Northern Territory Explanatory Statements

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CARE AND PROTECTION OF CHILDREN BILL 2007

This clause cites the short title as Care and Protection of Children Act 2007.

The Act will come into operation on a day, or different days, to be fixed by the Administrator by notice in the Government Gazette. Parts of the legislation may commence on separate days.

The new legislation will apply to all the Government bodies including, as far as the legislative power of the Legislative Assembly permits, the Commonwealth and its bodies when carrying out functions in the Territory.

The objects of the Bill are to promote the well-being of children, including protecting them from harm and exploitation and maximising their opportunities to realise their full potential, and to help families and those having responsibility for children to achieve the objects in discharging their responsibilities.

This clause lists the means by which the objects will be achieved.

The major principles underlying the Act are set out in clauses 7 to 12 and are consistent with the principles of the International Convention on the Rights of the Child. Any person or body having a role in the implementation of the Act must uphold the principles underlying the Act as far as is practicable. However the principles do not affect the operation of any law in force in the Territory.

This principle recognises that society as a whole, and the various elements that comprise our society, have a responsibility for safeguarding the wellbeing of children and supporting families.

A core principle is the central role of the family in having primary responsibility for the care, upbringing and development of the child. This includes a recognition of the family’s desire to foster culture, language and traditions, and that the family should be supported in this role. Any action that will interfere with this role can only be taken where there is no other reasonable way to safeguard the child’s wellbeing.

Another core principle is that a child’s dignity and privacy must be protected and any decision involving a child should be made:

The overriding principle of the Act is that the best interests of the child are paramount. In any action taken under the Bill in relation to a child, a person or a Court must regard this principle as the most important.

The clause lists all the factors that must be taken into account in determining the best interests of a child. The list is not exhaustive and other factors that are relevant to the particular child should be taken into account. This principle is the paramount principle and when other principles conflict with each other this principle will provide guidance.

This clause requires that when a decision involves a child the child should be given information and assistance to allow the child to express his or her wishes and views. These views are to be taken into account, bearing in mind the child’s maturity and understanding.

In decisions involving an Aboriginal child there are three key principles as set out in this clause. They are self-determination for Aboriginal people, appropriate placement (the clause gives a priority list for the placement of Aboriginal children) and community participation (community includes kinship groups or representative organisations).

This clause contains definitions of terms and expressions used throughout the Bill (a sample of the terms are described here). They have been defined to ensure the provisions of the Bill are interpreted and applied in the manner intended. Sometimes a Chapter or Part of the Bill will have its own definition clause. In those cases, the definitions are meant only to apply to that Chapter or Part. The definitions in clause 13 apply to the Bill as a whole.

“authorised officer” - has the meaning given to it by clause 303(1). An authorised officer:

An authorised officer is appointed either for the purposes of the Bill generally or for provisions of the Bill that are specified in his or her appointment.

“Aboriginal customary law” – means the customary law of the Aboriginal people of Australia or of the indigenous inhabitants of the Torres Strait Islands.

“assessment order” – means an order made under clause 114 (a) or (b) which allows the Court to order assessments to determine whether a child is in need of protection.

“child” – means a person who is less than 18 years or, if the age cannot be proved, a person who appears to be less than 18 years.

“child in need of protection” – clause 20 lists the circumstances where a child be may be deemed to be in need of protection.

“CEO” – means the Chief Executive Officer of the Department.

“daily care and control of a 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 of the child.

“exploitation” - clause 16 sets out the meaning. It means sexual or any other form of exploitation, and includes sexual abuse.

“family” – clause 19 gives the word a broad meaning. It includes the extended family in accordance with customary law or tradition or any contemporary custom or practice.

“operator of child-related services” is a person who controls an operation for the provision of child-related services.

“parental responsibility” - clause 22 sets out the meaning as a person who has daily care and control of a child and all the powers, rights and responsibilities about the long-term care and development of the child.

“placement arrangement” – is defined in clause 77. It means an arrangement made by the CEO for a child to live with a parent, family member or person or any other arrangement approved by the CEO.

“protected child” – is a child who is the subject of the exercise of a power or the performance of a function under Chapter 2.

“protection order” – means an order made under clause 127(1) and is an order made by the Court on application of the CEO. It may include supervision directions, or short or long term parental responsibility directions, or an agreement reached following a court ordered mediation conference.

“provisional protection” – is dealt with in clauses 49. The CEO may take a child into provisional protection where the child is in urgent need of protection and no other protection or der or temporary protection order is in force.

“temporary protection order” means a temporary protection order made under clause 104 and is made if the Court believes the child is in urgent need of protection and if there is no protection order in force.

“Young person who leaves the CEO’s care” is defined under clause 67 and is someone who has ceased to be in care and is between 15 and 25 years.

This clause is a definitional clause stating that the wellbeing of a child includes the child’s physical, psychological or emotional wellbeing.

This is a definitional clause stating that harm to a child covers any significant detrimental effect to the wellbeing or development of the child and can be caused by physical, psychological or emotional abuse or neglect, or exploitation, or exposure of the child to physical violence.

This is a definitional clause stating that exploitation of a child means sexual or any other form of exploitation of a child. Sexual exploitation includes sexual abuse of children and involving a child in prostitution or in pornographic activity.

This clause defines “parent” for the purposes of the Act as meaning a child’s father, mother, or any other person, other than the CEO, who has parental responsibility for the child. It includes a person who, under Aboriginal customary law or Aboriginal tradition, is regarded as a parent of the child.

Relatives of a child are broadly defined. They include blood relatives but can also extend to a relationship that arises through adoption, marriage, de facto relationships or any customary law or tradition.

Family covers extended families in accordance with any customary law, traditional or contemporary custom or practice. It can include relatives of the child and anyone who is closely associated with the child or another family member of the child.

This clause defines the term “when a child is in need of protection”. A child is in need of protection in following circumstances:

The Bill does not deal with all of the circumstances in which a child suffers harm or is exploited. Rather, it sets out a range of circumstances in which protective actions (of various kinds) can be taken in respect of a child who falls within this definition.

This clause defines when a person has daily care and control of a child as being when the person has all the powers, rights and responsibilities for the day-to-day care and control of the child.

This clause defines when a person has parental responsibility for a child as being when they have daily care and control of a child and all the powers, rights and responsibilities regarding the long-term care and development of the child.

This clause specifies that Part IIAA of the Criminal Code applies to offences against this Act.

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. This clause also ensures the CEO and authorised officers have the powers, functions and responsibilities to protect children who are in need of protection, to promote the wellbeing of children generally, and to promote the wellbeing of those persons who have been in the CEO’s care.

This clause makes it an offence if a 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, yet fails to report that belief to the CEO or a police officer.

In addition, this clause makes it an offence if a person engaged in child-related employment 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 the parent of the child, yet does not make a report to a police officer.

There are penalties for failure to meet the reporting obligations. The maximum penalty for breach is 200 penalty units.

A person acting in good faith under Clause 25 is not liable under civil or criminal law, or in breach of any professional code of conduct, if the person making the report acted in good faith. The protection afforded to the person making a report is spelt out in the clause.

report
A police officer who receives a report under clause 25(1) must notify the CEO, as soon as is practicable, after receiving the report.

The CEO must record receiving a report under section 25(1) and record a notification about a report received under section 27(1) in relation to the child. The CEO may inform the person making the report, or the police making the notification, of any action that the CEO proposes to take for the child.

Any operator of child-related services, children’s services, a school or other educational institution, hospital or other health facility must ensure their staff are aware of the reporting obligations under clause 25. It is important to note that this provision applies to any service relating to children. It could, for example, include a school bus driver.

There are penalties for failure to operate in a way consistent with the reporting obligations. The maximum penalty for breach is 200 penalty units or imprisonment for 2 years for a natural person.

The object is to ensure the CEO and a police officer may take steps to determine whether the wellbeing of a child is at risk.

The CEO has a general power to make inquiries about the wellbeing of a child, whether or not the CEO receives a report under clause 25(1) or a notification under clause 27(1).

Police may also make inquiries on the basis of any information they receive that raise concerns about the child’s wellbeing. The Police must make a report to the CEO within 24 hours of completing their inquiries.

A number of persons are identified who must provide the CEO or a police officer with specific information if they request it for inquiries made under clause 31 or 32. Such persons include:

The maximum penalty for not providing the information is 200 penalty units.

The exceptions to this provision are if the person has a reasonable excuse or if the Police Commissioner certifies in writing that compliance would prejudice the investigation or prosecution of a crime or would disclose a confidential source of information.

If the CEO believes on reasonable grounds that a child may be in need of protection, the CEO may instigate an investigation by a person who is an authorised officer regardless of whether inquiries have already been made or commenced under clause 31 previously by the CEO or clause 32 by Police. Following the investigation, the CEO must decide whether further action is necessary under this Part or Part 2.3.

If a police officer believes on reasonable grounds that a child may be in need of protection that officer, or another police officer, may investigate that matter regardless of whether inquiries have already been made or commenced under clause 31 previously by the CEO or clause 32 by Police. The officer conducting the investigation must give a report on the investigation to the CEO within 24 hours of its completion.

