Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Child Protection Amendment
CHILD PROTECTION AMENDMENT
BILL 2000
EXPLANATORY NOTES
GENERAL OUTLINE
Objectives of Legislation
The object of the Bill is to amend the Child Protection Act 1999 to:
· provide for a scheme for the transfer of child protection
proceedings and orders between Queensland and those other
Australian States and Territories and New Zealand which have
enacted a similar arrangement. The scheme established in the Bill
intends to:
-- enable children to move between the States, Territories and
New Zealand while retaining the protection of the relevant
child welfare agencies;
-- enable the transfer of confidential case information from the
referral agency to the receiving agency;
-- enable a consistent approach to the assessment of potential
carers, and better ensure that placements are appropriate for
the child; and
-- enable registration and administration of child protection
orders in the Court of the State or Territory in which the
child resides;
· implement certain recommendations of the Inquiry into Abuse of
Children in Queensland Institutions (`the Forde Inquiry') to help
ensure the safety of children in residential facilities for the care of
children under the custody or guardianship of the chief executive;
· clarify some clauses of the Child Protection Act 1999 and rectify
minor omissions and anomalies in the Act.
2
Child Protection Amendment
REASONS FOR THE BILL
The interstate transfer of child protection orders and proceedings
As child protection is the responsibility of the States and Territories,
problems arise when children who have a child protection order made in
one State move to another State. In 1996, representatives of the child
welfare agencies and social services of the New Zealand and Australian
State and Territory governments identified the difficulties currently
experienced with the movement of children and young people with child
protection orders between the States, Territories and New Zealand.
These difficulties include:
· the differences in child protection legislation between the various
jurisdictions do not provide for consistent care and support for
children and young people who move between them;
· a child protection order made in one State is not enforceable in
another jurisdiction to which the child has moved.
Problems also arise because there is no current capacity for child
protection proceedings to be transferred between jurisdictions. The need for
transfer arises in circumstances where a child relocates interstate after
proceedings have commenced. The current process where proceedings in
the original jurisdiction must be withdrawn and proceedings in the new
jurisdiction re-commenced is costly and time-consuming.
Most States and Territories, including Queensland, have provisions in
child protection legislation for the administrative transfer of the guardianship
of children under child protection orders. However, these administrative
orders are not enforcable as they are not registered in the receiving State as
Court orders and a receiving State is not required to accept responsibility for
a child or to comply with or service a child protection order made in another
State.
There is currently no legislation or other arrangement enabling the
transfer of child protection proceedings or orders between the States and
Territories and New Zealand that is consistent across those jurisdictions.
This means that there is no consistency in the management of movements
between jurisdictions and inequity in the support and care of children in
need of protection.
3
Child Protection Amendment
In October 1996, the Community Services Ministers' Council (CSMC),
representing the community services Ministers of New Zealand and the
Australian States and Territories, agreed that reciprocal legislation and
protocols aimed at resolving these cross jurisdictional problems should be
prepared and implemented. The proposed legislative scheme and protocols
would allow:
· child protection orders to be transferred between jurisdictions
either administratively by the relevant Department or judicially by
the Childrens Court; and
· child protection proceedings commenced in one jurisdiction to be
transferred to a Childrens Court in another jurisdiction.
A Model Bill was prepared by Victoria in consultation with New Zealand
and the other States and Territories through a national working group. The
Model Bill was approved by CSMC on 5 August 1999.
Administrators of the child welfare agencies signed a formal Protocol for
the transfer of child protection orders and proceedings in October 1999.
This Protocol came into effect on 1 November 1999 and contains these
general principles, which also underpin the Bill:
· Decisions regarding the transfer of orders and proceedings should
be made in accordance with each State's or Territory's case
planning principles;
· The interests of the child are paramount;
· Delay is contrary to the interests of the child and should, where
possible, be minimised;
· Planning and interstate placement, whether the child or young
person is subject to a child protection order or not, should include
the thorough involvement of the receiving State prior to
placement; and
· A child protection order should generally be enforceable and
effective pursuant to the child protection legislation of the State
where the child resides.
