:
the proceeding is taken to have commenced in the Court
under Part 2.3 on the day of the registration; and
any interim order filed under section (1)(b) relating to
the proceeding is taken for all purposes to be an order made by the Court from
the day of the registration.
Revocation of registration
Any of the following may apply to the Court for the
revocation of the registration of the transfer of an order or proceeding under
section :
the CEO;
if the child to whom the order or proceeding relates is at
least 10 years of age – the child;
a parent of the child;
a party to proceedings in the Children's Court of the
sending State in relation to the order or proceeding.
A Registrar of the Court must, as soon as practicable
after the Court has received the application, give a copy of the application
to:
the interstate officer of the sending State;
and
each person mentioned in subsection (1)(a) to (d), other
than the person making the application.
The Court may revoke the registration only if the Court is
satisfied, at the time of the registration:
the decision or order to transfer the order or proceeding
was subject to a review, appeal or stay under the interstate law of the State;
or
the time for seeking such a review, or instituting an
appeal, had not expired.
If the Court revokes the registration, a Registrar of the
Court must arrange for the following to be sent to the Children's Court of the
State:
a copy of the revocation;
a copy of each document filed under section or for the
transfer.
The revocation does not prevent the re-registration of the
transfer at a later time.
Notification by Registrar of Court
A Registrar of the Court must notify an appropriate officer
of the Children's Court of a State and the interstate officer of the State
of:
the registration under section of the transfer from the
State of an order or proceeding; and
any revocation of the registration under section
.
Subdivision
2 – Transfer of orders and proceedings from
Territory
Effect
of registration and revocation of home order in receiving State
A home order transferred to a participating State ceases
to have effect on the registration of the transfer in the Children's Court of
the State.
However, the home order revives on the revocation of the
registration under the interstate law of the State.
The revived order continues to be in force until it would,
apart form this Part, have expired.
Effect
of registration and revocation of home proceeding in receiving
State
A home proceeding transferred to a participating State is
discontinued on the registration of the transfer in the Children's Court of the
State.
However, on the revocation of the registration under the
interstate law of the State:
the proceeding continues before the Court;
and
the Court may hear the proceeding as if it had not been
transferred.
Transfer of Court file
On the transfer of a home order or home proceeding to a
participating State, a Registrar of the Court must send all documents held by
the Court for the order or proceeding to the Children's Court of the
State.
However, the Registrar must not do so if:
the decision or order to transfer the order or proceeding
is subject to a review, appeal or stay; or
the time for seeking a review, or instituting an appeal,
of the decision or order has not expired.
Division 5
– Other matters
Hearing and determination of transferred
proceeding
In hearing and determining a child protection proceeding
transferred to the Court, the Court:
may have regard to the transcript of, or any evidence
adduced in, the proceeding in the Children's Court of the sending State that
occurred before the transfer (the "previous proceeding"); but
is not bound by any finding of fact made in the previous
proceeding.
Disclosure of information
This section applies to any information acquired by the
CEO in exercising powers or performing functions under this
Act.
The CEO may disclose the information to an interstate
officer if the CEO considers the disclosure is necessary for the officer to
exercise a power or to perform a function under a child welfare law or
interstate law.
Discretion of CEO to consent to transfer
If there is a proposal to transfer a child protection
order to the Territory under an interstate law, the CEO may:
consent or refuse to consent to the transfer;
or
consent or refuse to consent to:
the period for which the order is to be in force;
and
the provisions to be included in the
order.
If there is a proposal to transfer a child protection
proceeding to the Territory under an interstate law, the CEO may consent or
refuse to consent to the transfer.
Interstate officer's decision not reviewable
An interstate officer's consent or refusal to consent to the
transfer of a home order from the Territory does not give rise to any of the
following proceedings against the officer:
proceedings for the grant of any relief or remedy in the
nature of certiorari, prohibition, mandamus or quo warranto;
proceedings for the grant of a declaration or an
injunction (whether on the ground of absence of jurisdiction or any other
ground).
Chapter 3
– Prevention of harm and exploitation
Part 3.1
– Screening for child-related employment
Object
of Part
The object of this Part is to ensure individuals who pose
an unacceptable risk of harm or exploitation to children are prevented from
contacting children through their employment.
The object is to be achieved by:
prohibiting such individuals from being engaged in
child-related employment; and
imposing related obligations on people:
who are engaged in child-related employment;
or
who engage others in child-related
employment.
Child-related employment
A person is engaged in child-related employment if the
person is engaged to perform child-related work.
Child-related work is any work that involves or may
potentially involve contact with children in connection with any of the
following:
child protection services provided by or for the
Department;
children's services provided under Chapter
4;
an educational facility for children, including a
government school established under the Education Act and a school
registered under Part VII of that Act, other than a facility prescribed by
regulation;
juvenile detention centres;
refuges or other residential facilities used by
children;
wards of hospitals or any other facilities for health
services in which children are ordinarily patients;
clubs, associations or movements (including those that are
of a cultural, recreational or sporting nature) with significant child
membership or involvement;
religious organisations;
babysitting or childminding services;
fostering of children;
transportation services for children;
private tuition services for children;
counselling or other support services for
children;
overnight camps for children;
road crossing services for school
children;
any of the following services, activities or facilities
that are provided or arranged for children:
gym or play facilities;
photographic services;
talent or beauty competitions;
entertainment or party services;
any other services, activities or facilities prescribed by
regulation.
A person may be engaged in child-related employment under
a contract of employment or any other contract or arrangement (whether written
or unwritten and whether for a reward or not).
Anyone who enters into such a contract or arrangement for
a person or body to perform child-related work must be regarded as someone who
engages the person or body in child-related employment.
Without limiting subsections (1) to (4), any of the
following is a person engaged in child-related employment:
anyone performing child-related work:
as a minister of religion or as part of a religious
vocation; or
as a student for the practical training of an educational
or vocational course; or
as a voluntary worker;
if a body is engaged to perform child-related work, any of
the following:
for a body corporate as defined in the Corporations
Act 2001 – an officer of the body corporate as defined in that
Act;
for any other body corporate – anyone (however
described) who takes part in the management of the body
corporate;
for any unincorporated body or association – a
member of the committee of management (however described) of the body or
association;
if a partnership is engaged to perform child-related work
– a partner in the partnership.
Person exempt from operation of Part
Despite section , an individual is not engaged in
child-related employment if:
the individual:
is engaged as a voluntary worker in a capacity covered by
section (2)(b), (c) or (g) (other than for work requiring overnight stay);
and
is a parent of at least one of the children with whom the
individual may have contact as such a worker; and
performs work as such a worker under the direct
supervision of someone who holds a clearance notice that is in force;
and
is not required by the person who engages the individual
as such a worker to hold a clearance notice; or
the individual is less than 15 years of age;
or
the individual:
is not a resident of the Territory; and
is engaged as a voluntary worker to perform child-related
work; and
is so engaged for a total period that does not exceed the
limit prescribed by regulation; or
the individual is exempt under the
regulations.
Obligations for child-related employment
An individual engaged in child-related employment must
hold a clearance notice that is in force.
A person must not engage an individual in child-related
employment unless the individual holds a clearance notice that is in
force.
A person must not contravene subsection (1) or
(2).
Maximum penalty: 500 penalty units.
An individual and someone (the "employer") who engages or
proposes to engage the individual in child-related employment are not required
to comply with subsections (1) and (2) for the engagement if:
an application for a clearance notice for the individual
has been made but the Authority has not decided the application;
and
a period of exemption specified by the CEO for the
individual and employer has not expired.
The CEO may specify the period only if:
the employer:
has applied to the CEO for the exemption in the approved
form; and
has given any additional information for the application
requested by the CEO; and
the CEO considers it appropriate to grant the exemption
having regard to the circumstances of the engagement (including any practice of
the employer to safeguard the children concerned).
The period may be extended by the CEO as the CEO considers
appropriate.
Application for clearance notice
Any of the following may apply to the Authority for the
issue of a clearance notice to an individual (the "candidate"):
the candidate;
a person who engages, or proposes to engage, the candidate
in
child-related employment.
The application must be:
in the approved form; and
accompanied by any proof of the identity of the candidate
required by regulation; and
accompanied by a statement of the candidate
that:
if the applicant is not the candidate – authorises
the making of the application; and
authorises the Commissioner of Police and anyone
prescribed by regulation to give information about the candidate to the
Authority.
The candidate must give the Authority any additional
information for the application requested by the Authority.
Decisions on application
If the candidate has been convicted of an offence, or has
a criminal history, that is prescribed by regulation, the
Authority:
must not issue a clearance notice to the candidate;
and
must, as soon as practicable, give notice of the
Authority's decision to the candidate and the applicant for the clearance notice
(if the applicant is not the candidate).
If subsection (1) does not apply, the Authority must,
having regard to the administrative guidelines, decide whether the candidate
poses an unacceptable risk of harm or exploitation to children.
If the Authority decides the candidate does not pose such
a risk, the Authority:
must issue a clearance notice to the candidate;
and
must, as soon as practicable, give notice of the
Authority's decision to the candidate and applicant.
If the Authority decides the candidate poses such a risk,
the Authority:
must not issue a clearance notice to the candidate;
and
must, as soon as practicable, give notice of the
Authority's decision to the candidate and applicant.
A notice of the Authority's decision
must:
be in the approved form; and
be accompanied by the reasons for the decision;
and
for a decision under subsection (1) or (4),
state:
that the candidate and applicant are entitled to apply for
a review of the decision under section ; and
the time within which the application may be
made.
Without limiting subsection (1), the regulations may
prescribe for the subsection a sexual offence as defined in section 3 of the
Sexual Offences (Evidence and Procedure) Act.
Provision of information
Despite any law of the Territory:
the Commissioner of Police and anyone else may give the
Authority any information about the criminal history of the candidate;
and
the Authority may collect and maintain the
information.
A person acting in good faith in giving the information is
not civilly or criminally liable, or in breach of any professional code of
conduct, for giving the information.
Administrative guidelines
The CEO may make administrative guidelines for the making
of a decision by the Authority.
Without limiting subsection (1), the guidelines may
provide for:
matters the Authority must take into account in making the
decision; and
how those matters may be taken into
account.