This clause gives an officer conducting an investigation under clause 34 or 35, the power to have contact with a child through the persons listed under clause 33(2) without informing the child’s parents.

There are penalties for failure to allow such access. The maximum penalty is 200 penalty units or imprisonment for 2 years.

The authorised officer must reasonably believe it to be in the best interests of the child not to inform the parents, or that informing the parents might compromise an investigation. The authorised officer must notify at least one of the parents as soon as possible afterwards unless he or she reasonably believes:

An officer conducting an investigation under clauses 34 or 35 may also request a person listed under clause 33(2) for access to specified information about a child, and to ask them not to inform the child’s parent. This may only occur if the authorised officer reasonably believes it is in the best interest of the child not to inform the parents or that it could compromise the investigation.

There are penalties for failing to provide the information and/ or informing the parents. The maximum penalty is 200 penalty units.

Persons acting in good faith are not civilly or criminally liable, or in breach of any professional code of conduct, for complying with a request made under clause 33(2), 36(1), or 37(1)

investigation
While inquiries are made or an investigation is in progress, the CEO may take any other action under this Part or parts 2.2 or 2.3.

The object of this Division is to ensure the CEO has sufficient powers to perform the functions under this Act; and to take actions for the wellbeing of children generally (including actions that are on a voluntary basis and not necessarily only for children who are in need of protection).

The CEO may take any action that is consistent with this Act to safeguard and promote the wellbeing of children, of person’s who have been in the care of the CEO. This may be done in conjunction with other agencies, persons or bodies.

The CEO may also take action to ensure proper facilities are provided for this Act, including acquisition and management of land and other property for this Act. The CEO may also undertake research, collect and publish information for the objects of this Act.

The CEO may request a public authority to provide specified assistance for the exercise of a power or the performance of a function under this Act.

The public authority must comply with this request provided it is consistent with its functions and does not unduly prejudice the performance of its functions.

The CEO may arrange for the provision of child related services, and fund or carry out research and development for these services. The CEO must be satisfied the arrangement relates to children services and are consistent with the underlying principles of the Act. This section does not limited clause 40.

The CEO may provide assistance to persons or bodies in coordinating their efforts to deliver services, including child related services, to a child, or a young person who has left the CEO’s care.

This provision allows the CEO to arrange for a temporary placement of a child for a period not exceeding two months (with options to extend to six months in total) if the CEO reasonably believes that the arrangement will safeguard or promote the wellbeing of the child. The CEO will have the daily care and control of the child while the arrangement is in force.

However the parents must agree to enter into the arrangement, and one or both parents may terminate the arrangement at any time, and request the CEO return the child to them. If the child is at least fifteen years, the child must have consented to the arrangement.

The CEO is not precluded from applying any provisions in this Division more than once, or applying more than one provision in this Division for a person (whether at the same time or at different times).

The object of this Division is to ensure that, as far as possible the wellbeing of a child is safeguarded and promoted through agreements between the parents of the child and other interested parties.

The CEO may arrange a conference where there are concerns about the wellbeing of a child and the CEO believes a conference may address those concerns and the parents of the child are willing to participate. The CEO must appoint a convenor who has to meet certain obligations in relation to who will attend and notice of the conference.
The clause provides for regulations in relation to appointment of the convenor, procedural and reporting requirements, the appointment of a person to represent the interest of the child, and the making of agreements.

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.

protection
This clause provides the parameters for an authorised officer to have access to and remove a child that the CEO reasonably believes is in need of protection: when the CEO reasonably believes the child is in need of protection, when that protection is needed urgently, and there is no protection order, or temporary protection order in force for the child.

The clause provides the powers of search and entry that can be used at any time to a place if an authorised officer reasonably believes the child may be found there. It provides the power to remove the child and to arrange for medical examination or services, and to make other arrangements the officer believes to be necessary.

The authorised officer must report to the CEO on his or her actions as soon as possible after taking them. While the child is under provisional protection, the CEO has daily care and control of the child.

The duration of provisional protection is determined by the CEO, but may not extend beyond 72 hours. The CEO must return the child to a parent at the end of the provisional protection, unless a Court order has been sought.

This Division does not prevent the CEO from taking any other action under this Part or Part 2.3 while the child is in provisional care.

To empower an authorised officer to take action, on a temporary basis, and in limited circumstances only, to remove a child from a place where the wellbeing of the child is at risk.

Allows an authorised officer the power to remove a child, if they are found at a place other than the child’s usual place of residence, and if the child is not under the direct supervision of an appropriate parent, family member or adult.

The authorised officer does not have to believe the child is in need of protection, but must believe there is a risk to the wellbeing of the child, if they were not removed from the place.

Enables an authorised officer to enter a place to apprehend the child.

There are several options available once a child is apprehended, including returning the child to their usual place of residence, or if it is not practicable or appropriate to do so: move child to a safe place, keep the child at the place and make any arrangement for the care and protection of the child. There is provision under this clause for the use of reasonable force or assistance in removing the child.

The officer must as soon as possible inform a responsible person about moving the child, and if the officer is a police officer, inform the CEO. A “safe place” is defined as a place where a child may be temporarily kept for the child’s safety, but does not include a prison, lock up or other place of detention.

This Subdivision applies to a child, if an authorised officer or police officer is exercising powers under clauses 34, 35, or 56 in relation to the child, or if the child is in the CEO’s care.

This clause permits an authorised officer to restrain a child using reasonable force or assistance. The restraint is only to be exercised to prevent a child from being harmed or harming others.

An authorised officer may search a child for articles that may be seized if they might be used by the child to harm themselves or others. They include, but are not limited to, guns, other weapons, dangerous drugs, alcohol or other drugs capable of intoxicating a person.

Any search must be undertaken by an authorised officer or a designated person of the same gender as the child. It must be conducted in the presence of at least one other adult of the same gender as the child and who is nominated by the child, or if the child fails to do so, by the office. A person nominated by an officer must hold a clearance certificate and cannot bean authorised officer or police officer. The clause also limits the type of search that can be carried out. Removing a child’s clothing or examination of a child’s body cavities is prohibited.

This clause permits an authorised officer to seize anything found on or with a child that the child may use to harm the child or another person, using reasonable force or assistance. The clause also sets out how seized articles are to be dealt with.

Where an authorised officer uses any powers of restraint, search and seizure they must record that event and if the authorised officer is a police officer give a report to the CEO.

This clause sets out the purposes for which a warrant may be granted and the powers it confers. Purposes include exercising a power under clauses 34 or 35, or monitoring the wellbeing of a child who is in a placement arrangement. Authority is given for an authorised officer to enter and search any place, and to remain at the place for as long as he or she considers reasonably necessary. Once the child is found, the authority allows the authorised officer to have access to the child without the parent or any other person present for as long as the officer considers reasonably necessary.

In the execution of a warrant granted clause 62, an authorised officer may use reasonable force or assistance.

The authorised officer must produce a warrant if requested and may be assisted by another authorised officer in the execution of the warrant. The authorised officer providing assistance may also use reasonable force.

A person at the place must comply with the warrant. Failure to comply with a warrant without reasonable excuse attracts a maximum penalty of 200 penalty units or 2 years imprisonment, unless the person is able to provide a reasonable excuse.

The object of this part is to safeguard the wellbeing of each child who is in the CEO’s care, and each young person leaving the CEO’s care.

This is a definitional clause listing the classes of children who, for the purpose of the various provisions in the Bill, are in the CEO’s care.

A young person who has left the CEO’s care is someone who has ceased to be in care and is between 15 and 25 years. This person was last in the CEO’s care for a continuous period of at least six months and unlikely to be in care again in the future.

This clause applies to a child who is in the CEO’s care for whom there must be a care plan. That is, a child for whom there is a protection order in force, or a child for whom the CEO has daily care and control because of a court order prescribed in the regulations

This clause imposes an obligation on the CEO to prepare and implement a written care plan as soon as possible after the child comes into the CEO’s care. It must include decisions about the daily care and control of the child.

A care plan may be modified by the CEO at any time, but must be modified if the child is about to leave the care of the CEO where the child’s needs in transitioning to other living arrangements are identified and measures outlined to assist the child in meeting those needs.

The CEO must have regard to the wishes of the child that the CEO considers reasonable and appropriate when making and maintaining care plans.

The CEO must give a copy of the care plan to the child, each parent, any carer and any other person the CEO considers has a direct and significant interest in the wellbeing of the child, as soon as practicable. However, if the CEO considers it inappropriate or impracticable to do so, and taking into account the wishes of the child, any risk to the child and any other relevant circumstances, then a copy of the plan need not be provided.

The plan must be reviewed within specified time frames, taking into account the views expressed by the child, the child’s carer and any other person deemed to have a direct and significant interest. The plan must be reviewed immediately if any of the following events occur:

An interim care plan applies if the child is in the care of the CEO but Division 2 does not apply.

plan
A written interim care plan must be made and implemented as soon as a child is taken into the care of the CEO. The plan must identify the immediate needs of the child and measures to be taken to address those needs.