4
Child Protection Amendment
Amendments arising from the Forde Inquiry
The Bill also implements those parts of the Government's response to
the recommendations of the Forde Inquiry which are appropriate to include
in the Child Protection Act 1999. Other responses will be implemented
through the Regulation of the Child Protection Act 1999 and through
administrative changes. The matters which require amendment of the Child
Protection Act 1999 include:
· a mandatory requirement for persons employed in residential care
facilities for children in the custody or guardianship of the chief
executive to report suspected abuse or neglect;
· an obligation upon the chief executive to regularly inspect licensed
residential care facilities to ensure adequate standards of care are
met; and
· an obligation on the chief executive to ensure access by children in
licensed residential facilities to advocacy services.
Amendments to correct minor omissions and anomalies
The Bill will amend the Child Protection Act 1999 prior to its
proclamation, to correct minor errors or omissions which have been
identified during processes of preparation for proclamation. These include:
· clarification of intent where it has been identified that the wording
of a clause should be improved (eg amendment to clause 17, to
put it beyond doubt that entry to schools by officers, and their
remaining on the premises, must be with consent);
· rectifying unintended omissions of the Act consistent with its
intent (eg allowing for the variation of a temporary assessment
order in the same way as variation of other orders has been
provided);
· correcting some typographical errors and improving drafting
style.
The Bill will also preserve Section 69A of the Children's Services Act
1965 prohibiting the tattooing of children. It is intended that this matter will
be the subject of further policy consideration, and that in the meantime the
existing offence provision will remain in place.
5
Child Protection Amendment
ESTIMATED COST FOR GOVERNMENT IMPLEMENTATION
There are no additional funding requirements arising from the Bill. The
new jurisdiction of the Childrens Court relating to interstate transfer will
have minimal impact on the operating costs of the court.
CONSULTATION
Consultation has occurred with key government departments responsible
for implementation of the Bill, namely Families, Youth and Community
Care Queensland (FYCCQ), Queensland Police Service, Department of
Justice and Attorney-General, as well as the Brisbane Childrens Court
Magistrate, Legal Aid Queensland and the Children's Commission of
Queensland. PeakCare Queensland Inc. has been consulted in relation to the
amendments arising from recommendations of the Forde Inquiry.
CONSISTENCY WITH FUNDAMENTAL LEGISLATIVE
PRINICPLES
While the Bill is generally consistent with the fundamental legislative
principles of the Legislative Standards Act 1992, the following clauses raise
fundamental legislative principle issues which have been the subject of
discussion with the Department of Justice and Attorney General during
consultation on the Bill.
Clause 43--proposed section 191N (Limited time for applying for
judicial review)
This proposed section applies to applications for statutory orders for
review under sections 21, 22 and 23 of the Judicial Review Act 1991 and
applications for review under section 43. The effect of the clause will be to:
· reduce the time allowed under section 46 of the Judicial Review
Act 1991 in which to apply for review under section 43, from 3
months to 28 days; and
· ensure that, in all cases, an application for a statutory order for
review under sections 21, 22 and 23 must be made within 28
days after the date of the decision.
6
Child Protection Amendment
The proposed section also provides that the Supreme Court cannot extend
the time for applying for review.
The purpose of the restriction of the period in which judicial review of an
administrative decision to transfer a child protection order may be sought is
to--
· reduce the length of time which a child must wait before the
child's order can be transferred to the place which has been
assessed as the most appropriate for the child, and
· to create certainty as to the time the decision becomes final.
It may be suggested that this clause may impact on the rights and liberties
of individuals as it shortens the time ordinarily allowed to apply for review.
However, it is considered that the clause will still provide for an appropriate
mechanism for review while ensuring that decisions affecting children will
be made and implemented without long delay.