Without limiting subsection (2), the guidelines may
provide for one or more of the following to be taken into account in deciding
whether or not to issue a clearance notice to a person:
the whole of the person's criminal
history;
in relation to any offence the person has
committed:
the nature and gravity of the offence;
and
the relevance of the offence to any child-related
employment; and
the age of the victim when the offence was committed;
and
the time that has elapsed since the commission of the
offence;
in relation to any alleged commission of an offence by the
person – the risk of harm or exploitation to children posed by the person
in view of the allegation and other related circumstances (including any
patterns of the person's behaviour);
any other matters the Authority may reasonably take into
account in the circumstances.
The CEO must, by Gazette notice, notify the making
of the guidelines.
When clearance notice ceases to be in force
A clearance notice ceases to be in force:
at the end of 2 years, or a longer period specified by
regulation, after the notice is issued; or
if it is revoked at an earlier time – at that
time.
The Authority may revoke the notice if:
the Authority becomes aware of any information
that:
was not available to the Authority when the notice was
issued; and
would have resulted in a decision not to issue the notice
if it had been available to the Authority at that time; or
the Authority considers the person holding the notice is
no longer entitled to be issued the notice because of a change in the person's
circumstances.
If the Authority revokes the notice, the Authority must
give notice of the revocation and the reasons for the revocation
to:
the person; and
the applicant for the clearance notice (if the applicant
was not the person).
The notice of the revocation must state:
that the person and applicant are entitled to apply for a
review of the decision under section ; and
the time within which the application may be
made.
In addition, the Authority may give written notice of the
revocation to anyone who engages or proposes to engage the person in
child-related employment.
Change of circumstances requiring imposition of
conditions
A person holding a clearance notice that is in force must,
as soon as practicable after a change of circumstances prescribed by regulation
has occurred, give written notice of the change to:
the Authority; and
everyone who engages or proposes to engage the person
in
child-related employment.
Maximum penalty: 50 penalty units or imprisonment for 6
months.
After becoming aware of the change (whether because of
subsection (1) or not), the Authority may specify conditions for the
clearance notice by notice given to the following:
the person;
the applicant for the clearance notice (if the applicant
was not the person);
anyone who engages or proposes to engage the person
in
child-related employment.
The Authority must have regard to the administrative
guidelines when giving the notice.
The notice must:
be accompanied by the Authority's reasons for specifying
the conditions; and
state that the person and applicant are entitled to apply
for a review of the decision under section ; and
the time within which the application may be
made.
Without limiting subsection (2), the Authority may specify
any of the following conditions for the clearance notice under that
subsection:
that the person must not be engaged in child-related
employment for a specified period;
that the person must not be engaged in a specified class
of
child-related employment for a specified
period;
that the person may be engaged in child-related employment
or a specified class of child-related employment only under specified
conditions.
A person must not contravene any of the specified
conditions.
Maximum penalty: 50 penalty units or imprisonment for 6
months.
It is a defence to a prosecution for an offence against
subsection (6) if the defendant has a reasonable excuse.
Local Court may review decision of Authority
Any of the following decisions about a clearance notice
may be reviewed under this section:
a decision under section (1) or (4) not to issue the
notice;
a decision under section (2) to revoke the
notice;
a decision under section (2) to specify conditions for the
notice;
any other decision of the Authority about the notice
specified by regulation.
An application for the review may be made by any of the
following persons:
for a decision mentioned in subsection (1)(a) – the
candidate or the applicant for the notice;
for any other decision – the person holding, or the
applicant for, the notice.
The application must be made to the Local Court within 28
working days after the person is notified of the decision.
The application does not affect the operation or
implementation of the decision.
However, the Local Court may make another decision staying
or otherwise affecting the operation or implementation of so much of the
decision as it considers appropriate to effectively decide the
application.
A decision made under subsection (5):
is subject to the conditions specified by the Local Court;
and
has effect:
for the period specified by the Local Court;
and
if no period is specified by the Local Court – until
the application is decided.
The review:
must be conducted as a new hearing; and
is not limited by the material before the
Authority.
The Local Court may:
affirm the decision; or
vary the decision; or
set aside the decision; or
set aside the decision and replace it by the Local Court's
decision.
The Local Court may make any order about
costs.
Confidential information
A person who has acquired information in exercising a
power or performing a function under this Part is guilty of an offence if the
person:
discloses the information to someone; or
does something that results in disclosing the information
to someone and is reckless as to whether doing the thing would result in the
disclosure; or
uses the information.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
Subsection (2) does not apply to:
a disclosure or use of the information by the person in
exercising a power or performing a function under this Part; or
a disclosure of the information to a court or tribunal;
or
a disclosure or use of the information that is otherwise
required or authorised by law.
Screening Authority
There is to be a Screening Authority.
The Authority consists of one or more members appointed by
the Minister.
Regulations
The regulations may make provision, consistent with this
Part, about the following:
any matters relating to a clearance
notice;
the appointment of the members of the
Authority;
the procedure for the making of a decision by the
Authority;
any other matters arising from the operation of this
Part.
Part 3.2
– Employment of children
Objects of Part
The objects of this Part are:
to prevent the exploitation of children in their
employment; and
to ensure the wellbeing of children who are in
employment.
Interaction with Education Act
This Part does not affect the operation of section 30 of the
Education Act.
Definitions
In this Part:
"employ", for a child, means to engage the child to perform
work under a contract of employment or any other contract or arrangement
(whether written or unwritten and whether for a reward or not);
"employer", of a child, means a person who employs the
child.
CEO's power to restrict employment of
children
This section applies if:
a child is employed; and
the CEO is of the opinion that:
the child suffers, or is likely to suffer, exploitation
because of the employment; or
the wellbeing of the child is, or is likely to be,
jeopardised because of the employment.
The CEO may, by written notice given to a parent of the
child:
prohibit the child from being so employed;
or
prohibit the child from employment generally;
or
prohibit the child from specified types of employment;
or
impose specified conditions on the employment of the child
(whether generally or in relation to specified types of
employment).
A parent of the child must not permit or require the child
to be employed in contravention of the notice.
Maximum penalty: 100 penalty units or imprisonment for 12
months.
It is a defence to a prosecution for an offence against
subsection (3) if the defendant has a reasonable excuse.
The CEO:
must give a copy of the notice to the child;
and
may give a copy of the notice to an employer of the
child.
An employer of the child who is given a copy of the notice
must comply with the notice.
Maximum penalty: 100 penalty units or imprisonment for 12
months.
It is a defence to a prosecution for an offence against
subsection (6) if the defendant has a reasonable excuse.
The notice must:
be accompanied by the reasons of the CEO's decision;
and
state that a parent of the child is entitled to apply for
a review of the decision under section and the time within which the
application may be made.
Misleading information about child's age
This section applies if a person employs, or is
considering employing, a child.
A parent of the child:
must not give the person any information about the child's
age that the parent knows to be misleading in a material particular;
or
permits or requires the child to give the person any
information that the parent knows to be misleading in a material
particular.
Maximum penalty: 100 penalty units or imprisonment for 12
months.
Obligation of employers and parents
An employer of a child is guilty of an offence
if:
the employer requires the child to perform any work at any
time after 10 pm at night and before 6 am in the morning; and
the child is less than 15 years of age.
Maximum penalty: 400 penalty units.
An employer of a child must not require the child to
perform any work that is harmful, or likely to be harmful, to the child's
physical, mental or emotional wellbeing.
Maximum penalty: 100 penalty units or imprisonment for 12
months.
An employer of a child must not require the child to
perform any work that involves the exploitation of the child.
Maximum penalty: 800 penalty units or imprisonment for
4 years.
A parent of a child is guilty of an offence
if:
the parent permits or requires the child to perform any
work at any time after 10 pm at night and before 6 am in the morning;
and
the child is less than 15 years of age.
Maximum penalty: 50 penalty units or imprisonment for 6
months.
A parent of a child must not permit or require the child
to perform any work that is harmful, or likely to be harmful, to the child's
physical, mental or emotional wellbeing.
Maximum penalty: 100 penalty units or imprisonment for 12
months.
A parent of a child must not permit or require the child
to perform any work that involves the exploitation of the
child.
Maximum penalty: 800 penalty units or imprisonment for 4
years.
Inspections
For the purposes of monitoring compliance with this Part,
an authorised officer may, at any reasonable time:
enter a place where the officer reasonably believes a
child is employed; and
inspect the place and any facilities at the place;
and
require any person at the place to give the officer
specified information or produce to the officer specified records;
and
operate any electronic equipment at the place to retrieve
the records; and
make extracts or copies of the records.
A person must comply with a requirement given to the
person for subsection (1).
Maximum penalty: 100 penalty units or imprisonment for 12
months.
It is a defence to a prosecution for an offence against
subsection (2) if the defendant has a reasonable excuse.
If the officer enters the place without producing the
officer's identity card when requested to do so:
the officer may not stay at the place;
and
a person is not required to comply with a requirement
given to the person for subsection (1).
Authorised officer may require provision of
information
An authorised officer may, by written notice, require a
person who employs a child to give the officer specified information about the
employment.
The person must comply with the requirement within 14 days
after receiving the notice.
Maximum penalty: 100 penalty units or imprisonment for 12
months.
It is a defence to a prosecution for an offence against
subsection (2) if the defendant has a reasonable excuse.
Local Court may review decision
A parent of a child in relation to whom a notice is given
by the CEO under section (2) may apply for a review of the decision in the
notice.
The application must be made to the Local Court within 28
working days after the parent is given the notice.
The application does not affect the operation or
implementation of the decision.
However, the Local Court may make another decision staying
or otherwise affecting the operation or implementation of so much of the
decision as it considers appropriate to effectively decide the
application.
A decision under subsection (4):
is subject to the conditions specified by the Local Court;
and
has effect:
for the period specified by the Local Court;
and
if no period is specified by the Local Court – until
the application is decided.
The review:
must be conducted as a new hearing; and
is not limited by the material before the
CEO.
The Local Court may:
affirm the decision; or
vary the decision; or
set aside the decision; or
set aside the decision and replace it by the Local Court's
decision.
The Local Court may make any order about
costs.
Part 3.3
– Prevention of Child Deaths
Object
of Part
The object of this Part is to assist in the prevention and
reduction of child deaths through:
maintaining a database on child deaths;
and
conducting research about child deaths, and diseases and
accidents involving children; and
the development of appropriate policy to deal with such
deaths, diseases and accidents.