The CEO must enter a placement arrangement for a child in his or her care, but is able to cancel the arrangement and replace it with another placement arrangement at any time.

Placement arrangements can be made to place a child with any of the following:

The CEO has discretion to make other arrangements if appropriate. This could include an arrangement whereby a child lives without direct supervision of an adult.

This clause provides for the making of regulations in relation to a number of areas including responsibilities, conditions for a placement arrangement, standards, numbers of children and the approval requirements.

Prior to making a placement arrangement the CEO is obliged to inform the child about the arrangements to the extent that is considered appropriate in the circumstances

The carer must be provided with any information about the child that is necessary for the provision of care to the child and for the safety of others. In doing so, the CEO must have regard to the child’s wishes.

The carer can only disclose information about the child for the provision of medical treatment of the child, or in circumstances approved by the CEO. The maximum penalty for inappropriate disclosure is 200 penalty units or 2 years imprisonment.

Parents are to be provided with information about the placement arrangement, subject to the discretion of the CEO and bearing in mind the wishes of the child and the safety of the child or others. This clause is also affected by clause 134.

This clause allows the CEO to pay a carer who is looking after a child as part of a placement arrangement.

Enables the CEO to apply to the Court in order to have the Public Trustee take control of property belonging to the child. Copies of any orders and a written notice explaining the terms and effect of the order must be provided to the parents of the child, any other person specified by the Court and the child.

Allows an authorised officer to enter and inspect the premises where a child resides in order to monitor the wellbeing of the child. Inspection cannot be refused without reasonable excuse. Failure to comply has a maximum penalty of 200 penalty units or 2 years imprisonment.

Enables an authorised officer to use reasonable force, and defined powers of entry and search, to apprehend a child absent from the place of residence described under a placement arrangement in order to return the child to that place.

care
Sets out the kinds of services that the CEO may provide to assist a young person who has left the care of the CEO. Also stipulates the return to the young person of any personal items held by the Department or a carer, including birth certificates, photos and anything else prescribed by regulation.

PART 2.3 – COURT’S POWER FOR CHILDREN

The object of this Part is to create an appropriate judicial process for safeguarding the wellbeing of children, particularly children who are, or who might be, in need of protection. Achieved by establishing a family matters jurisdiction of the Local Court.

The Local Court in its family matters jurisdiction, is empowered to hear and determine an application for any of the following orders:

The Chief Magistrate is given the power to direct a magistrate, sitting alone, to exercise the family matters jurisdiction of the Local Court. In doing so the Chief Magistrate must take account of the expertise of particular magistrates in family matters. In the absence of such a direction a magistrate has no power to exercise the family matters jurisdiction.

The core principle of the Bill, the best interests of child, must be the Court’s paramount consideration in exercising its jurisdiction. Where the rights of a child conflict with the rights of an adult, the magistrate must give priority to the rights of the child.

The Court’s jurisdiction is not affected by any criminal proceedings that may have begun against the child, or any other party to proceedings under this Act, including a parent of the child.

The Court must sit in places approved by the relevant Minister and may hold several sittings at the same time. In approving places however, the Minister must make sure that they are separate from the proceedings of other courts and have adequate facilities.

The Minister referred to here is the Minister
administering the Local Court Act.

This clause requires the proceedings to be conducted with as little formality as possible. Subject to directions of the Court, the Court is not bound by the rules of evidence.

This clause lists those who are parties to the proceedings. The parties include the child, the CEO and each parent. They may also include a person to whom the Court may give daily care and control or parental responsibility and any other person the Court considers to have a significant interest in the child.

The standard of proof required for the Court to be satisfied a matter is proven is the balance of probabilities.

The proceedings should be carried out as quickly as possible to minimise the effect of the proceedings on the child. The Court is required to set a timetable for this purpose and can make directions.

Publication of a report of the proceedings is prohibited unless the Court gives leave or there is an obligation under another law to do so. Maximum penalty for a breach of this clause is 200 penalty units or 2 years imprisonment.

To the extent that it is possible, the Court must ensure that the parties understand the proceedings. To achieve this, the Court may call on assistance, for example an interpreter.

Unless the Court directs otherwise, persons who are not parties to the proceedings cannot attend the Court. The Court can also direct that a party should not be present at all or any part of the proceedings. Maximum penalty is 50 penalty units or 6 months imprisonment.

Parents must attend Court, except as provided by other clauses 98(b) or 125, or unless the Court directs otherwise. The Court has the power to order a parent to attend Court.

Any party is entitled to be represented by a person (including a legal practitioner) if they so wish. The Court can postpone proceedings until a parent or child obtains legal representation, if the Court considers it necessary to do so.

Two or more applications may be heard together at the request of a party to the proceedings, or if the Court thinks it is in the interests of justice to do so.

The CEO may apply for a temporary protection order when he/she believes a child is in need of protection, there is an urgent need to safeguard the child’s wellbeing and there is no protection order already in force. The application can be made if an assessment order is in force, or the child is subject to provisional protection.

This clause outlines the process for making an application. The application must state why the order is necessary and what arrangements are proposed for the child if the order is granted. Any information in support of the order must be given as a sworn statement. Applications can be made via telephone, fax or other electronic means but the applicant must send a sworn statement to the Court no later than one day after the day of application. This enables applications to be received from remote areas without delay, or in other circumstances where making sworn statements may be difficult to achieve quickly.

If the Court decides there are reasonable grounds for believing a child is in need of care and protection, it can make a temporary protection order.

The Court must give the CEO a copy of its decisions and the reasons for making, or not making, an order as soon as practicable. The order may be decided in the absence of the child’s parents.

As soon as possible after a temporary order is made, the CEO must provide a copy of the order to the parents of the child (preferably by serving the copy on the parent, but where that is not possible, by leaving the order at parent’s last known address or by posting it) and provide an explanation of the order (and its effect) to the child.

A temporary order authorises the CEO to have daily care and control of the child while the order is in force. An order remains in force, subject to clause 108(3), for 14 days from the time it is made.

This clause describes the powers of an authorised officer to take a child into the CEO’s care when a temporary order has been granted. These powers are broad and include powers:

The authorised officer can use reasonable force or assistance and must report to the CEO on actions taken as soon as possible.

In relation to medical treatment, a child may refuse to submit to a medical examination if he or she is capable of making an informed decision.

The CEO may return the child before the order ceases if it is appropriate to do so or if an agreement has been reached following a mediation conference convened under clause 48. The Court must be notified if this occurs.

A temporary protection order does not prevent other actions being taken under the Bill. These actions include investigations and applications for other orders, such as assessment orders, or another temporary protection order. However, another temporary protection order cannot be applied for while another temporary protection order is still in force, would take effect immediately after a previous order ended, or where the CEO had not returned the child to their parents.

Where a protection order is not in force, the CEO may apply to the Court for an order to assess whether a child is in need of protection and/or to assess whether a parent has the capacity to be responsible for the child.

The CEO must believe the proposed assessment cannot be carried out without the order. The assessment may involve the medical or psychological examination of the child or parent.

The CEO must justify the request for an order by stating why a proposed assessment is necessary, the details of the proposed assessment and other directions (if any) that are being sought, such as restricting a person’s contact with a child while the assessment order is in force, or to obtain information from a person specified in clause 33(2).

The Court cannot hear an application for an assessment order unless the Court is satisfied that the CEO is entitled to make the application under clause 110 and that reasonable attempts have been made to obtain the consent of at least one parent to the assessment.

The Court must be sure the assessment is necessary and that any distress caused to the child (including distress caused by any previous assessment) will be outweighed by the value of the information obtained.

The Court may make the order requested by the CEO and has discretion to make additional directions whether or not they were requested. It may also dismiss the application.

Written copies of the order must be given to each of the parents that also detail the parent’s option of appealing the order. The CEO must explain the order and the effect of the order to the child. Where it is considered appropriate, the CEO may give the child a copy of the order and notice to the child, taking into account the child’s maturity and understanding.

The assessment order authorises the taking of specified actions and a person acting in good faith under the order is not civilly or criminally liable nor are they in breach of any professional code of conduct.
The assessment order has effect for 28 days, but may be extended by the Court on the application of the CEO for a further period of no more than 28 days.

A child of sufficient understanding to make an informed decision may refuse to submit to any part of the proposed assessment. A parent may also refuse to submit to any part of the assessment that relates to the parent but cannot refuse to allow assessment of the child.

The CEO must provide a report to the Court containing the results of the assessment. In this assessment, the CEO must express an opinion as to whether or not the CEO considers that the child is in need of protection based on the results of the assessment.

Application for an assessment order does not prevent the CEO from doing anything else allowed under this Part or Part 2.1 for the protection of the child.

If the CEO believes a child is in need of protection and the order being sought is the best means of safeguarding the child’s wellbeing, the CEO may apply for a protection order. This can occur whether or not the child is already under provisional protection or is otherwise under the CEO’s care; is the subject of an application for a temporary protection order, or an assessment order; or if these orders are already in force.