A transfer decision cannot be effected until the review period has passed
because a core element of the reciprocal scheme is that a transferred order
cannot be registered in the receiving State until the jurisdiction of the
sending State has been exhausted, ie until the decision to transfer is no
longer subject to possible appeal or review in the sending State. This `core'
provision was included in the Model Bill and has been included in the
Queensland Bill to avoid the confusion and uncertainty of two States
exercising jurisdiction over the same matter. One of the major problems the
reciprocal scheme seeks to remedy is the current confusion as to which
State has case planning responsibilities when children with child protection
orders move to another State. This confusion has resulted in less than
adequate services being provided to children in need of protection.
In any event, Clause 43 (proposed section 191L) of the Bill provides that
the chief executive would be unable to administratively transfer a child
protection order unless the written consent of the following persons is first
given--
· if the child is aged 12 or more, the child
· the child's parents (includes both the child's natural parents and
any other person having custody or guardianship of the child
under the child protection order)
· the child's carer, if the carer has moved or is moving interstate
with the child.
7
Child Protection Amendment
Therefore, in all cases, administrative transfers will only occur with the
consent of the persons most affected by the decisions and in the vast
majority of cases, no review application will be made. However, the review
period affects all cases, as no transfer decision can be effected until the
review period has passed. The shortening of the review period allows delay
to be minimised in those majority of cases where no application for review
is made.
Clause 43--proposed section 191ZP (Appeal against decision of
Childrens Court)
The Bill establishes a new jurisdiction in the Childrens Court to
determine applications to transfer child protection orders or proceedings.
This jurisdiction does not currently exist.
Under this proposed section, the time for appealing a decision of the
Childrens Court to transfer a child protection order or proceeding is 10
business days after notice of the decision is given. The standard period for
appealing other decisions of the Childrens Court made under the Child
Protection Act 1999 is 28 days from the date of the decision. The proposed
section also provides that the appellate court cannot extend the time for
appeal.
The reasons for the shorter than usual appeal period are the same as those
for the proposed restricted time in which to make a judicial review
application. Again, because it is a requirement of the reciprocal scheme that
a transferred order or proceeding not be registered in the receiving State until
the appeal period had passed, this would result in many children being
required to wait for a 28 day appeal period to pass in circumstances where it
is unlikely that the decision will be appealed.
The shortened appeal period and restricted judicial review period is
consistent with the best interests of children subject to transfer decisions, in
that it will--
· maximise certainty and stability for children by ensuring
decisions about their care are implemented as expeditiously as
possible and by reducing the time children may wait in temporary
placements before they can move to their planned interstate
placement;
8
Child Protection Amendment
· if the child has already been placed interstate, reduce the length of
time in which there is uncertainty about the roles of each State in
administering the order and supporting the child and family; and
· still ensure that aggrieved persons/parties (including the child)
have access to review.
The proposed sections represent an appropriate balance between:
· the rights of individuals to have decisions reviewed, and
· the interests of children to have decisions about their welfare put
into effect in an expeditious manner.
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Clause 1 sets out the short title of the Bill.
Clause 2 provides for the schedule of the Bill to commence on
proclamation and excludes the application of the Acts Interpretation Act
1954, section 15DA, to the schedule. The schedule will, upon proclamation,
repeal the current Chapter 4 (which is re-enacted in this Bill) dealing with
the interstate transfer of guardianship and custody of children between
Queensland and non-participating states.
Clause 3 provides that the Bill amends the Child Protection Act 1999
(`the principal Act').
Clause 4 amends section 7 (Chief executive's functions) of the principal
Act by adding a further function to the chief executive's functions. It
provides that a function of the chief executive is to ensure that children
living in licensed residential services have access to advocacy services and
cooperate with those services in addressing the children's concerns.
Clause 5 amends section 17 (Contact with children in school, child care
centre, family day care etc) of the principal Act to put beyond doubt that
both entry to and remaining on the premises must be lawful, ie with the
consent of the person in charge.
9
Child Protection Amendment
Clause 6 replaces section 23 (Meaning of "parent" in pt 2) of the
principal Act by omitting the current definition of `parent' and inserting a
new definition. This amendment is required to remedy an inadvertent
exclusion from the definition of persons who have custody of a child under
a child protection order.