Child deaths
A child death is:
the death of a child who usually resided in the Territory
(whether the death occurred in the Territory or not); or
a still-birth as defined in the Births, Deaths and
Marriages Registration Act that occurred in the Territory.
Establishment of Committee
There is to be a Child Deaths Review and Prevention
Committee.
The Committee consists of at least 10 but not more than
16 members.
Each member must be:
someone who has qualifications or experience relating to
the functions of the Committee; and
appointed by the Minister in writing for a term not
exceeding 2 years.
The Minister must:
appoint one member to be the Convenor of the Committee;
and
appoint another member to be the Deputy Convenor of the
Committee.
At least 2 members must be Aboriginal
persons.
One member must be a deputy coroner nominated by the
Territory Coroner for this section.
A member is eligible for re-appointment.
In this section:
"deputy coroner" means a deputy coroner as defined in the
Coroners Act;
"Territory Coroner" means the Territory Coroner as defined
in the Coroners Act.
Functions of Committee
The Committee has the following functions:
to establish and maintain the Child Deaths
Register;
to conduct or sponsor research into child deaths, diseases
and accidents involving children, and other related matters (such as childhood
morbidity and mortality), whether alone or with others;
to raise public awareness about a matter mentioned in
paragraph (b), including, for example, any of the following:
the death rate of children;
the causes and nature of child deaths and of diseases and
accidents involving children;
the prevention or reduction of such deaths, diseases and
accidents;
to make recommendations about a matter mentioned in
paragraph (b);
to monitor the implementation of the
recommendations;
to contribute to any national database on child deaths in
Australia;
to enter into an arrangement for the sharing of
information with anyone in Australia that has functions similar to those of the
Committee;
to perform any other functions relating to the object of
this Part as the Minister directs.
Provision of information to Committee
Any of the following persons must, on the Committee's
request, give specified information to the Committee for any of its
functions:
the Commissioner of Police;
the Registrar of Births, Deaths and
Marriages;
a coroner;
a service provider for a protected child;
a health practitioner;
a person in charge of a facility for health services in
which children are ordinarily patients;
an operator of child-related services;
an operator of children's services.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
It is a defence to a prosecution for an offence against
subsection (1) if:
the defendant has a reasonable excuse; or
the Commissioner of Police certifies in writing that
compliance with the request would:
prejudice the investigation of any unlawful conduct;
or
disclose a confidential source of information in relation
to the administration of law; or
prejudice the effectiveness of a method or procedure in
relation to the administration of law; or
facilitate a person's escape from lawful custody;
or
endanger the safety of a person.
A person acting in good faith in giving information to the
Committee is not civilly or criminally liable, or in breach of any professional
code of conduct, for giving the information.
Child Deaths Register
There is to be a Child Deaths Register.
The Register is a database of information concerning child
deaths.
Without limiting subsection (2), the Register may include
information on:
incidences of child deaths; and
the causes, patterns and trends of child
deaths.
Annual
report
At the end of each financial year, the Committee must
prepare a report about the operation of the Committee during that
year.
The report must contain details about:
the Committee's activities during that year,
including:
the development of the Register during that year;
and
any recommendations made by the Committee during that
year; and
the implementation during that year of any recommendations
made by the Committee.
The Committee must, by 31 October following the end of
that year, give the report to the Minister.
The Minister must table a copy of the report in the
Legislative Assembly within 6 sitting days after receiving the
report.
Report
about research
The Committee may prepare reports about research conducted
or sponsored by the Committee (whether alone or with others).
The Committee must give the reports to the
Minister.
The Minister must table a copy of each of the reports in
the Legislative Assembly within 6 sitting days after receiving the
report.
Advisors to Committee
The Minister may, on the Convenor's recommendation,
appoint persons to be advisors to the Committee.
The Convenor may only recommend a person who has
qualifications or experience relating to:
a function of the Committee; or
health care, child development or protection, or research
methodology.
An advisor may be appointed for:
the duration of a project specified in the appointment;
or
a term not exceeding 2 years specified in the
appointment.
An advisor is eligible, on the recommendation of the
Convenor, for re-appointment.
An advisor must assist the Committee in performing the
Committee's functions as specified in the appointment.
Without limiting subsection (5), the appointment may
specify that the advisor must conduct specified research.
Deputy
Convenor
The Deputy Convenor must act in the office of Convenor
if:
the Convenor is unable to exercise the Convenor's powers
or perform the Convenor's functions; or
the office of Convenor is vacant.
Vacation of office of member or advisor
A member or advisor vacates his or her office
if:
the term of the appointment of the member or advisor
expires; or
the member or advisor resigns the office in writing given
to the Minister; or
the appointment is terminated under section ;
or
the member or advisor dies.
Termination of appointment
The Minister must terminate a person's appointment as a
member or advisor if:
the person contravenes section ; or
for a person appointed as a member:
the person has been absent (except on leave granted by the
Minister) from 3 consecutive meetings of the Committee; or
the person contravenes section .
In addition, the Minister may terminate the
appointment:
on the ground of misbehaviour; or
on the ground the person becomes physically or mentally
incapable of satisfactorily performing the duties of the
appointment.
Furthermore, the appointment is terminated
if:
the person:
becomes bankrupt; or
applies to take the benefit of a law for the relief of
bankrupt or insolvent debtors; or
compounds with creditors or makes an assignment of the
person's remuneration for their benefit; or
is found guilty by a court in the Territory of an offence
punishable by imprisonment for 12 months or more; or
is found guilty by a court outside the Territory of an
offence which, if committed against a law of the Territory, would be an offence
punishable by imprisonment for 12 months or more.
A termination under subsection (1) or (2) must be by
writing given to the person.
Meetings of Committee
The Committee must meet at least 3 times in each
year.
In a meeting of the Committee, the number of members that
is equal to half of the members plus one constitutes a quorum.
A meeting of the Committee must be presided
by:
the Convenor; or
in the absence of the Convenor – the Deputy
Convenor; or
in the absence of both the Convenor and the Deputy
Convenor – a member elected by the members present at the
meeting.
Disclosure of interest
A member who has a direct or indirect interest in a matter
to be considered by the Committee must disclose the interest to the
Committee.
The disclosure must be recorded in the Committee's
minutes.
The member:
must not take part in any deliberation or decision of the
Committee about the matter; and
must be disregarded for the purposes of constituting the
quorum of the Committee for the deliberation or decision.
The Committee may decide subsection (3) does not apply to
the matter.
However, the decision must be deliberated and voted on in
the absence of the member.
Confidential information
A person who has acquired information in exercising a
power or performing a function under this Part is guilty of an offence if the
person:
discloses the information to someone; or
does something that results in disclosing the information
to someone and is reckless as to whether doing the thing would result in the
disclosure; or
uses the information.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
Subsection (2) does not apply to:
a disclosure or use of the information by a person in
exercising a power or performing a function under this Part; or
a disclosure or use of the information for any of the
following purposes authorised by the Minister:
research relating to the object of this
Part;
an inquiry or investigation conducted by a coroner, the
Police Force or another law enforcement agency;
a purpose specified by regulation; or
a disclosure of the information to a court or tribunal;
or
a disclosure or use of the information that is otherwise
required or authorised by law.
Review
of operation of Part
The Minister must conduct a review of the operation of
this Part within 3 years after the commencement of this Part.
The review must determine:
the extent to which the operation of this Part has met the
object of this Part; and
whether or not any amendment to this Part should be
made.
Chapter 4
– Regulation of Children's services
Part
4.1 – Preliminary matters
Object of Chapter
The object of this Chapter is to safeguard the wellbeing of
children who are under the care of an operator of children's
services.
Children's services
Children's services are services for the care of a child
provided in the following circumstances:
the child is less than 13 years of age;
the care is provided at a place other than the child's
usual place of residence;
the services are provided by a person who has been given
responsibility for the care of the child by someone having daily care and
control of the child.
To avoid doubt, children's services may be
provided:
for all or part of a day; and
as an on-going operation or as a single event;
and
as a community service or as all or a part of a commercial
operation.
However, the following are not children's
services:
care of a child by a family member of the
child;
a private arrangement for the care of children (such as
babysitting) under which children from not more than one family are cared for at
the same time;
private tutoring;
services that are part of an educational program provided
by a school or other educational institution;
services that are health services;
services that are:
provided as an on-going operation; and
available for each week for not more than 2
hours;
services provided under a placement arrangement that are
prescribed by regulation;
services that the CEO, having regard to the object of this
Chapter and the circumstances in which the services are provided, exempts from
the operation of this Chapter by Gazette notice.
A reference to an educational institution in subsection
(3)(d) includes a reference to a pre-school only if it is wholly established and
maintained by the Minister administering the Education
Act.
Home-based services
Home-based services are children's services provided by a
person (the "operator") for the care of children at residential premises as an
on-going operation.
The services are provided by the operator for a home-based
services scheme if the operator:
controls the provision of the services at the premises;
but
is subject to the direction of another person (the
"coordinator of the services") who controls the operation, or the operation
together with other similar operations of home-based services.
The services are provided by the operator otherwise than
for a home-based service scheme if the operator:
controls the provision of the services at the premises as
well as the operation; and
subsection (2)(b) does not apply to the
operator.
Services requiring licence
The following are services requiring a
licence:
home-based services provided for a home-based services
scheme;
children's services that:
are provided as an on-going operation at non-residential
premises; and
are not services requiring registration or services
prescribed by regulation;
children's services that:
are provided as an on-going operation;
and
involve the provision of accommodation for children;
and
are not home-based services, services requiring
registration or services prescribed by regulation.
A person provides services requiring a licence if the
person is:
for services mentioned in subsection (1)(a) – the
coordinator of the services; or
for services mentioned in subsection (1)(b) or (c) –
the person who controls the operation mentioned in the
subsection.
Examples
1. Ms Jones operates a childcare service at her home under the direction
and control of Care At Home Pty Ltd. Care At Home Pty Ltd provides services
requiring a licence because of subsections (1)(a) and (2)(a). On the other hand,
Ms Jones provides services requiring registration because of section (1)(a) and
(2)(a).
2. Children's services provided
through a childcare centre may be covered by
subsection
(1)(b).
3. Children's services provided
through a residential facility for students from remote communities may be
covered by subsection (1)(c).