This clause specifies the information an application for a protection order must contain, including details of the proposed order, why it is necessary and when it is proposed to have effect.

This clause defines the directions that the CEO may seek in the protection order. These include:

Notice of an application for a protection order must be served on each parent and the child must be informed of the content of the order and given a copy where the child is considered mature enough to understand it.

The parties to proceedings for protection orders are the parents (the respondents), the child, the CEO, any other person likely to be given daily care and control or parental responsibility under the order and, on application, anyone who has a direct and significant interest in the wellbeing of the child.

If a parent has been given adequate notice of the hearing and does not appear, the Court may proceed in that parent’s absence. The Court may also exclude a person from Court proceedings.

The Court has discretion to order a mediation conference before making a decision on an application, with a view to establishing what will be best for the child. Regulations may provide for the qualifications, powers and functions of a convenor, the appointment of a person representing the interests of the child, procedural and reporting requirements and agreements.

The Court may make a protection order as proposed by the CEO, specifying other directions as mentioned in clause 122 as considered appropriate, dismiss the order, or make any order for an agreement arising from a mediation conference.

If the Court considers the child is in need of protection, would be in need of protection if the child was not currently in the CEO’s care, and that an order is the best way of safeguarding the child’s wellbeing, it must make an order.

This clause lists a number of matters the Court must consider in making an order, including any wishes expressed by the child, the parents and others with a significant interest in the welfare of the child.

Before granting parental responsibility of a child, the Court must be satisfied that granting such an order is the best means of safeguarding the child and that there is no one better suited to having parental responsibility. The child’s need for long-term stability and security must also be considered. These factors must also be considered before long-term parental responsibility is granted to someone who is not a parent.

Protection orders may be made, even if some or all of the events leading to the application occurred outside the Northern Territory, or outside Australia.

The order has effect as is specified by the Court unless the Court decides, on an application under clause 135 or 136, to extend the order, vary the order, revoke the order, or revoke and replace it with a new protection order. The order ceases to have effect when the child turns 18 years of age.

The CEO must give parties to the proceedings a copy of the order and must explain the effect of the order to the child. The child may be given a copy of the order if the CEO considers it appropriate to do so, taking into account the child’s maturity and understanding.

Where the protection order includes a supervision direction, the CEO must keep in reasonable contact with the child, the child’s parents and anyone living with the child, and can give directions about the care of the child.

An authorised officer has the power to visit the child and make inquiries about the child’s care.

Any person having daily responsibility for a child who is not a parent, must keep the parents informed about the child’s wellbeing and allow them and other family members to have contact with the child unless the Court has directed otherwise.

The CEO is able to apply to the Court for an extension of a protection order but must do so before the first order ceases to have effect. The clause sets out the procedure for seeking to extend a protection order and what the Court must take into account when considering an application, particularly contravention of the protection order to the Act in relation to the child.

Before the order ceases to have effect, any other party to the original application may also apply to the Court to have the order varied, revoked, or revoked and replaced with a new protection order.

However, a parent cannot apply to replace the order with another giving parental responsibility for the child to a different person, or without the Court’s leave, apply to vary or revoke the order if a similar application has been decided by the Court.

The Court must avoid granting adjournments wherever possible. Adjournments may only be granted in specified circumstances, such as to enable an assessment of the child or to enable a new protection order application, and must take into account the best interests of the child. Reasons for adjourning proceedings must be given by the Court and must be compelling. The Court can direct parties to the proceedings about what they must, or must not, do during the adjournment.

This clause lists the orders the Court may make on an adjournment, including ordering a report about the child and the child’s family, or ordering a mediation conference convened under clause 126.

All decisions other than a decision to grant a temporary protection order may be appealed to the Supreme Court. The clause sets out the procedures for an appeal.

The Supreme Court may stay (suspend) the commencement of the operation of the order only until such time as the Court decides the appeal. If the Court does not do so, the order takes effect pending the outcome of the appeal.

The appeal will be heard as if it was a new matter. In the appeal of an assessment order, the Court may consider other material not previously presented. For all other orders, except as the Supreme Court directs, an appeal is made on the evidence before the Court when the decision was made.

The Supreme Court may either:

This clause states the requirements applying to any proceeding in the Court under this Bill, with the exception of applications for temporary protection orders.

This section of the Evidence Act does not apply and therefore a medical practitioner can disclose information.

The Court has the power to order that a legal practitioner represent the child if it considers that to be in the child’s best interests. This may be when a parent opposes the application relating to the proceedings, or if the child opposes an application.

The legal representative must act in the best interests of the child and also present the child’s wishes and views to the Court. The clause sets out the actions a legal representative can take to fulfil their duties.

This clause gives the Court powers in relation to its dealings with a child in the conduct of the hearing, including ordering that the child attend, making an order for the taking of a written statement from the child, or for the preparation of a report under clause 148.

The Court can receive submissions from family members or any other person who may be able to give the Court relevant information.

The Court’s powers include the ordering of a report about the wellbeing of the child and it may order the person who will make the report, the matters to be addressed, that persons must be interviewed or give information for the preparation of the report. Contravening such an order without a reasonable excuse carries a maximum penalty of 50 penalty units or 6 months imprisonment.

A person is not civilly or criminally liable, or in breach of a professional code of conduct for giving information, preparing the report, or giving the report to the Court.

Unless it is considered inappropriate to do so, the Court must give all parties a copy of the report as soon as possible and give other directions about the report that the Court considers appropriate.

It is an offence to disclose information relevant to the report, unless it is authorised under the Bill. The maximum penalty for a breach is 200 penalty units or 2 years imprisonment.

The clause covers the Court’s powers in allowing and disallowing cross-examination of witnesses to the proceedings and in excusing witnesses.

To provide for the transfer of child protection proceedings and orders between the Northern Territory and other jurisdictions, including New Zealand so that children can continue to be protected and proceedings can be dealt with quickly.

Terms used in the Interstate transfer clauses are separately defined for the purposes of this Part. They include “child protection order”, “child protection proceeding”, “child welfare law”, “home order”, “Children’s Court”, “interstate law”, “interstate officer”, “parent”, “participating State”, “sending State”, “state’ and “working day”.

The clause allows the Minister for Family and Community Services to declare the law of another state to be a child welfare law and therefore coming within the arrangements set out in the Part.

transfer officer
This clause provides for regulations to specify the laws of other states to be laws for the purpose of this Act and an office that is the interstate officer of that state.

This clause sets out the circumstances under which the CEO may make a decision to transfer a protection order to another state. These circumstances include:

The CEO must specify how long the interstate order will be in force. It is also stipulated that the period of the order must be less than the period remaining if the order remained in the Territory, and less than the maximum period of the corresponding state’s protection order. Other conditions can be specified to the extent they are consistent with the order in the other state.

The CEO must obtain the consent of the following persons before the interstate transfer order can be made:

The clause allows for circumstances in which a person cannot be found, is unable to consent, or lives or will live in the State the child is going to.

The CEO must give notice of the decision to transfer within 3 working days of the decision to:

The clause describes the details to be contained in the notice.

A person given notice of the decision under clause 158 has 10 working days within which to ask the Court for a review of the decision. The review assesses the merits of a decision and the particular grounds specified in the application. The Court can affirm, vary, set aside and/or substitute its own decision.

Stipulates that the CEO can apply for the Court to order the transfer of a child protection order to a participating State, provided that the order is not subject to appeal, the appeal period has expired, it is considered that the wellbeing of the child will not be adversely affected, and the interstate officer involved has agreed to the transfer.

Copies of the application must be sent to specified persons with an interest in the child as soon as possible after the making of the application.

The Court may only hear the application if it is satisfied the CEO is entitled to make it and the CEO has given the Court a report containing information about the child, (including history of care by CEO, any criminal history or sentencing orders), and recommendations about the actions proposed.

This clause lists matters the Court must consider before it makes a decision about the application, including the report given under clause 161(b), the child’s likely place of residence, whether the wellbeing of the child will be promoted or adversely affected by the move, the terms of the order proposed by the CEO and other matters, including the wishes of the child and other interested persons.

The Court may either transfer the home order to the participating State or dismiss the application for the transfer of the order. If the former, and the interstate officer of the participating State have consented in writing to the matters, the Court must specify a range of matters or conditions pertaining to the transfer.

This clause sets the requirements that must be satisfied before the Court may order the transfer of a child protection proceeding to a participating State. A transfer order can only be made if the CEO applies for the transfer, the child to who the proceeding applies is residing or about to reside in the participating State and if the relevant interstate officer has agreed in writing to the transfer.

This clause identifies the persons who must be served with a copy of an application by the CEO for a transfer of a child protection proceeding.

As with the judicial transfer of a child protection order, the Court may only hear the application for the transfer of a proceeding if it is satisfied the CEO is entitled to make it and the CEO has given the Court a report containing information about the child, (including history of care by CEO, any criminal history or sentencing orders), and recommendations about the actions proposed.