Clause 7 amends section 28 by omitting reference to "reasonable
conditions". This amendment is due to legal advice that this wording would
have the unintended consequence that orders could be made "conditional",
ie the order itself would become invalid if parents or others failed to adhere
to a "condition" of the order. The omission of these words has no bearing
on the ability of the court to make an appropriate order and there is
agreement between the Brisbane Childrens Court magistrate, Crown Law
and the Office of the Queensland Parliamentary Counsel that it should be
omitted.
Clause 8 omits section 34 (Extension of temporary assessment orders)
of the principal Act and inserts a new section 34 (Extension of temporary
assessment orders) to enable the extension of temporary assessment orders
within a three day maximum period. This may apply in circumstances
where, for example, the period for a temporary assessment order
authorising medical examination was initially six hours and the examination
indicates that medical monitoring over a twenty-four hour period is
required. The amendment is consistent with the intent of the original
provision. It is a more appropriate alternative than the existing requirement
of applying for a second order.
Clause 9 inserts a new section 34A (Variation of temporary assessment
orders) into the principal Act to enable the variation of an existing temporary
assessment order. This may be required where, for example, the original
order authorised entry and contact with the child, and, as a result of that
contact, the child is taken into protective custody. The ability to seek
variation of the existing temporary assessment order to apply for the
authority to keep the child in the custody of the chief executive is preferable
to the alternative procedure of applying for a second temporary assessment
order. The amendment is consistent with the intent of the original provision.
Clause 10 replaces section 36 (Meaning of "parent" in pt 3) of the
principal Act by omitting the current definition of `parent' and inserting a
new definition. This amendment is required to remedy an inadvertent
exclusion from the definition of persons who have custody of a child.
10
Child Protection Amendment
Clause 11 amends section 40 (Notice of application) of the principal Act
by inserting the requirement that, if a police officer is an applicant for a court
assessment order, the police officer must notify the chief executive of the
application. This rectifies an inadvertent omission.
Clause 12 amends section 44 by omitting reference to "reasonable
conditions". The reasons are the same as outlined under Clause 7 above.
Clause 13 amends section 48 (Extension of court assessment orders) of
the principle Act by omitting subsections 48(2) and 48(4) and inserting a
new subsection 48(4) to ensure that extension of a court assessment order
can only occur before the existing order ends. This rectifies the anomaly
whereby the period between application for extension of a court assessment
order and mention of the matter in the court had no stated time limit. The
amendment is consistent with the intent of the Act that court assessment
orders are strictly time limited.
Clause 14 inserts a new section 49A (Effect of court assessment order
on existing child protection order) into the principal Act to clarify that a
court assessment order prevails over an existing child protection order for a
child to the extent of any inconsistency between the court assessment order
and the child protection order. This is consistent with the intent of the Act
(as stated at section 35 in relation to temporary assessment orders) and
rectifies an inadvertent omission.
Clause 15 replaces section 50 (Meaning of "parent" in pt 4) of the
principal Act by omitting the current definition of `parent' and inserting a
new definition. This amendment is required to remedy an inadvertent
exclusion from the definition of persons who have custody of a child. This
exclusion would have meant that persons having custody of a child under
the Act would not be respondents to applications made by an authorised
officer under section 61 or section 62 of the principal Act.
For example, under the current definition of `parent', if an authorised
officer applied to the Childrens Court for revocation of a child protection
order granting custody of a child to a suitable person who is a member of
the child's family under section 58(1)(d)(i), that person would not be a
respondent to the application.
Clause 16 amends section 57 (Making of child protection order) of the
principal Act to clarify that paragraph 57(1)(e) relates to the protection
sought to be achieved by a specific child protection order could not be
achieved by a less intrusive order. This improved wording is more
11
Child Protection Amendment
appropriate than the existing wording when more than one child protection
order is made concurrently in relation to a child. The amendment also
makes a consequential amendment to section 57(5) of the principal Act.
Clause 17 inserts a new section 57A (Extraterritoriality) into the principal
Act to clarify the power of the Childrens Court to make a child protection
order where the events causing the child to be in need of protection
happened outside of Queensland or partly outside Queensland.