Services requiring registration
The following are services requiring
registration:
home-based services provided by an operator (whether as
an
on-going operation or single
event);
children's services provided as an on-going
operation:
at a place in close proximity to the parents of the
children; and
as part of, or in conjunction with, an operation for
services provided for the parents;
children's services, other than services prescribed by
regulation, that are provided as a single event.
A person provides services requiring registration if the
person is:
for services mentioned in subsection (1)(a) – the
operator providing the home-based services; or
for services mentioned in subsection (1)(b) or (c) –
the person who controls the operation or event.
Examples
1. For subsections (1)(a) and (2)(a), see example 1 in section
.
2. Children's services provided in a
gym for parents using the gym may be covered by subsection (1)(b).
3. Children's services provided
during a conference for parents attending the conference may be covered by
subsection (1)(c).
Part 4.2
– Key obligations
Obligation for providers
A person must not provide services requiring a licence
unless:
the person holds a licence under Part 4.3;
or
the person is appointed as a caretaker for the
continuation of the services under section ; or
the person may do so under an action plan agreement in
force under Part 4.4.
A person must not provide services requiring registration
unless the person is registered under Part 4.5.
A person is guilty of an offence if the person contravenes
subsection (1) or (2).
Maximum penalty: 500 penalty units.
Obligation of responsible person and other
persons
This section applies to a person (a "responsible person")
who:
holds a licence under Part 4.3; or
is appointed as a caretaker for the provision of services
under section ; or
may provide services under an action plan agreement in
force under Part 4.4; or
is registered under Part 4.5.
A responsible person must, in providing children's
services for a child, ensure:
the child is appropriately cared for and supervised;
and
the child is cared for in a safe environment;
and
reasonable precaution has been taken to protect the child
from any accident.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
Each person employed or engaged by the responsible person
to provide the services must comply with a direction of the responsible person
for:
the care or supervision of a child; or
the maintenance of a safe environment for the child;
or
the protection of the child from any
accident.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
It is a defence to a prosecution for an offence against
subsection (3) if the defendant has a reasonable excuse.
Part 4.3
– Services provided under licence
Application for licence
A person intending to provide services requiring a licence
may apply for the licence if the person has advertised the intention in a
newspaper in accordance with the regulations.
The application must:
be made to the CEO in the approved form and in accordance
with the regulations; and
if the applicant is a body corporate – state the
name of an individual who will be the contact person for the
licence.
The applicant must give the CEO:
any additional information for the application requested
by the CEO; and
if the circumstances relating to any information given to
the CEO for the application have changed before the applicant is notified of the
decision on the application – information about the
change.
The applicant must give the CEO information about the
change as soon as possible, and in any case, within 7 days after the change
occurred.
Granting of licence
The CEO:
must grant the licence if the CEO is of the
opinion:
the applicant is a fit and proper person to provide the
services; and
the proposed premises and facilities for the services are
adequate and appropriate; and
the applicant will provide the services consistent with
the objects of this Act; and
the applicant satisfies any other requirements prescribed
by regulation; or
otherwise – refuse the application.
For subsection (1), the CEO must have regard
to:
any report prepared for the Department about the
application; and
any views expressed by members of any local communities or
organisations that may be affected by the application.
The CEO must specify in the licence the children's
services that may be provided under the licence.
The licence is not transferable.
Conditions of licence
The licence has effect subject to the following conditions
(the "licence conditions"):
the conditions prescribed by regulation;
any other conditions specified in the
licence.
The licence holder must not contravene a licence
condition.
Maximum penalty: 500 penalty units.
The CEO may, in accordance with the regulations, vary any
licence condition that is specified in the licence:
on the CEO's initiative; or
on the application of the licence holder.
An application under subsection (3)(b) must be made in the
approved form and in accordance with the regulations.
Term
of licence
The licence has effect for a specified period not
exceeding 3 years from the granting of the licence or a later date specified in
the licence.
The licence may be renewed if the licence holder applies
for the renewal within 90 days before the licence expires.
Sections (2) to (4) and apply to the application for the
renewal in the same way as they apply to the application for the
licence.
Subsections (1) and (2) apply to the renewed licence as if
the reference to the granting of the licence in subsection (1) were a reference
to the renewal.
A licence may be renewed more than once.
Display of licence
The licence holder must ensure the licence is displayed
conspicuously at a place specified in the licence.
Maximum penalty: 20 penalty units.
Replacement of licence
The CEO may replace the licence if it is lost or damaged on
the application of the licence holder.
When
licence ceases to be in force
The licence ceases to be in force:
if it expires; or
if it is revoked; or
if it is surrendered; or
as provided in section (6); or
as provided in section .
The licence is not in force while it is
suspended.
Suspension and revocation of licence
This section applies if the CEO is satisfied of one or
both of the following in relation to the licence:
the licence holder has contravened one or more licence
conditions prescribed by regulation;
the licence holder no longer meets the requirements for
the granting of the licence.
The CEO may issue a notice to the holder,
stating:
that the holder must give a statement to the CEO, within a
reasonable time specified in the notice, explaining why the licence should not
be revoked; and
that the notice must be displayed conspicuously at a
specified place within a specified time.
The licence holder must comply with the requirement in
subsection (2)(b).
Maximum penalty: 20 penalty units.
On or after issuing the notice, the CEO may suspend the
licence if the CEO considers it necessary to do so to prevent any harm to a
child for whom services are provided under the licence.
The CEO may, having regard to any statement given by the
holder under subsection (2)(a):
if the licence is suspended – reinstate the licence;
or
revoke the licence.
The regulations may make provision for a revocation or
suspension under this section.
Surrender of licence
The licence holder may surrender the licence at any time
before it expires.
The surrender must be:
made in the approved form; and
accompanied by the licence.
Report about change of circumstances
The licence holder must notify the CEO of any proposed
change of circumstances before its occurrence if it is prescribed by regulation
for this subsection.
Maximum penalty: 100 penalty units.
The licence holder must notify the CEO of any unforeseen
change of circumstances as soon as practicable after its occurrence if it is
prescribed by regulation for this subsection.
Maximum penalty: 100 penalty units.
A notification under subsection (1) or (2) must be made in
the approved form.
Continuation of services by caretaker
The CEO may appoint a person as a caretaker to continue to
provide the services that were provided under a licence if:
the licence is revoked; or
the services cease for any reason (for example, the
licence holder has died, absconded or gone into liquidation).
The CEO:
may do so:
on the CEO's initiative; or
on the application of the person; and
must do so within 3 months after the revocation or
cessation.
An application under subsection (2)(a)(ii) must be made in
the approved form and in accordance with the regulations.
The CEO must specify in the appointment:
the conditions for the provision of the services
(including, for example, any conditions about the person's remuneration);
and
the term of the appointment.
The person must not contravene:
any condition specified in the appointment;
or
any other condition prescribed by
regulation.
Maximum penalty: 500 penalty units.
If subsection (1)(b) applies to the licence, the licence
ceases to be in force at the earliest of the following:
the death of the licence holder;
if services cease to be provided under the licence for a
continuous period of 3 months – the end of that period;
the appointment of the person under subsection (1) for the
continuation of the services.
PART 4.4
– SERVices provided under action plan agreement
Entering into agreement
The CEO may enter into an agreement with a person
intending to provide services requiring a licence if the CEO is
satisfied:
the services will be provided in an area (a "specified
area") specified by the CEO in a Gazette notice; and
the agreement would assist the person to gradually meet
the requirements that would be imposed on a licence holder providing the
services.
The CEO may enter into an agreement with a person who is a
licence holder if:
the services to be provided under the licence are provided
in a specified area; and
the person has been unable to comply with some or all of
the requirements imposed on the person as the licence holder;
and
the CEO is satisfied the agreement would assist the person
to gradually meet the requirements.
Action plan agreement
An agreement mentioned in section is an action plan
agreement.
The agreement must:
specify the children's services that may be provided under
the agreement; and
specify the conditions for the provision of the services;
and
provide for a plan of action to assist a person to
gradually meet the requirements mentioned in section (1)(b) or (2)(c);
and
provide for any other matters relating to the provision of
the services.
Making
of agreement
The CEO may enter into the agreement:
on the CEO's initiative; or
on the application of the person.
The application must be made to the CEO in the approved
form and comply with other requirements prescribed by
regulation.
The applicant must give the CEO:
any additional information for the application requested
by the CEO; and
if the circumstances relating to any information given to
the CEO for the application have changed before the applicant is notified of the
decision on the application – information about the
change.
The applicant must give the CEO the information about the
change as soon as possible, and in any case, within 7 days after the change
occurred.
Effect of agreement
The licence mentioned in section (2) ceases to be in force
from the commencement of an action plan agreement for the services covered by
the licence.
Termination of agreement
The CEO may terminate an action plan agreement in accordance
with:
the terms of the agreement; and
the regulations.
Offence
A person who is a party to an action plan agreement must not
contravene:
a condition specified in the agreement;
or
any other condition prescribed by
regulation.
Maximum penalty: 500 penalty units.
Part 4.5
– Services provided under registration
Application for registration
A person intending to provide services requiring
registration may apply to the following (the "decision maker") for the
registration of the person:
for home-based services provided for a home-based services
scheme – the coordinator of the services;
otherwise – the CEO.
The application must be made in the approved
form.
The applicant must give the decision maker any additional
information for the application requested by the decision
maker.
The decision maker must register the applicant if the
decision maker is satisfied the applicant is entitled to be registered under the
regulations.
The regulations may provide for the
following:
the conditions for the registration, including conditions
that may be specified by the decision maker;
actions that may be taken by the decision maker for the
registration and for monitoring the services provided under the
registration;
the obligations of a coordinator of home-based services
when acting as a decision maker;
any other matters in connection with the
registration.
Conditions of registration
A person registered under this Part must comply with a
condition for the registration.
Maximum penalty: 500 penalty units.
Term
of registration
A registration under this Part has effect
for:
if the services are to be provided as a single event
– the duration of the event or another period determined by the CEO;
or
otherwise – 12 months from the date of the
registration or a later date specified for the registration.
The registration may be renewed if the registered person
applies for the renewal within:
if subsection (1)(a) applies – a period determined
by the CEO; or
if subsection (1)(b) applies – 30 days before the
registration expires.
Section (1) to (4) applies to the application for the
renewal in the same way as it applies to the application for the
registration.
Subsections (1) and (2) apply to the renewed registration
as if a reference to the registration in the subsections were a reference to the
renewal.