This clause lists matters the Court must consider before it makes a decision about the application, including the report given under clause 166(b), the child’s likely place of residence, whether the wellbeing of the child will be promoted or adversely affected by the move, the terms of the order proposed by the CEO and other matters, such as the child’s wishes.

The Court may either transfer the home order to the participating State or dismiss the application for the transfer of the order. If the former, the Court proceeding is discontinued upon the registration of the transfer to the Children’s Court of the participating State under interstate law.

If the Court has decided to transfer a child protection proceeding, it can make an interim order to release the child into a person’s care subject to any conditions the Court considers appropriate. An interim order remains in force as specified by the Court for a period of up to 30 days. The participating State may act in accordance with its own laws in relation to this order.

This clause requires the CEO to file in the Court interstate documents that relate to the transfer of child protection orders to the Northern Territory and specifies circumstances when the CEO must not, such as when the decision is under review.

Similarly, the CEO must file in the Court interstate documents, including an order and an interim orders, relating to child protection proceedings.
It also specifies circumstances when the CEO must not file.

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 clauses 170 or 171.

Orders registered under clause 171(1)(b) are to be treated as orders made under this Bill from the day they are registered.

Clause 174 provides for the revocation of the registration of any document registered under clause 172 and lists the persons who may apply for revocation.

The circumstances in which registration of interstate orders may be revoked are limited to situations where the transfer order was subject to review, appeal or stay, or the time for such a review, appeal or stay had not expired in the sending State. If revoked, a copy of the revocation and transfer documents must be sent to the Children’s Court in the sending State.

Later re-registration of a transfer order is possible even though revocation has occurred.

A Registrar of the Local Court must immediately notify the interstate officer and the interstate Children’s Court when the Northern Territory Court registers or revokes orders relating to the transfer of child protection proceedings to the Northern Territory.

in receiving State
Home orders cease to have effect in the Northern Territory when they are registered in the Children’s Court in the State to which they have been transferred.
If an order were revoked in the receiving State it revives in the Northern Territory until the time it would have expired here.

Similarly a proceeding commenced in the Northern Territory is discontinued in the Territory when it is registered in the Children’s Court in the State to which it has been transferred. If registration is revoked in the receiving State, then it will continue in the Northern Territory.

The Local Court must send all documents held for an order or proceeding to the Children’s Court in the receiving State, unless a decision or order to transfer is under review, appeal or stay in the Territory or if the time for seeking the review or commencing the appeal in the Territory has not yet expired

proceeding
Under this clause the Local Court in the Territory is not bound by any finding made in proceedings in the sending State that occurred prior to transfer. However, the Court may have regard to the transcript of, or any evidence heard in, such proceedings.

This section allows the CEO to disclose to an interstate officer such information as the CEO considers is necessary for that officer to perform his or her powers or functions under a child welfare or interstate law.

If there is a proposal to transfer an order or proceeding to the Northern Territory, the CEO has the power to consent, or refuse to consent, to the transfer of such order or proceeding. Further, the CEO has the power to consent, or refuse to consent, to the proposed duration of the order and proposed conditions included in the order for the transfer.

The Court has no power to review a decision by an interstate officer not to consent to a transfer.

To ensure that any person whose history poses a risk of harm or exploitation to children is prevented from working with children, and to impose obligations on people engaged in child-related employment, or who engage others in such employment.

The clause defines the scope of “child-related employment” and what is regarded as being “engaged in child-related employment”. The management team of agencies performing child-related work; students undertaking practical placement; and those wishing to volunteer to assist with children’s activities or services, are included in the definition of child-related employment. The following words and phrases used in Part 3.1 are also defined. These include: “educational institutions for children”; “employment” and “officer”

Three types of persons are exempted from being regarded as child related employment:

The Regulations may specify other occupations to be excluded from the screening process.

Clause 186 Obligations in relation to child-related employment
Any person working or intending to work in child-related employment must be screened and hold a current clearance notice. It is an offence to engage in such work, or to employ an individual, if a clearance has not been obtained – with a maximum penalty of 500 penalty units.

However, there is a provision that allows an employer to obtain an extension of time (an “exemption”) for the screening of an employee subject to certain circumstances.

A person intending to engage in child-related work; or a person who engages or proposes to engage the candidate in child-related employment, may apply to the Screening Authority seeking a clearance notice. The application must be made on an approved form, accompanied by proof of the candidate’s identity and including a statement by the applicant authorising the Commissioner of Police and anyone prescribed by regulation to give information about the candidate to the Authority. The candidate must provide any other information required for the application by the Authority.

The purpose of the screening is to determine whether the person does (or does not) pose a risk of harm or exploitation of children. This is achieved by identifying whether the person has been convicted of a prescribed offence or has a criminal history as prescribed by regulation.

If the Screening Authority is of the view that a person does not pose a risk, the Screening Authority must give a written clearance to that person and, if the application is made by another person, to that other person.

If the Screening Authority is of the view that a person does pose an unacceptable risk, the Screening Authority must give written notice to that person that a clearance has not been given and, if another person makes the application, a similar notice is given to that other person. The written notice must include the reasons for the decision not to grant the clearance, and note that the candidate is entitled to apply for a review of the decision within set timelines.

Any person (including the Commissioner of Police) may provide the Screening Authority with information regarding the criminal history of an applicant or the holder of a clearance notice. The Screening Authority may collect and maintain this information.

Where a person provides information in good faith are not civilly or criminally liable for giving the information and are not in breach of any professional code of conduct.

The CEO may issue guidelines for the purposes of decisions to be made by the Screening Authority. The guidelines may provide for matters to be taken into consideration when assessing a person’s criminal history, and how they are to be taken into account. Without limiting this, a number of guidelines are provided which can be taken into account when deciding whether or not to issue a clearance notice, including the nature and severity of a previous offence, and the relevance to any child-related employment.

The CEO must notify the making of the guidelines through a notice in the Gazette.

A child-related clearance notice ceases to be in force:

Clearance can be revoked if the Authority becomes aware of information not available when the notice was issued, and that would have resulted in a decision not to issue the notice.

Notice of a revocation must be provided to the person to whom the notice was issued, and to the candidate if the applicant was someone else, such as an employer. Written notice must also be give to anyone who engages or has engaged the person for child-related employment. The notice must identify the options for review of the decision, and the timelines for such a review.

conditions
The holder of a clearance report must report to the Screening Authority, and anyone who is engaging or proposes to engage the person in child-related employment, details of any relevant changes in circumstances. The maximum penalty for breach of this obligation is 50 penalty units or 6 months imprisonment.

On receipt of such a report the Screening Authority may revoke the clearance notice, specify a period of time during which the person cannot work in child-related employment, or specify other conditions for the clearance notice under which the person may work in child-related employment.

The candidate, or another applicant [excluding appeals made under 188(1) or (4)], may appeal within 28 days to the Local Court in respect of a decision of the Screening Authority to not give a child-related clearance, or to specify specific conditions for the notice. The application does not affect the operation or implementation of the decision. The Local Court is able to consider new information and may affirm, vary or set aside the decision.

It is unlawful for the Screening Authority or the staff of the Screening Authority to disclose or use information obtained in the course of duties except where the disclosure occurs as part of their duties. Maximum penalty of 200 penalty units or 2 years imprisonment.

This clause establishes the Screening Authority and empowers the Minster to appoint members of the Authority.

The regulations may make provision, consistent with this Part, about 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; and any other matters arising from the operation of this Part.

To prevent the exploitation of children through their employment and to ensure the wellbeing of children who are in employment.

This part does not affect the operation of section 30 of the Education Act.

This clause provides, for the purposes of Part 3.2, definitions of “employer” of a child and “employ”.

A child may be employed (and thus the employment is subject of Part 3.2) when they are engaged to work under a contract or other arrangement and regardless of whether or not the child is paid or otherwise rewarded for any work that is performed.

The CEO may by written notice to a child’s parent, prohibit a child from being employed in particular positions or from being employed generally, or impose conditions governing the employment of the child, if the CEO has the belief that the child:

It is a breach of the law for a parent to fail to comply with a notice relating to the child’s employment. Maximum penalty of 100 penalty units or 12 months imprisonment.

The CEO must give a copy of the employment prohibition notice to the child and to the employer of the child. It is an offence for the employer of the child to fail to comply with the notice. The maximum penalty for breach is 100 penalty units or 12 months imprisonment.

It is an offence for a parent of a child to provide false or misleading information to a potential employer about the age of the child. The maximum penalty for breach is 100 penalty units or imprisonment for 12 months.

A parent or employer must not require a child aged less than 15 years to work between the hours of 10pm and 6am. The maximum penalty for breach is 400 penalty units for an employer and 50 penalty units or 6 months imprisonment for a parent.

A parent or employer must not require a child to perform work that is or may be harmful for the child’s physical, mental or emotional wellbeing. The maximum penalty for breach is 100 penalty units and/or 12 months imprisonment.