Clause 18 omits section 58 (Provisions of child protection orders) of the
principal Act and inserts a new section 58. The new wording clarifies the
intent that each sub-section of section 58 represents a type of child
protection order which can be made by the court. The new clause also omits
reference to "reasonable conditions" for the same reasons as outlined under
Clause 7 above.
Clause 19 amends section 62 (Variation and revocation of child
protection orders) of the principal Act by omitting section 62(2)(b). This
amendment rectifies a drafting error--the type of application referred to in
the sub-section is not legally possible and therefore the sub-section is
without meaning. The amendment also clarifies that the definition of `child
protection order' excludes interim orders made under section 64 from the
operation of the section, making it clear that it is not possible to apply to
revoke or vary an interim order (parents can, of course, oppose the making
of an interim order).
Clause 20 amends section 65 (Court's other powers on adjournment of
proceedings for child protection orders) of the principal Act to provide
clearer wording for the sub-section relating to an order about family contact.
It also rectifies a typographical error.
Clause 21 amends section 92 to update reference to the transport
legislation referred to in that clause, as the former Traffic Act 1949 has been
replaced.
Clause 22 amends section 94 (Carrying out medical examinations or
treatment) of the principal Act to clarify that a doctor must give a report to
the chief executive or commissioner of police about the medical
examination or treatment of a child when it has been authorised by an
assessment order, in addition to the like circumstances covered by the
sub-section.
12
Child Protection Amendment
Clause 23 amends section 96 (Chief executive's custody or guardianship
of child continues pending decision on application for order) of the principal
Act. The current section 96 ensures that, when an application for extension
of a custody or guardianship order is made, the chief executive's custody or
guardianship of the child continues until the application is decided by the
Childrens Court even though the expiry date of the original order has
passed. The amendment includes orders granting custody of the child to a
family member within the ambit of the provision, consistent with the intent
of the provision. The amendment also omits reference to "variation" as this
wording is unnecessary--an application for variation would of necessity
have to be decided before an order ended.
Clause 24 amends the heading of Chapter 3 (Childrens Court
proceedings) of the principal Act by omitting the word `Childrens'. This is
because the Chapter also provides for court appeals in the appellate court.
The definition of `appellate court' in Schedule 4 of the Act includes the
Court of Appeal, where the decision appealed against was made by the
Childrens Court constituted by a judge.
Clause 25 amends section 113 (Costs) of the principal Act, by omitting
the words "other than the child". This rectifies an anomaly whereby the
child, as a party to the proceedings, would never meet his/her own costs.
This would apply even though in reality all children are eligible to be legally
aided--the applicant department or the child's parents would have to meet
the costs of Legal Aid Queensland or any private barrister engaged by the
child despite his/her eligibility for legal aid.
Clause 26 amends section 115 (How to start an appeal) of the principle
Act by omitting subsection 115(2) which required the registrar of the
appellant court to give the magistrate who made the decision a copy of the
appeal notice. The Office of the Queensland Parliamentary Counsel advises
that this sub-section is unnecessary.
Clause 27 omits Chapter 4 (Interstate transfers of guardianship and
custody of children) of the principal Act. This Chapter with some
consequential amendments is re-enacted as Chapter 7A, part 7.
Clause 28 amends section 143(5) to update reference to the transport
legislation referred to in that section, as the former Traffic Act 1949 has been
replaced.
13
Child Protection Amendment
Clause 29 inserts new sections 147A (Regular inspections of licensed
residential facilities) and 147B (Obligation to report harm to children in
residential care) into the principal Act. These new sections implement the
relevant responses of the Government to the recommendations of the Forde
Inquiry. They apply to children under the custody or guardianship of the
chief executive placed in residential care facilities which are licensed under
the principal Act.
Clause 30 replaces section 161 (Offence to remove child from carer) and
section 162 (Offence to remove a child from custody and guardianship) of
the principal Act. The intent of those sections is preserved. A new
subsection (3) has been included in both sections.