A registration may be renewed more than
once.
The regulations may make provision about the renewal of a
registration.
When
registration ceases to be in force
A registration ceases to be in force if:
it expires; or
it is revoked in accordance with the
regulations.
A registration is not in force while it is suspended in
accordance with the regulations.
The regulations may make any provision about the
revocation or suspension of a registration.
Inspections
An authorised officer may exercise powers under this
section for monitoring one or both of the following:
compliance with this Chapter;
the wellbeing of children for whom children's services are
provided.
For subsection (1), an authorised officer may, at any
reasonable time:
enter a place where the officer reasonably believes
children's services are provided; and
inspect the place and facilities at the place;
and
require any person at the place to give the officer
specified information or produce specified records; and
operate any electronic equipment at the place to retrieve
the records; and
make extracts or copies of the records.
A person must comply with a requirement given to the
person by the officer for subsection (2).
Maximum penalty: 100 penalty units or imprisonment for 12
months.
It is a defence to a prosecution for an offence against
subsection (3) if the defendant has a reasonable excuse.
If the officer enters a place without producing the
officer's identity card when requested to do so:
the officer may not stay at the place;
and
a person is not required to comply with a requirement
given to the person for subsection (2).
Authorised officer may require provision of
information
An authorised officer may, by written notice, require an
operator of children's services to give the officer specified information
relating to the services.
The operator must comply with the requirement within 14
days after receiving the notice.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
It is a defence to a prosecution for an offence against
subsection (2) if the defendant has a reasonable excuse.
Arrangements for this Part
The CEO may enter into an arrangement with a person or
body (whether incorporated or not) for any of the following
purposes:
the exercise of a power or the performance of a function
under this Chapter;
a review of the operation of this
Chapter.
The regulations may make provision for the
arrangement.
Without limiting subsection (1), the arrangement may
relate to the preparation of a report about a person making an application under
this Chapter.
Application for review
Each of the following is a reviewable
decision:
a decision to refuse to grant a licence;
a decision to refuse to appoint a person as a
caretaker;
a decision to refuse to renew a licence;
a decision to vary a condition of a
licence;
a decision to suspend a licence;
a decision to revoke a licence;
a decision to refuse an application to enter into an
action plan agreement;
a decision to terminate an action plan
agreement;
a decision to refuse to register a
person;
a decision to refuse to renew a
registration;
a decision to vary a condition of a
registration;
a decision to suspend a registration;
a decision to revoke a registration.
However, a decision made by a panel is not a reviewable
decision.
The following person may apply for a review of a
reviewable decision:
for a decision mentioned in subsection (1)(a), (b), (c),
(g), (i) and (j) – the applicant relating to the
decision;
for a decision mentioned in subsection (1)(d), (e) or (f)
– the licence holder;
for a decision mentioned in subsection (1)(h) – the
operator providing services under the agreement;
for a decision mentioned in subsection (1)(k), (l) or (m)
– the registered person.
As soon as practicable after making a reviewable decision,
the decision maker must:
give notice of the decision to the person who may apply
for a review of the decision; and
state in the notice:
the reasons for the decision; and
that the person is entitled to apply for a review of the
decision and the time within which the application may be made.
In this section:
"decision maker" means:
(a) for a decision made by the CEO – the CEO;
or
(b) for a decision made by a delegate of the CEO – the
delegate; or
(c) for a decision made by a licence holder – the
licence holder.
Review panel
The CEO must establish review panels for reviewable
decisions.
A panel must consist of 3 members appointed by the
CEO.
The CEO must appoint members of the panel on the following
basis:
one member must be a person employed or engaged by the
Department;
another member must be a person employed or engaged by
another Agency;
the third member must have qualifications or experience
relating to:
children's services; or
matters concerning the wellbeing of
children.
Review
by panel
A person who may apply for a review of a reviewable
decision may do so by making an application to the CEO in the approved
form.
The application must be given to the CEO within
28 working days after the person is given notice of the
decision.
The CEO must assign a panel to decide the
application.
The application does not affect the operation or
implementation of the reviewable decision.
However, the panel may make another decision staying or
otherwise affecting the operation or implementation of so much of the reviewable
decision as it considers appropriate to effectively decide the
application.
A decision under subsection (4):
is subject to the conditions specified by the panel;
and
has effect:
for the period specified by the panel;
and
otherwise – until the application is
decided.
The review:
must be conducted by the panel as a new hearing;
and
is not limited by the matters before the decision maker of
the reviewable decision.
The panel may:
affirm the decision; or
vary the decision; or
set aside the decision; or
set aside the decision and replace it by the panel's
decision.
Part 4.8
– Administrative matters
Regulations
The regulations may make provision, consistent with this
Chapter, about the operation of this Chapter.
Without limiting subsection (1), the regulations may make
provision about the following:
the qualifications of an operator of children's
services;
the standard of the services (including, for example, any
hygienic and safety standards) required of the operator;
the maximum number of children (or children within a
specified group) for whom the services may be provided by the
operator;
the number of people who must be engaged for the provision
of the services;
the establishment of a mechanism to deal with complaints
arising from the provision of the services;
the nomination of people who may be appointed as members
of a panel;
the operation of a panel and its
procedures;
the review of the operation of this Chapter and the
regulations made for this Chapter.
Chapter 5
– Administration
Part 5.1
– Children's Commissioner
Division 1
– Preliminary matters
Object of Part
The object of this Part is to ensure:
the wellbeing of protected children; and
the monitoring of the implementation of any government
decision arising from the Inquiry into the Protection of Aboriginal Children
from Sexual Abuse.
Commissioner
There is to be a Children's Commissioner.
The Administrator may, by Gazette notice, appoint a
person to be the Children's Commissioner.
The Administrator may do so only on the recommendation of
the Minister.
The recommendation must be made on the basis the
person:
has qualifications or experience relating to the
Commissioner's functions; and
is committed to the objects and underlying principles of
this Act.
Commissioner's functions
The functions of the Commissioner are:
to investigate complaints about services required to be
provided to protected children by service providers; and
to monitor the ways in which service providers respond to
reports made by the Commissioner; and
to monitor the administration of this Act in so far as it
relates to protected children; and
to monitor the implementation of any government decision
arising from the Inquiry into the Protection of Aboriginal Children from Sexual
Abuse; and
to report to the Minister on a matter mentioned in
paragraphs (a) to (d) as requested by the Minister.
For this Part:
a protected child is a child who is the subject of the
exercise of a power or the performance of a function under Chapter 2;
and
a service provider for the child is:
a public authority, or anyone acting for a public
authority, who has taken or is taking an action under this Act in relation to
the child as a protected child; or
an operator of child-related services or children's
services who provides, or is required to provide, the services under this Act in
relation to the child as a protected child.
However, the following are not service providers for the
child:
a court;
a public authority, person or body prescribed by
regulation.
Examples
1. A child for whom a protection order is in force is a protected
child.
2. An authorised officer conducting an investigation about a child under
section is a service provider for the child.
Commissioner's powers
The Commissioner may do all things necessary or convenient
to be done for the performance of the Commissioner's functions.
Commissioner's independence
Except as otherwise provided by another law of the
Territory, the Commissioner is not subject to the direction of anyone in
relation to:
the way in which the functions of the Commissioner are
performed; or
the order of priority the Commissioner gives to
investigations.
Subdivision
1 – Procedures for making complaints
Making complaint
Any of the following persons may make a
complaint:
someone who is or has been a protected
child;
an adult acting on behalf of a protected
child.
The complaint:
must be made to the Commissioner; and
may be made orally or in writing.
If the complaint is made orally, the Commissioner may
arrange for it to be reduced into writing.
Grounds for complaint
The complaint must be made on one or more of the following
grounds:
a service provider (a "responsible service provider")
failed to provide services ("required services") for the child, as a protected
child, that the provider was reasonably expected to provide;
the required services provided by the provider for the
child failed to meet the standard that was reasonably expected of the
provider.
Without limiting subsection (1), the required services
include any services relating to the care or wellbeing of the
child.
Example
A complaint may be made in relation to a child who is housed in
sub-standard accommodation while being in the CEO's care.
In this Part, a reference to the matter to which the
complaint relates is a reference to each failure forming the grounds for the
complaint.
When
complaint must be made
Except with the permission of the Commissioner, the
complaint must be made within one year after the matter to which the complaint
relates has arisen.
Subdivision
2 – Dealing with complaints
Initial assessment of complaint
On receiving the complaint, the Commissioner must decide
which of the following actions should be taken:
to investigate and resolve the complaint;
one or both of the following:
not to deal with the complaint;
refer the complaint to someone else for investigation and
resolution.
The Commissioner may decide not to deal with the complaint
only if the Commissioner is satisfied:
the complaint lacks substance; or
the complaint relates to an act or omission of a police
officer; or
the complaint should be referred to someone who has an
established mechanism to deal with similar complaints; or
the matter to which the complaint relates has already been
satisfactorily dealt with by the Commissioner or someone else;
or
the complainant has failed, without reasonable excuse, to
comply with a requirement of the Commissioner (for example, giving specified
information to the Commissioner); or
the complainant does not have a sufficient interest in the
matter to which the complaint relates; or
the complainant has withdrawn the complaint;
or
any dealing or further dealing with the complaint is
inappropriate, having regard to:
a proceeding before a court or tribunal relating to the
matter to which the complaint relates; or
the objects and underlying principles of this Act and the
resources available to deal with the complaint.
If subsection (2)(b) applies, the Commissioner must refer
the complaint to the Ombudsman for investigation and
resolution.
The Commissioner must make the decision under subsection
(1) within:
28 days after receiving the complaint; or
if the Commissioner needs other information for the
decision – within 28 days after obtaining the
information.
This section does not prevent the Commissioner from taking
actions under subsection (1)(b) after deciding to investigate and resolve the
complaint.
Notification of initial assessment
As soon as practicable after making a decision under
section , the Commissioner must notify the complainant of the decision and the
reasons for the decision.
In addition, if the Commissioner decides not to deal with
the complaint, the Commissioner:
must notify each of the following of the
decision:
each responsible service provider relating to the
complaint; and
the Chief Executive Officer of each responsible Agency;
and
may notify each responsible Minister of the decision if
the Commissioner considers it appropriate to do so; and
if the Commissioner decides not to deal with the complaint
after starting to investigate the complaint – must give a report about the
investigation to each person notified under paragraph (a) or
(b).