A parent or employer must not require a child to perform work that involves any exploitation of the child. The maximum penalty for breach is 800 penalty units or 4 years imprisonment.

An authorised officer may for the purposes of monitoring compliance with Part 3.2, enter and inspect places and their facilities where they reasonably believe a child is employed. The authorised officer may require the production of records, and any information necessary for the monitoring and compliance of this Part. The authorised person may make copies of the information or operate electronic equipment to retrieve such records. Failure to comply without a reasonable excuse is an offence subject to a maximum penalty of 100 penalty units or 12 months imprisonment.

The authorised officer must produce their identification card when inspecting a place when requested. The authorised officer is not authorised to remain at the premises if he or she does not possess his or her identification card. The person is not required to comply with requests from that authorised officer who does not have a current identification card.

information
An authorised officer may, by written notice, require a person who employs children to give the officer any information relating to that employment. The person must comply with the request within fourteen days of receiving the notice unless they have a reasonable excuse.

The maximum penalty for failure to comply is 100 penalty units or 12 months imprisonment.

This clause permits the review of decisions made by the CEO to restrict a child’s employment through the Local Court within 28 days after the parent is notified of the decision.

This clause also sets out the procedures for the review. An application for review does not affect the implementation of the original decision, unless the Local Court decides otherwise.

To assist in the prevention and reduction of child deaths through conducting research about child deaths, including diseases and accidents involving children. It also provides for maintaining a database on child deaths and the development of appropriate policies (concerning child deaths, diseases and accidents).

A child death is defined as the death of a child who usually resided in the Territory (whether the death occurred in the Territory or not) or a still born as defined in the Births, Deaths and Marriages Registration Act that occurred in the Territory.

The Child Deaths Review and Prevention Committee is to be established and will consist of between ten and sixteen members. The members are to be appointed by the Minister with a least two of members being Aboriginal and one member must be the Deputy Coroner. The other members are to have expertise or experience relevant to the functions of the Committee.

The Minister will appoint one person to be the Convenor of the Committee and the members are to be appointed for a term not exceeding two years. Members can be re-appointed.

The functions of the Child Death Review and Prevention Committee are to:

There is a requirement that the following persons must, on the Committee’s request, provide specified information to the Committee for any of its functions. These include: the Commissioner of Police, Registrar of Births, Deaths and Marriages, health practitioners and various service providers (to children), the Coroner, and a person in charge of a facility or body that delivers health services to children in the Territory, and operators of child-related services or children’s services. A person providing information in good faith is not civilly or criminally liable, nor in breach of a professional code of conduct.

Failure to provide information without a reasonable excuse, or without certification from the Commissioner of Police that compliance would damage criminal investigations, the administration of justice, or endanger the safety of others, attracts a maximum penalty of 200 penalty units or imprisonment for 2 years.

The Child Deaths Register is a database of any information concerning child deaths including the incidences of deaths of children, causes, patterns and trends of deaths and other data concerning deaths.

The Child Death Review and Prevention Committee must report to the Minister on an annual basis concerning the Committee’s activities and the implementation of its recommendations. A copy of the report is also to be sent to the Commissioner for Children. The Minister must table the report in the Legislative Assembly within 6 days of receiving the report.

The Child Death Review and Prevention Committee’s other reports must be provided to the Minister and the Children’s Commissioner. The Minister must table them in the Legislative Assembly.

The Minister may, on the advice of the Convenor, appoint advisers to the Child Death Review and Prevention Committee. These appointments must include persons with qualifications or experience in health care, child development or protection, or research methodology, or other fields related to the functions of the Committee.

If the office of Convenor is vacant or the Convenor is unable to exercise the powers and functions of their role, the Deputy Convenor must act in the office of Convenor.

A member or advisor vacates the office if they die, their term of appointment has expired, they resign in writing to the Minister, or the appointment is terminated under clause 217.

Specifies the conditions for the Minister terminating an appointment as a member or advisor, including a failure to attend three consecutive meetings of the Committee (without leave), misbehaviour or conviction of an offence punishable by imprisonment for 12 months or more.

The Committee must meet at least three times a year. This clause establishes a quorum and governance of the meetings.

Members of the Child Death Review and Prevention Committee must disclose matters where the member has a direct or indirect interest. Where there is such an interest the member must not take part in the deliberations.

The members of the Child Death Review and Prevention Committee must not unlawfully disclose or make use of information. The maximum penalty for breach is 200 penalty units or 2 years imprisonment.

However, with the approval of the Minister, the Child Death Review and Prevention Committee may disclose information for the purposes of research projects, police or coronial inquiries or for purposes specified in the Regulations. If a person supplied with such information breaches any conditions imposed on the supply of information, the maximum penalty for breach is 200 penalty units or 2 years imprisonment.

The Minister is obliged to conduct a review of Part 3.3 within 3 years of the commencement of this Part of the Act.

The object of this Part is to promote children’s wellbeing by supporting and regulating children’s services.

This clause defines “children’s services” for the purposes of the whole of the Bill. This definition needs to be looked at in the context that it mainly serves to identify persons who need to be registered or licensed as they are providing “children’s services” (clauses 234 and 235).

Children’s services are services provided:

However, the following are defined as not being “children’s services”:

Home-based children’s services to clarify their inclusion in either registered or licensed children’s services. They are defined as services provided by a person (the “operator”) for the care of children at residential premises as an ongoing operation. The operator controls the provision of services at the premises but is subject to the direction of another “coordinator” who controls a number of similar operations.

Services are required to be licensed (as distinct from registered) if they provide:

A person providing services must be licenced if they coordinate a home-based services scheme or control the operation of the other services described under this clause.

A person is required to be registered (as distinct from licensed) if the person operates: a home-based children’s service themselves (and not under the auspices of a licensed operator); or if the operator provides services different to those provided in a home-based scheme; or if the operator controls the operation of a children’s service provided to children in close proximity to their parents either as a an ongoing operation or one-off event.

This clause makes it an offence for a person to provide children’s services unless they are:

The maximum penalty for a breach is 500 penalty units.

A “responsible person” holds a licence under Part 4.3 or is appointed to provide services under clause 239, is registered (Part 4.5) or provides services under an action plan agreement in force under Part 4.4.

The clause sets out the standard of care, supervision and safety a responsible person must meet when providing children’s services to a child. A breach carries a maximum penalty of 200 penalty units or imprisonment for 2 years.

Each employee or “worker” employed by the responsible person to provide the services must comply with a direction given by the responsible person as it relates to the care and supervision of the child, maintenance of a safe environment for the child, and protection of the child from accidents. It is a defence to a prosecution if the defendant has a reasonable excuse, but a breach carries a maximum penalty of 200 penalty units or imprisonment for 2 years.

Persons and corporations may apply to the CEO for a licence to provide children’s services. The applicant must have advertised their intention to apply for a licence. The applicant must provide the CEO with the information specified and with such additional information as the CEO directs.

If there is any change in the application information provided to the CEO, the applicant must inform the CEO of that change within 7 days.

This clause sets out the matters on which the CEO must be satisfied before granting a licence. The main matters are that:

In coming to a decision the CEO:

The CEO must specify in the licence the services to be provided under licence. The licence cannot be transferred to another person.

The conditions of a licence are prescribed by regulation and any conditions specified in the licence. They may be varied by the CEO or by the licensee, on application (in accordance with Regulations).

A person who breaches a condition of a licence is subject to a minimum penalty of 500 penalty units.

A licence lasts for up to 3 years as specified in the licence from the granting of the licence or a later date specified in the licence.

Licenses are renewed in the same way that they are granted and may be renewed more than once. Applications for renewal should be made within 90 days before the time of expiry of the licence.

The holder of a licence must display the licence.
The maximum penalty for breach of this requirement is 20 penalty units for a natural person.

A licence that is lost or damaged can be replaced.

This clause lists the circumstances in which a licence ceases to be in force.

The CEO has the power to suspend or revoke a licence. The CEO can do this if:

The CEO may issue a notice of “show cause” to the licence holder to have them provide a statement explaining why a licence should not be revoked, and that the licence holder must display the licence conspicuously at a specified place and time. Failure to comply with the latter carries a maximum penalty of 20 penalty units for a natural person.

The CEO may also suspend (rather than revoke) the licence if it is considered necessary to prevent harm to a child for whom services are provided under the licence. The licence can be reinstated or then revoked by the CEO, having regard to the statement given by the licence holder

The holder of a licence may surrender the licence and, in doing so, must deliver the licence document.

The holder of a licence must report to the CEO details of any changes in prescribed circumstances. If the changes are foreseen, the CEO should be advised prior to the changes; if the changes are unforseen then as soon as practicable.

Failure to comply has a maximum penalty of 100 penalty units.

The CEO may within 3 months of any of the events listed in this clause appoint a person to continue to provide the children’s service.

The clause describes the process to enable this and details the conditions under which the service can be continued, which include revocation of the licence, death or absconding of the licence holder.

The maximum penalty for breaching such conditions is 500 penalty units.

The CEO may enter into agreements with a person to provide children’s services if the person meets the requirements specified.