In section 161, the new subsection (3) declares that the section applies
whether the act of removing or keeping the child occurs within or outside
Queensland. The purpose of this amendment is to clarify that removing a
child from a carer with whom the child has been placed under a Queensland
child protection order is an offence under the Act where the removal or the
keeping of the child occurred outside Queensland.
In section 162, the new subsection (3) declares that the section applies
whether the act of removing or keeping the child occurs within or outside
Queensland. The purpose of this amendment is to clarify that removing a
child from the custody or guardianship of a person under a Queensland
child protection order is an offence under the Act where the removal or the
keeping of the child occurred outside Queensland.
The clause also inserts a new section 161A (Offence to remove child
from carer--order made in another State) into the principal Act. It provides
that it is an offence to remove a child who is in the custody or guardianship
of the interstate officer under a child welfare law or interstate law of another
State from the care of the child's carer in Queensland. It also provides that it
is offence to keep a child in Queensland who has been unlawfully taken
from the care of the child's carer. This clause mirrors the current offence
provision in section 161 but applies it to children with child protection
orders of other States. The same penalty will apply to this offence as to an
offence under section 161.
The clause also inserts a new section 162A (Offence to remove child
from custody or guardianship--order made in another State) into the
principal Act. It provides that it is an offence to remove a child from the
custody or guardianship of a person who has the custody or guardianship of
14
Child Protection Amendment
the child under a child welfare law or interstate law of another State. It also
provides that it is offence to keep a child in Queensland who has been
unlawfully removed from the custody or guardianship of the child's
guardian. This clause mirrors the current offence provision in section 162
but applies it to children with child protection orders of other States. The
same penalty will apply to this offence as to an offence under section 162.
Clause 31 inserts a new Chapter 7 Part 1A (Prosecution of certain
interstate offences) into the principal Act. Notes for this new Part are as
follows--
Part 1A--Prosecution of Certain Interstate Offe
Proposed section 165A requires consultation with the chief executive
prior to the commencement of proceedings for an offence under sections
161 to 162A of the principal Act. An exception to this requirement is where
the police officer believes it is reasonably necessary in the circumstances to
arrest the alleged offender before consulting with the chief executive.
The intent of this section is to ensure that matters relevant to the child's
interests and welfare are taken into account prior to a decision to proceed
with criminal charges in relation to removal of the child from custody, and
related offences. For example, the preservation of the child's relationship
with their family, which may be damaged by the proceedings, may be the
more important consideration.
Proposed section 165B ensures that if a person has been convicted or
acquitted of an offence against a child welfare law or interstate law of
another State, the person cannot be prosecuted for an offence under the
principal Act for the same act or omission
Clause 32 inserts a new section 169A (Interstate
warrants--arrangements for apprehended child until Magistrate is available)
into the principal Act. This Clause applies where a police officer apprehends
a child in Queensland pursuant to a warrant issued in another State under the
child welfare law of that State and it is not reasonably possible to bring the
child before a Magistrate on the day of apprehension. The Clause enables
the police officer to make arrangements for the safe care of the child until
such time as it is reasonably possible for the police officer to take the child
before a Magistrate. In doing so, the police officer may use the help of the
chief executive. For example the police officer may arrange with the chief
executive for a foster carer to care for the child in the interim.
15
Child Protection Amendment
Clause 33 replaces the existing heading for Chapter 7, Part 3 (General
powers of authorised officers) of the principal Act and inserts a new
heading reflecting changes to this part.
Clause 34 amends section 170 (Application of pt 3) of the principal Act
to clarify that the part applies to police officers as well as authorised officers
of Families, Youth and Community Care Queensland.
Clause 35 amends the heading of Chapter 7, Part 3, division 2 (Power of
seizure of authorised officers) of the principal Act to make the word
"officer" inclusive of police officers.
Clause 36 amends section 171 (Power of seizure) of the principal Act to
use the generic word "officer" to apply to both police officers and
authorised officers. The effect of this and subsequent consequential changes
in this part is to give police the same powers as afforded authorised officers
to seize things which may be required as evidence in proceedings on an
application for a child protection order. These powers had not been included
for police as it had been considered that they were available under the Police
Powers Act. Clarification that the Police Powers Act covers seizure of
evidence for criminal prosecution, but not for child protection proceedings,
has resulted in this amendment.