In this section:
"responsible Minister", for the complaint, means the
Minister who has administrative responsibilities for:
(a) an Agency (a "responsible Agency") directly or
indirectly responsible for providing, or funding or administering the funding
of, any required services relating to the complaint; or
(b) a responsible service provider relating to the
complaint.
Complaint referred to another person or body
This section applies if the Commissioner refers the
complaint to someone (the "referred authority") for investigation and
resolution.
The referred authority must, as soon as practicable,
notify the Commissioner:
whether the referred authority accepts the referral;
and
if the referred authority accepts the referral – the
result of the investigation and resolution.
Notice
to responsible service provider before investigation
This section applies if the Commissioner decides to
investigate and resolve the complaint.
The Commissioner must, before investigating the complaint,
notify each responsible service provider, and the Chief Executive Officer of
each responsible Agency, of the following:
details of the complaint;
the Commissioner's decision to investigate and resolve the
complaint;
that the Agency and service provider may each make a
written submission about the complaint within a reasonable time specified in the
notice.
Access
to child
For investigating the complaint, the Commissioner may
request a person to allow the Commissioner to have contact with a child who is,
or whom the Commissioner reasonably believes to be:
the protected child; or
a witness in relation to the complaint.
The notice must specify a reasonable time and place for
the contact.
The person must comply with the notice.
Maximum penalty: 100 penalty units or imprisonment for 12
months.
It is a defence to a prosecution for an offence against
subsection (3) if:
the defendant has a reasonable excuse; or
the child has indicated that he or she does not wish to
have the contact.
Access to information
For investigating the complaint, the Commissioner may
request a person:
to give the Commissioner specified information by a
reasonable time specified in the notice; or
to attend before the Commissioner at a reasonable time and
place specified in the notice:
to give information and answer questions about a specified
matter; or
to produce a specified thing; or
to communicate with the Commissioner in any other way
about a specified matter at a reasonable time specified in the
notice.
If a person gives the Commissioner a thing under the
notice, the Commissioner:
may inspect it and make a copy of it; and
must return it to the person as soon as
practicable.
For subsection (1), the Commissioner may require a
person:
to make an oath; or
to verify a written statement of the person by
oath.
The person must comply with the
requirement.
Maximum penalty: 20 penalty units.
It is a defence to a prosecution for an offence against
subsection (4) if the defendant has a reasonable excuse.
The Commissioner may administer an oath or make other
arrangements for administering an oath for subsection (3).
Notification at end of investigation
The Commissioner must notify the complainant
of:
the result of the investigation; and
any action taken or proposed to be taken for resolving the
complaint.
The Commissioner:
must give a report of the investigation to each of the
following:
each responsible service provider;
the Chief Executive Officer of each responsible Agency;
and
may give the report to a responsible Minister if the
Commissioner considers it appropriate to do so.
The report may recommend the service provider or Agency to
take specified actions within a specified time.
If the service provider or Agency fails to do so, the
Commissioner may give another report about the failure to a responsible
Minister.
Subdivision
3 – Offences about complaints
Failure to comply with notice
A person who is given a notice under section must comply
with a requirement in the notice.
Maximum penalty: 100 penalty units or imprisonment for 12
months.
It is a defence to a prosecution for the offence against
subsection (1) if:
the defendant has a reasonable excuse; or
the requirement is covered by a certificate under
subsection (3) or (4); or
a Judge has decided the defendant would be able to refuse
to comply with the requirement on the ground of a privilege had the requirement
been made in a criminal proceeding; or
a Judge has decided any benefits arising from complying
with the requirement will be outweighed by the damage to the defendant's
financial interests or privacy as a result of the compliance.
The Commissioner of Police may certify in writing that
compliance with the requirement would:
prejudice the investigation of any unlawful conduct;
or
disclose a confidential source of information in relation
to the administration of law; or
prejudice the effectiveness of a method or procedure in
relation to the administration of law; or
facilitate a person's escape from lawful custody;
or
endanger the safety of a person.
The Administrator may certify in writing that compliance
with the requirement would be contrary to the public interest.
Without limiting subsection (4), the Administrator may do
so if the Administrator is satisfied the compliance would
involve:
a disclosure of communications between the Administrator
and the Executive Council or a member of the Executive Council;
or
a disclosure of communications between one or more of the
following:
a Minister of the Territory;
a Minister of the Commonwealth;
a Minister of a State or another Territory;
or
a disclosure of a deliberation or decision
of:
the Executive Council or a committee of the Executive
Council; or
a committee of the Legislative Assembly formed to advise
the Administrator or a Minister; or
the Cabinet of the Territory or of the Commonwealth, a
State or another Territory.
A person who is given the notice may apply to a Judge for
a decision about the application of subsection (2)(c) or (d) to the
person.
The person bears the legal burden of proof for the
application.
Subject to the decision of the Judge, the application must
be made in accordance with the Supreme Court Rules.
The Judge may make any orders necessary for the practical
operation of this Division including, for example, amending the
notice.
Misleading document
A person must not, for the purposes of this Part, give the
Commissioner any document that contains information the person knows to be
misleading in a material particular.
Maximum penalty: 100 penalty units or imprisonment for 12
months.
However, subsection (1) does not apply if the person, when
giving the document:
draws the misleading aspect of the document to the
Commissioner's attention; and
to the extent the person can reasonably do so –
gives the Commissioner the information necessary to correct the
document.
Preventing or obstructing complaint
A person must not:
prevent someone from making a complaint;
or
obstruct someone in making a complaint.
Maximum penalty: 100 penalty units or imprisonment for 12
months.
False
complaint
A person must not, in making a complaint, make a
representation that the persons knows to be false.
Maximum penalty: 100 penalty units or imprisonment for 12
months.
Obstructing or improperly influencing
investigation
A person must not obstruct or improperly influence the
conduct of an investigation.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
Division 3
– Commissioner's reports
Annual report and other reports
The Commissioner must:
by 31 October following the end of each financial year,
prepare and give the Minister a report on the operation of this Part during that
year; and
as required by the Minister, prepare and give the Minister
a report mentioned in section (1)(e).
If the Commissioner considers it appropriate to do so, the
Commissioner may also prepare and give the Minister a report about a matter
relating to the performance of a function of the Commissioner.
Without limiting subsection (1) or (2), a report mentioned
in the subsection may contain particulars about anyone's failure to comply with
this Act.
The Minister must table each report mentioned in
subsection (1) or (2) in the Legislative Assembly within 6 sitting
days after receiving it.
The Commissioner may, for a report (the "first report")
mentioned in subsection (1) or (2), prepare and give the Minister a second
report, on a confidential basis, about a matter to which the first report
relates.
However, the Commissioner may do so only if the
Commissioner considers aspects of the matter should not be publicly disclosed,
having regard to:
the underlying principles of this Act;
and
any action being taken by the Commissioner or anyone
else.
Report
authorised by Speaker
The Speaker may, at the Commissioner's request, authorise
the Commissioner to publish, in the public interest or in the interests of a
person:
a report relating to the performance of a function of the
Commissioner; or
a report relating to a particular
complaint.
Subsection (1) applies regardless of whether the matters
dealt with in the report have been the subject of another report tabled in the
Legislative Assembly.
Division 4
– Disclosure of confidential information
Disclosure of information to Commissioner
generally
An officer of a public authority may disclose information
to the Commissioner for an investigation despite any restriction on the
disclosure under a law of the Territory.
For subsection (1), an officer of a public authority
includes any of the following:
the authority's principal officer;
a member of the authority;
a member of the staff of the authority;
a person employed or engaged by the
authority.
This section has effect subject to section (2) to
(9).
Direction by Commissioner not to disclose
information
This section applies if a person is given a document by
the Commissioner in relation to an investigation.
The Commissioner may direct the person not to disclose any
information in the document except as specified in the
direction.
The person must comply with the
direction.
Maximum penalty: 100 penalty units or imprisonment for 2
years.
It is a defence to a prosecution for an offence against
subsection (3) if the defendant has a reasonable excuse.
Confidentiality
A person who has acquired information in exercising a
power or performing a function under this Part is guilty of an offence if the
person:
discloses the information to someone; or
does something that results in disclosing the information
to someone and is reckless as to whether doing the thing would result in the
disclosure; or
uses the information.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
Subsection (1) does not apply to:
anything done by a person in exercising a power or
performing a function under this Part; or
anything done by a person for investigating a complaint
about the care or protection of children under a law of the Territory, or a law
of the Commonwealth, a State or another Territory; or
a disclosure of the information to a court or
tribunal.
A person must not be required in a proceeding to give
evidence or produce a thing for a matter that came to the person's knowledge in
exercising a power or performing a function under this Part.
A proceeding mentioned in subsection (3):
includes:
a proceeding of a court or tribunal; or
any other proceeding conducted by someone having the power
to take evidence on oath; but
does not include a proceeding for an offence alleged to
have been committed by a person in exercising a power or performing a function
under this Part.
Immunity – complainant and informants
A person acting in good faith in making a complaint or
giving information for an investigation is not civilly liable for making the
complaint or giving the information.
A civil proceeding may be brought against a person for
making a complaint or giving information for an investigation only with the
leave of the Supreme Court.
The Supreme Court may grant the leave only if it is
satisfied there is substantial ground for contending the person has not acted in
good faith.
Immunity – Commissioner and staff
A person is not civilly or criminally liable for an act
done or omitted to be done by the person in good faith:
in the exercise or purported exercise of a power under
this Part; or
in the performance or purported performance of a function
under this Part.
Subsection (1) does not affect any liability the Territory
would, apart from that subsection, have for the act or
omission.
Division 6
– Administrative matters
Term of appointment
The Commissioner holds office for the period (not exceeding
5 years) specified in the appointment and is eligible for
re-appointment.
Conditions of appointment
The Commissioner holds office on the conditions (including
remuneration, expenses and allowances) determined by the
Administrator.
Leave
The Minister may grant the Commissioner leave of absence on
the conditions determined by the Minister.
Resignation
The Commissioner may resign the office of Commissioner by
writing given to the Administrator.
Suspension and termination of appointment
The Administrator may, in writing, suspend the
Commissioner from duty on the ground of misbehaviour or physical or mental
incapacity.