This clause sets out the requirements for service agreements referred to in clause 248.

This clause sets out the circumstances in which a service agreement can be entered into.

Where a person with a service agreement also has a licence, the licence ceases to be of effect from the time of the making of the action plan agreement.

The CEO may terminate an action plan agreement in accordance with either the terms of the agreement or in accordance with the Regulations.

It is an offence for a person to fail to comply with a condition that is applicable to an action plan agreement or any other condition specified in regulation.

The maximum penalty for breach of such a condition is 500 penalty units.

A person seeking to be registered as an operator of a service may apply to the CEO or the coordinator of a licensed service provider (if wishing to provide home-based services for a home-based services scheme). The CEO or the licensed service provider must register the applicant if satisfied that the applicant is entitled to be registered.

It is an offence for a person to fail to comply with a condition that is specified in the Regulations as being applicable to a registered operator.

The maximum penalty for breach of such a condition is 500 penalty units.

A registration lasts for either the duration of a single event as specified in the registration, or for 12 months.
Registrations are renewed in the same way that they are granted and may be renewed more than once. Applications for renewal must be made within the period of 30 days before the time of expiry of the registration.

This clause lists the circumstances in which a registration ceases to be in force – upon expiry, by suspension, or if revoked in accordance with regulations

Authorised officers may, for the purposes of monitoring compliance with this Chapter and assessing the wellbeing of children at the service, enter and inspect places, require information or records to be produced, make copies of records and operate electronic equipment (so as to retrieve records).

A person commits an offence if they obstruct or fail to comply with an authorised officer who is conducting an inspection in accordance with this clause.

The maximum penalty for breach is 100 penalty units or 12 months imprisonment.

An authorised officer must produce their identification card when requested. If unable to provide the identification the officer must leave the premises and a person is not required to comply with a request from that authorised officer.

An authorised officer may, by written notice to a person providing children’s services, require production of information in relation to those services. It is an offence to fail to comply with such a notice within 14 days of receipt of the notice, or to provide information that is false or misleading. The maximum penalty for breach is 100 penalty units or 12 months imprisonment.

This clause permits the outsourcing of certain functions in relation to the operation of this Chapter.

This clause lists the decisions that can be the subject of review.

This clause also states the procedures that must be followed in respect of each decision that may be reviewed. Such decisions must state the reasons for the decision and note that the person involved may seek a review of the decision. Notice of the decision, and of these matters, must be given to each person who is potentially entitled to seek a review.

The CEO must establish a review panel in respect of each reviewable decision. Each panel must be comprised of three persons: an employee of the Department administering the Act; an employee of another department; and a person with qualifications or experience relating to children’s services or the wellbeing of children.

Application for a Review must be received within 28 days of having been given notice of a decision. Reviews do not affect the operation or implementation of a decision. Reviews are conducted to be way of a new hearing and are not limited to matters considered before the original decision maker. The CEO must implement the decisions of review panels.

Regulations may be made for the purposes of Chapter 4 and include making provision for the qualifications for an operator of children’s services, service and other standards required of the operator, and the maximum number of children for whom services can be provided by an operator

To ensure the wellbeing of protected children and to monitor the implementation of government decisions arising from the Inquiry into the Protection of Aboriginal Children from Sexual Abuse.

There is to be a Children’s Commissioner. The Administrator makes an appointment of Commissioner on the Minister’s recommendation. The recommendation is made on the basis that the person has the requisite qualifications or experience relating to the functions and is committed to objects and principles underlying this Act.

The Children’s Commissioners main functions will be:

A “protected child” is a child subject to the exercise of a power or the performance of a function under Part 2 of the Act.

A “service provider” may be a public authority or anyone taking action in relation to the child as a protected child, or a person or body acting for a public authority; or an operator of child-related or children’s services. A Court and a public authority prescribed by regulations are not considered to be service providers

The Children’s Commissioner has a general power to do all things necessary or convenient to be done for the purpose of the performance of the Commissioner’s functions.

The Children’s Commissioner is not subject to the direction of the Minister, the CEO or anyone else in respect of the way in which the Commissioner’s functions are performed or the priorities of the Commissioner. This general independence is subject to any specific legislation to the contrary.

A person who is, or was, a protected child, or an adult acting on behalf of a protected child, can make complaints to the Children’s Commissioner. Complaints can be made in writing or orally.

A complaint to the Children’s Commissioner can only relate to:

As a general rule, complaints to the Children’s Commissioner must be made within one year of the matter to which the complaint relates. However, the Children’s Commissioner may extend this period.

The Children’s Commissioner must assess a complaint within 28 days of receiving a complaint or, if the Commissioner requires further information, within a 28 days of obtaining that information.

At the end of this period the Children’s Commissioner must make a decision as to what to do with the complaint – investigate and resolve the complaint; not to deal with the complaint; referral of the complaint to some other body for investigation and resolution.

If the complaint concerns a police officer, the Commissioner must refer it to the Ombudsman for investigation.

As soon as practicable after making a decision under clause 265, the Commissioner must notify the complainant of the decision and the reasons for the decision. The clause sets out the procedures for notifying the CEO of a “responsible Agency” and any responsible service provider identified in the complaint. The Commissioner may also notify a responsible Minister of the decision if he or she considers it appropriate to do so. This procedure is also applied if an investigation is initiated and the Commissioner then decides not to pursue the matter.

A “responsible Agency” has responsibility for providing, or funding, or administering the funding of any required services relating to the complaint.

This clause provides the duties of a person or body to whom a complaint is referred by the Commissioner. If the other person or body accepts the referral they must advise the Commissioner of the outcome. Alternatively, they must advise the Commissioner of any refusal to accept the referral.

The Children’s Commissioner, before commencing an investigation into a complaint, must give notice of the particulars of the complaint to each responsible Agency or responsible service provider.

The Children’s Commissioner is entitled, after giving notice, to have access to the protected child or a witness in relation to the complaint.

Breach of this requirement may result in a maximum penalty of 12 months imprisonment or 100 penalty units.

The Children’s Commissioner is entitled, after giving notice, to request provision of information about a matter relating to a complaint within a reasonable time frame. A person may also be requested to attend before the Commissioner to provide information or to answer questions. The Commissioner may require the person to make an oath or sworn statement. Failure to comply without a reasonable excuse is subject to a maximum penalty of 20 penalty units.

The Commissioner may inspect or copy documents required by notice, but must return the originals to the person as soon as possible.

At the end of an investigation, the Commissioner must advise the complainant of the results of the investigation and the details of any action taken to resolve the complaint.

In addition the clause sets out the procedures for notifying the CEO of the responsible Agency and any responsible service provider identified in the complaint. The Commissioner may also notify the Minister of the decision.

A report may recommend that service providers take action. If these actions are not taken, the Commissioner may refer the matter to the relevant Minister.

A person who fails to comply with a requirement listed a notice provided under clause 270 has committed an offence with a maximum penalty of 100 penalty units or 12 months imprisonment.

A range of defences to a prosecution are described however, including (but not limited to) having a reasonable excuse, or where the Commissioner of Police certified in writing that compliance would prejudice the investigation of unlawful conduct.

This clause sets out the penalties for providing, in response to a notice under clause 270, information in a document that is false or misleading. Such a breach may result in a maximum penalty of 12 months imprisonment or 100 penalty units.

This clause makes it an offence to prevent or obstruct, someone in making a complaint.

Breach of this requirement may result in a maximum penalty of 12 months imprisonment or 100 penalty units.

This clause makes it an offence to make a deliberately make a false representation while making a complaint.

Breach of this requirement may result in a maximum penalty of 12 months imprisonment or 100 penalty units.

investigation
This clause makes it an offence to obstruct or attempt to improperly influence the conduct of an investigation.

Breach of this requirement may result in a maximum penalty of 2 years imprisonment or 200 penalty units.

The Children’s Commissioner must provide an annual report to the Minister and the Minister must table the report in the Legislative Assembly within 6 sitting days of receiving it.

The Commissioner may provide other reports as required by the Minister on matters mentioned in clause 259(1) (e). These must also be tabled by the Minister in the Assembly within 6 sitting days of receipt.

In addition, the Commissioner may prepare and provide the Minister with a report about a matter relating to the performance of a function of the Commissioner, if the Commissioner considers it appropriate to do so.

The Commissioner also has the option of providing the Minister with confidential versions of reports.

This clause permits the Speaker to authorise the Commissioner to publish reports at the request of the Commissioner.

Subject to other clauses in this Bill secrecy obligations do not prevent the disclosure of information to the Children’s Commissioner.

If the Commissioner provides a person with a document in relation to the investigation the Commissioner can direct the person not to disclose information contained in it other than for the purposes of the investigation.

Penalty for failing to comply is 2 years imprisonment or 100 penalty units.

It is unlawful for the Commissioner or the staff of the Commissioner to disclose or use information obtained in the course of duties except where the disclosure occurs as part of the duties or under prescribed limited circumstances

The maximum penalty for breach is 200 penalty units or 2 years imprisonment.