Clause 37 amends section 172 (Procedure after seizure of thing) of the
principal Act, for the same reason as outlined in relation to clause 36.
Clause 38 amends the heading of Chapter 7, Part 3, division 3 (Other
powers of authorised officers on entry) of the principal Act for the same
reason as outlined in relation to clause 36.
Clause 39 amends section 175 (Power to photograph) of the principal
Act for the same reason as outlined in clause 36 in relation to seizure
Clause 40 amends section 176 (Evidentiary provisions)of the principal
Act by adding a subsection providing that a document or copy of a
document purporting to be the consent of the interstate officer or delegate of
the interstate officer, is evidence of the consent.
Clause 41 amends section 180 (Confidentiality of notifiers of harm) of
the principal Act to enable disclosure of notifier information to another State
authority where a child has moved to that State and such disclosure is
necessary to enable that authority to perform its duties towards the child
under its child welfare law. The amendment also ensures that information
16
Child Protection Amendment
received from other States identifying the original notifier is protected in the
same way as if that notification was made and received directly by the chief
executive or authorised officer.
Clause 42 amends section 189 (Compliance with provisions about
explaining and giving documents) of the principal Act by inserting a new
subsection applying the section to the new Chapter 7A dealing with
interstate transfers.
Clause 43 inserts a new Chapter 7A into the principal Act.
Notes for the provisions of this new Chapter follow:
CHAPTER 7A--INTERSTATE TRANSFERS OF
CHILD PROTECTION ORDERS AND
PROCEEDINGS
Part 1--Preliminary
Division 1--Explanation, purpose and guiding principles
Proposed section 191A (Explanation and purpose) explains the purpose
of the Chapter which is to provide for the transfer of orders and proceedings
between Queensland and other States and New Zealand so that children
under those orders or subject to those proceedings may be protected and so
that proceedings may be determined in the most appropriate jurisdiction.
The clause also explains the legal effect of a transferred order or proceeding.
Proposed section 191B (Further guiding principle) provides that the
Chapter is to be administered under the principle that it is desirable for a
court order relating to the protection of a child to have effect and be enforced
in the state in which the child resides. It also requires the Childrens Court
when exercising its jurisdiction or powers under the chapter to observe this
principle. This principle is in addition to the general principles for the
administration of the Act as a whole, which are listed in section 5 and the
Court's paramount consideration in section 101.
17
Child Protection Amendment
Division 2--Interpretation provisions about child protection order
Proposed section 191C (References to Queensland orders) defines the
terms `home order' and `proposed interstate order'.
Proposed section 191D (Reference to "child protection order" includes
certain orders of other States) defines the term `child protection order' to
include orders made under a child welfare law or interstate law of another
State for the purposes of this Chapter.
Division 3--Corresponding laws of other State
Proposed section 191E (Meaning of "law" for div 3) defines `law' and
extends the application of the Acts Interpretation Act 1954, section 14H, to a
law of New Zealand for the purpose of a regulation made under this
division.
Proposed section 191F (Child welfare laws) provides that a regulation
may declare a law of another State to be a child welfare law of that State.
Proposed section 191G (Interstate laws) provides that the Governor in
Council may declare by regulation:
· a law of another State to be an interstate law
· a State to be a participating State
· the holder of a state office to be an interstate officer.
Division 4--Meaning of "parent"
Proposed section 191H (Meaning of "parent" for ch7A) defines the term
`parent' in Parts 1 to 6 of this Chapter. This definition mirrors the definition
in section 50 in the principal Act. It also defines the term `parent' for Part 7.
This definition mirrors the definition for the current Chapter 4 of the
principal Act.
18
Child Protection Amendment
Part 2--Transfer of an order to another State
The Bill provides for the transfer of child protection orders to
participating States either administratively by the chief executive or judicially
by the Childrens Court.