The Minister must, within 3 sitting days after the
suspension, present a statement of the reasons for the suspension to the
Legislative Assembly.
The Administrator must terminate the Commissioner's
appointment if, within 7 sitting days after presenting the statement, a
resolution is passed by a two-thirds majority of the Legislative Assembly
requesting the termination.
The Commissioner must resume duties if:
the Minister does not present the statement under
subsection (2); or
the Legislative Assembly does not pass the resolution
under subsection (3).
The Commissioner is entitled to be paid remuneration and
allowances during the suspension.
The Administrator must terminate the Commissioner's
appointment if the Commissioner:
becomes bankrupt; or
applies to take the benefit of a law for the relief of
bankrupt or insolvent debtors; or
compounds with creditors or makes an assignment of the
Commissioner's remuneration for their benefit.
Acting Commissioner
The Minister may appoint a person to act in the office of
the Commissioner:
during a vacancy in the office (whether or not an
appointment has previously been made to the office); or
during a period or all periods when the Commissioner is
unable to perform the functions of the office.
A person appointed under subsection (1)(a) must not act
continuously for more than 3 months in the office of the
Commissioner.
The Minister may determine conditions of the appointment
(including remuneration, expenses and allowances).
Oath of office
A person appointed to be the Commissioner must, before
taking office as Commissioner, make an oath that he or she:
will faithfully and impartially perform the functions of
the office; and
will not, except for the purposes of this Act, disclose
any information obtained by him or her in performing those
functions.
The Speaker or a Judge must administer the
oath.
Delegation
The Commissioner may, in writing, delegate to a person any
of the Commissioner's powers or functions under this Act.
The Commissioner may do so only if the Commissioner is
satisfied the person has the appropriate qualifications or
experience.
Staff of Commissioner
The staff of the Commissioner consists
of:
public sector employees employed by the Commissioner;
and
persons employed in an Agency made available by the Chief
Executive Officer of the Agency under an arrangement with the
Commissioner.
A member of the Commissioner's staff is subject only to
the direction of:
the Commissioner; or
another member of the Commissioner's
staff.
Object of Part
The object of this Part is to ensure:
the operation of Chapter 2 is consistent with the objects
and underlying principles of this Act; and
services provided for Chapter 2 are of a high
standard.
Establishment
The CEO may establish review teams by Gazette
notice.
A team:
consists of members appointed by the CEO;
and
must have at least 3 members.
A team member must represent at least one of the
following:
the Police Force;
an Agency having responsibility relating to health,
education, housing, family or children;
an organisation promoting any of the
following:
the wellbeing of children;
the interests of people with
disabilities;
the interests of Aboriginal people;
multiculturalism.
Functions of team
A team has one or more of the following functions as
specified in the Gazette notice:
to conduct a review and make recommendations about any of
the following ("a Chapter 2 matter"):
the operation of specified provisions of Chapter 2
(whether generally or in relation to a specified locality);
the provision of specified services in connection with
that operation;
to conduct a review of the implementation of the
recommendations;
to perform any other specified function in relation to a
Chapter 2 matter.
Reports of team
A team must, as soon as practicable after each of its
meetings:
give the CEO a report of its current operation;
and
give the Commissioner a copy of the
report.
The CEO must, as soon as practicable after the end of a
financial year:
give the Minister an annual report about the operation of
all the teams during that year; and
give the Commissioner a copy of the
report.
Regulations
The regulations may make provision, consistent with this
Part, about the following:
the nomination of candidates for the appointment of team
members;
the making of operational guidelines for a
team;
functions of a team;
meetings of a team;
any other matters relating to a team.
Part 5.3
– General offences
Obstruction
A person must not obstruct a person:
in exercising or attempting to exercise a power under this
Act; or
in performing or attempting to perform a function under
this Act.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
Impersonating officer
A person must not falsely represent, by words or conduct,
that the person or someone else is an authorised officer.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
Disclosure of child's identity
A person must not publish any material that may identify a
child:
who is in the CEO's care; or
for whom:
an application for a temporary protection order,
assessment order or protection order has been made; or
such an order is in force.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
Subsection (1) does not apply if the publication is
permitted or authorised under this Act or any other law in force in the
Territory.
Part 5.4
– Other Administrative matters
Approved forms
The CEO:
must approve forms for a provision in this Act if the
provision requires a document to be made in the approved form;
and
may approve forms for any other document required for this
Act.
If a form is approved for a document under subsection
(1)(b), the document must be made in the approved form.
An approved form for a document must be consistent with
any other requirements specified for the document in this Act.
Delegation
The CEO may, in writing, delegate any of the CEO's powers
and functions to a person who is:
an authorised officer; or
a public sector employee.
Authorised officers
An authorised officer is:
a person appointed by the CEO as an authorised officer;
or
a police officer.
An authorised officer appointed under subsection (1)(a)
has the powers and functions of an authorised officer under this Act as
specified in the appointment.
A police officer has the powers and functions of an
authorised officer under sections (3), , , , to and .
Note
Police officers may exercise certain powers under this Act as a police
officer and not as an authorised officer, see, for example, sections and
.
Identity cards
This section applies to a person who:
is an authorised officer; but
is not a police officer.
The CEO must issue an identity card to the
officer.
The card must:
specify the officer's name and office;
and
specify the officer's powers and functions;
and
contain:
the signature of the officer; and
a recent photograph of the officer; and
the verification of the signature and photograph by the
CEO.
The card ceases to be in force when the person ceases to
be an authorised officer.
The person must return the card to the CEO within one
month after the cessation.
Maximum penalty: 20 penalty units.
Misleading documents
A person must not, for the purposes of this Act, give
someone (the "recipient") a document that contains information the person knows
to be misleading in a material particular.
Maximum penalty: 400 penalty units or imprisonment for 2
years.
However, subsection (1) does not apply if the person, when
giving the document:
draws the misleading aspect of the document to the
recipient's attention; and
to the extent the person can reasonably do so –
gives the recipient the information necessary to correct the
document.
Misleading information
A person must not, for the purposes of this Act, give
someone any information that the person knows to be misleading in a material
particular.
Maximum penalty: 400 penalty units or imprisonment for 2
years.
Confidential information
A person is guilty of an offence if the
person:
discloses to someone any information acquired by the
person in exercising a power or performing a function as an authorised officer;
or
does something that results in disclosing the information
to someone and is reckless as to whether doing the thing would result in the
disclosure; or
uses the information; or
publishes all or part of a document obtained by the person
in exercising a power or performing a function as an authorised officer;
or
produces to a court or tribunal a thing obtained by the
person in exercising a power or performing a function as an authorised
officer.
Maximum penalty: 200 penalty units or imprisonment for 2
years.
Subsection (1) does not apply to:
anything done by a person in exercising a power or
performing a function under this Act; or
anything done by a person for administering this Act;
or
any disclosure or production to:
someone who is the subject of the information, document or
thing (the "relevant party"); or
someone with the consent of the relevant party (whether or
not the consent has been given expressly); or
someone approved by the CEO on the basis the disclosure or
production is made in the public interest; or
someone approved by the CEO for research purposes on the
basis the confidentiality regarding the information, document or thing, or the
identity of the relevant party, will be preserved; or
anything done in accordance with the
regulations.
Protection from liability
A person is not civilly or criminally liable for an act
done or omitted to be done by the person in good faith:
in the exercise or purported exercise of a power as an
authorised officer under this Act; or
in the performance or purported performance of a function
as an authorised officer under this Act.
Subsection (1) does not affect any liability the Territory
would, apart from that subsection, have for the act or
omission.
Regulations
The Administrator may make regulations under this
Act.
The regulations may:
prescribe fees payable under this Act;
and
apply, adopt or incorporate (with or without changes) a
matter contained in another instrument as in force or existing at a particular
time or from time to time; and
prescribe a fine not exceeding 200 penalty units for an
offence against the regulations; and
provide for the enforcement of a code of practice,
including by providing that a contravention of the code is an offence against
the regulations; and
provide for an offence against the regulations to be an
offence of strict liability.
Part 5.5
– Repeals and transitional matters for
care and protection of Children Act
2007
Repeals
The Acts specified in the Schedule are
repealed.
Division 2
– Transitional matters for Chapter 2
Definitions
In this Division:
"commencement" means the commencement of section
;
"Family Matters Court" means the Family Matters Court
established by section 24 of the Welfare Act;
"Welfare Act" means the Community Welfare Act as in
force from time to time before the commencement.
Arrangements for assistance
An arrangement in force under section 8 of the Welfare Act
immediately before the commencement has effect for the remainder of its term as
if:
it had been made by the CEO under section (1) of this Act;
and
it had complied with section (2) of this
Act.
Investigations
An investigation under section 13 of the Welfare Act
started before the commencement may continue as if it were an investigation
under section of this Act.
An investigation under section 16 of the Welfare Act
started before the commencement may continue as if it were an investigation
under section of this Act.
Temporary custody
An agreement in force under section 62 of the Welfare Act
immediately before the commencement has effect for the remainder of its term as
if it were a temporary placement arrangement under section of this
Act.
Foster
parent
A person who was a registered foster parent under section 63
of the Welfare Act immediately before the commencement is taken to have been
approved, for the remainder of the term of the registration, as a carer
under section (1)(a)(iii) of this Act.
Foster
care
An agreement in force under section 64 of the Welfare Act
immediately before the commencement has effect for the remainder of its term as
if it were a placement arrangement under section of this Act.
Child
in custody or detention
This section applies to a child if:
a person:
had taken the child into custody under section 11 of the
Welfare Act; or
had detained the child in a hospital under section 15 of
the Welfare Act; and
the child was so in custody or detained immediately before
the commencement.
The person must notify the CEO about the custody or
detention as soon as possible after the commencement.
On and after the commencement, the child is taken to have
been taken into provisional protection under section 50 of this
Act.
For subsection (3):
the provisional protection is taken to be for a period of
72 hours starting from the start of the custody or detention;
and
anything done for the child for the custody or detention
is taken to have been done for the provisional protection.
Example
If the child has been detained for 24 hours immediately before the
commencement, the CEO must, subject to any other provisions of this Act, return
the child to a parent of the child within 48 hours after the
commencement.
Compliance with subsection (2) is taken to be compliance
with:
section (4) of this Act; and
section 11(5) of the Welfare Act.