The Commissioner or the staff of the Commissioner cannot be required to give evidence etc in relation to a matter that has come to their knowledge in the exercise of a power or performance of a function under this Part.

A person, being a complainant or an informant, is not liable at civil law for the consequences of a complaint or information made or given in good faith. Such actions can only be commenced with the consent of the Supreme Court, with such consent only being given if there is substantial ground for arguing that the person has acted in bad faith.

The Commissioner or staff of the Commissioner is not liable at civil or criminal law for the consequences of the exercise in good faith of a function or power. However, any liability of the Territory is not affected.

The maximum period of appointment of the Children’s Commissioner is 5 years. However, the Commissioner can be re-appointed.

The Administrator determines the conditions of appointment of the Children’s Commissioner.

The Commissioner may take leave with the consent of the Minister.

The Children’s Commissioner may resign by giving written notice to the Administrator.

This clause provides the circumstances in which the Administrator can suspend the Children’s Commissioner from duty.

This clause provides that the Minister may appoint an acting Children’s Commissioner for periods of up to 3 months.

The Children’s Commissioner must make, before the Speaker or a Judge, an oath of office.

The Children’s Commissioner may, in writing, delegate any powers and functions under the Act.

This clause provides that the staff of the Children’s Commissioner are to be employees under the Public Sector Employment and Management Act. However, such employees are subject only to the direction of the Commissioner or another member of the staff of the Commissioner.

The object of this Part is to ensure, through the establishment of review teams, that the operation of Chapter 2 is consistent with the objects and underlying principles of the Act and that services provided in connection with that operation are of a high standard.

The CEO may, by notice in the Gazette, establish Review Teams. The types of persons who are to be members of the Review Teams are described in this clause.

A Review Team can undertake one or more of the following functions as specified by the CEO. The Team may review and make recommendations about:

Review Teams provide reports to the CEO and the Children’s Commissioner after each meeting. The CEO must provide the Minister and the Children’s Commissioner with an annual report about the operations of the Teams for that year.

This clause provides that regulations can be made in respect of a number of matters including:

It is an offence for a person to obstruct or hinder a person who is exercising a power or performing or attempting to perform a function under the Act.

Provision is made for a maximum penalty of 200 penalty units or 2 years imprisonment.

It is an offence for a person to falsely represent, by words or conduct, that the person is an authorised officer. The maximum penalty is 200 penalty units or 2 years imprisonment.

Except in circumstances that are set out in the Bill it is forbidden to publish any material which might identify a child who has been taken into the CEO’s care and for whom an application for a temporary protection order, assessment order or protection order has been made.

The penalty is 200 penalty units or 2 years imprisonment.

The CEO may approve forms for the purposes specified in this Act

The CEO may delegate, in writing, functions to authorised officers and to public sector employees.

An authorised officer is a person appointed by the CEO or a police officer. Persons appointed by the CEO and police officers may only exercise the powers in relation to the specific clauses

The CEO must provide each authorised officer, except for Police Officers, with an identity card. The clause specifies the details to be displayed on the identity card.

The card must be returned when the person ceases to be an authorised officer. The maximum penalty for breach is 20 penalty units.

It is an offence to knowingly provide a document that contains misleading information.

The penalty is 400 penalty units or 2 years imprisonment.

It is an offence to knowingly provide misleading information.

The penalty is 400 penalty units or 2 years imprisonment.

This clause prohibits the disclosure of information and specifies that it is an offence for a person who is, or was, an authorised officer to record or disclose information except as provided for in other parts of the Bill.

The maximum penalty is 2 years imprisonment or a fine of 200 penalty units.

This clause also describes the circumstances in which this prohibition does not apply, including anything done by the person in exercising a power or performing a function under this Bill, and as provided for disclosure to prescribed persons or bodies in the Regulations.

This clause provides for the protection of persons who are, or who have been, authorised officers from any liability for action taken, or not taken, in good faith under this Bill.

This clause provides for the making of regulations required by this Act. Regulations are expected to be made for the following provisions:

Provides for the repeal of Acts and that will be listed in the Schedule.

This clause contains definitions of terms and expressions used in this part of the Bill. They have been defined to ensure the provisions are interpreted and applied in the manner intended.

This clause provides transitional arrangements for any agreements or arrangements made under section 8 of the Community Welfare Act in place immediately before commencement to continue as if they had been made under clause 43(1) of this Act and that clause 43(2) of this Act had been complied with.

Where investigations have commenced under sections 13 or 16 of the Community Welfare Act immediately prior to commencement of this Act and continue after commencement then they will continue as if they were an investigation under sections 35 or 34 of this Act.

Where an agreement is in existence under section 62 of the Community Welfare Act immediately prior to the commencement of this Act, it will be regarded as an agreement for a temporary placement arrangement in accordance with clause 45 of this Act for the remainder of the term of the agreement.

This provision provides for a foster parent registered under 63 of the Community Welfare Act to be regarded as approved for the remainder of the terms of the registration as a carer under section 77(1)(a)(iii) of this Act after commencement.

Where an agreement under section 64 of the Community welfare Act has been entered into before commencement, it will continue as if it were a placement arrangement under section 77 of this Act.

This clause provides transitional arrangements when a child or children have been taken into custody or detained under sections 11 and 15 of the Community Welfare Act immediately prior to commencement of this Act.

It requires the person detaining or taking the child into custody to notify the CEO as soon as possible after commencement.

The custody or detention will continue after commencement as if the action had been taken under section 49 of this Act. However this provision also specifies that time in custody or detention prior to commencement is to be regarded as part of the period of provisional protection under section 49.

This provision deals with the Family Matters Court, proceedings before that Court, appeals before the Supreme Court, applications under section 11A of the Community Welfare Act, which are incomplete at the time of commencement and the transfer of records of the Family matters Court to the Local Court.

It provides for the transfer of proceedings and records of the Family Matters Court and applications under section 11A of the Community Welfare Act, to the Local Court after the commencement of this Act.

However where there are incomplete proceedings before the Family Matters Court or incomplete proceedings under section 11A of the Community Welfare Act, these proceedings will be dealt with by the Local Court as if the Community Welfare Act had not been repealed and as if the Local Court were the Family Matters Court.

Appeals to the Supreme Court that have not been decided at time of commencement will be dealt with as if the Community Welfare Act had not been repealed.
Where a decision made under this provision results in the custody of guardianship of a child being given to the Minister, it must be given to the CEO instead.

This provision deals with orders and directions in force prior to commencement of this Act and provides a table that specifies their effect after the commencement date.

A decision made under 62C of the Community Welfare Act and in force will continue to have effect as if it was made under clause 154 of this Act.

This clause deals with the transition of interstate orders dealt with under the Community Welfare Act to be dealt with under specific clauses of this Act.

This provision makes arrangements to deal with consent to employment of a child given under sections 92 and 93 of the Community Welfare Act prior to commencement and provides for it to be regarded as having effect as if the Community Welfare Act had not been repealed however the reference to the Minister is to include a reference to the CEO.

Defines key terms used in this Division.

Provides for an old licence to continue to have effect for the remainder of its term unless revoked.

This clause describes the arrangements that will be made in relation to old licences and specifically a licence that may expire during the transitional period.

Preserves the Community Welfare Act to grant a licence during the transitional period but the licence will not have any further effect once Chapter 4 commences.

This provides for an authorised person under the Community Welfare Act to continue to be an authorised person in relation to a licence that is in force under sections 324, 325 and 326.

Defines key terms used in this Division.

Where an agreement has been made under section 59 of the Community Welfare Act the agreement has effect for the remainder of its term.

In any order, direction or court instrument made under the Community Welfare Act and in force immediately before the commencement of this Bill, the relevant provision has effect for the remainder of its term. Various references are identified in this clause.

The effect of section 12 of the Interpretation Act is not limited.

Provides for the making of transitional regulations to assist in the transition from the Community Welfare Act but they must not operate to the disadvantage of a person other than the Territory or a Territory authority.

Provides for amendments to the Youth Justice Act.

This clause provides for the repeal of the current section 51 and replacement with an amended section 51 that refers to the Care and Protection of Children Act.

Clause amends the Act by replacing Community Welfare Act with the Care and Protection of Children Act.

This amends section 12(1) (a) to omit “person held in care’ with a child who is in the CEO’s care as defined in the Care and Protection of Children Act”.

This amends section 49(d) by omitting the definition of “Territory Court”.

This amends Schedule 1 by omitting Community Welfare Act and replacing it with the Care and Protection of Children Act.

This amends section 26(2)(b) by omitting authorised person and replacing it with authorised officer and omitting 26(3).

Amends Form 2 in Schedule 2 paragraph (b) by omitting, and replacing with reference to a temporary placement arrangement under section 45 of the care and Protection of Children Act.

Amends by omitting regulation 2(1)(d).

Refers to a person who is a carer as defined in the Care and Protection of Children Act

Replaces Community welfare Act with Care and Protection of Children Act.

Provides for this Part to expire on the day after this Division commences.

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