Transfer of proceedings and records
The following must be transferred to the family matters
jurisdiction of the Local Court after the commencement:
proceedings and records of the Family Matters
Court;
proceedings and records of applications under section 11A
of the Welfare Act.
The Local Court must deal with the proceedings and records
as if:
the Welfare Act had not been repealed;
and
for proceedings and records of the Family Matters
Court:
the Local Court were the Family Matters Court;
and
an adjournment granted by the Family Matters Court and any
related interim order were granted or made by the Local Court in exercising the
family matters jurisdiction.
An appeal to the Supreme Court under the Welfare Act that
has not been decided before the commencement must be dealt with by the Supreme
Court as if the Welfare Act had not been repealed.
However, the application of the Welfare Act under
subsections (2) and (3) is subject to the following
changes:
if the Minister administering the Welfare Act would
otherwise have been given custody of a child because of the application –
the CEO must be given daily care and control of the child
instead;
if the Minister administering the Welfare Act would
otherwise have been given guardianship of a child because of the application
– the CEO must be given parental responsibility for the child
instead;
if an authorised person would otherwise have powers or
functions under the Welfare Act because of the application – an authorised
officer has the powers or functions instead.
Orders
and directions
An order or direction in force immediately before the
commencement has effect as specified in the following table:
|
An order or direction made
under
this provision of the Welfare
Act:
|
has effect as if it were:
|
|
section 11A
|
a temporary protection order
|
|
section 43(5)(a)
|
a protection order specifying a supervision
direction
|
|
section 43(5)(b)
|
a protection order specifying a daily care and control
direction
|
|
section 43(5)(c)
|
a protection order specifying
a
short-term parental responsibility
direction
|
|
section 43(5)(d)
|
a protection order specifying
a
long-term parental responsibility
direction
|
|
section 62G
|
a decision of the Court under section of this
Act
|
|
section 62L
|
an order of the Court under section of this
Act
|
|
section 62Q
|
an order of the Court under section of this
Act
|
|
section 62R
|
an interim order of the Court under section of this
Act
|
Ministerial decisions
A decision in force under section 62C of the Welfare Act
immediately before the commencement has effect as if it were a decision under
section of this Act.
Interstate orders
This section applies to a decision or order
that:
was an interstate order covered by section 62W(1)(a), (b)
and (c) of the Welfare Act immediately before the commencement;
and
had not been filed or registered under that section
immediately before the commencement.
If the interstate order relates to the transfer of a child
protection order:
a copy of the interstate order and child protection order
must be filed as if they were covered by section (1) of this Act;
and
the transfer must be registered under section of this
Act.
If the interstate order relates to the transfer of a child
protection proceeding:
a copy of the interstate order and each related interim
order must be filed under section (1) of this Act; and
the transfer must be registered under section of this
Act.
A registration for the transfer of a child protection
order or proceeding in force under section 62W of the Welfare Act immediately
before the commencement has effect as if the transfer had been registered under
section of this Act.
Division 3
– Transitional matters for Part 3.2
Consent for child's employment
A consent for the employment of a child in force under
section 92 or 93 of the Welfare Act immediately before the commencement
continues until the employment ceases.
While the consent is in force:
the Welfare Act has effect for the consent as
if:
that Act had not been repealed; and
a reference to the Minister in that Act had included a
reference to the CEO; and
Part 3.2 of this Act does not apply to the
employment.
In this section:
"commencement" means the commencement of section
;
"Welfare Act" means the Community Welfare Act as in
force immediately before the commencement.
Division 4
– Transitional matters for Chapter 4
Definitions
In this Division:
"Chapter 4 commencement" means the commencement of Chapter
4;
"first commencement" means the commencement of section
;
"old licence" means:
(a) a licence in force under section 83 of the Welfare Act
immediately before the first commencement; or
(b) a licence granted under section of this
Act;
"transitional period" means the period of 6 months
immediately after the first commencement;
"Welfare Act" means the Community Welfare Act as in
force immediately before the first commencement.
Saving of old licences
An old licence continues to be in force for the remainder
of its term after the first commencement unless it is revoked.
The Welfare Act continues to have effect for the old
licence as if that Act had not been repealed.
Renewal of old licences
Except as provided by subsections (2) and (3), an old
licence must not be renewed.
An old licence that would otherwise have expired during
the transitional period may be renewed under the Welfare Act as if that Act had
not been repealed.
The Welfare Act continues to have effect for the licence
as if that Act had not been repealed.
However, the licence must not have any effect after the
Chapter 4 commencement.
Granting of licences during transitional
period
A licence may be granted during the transitional period
under section 83 of the Welfare Act as if that Act had not been
repealed.
However, the licence must not have any effect after the
Chapter 4 commencement.
Authorised persons
A person who was an authorised person for the Welfare Act
immediately before the first commencement continues to be an authorised person
for a licence in force under section , or .
In addition, an authorised officer is taken to be an
authorised person for the licence.
Division 5
– Other transitional matters
Definitions
In this Division:
"commencement" means the commencement of section
;
"Welfare Act" means the Community Welfare Act as in
force from time to time before the commencement.
Agreement with parent
An agreement in force under section 59 of the Welfare Act
immediately before the commencement has effect for the remainder of its term as
if that Act had not been repealed.
References relating to Community Welfare
Act
This section applies to a provision in any order or
direction of a court or any other instrument:
made under or for the Welfare Act; and
was in force immediately before the
commencement.
Except as otherwise provided in this Part, the provision
has effect for the remainder of its term as if, in the
provision:
a reference to the Minister had included a reference to
the CEO; and
a reference to the Family Matters Court had included a
reference to the Local Court exercising the family matters jurisdiction;
and
a reference to an authorised person had included a
reference to an authorised officer; and
a reference to a child in need of care had included a
reference to a child in need of protection; and
a reference to a child who is in the care or under the
responsibility of the Minister administering the Welfare Act had included a
reference to a child who is in the CEO's care.
Section 12 of Interpretation Act
This Part does not limit the effect of section 12 of the
Interpretation Act in relation to any matters arising from the repeal of
the Welfare Act.
Transitional regulations
The regulations may make provision about a matter for
which:
it is necessary to make provision to allow or facilitate
the doing of anything to achieve the transition from the operation of the
Welfare Act to this Act; and
this Act does not make provision or sufficient
provision.
A regulation under subsection (1) must not have effect
before:
if the regulation relates to provisions of this Act that
commence at different times – the commencement of any of the provisions
that first commences; or
otherwise – the commencement of the provisions of
this Act to which the regulation relates.
To the extent to which the regulation has retrospective
operation, it must not operate to the disadvantage of a person (other than the
Territory or a Territory authority) by decreasing the person's rights or
imposing liabilities on the person.
Part 5.6
– Consequential amendments
Division
1 – Amendment of Youth Justice Act
Act
amended
This Division amends the Youth Justice
Act.
Repeal
and substitution of section 51
Section 51
repeal, substitute
51. Youth in need of
protection
(1) This section applies if the Court
believes:
(a) a youth who is charged with an offence is or may be a
child in need of protection; or
(b) there is a risk to the wellbeing of the
youth.
(2) The Court may require the CEO:
(a) to investigate the circumstances of the youth;
and
(b) to take appropriate action to promote the wellbeing of
the youth.
(3) If the Court requires the CEO to investigate the
circumstances of the youth, the CEO must, as soon as practicable, give the Court
a report on:
(a) those circumstances (including, for example, whether or
not the youth is a child in need of protection); and
(b) any action that has been taken in relation to the youth
regarding those circumstances.
(4) The Court may:
(a) adjourn the matter for the preparation of the report;
and
(b) remand the youth under section 65.
(5) In this section:
"CEO", see section 13 of the Care and Protection of
Children Act;
"child in need of protection" means a child who is in need
of protection as defined in section of the Care and Protection of Children
Act;
"wellbeing of a youth", means the wellbeing of a child as
defined in
section 13 of the Care and Protection of
Children Act.
Division 2
– Amendment of other Acts
Amendment of Bail Act
(1) This section amends the Bail
Act.
(2) Section 24(1)(c)(iv)
omit
Community Welfare Act
substitute
Care and Protection of Children Act
Amendment of Coroners Act
(1) This section amends the Coroners
Act.
(2) Section 12(1), definition "person held in care",
paragraph (a)
omit, substitute
(a) a child who is in the CEO's care as defined in the
Care and Protection of Children Act; or
Amendment of Evidence Act
(1) This section amends the Evidence
Act.
(2) Section 49, definition "Territory Court", paragraph
(d)
omit
Amendment of Information Act
(1) This section amends the Information
Act.
(2) Schedule 1
omit
Community Welfare Act section 97A
substitute
Care and Protection of Children Act section
Amendment of Mental Health and Related Services
Act
(1) This section amends the Mental Health and Related
Services Act.
(2) Section 26(2)(b)
omit
authorised person
substitute
authorised officer
(3) Section 26(3)
omit, substitute
(3) In this section:
"authorised officer", see section (1) of the Care and
Protection of Children Act.
Amendment of Adoption of Children
Regulations
(1) This section amends the Adoption of Children
Regulations.
(2) Schedule, Form 2, paragraph (b) (second
occurrence)
omit, substitute
(b) a temporary placement arrangement under section of the
Care and Protection of Children Act;
Amendment of Court Security
Regulations
(1) This section amends the Court Security
Regulations.
(2) Regulation 2(1)(d)
omit
Amendment of Work Health Regulations
(1) This section amends the Work Health
Regulations.
(2) Regulation 3A(2)(a) and (b), at the end
insert
and
(3) Regulation 3A(2)(c)
omit, substitute
(c) a person who is a carer as defined in the Care and
Protection of Children Act; and
Amendment of Supreme Court Rules
(1) This section amends the Supreme Court
Rules.
(2) Rule 83.01, definition "Acts"
omit
Community Welfare Act
substitute
Care and Protection of Children Act
Division 3
– Expiry of Part
Expiry
This Part expires on the day after this Act
commences.
Section
|
Community Welfare Act 1983
|
Act No. 76 of 1983
|
|
Community Welfare Amendment Act 1989
|
Act No. 70 of 1989
|
|
Community Welfare Amendment Act 1995
|
Act No. 54 of 1995
|
|
Community Welfare Amendment Act 1999
|
Act No. 6 of 1999
|
|
Community Welfare Amendment Act 2002
|
Act No. 61 of 2002
|
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