Division 1 Orders that may be transferred
Proposed section 191I (Orders that may be transferred) sets out those
child protection orders made under the Act which can be transferred to a
participating State under this Part. Interim orders made under section 64 of
the principal Act and orders granting long term guardianship of a child to
someone other than the chief executive are excluded.
Interim orders under section 64 of the principal Act are excluded because
they are made during proceedings for a child protection order. If a child has
moved interstate or it is planned for a child to move interstate during the
conduct of proceedings in relation to the protection of that child, then the
proceeding itself should be transferred to the State to which the child is
moving.
Child protection orders granting long term guardianship of a child to a
person other than the chief executive are excluded because these orders do
not involve the State in the care of the child nor do they give the State
responsibility for the child. If a person having the guardianship of a child
wishes to relocate with the child to another State, the order may be
registered in the Family Court of Australia under the Family Law Act 1975.
Child protection orders granting custody of a child to a suitable person
who is a member of the child's family are included in the scheme. This is
because these orders are short term orders of less than 2 years duration and
section 70 of the principal Act places obligations on the chief executive to
meet the child's protection needs under this order.
Division 2--Administrative transfers
Proposed section 191J (Chief executive may transfer order) provides that
the chief executive may transfer a child protection order to a participating
State if certain conditions are met.
19
Child Protection Amendment
A child protection order may only be transferred administratively if an
order to the same or similar effect could be made under the child welfare
law of the participating State to which the order is to be transferred.
However, in determining whether an order is of the same or similar effect,
the chief executive must not take into account the period of time for which
such an order could be made in the participating State. This is because the
time periods for similar types of orders under the child welfare laws of the
various jurisdictions vary widely. For example:
Because the child's parents have moved to South Australia, it is
considered in the best interests of the child to also move to South Australia.
The child is on a Queensland child protection order granting short term
guardianship of the child to the chief executive. The order was made for a
period of 2 years and has 18 months to run. South Australia's Child
Protection Act 1993 currently provides for a similar order which can only
be made for a period not exceeding 12 months. It is not the intention of this
clause to prevent the administrative transfer of the order (provided all other
conditions are met) solely on the basis that the lengths of the orders are not
the same.
An administrative transfer of an order also can only be made if the order
is not subject to any court proceedings in Queensland, for example an
appeal under section 114 of the principal Act or an application for variation
or revocation under section 62 of the principal Act.
Also the order can only be transferred with the written consent of the
interstate officer of the participating State to the transfer and the proposed
terms of the order to be transferred and with the consent of those persons
whose consent to the transfer is required under clause 191N.
Proposed section 191K (Provisions of proposed interstate order) enables
the chief executive to vary the order to the extent the chief executive is
satisfied is reasonably necessary because of the transfer. However, the
proposed interstate order must be of the same or similar effect as the home
order. For example, if the home order is an order made under section
58(d)(ii) granting custody of the child to the chief executive, the chief
executive cannot make a proposed interstate order which grants
guardianship of the child. The proposed interstate order must only contain
provisions which could be included in an order of that type under the child
welfare law of the State to which the order is proposed to be transferred.
20
Child Protection Amendment
· The clause also requires the chief executive to state in the
proposed interstate order the period of time for which it is to have
effect in the participating State.
Proposed section 191L (Persons whose consent is required) provides
that the order may not be transferred unless--
· the child, if the child is 12 years of age or older
· the child's parents,
· the child's carer, if the carer has moved or is moving interstate
with the child,
have given their written consent to the transfer and to the terms of the
proposed interstate order. The clause requires the chief executive to explain
to the persons whose consent is required why the chief executive considers
it is appropriate to transfer the order and the terms and effect of the
proposed interstate order before obtaining their consent. However the
consent of a parent is not required if reasonable efforts fail to locate the
parent (section 189 of the principal Act applies).
Proposed section 191M (Notice of decision) requires the chief executive
to give written notice of the decision to transfer the order and a copy of the
proposed interstate order to the child, any other person whose consent is
required under clause 191N and anyone else the chief executive considers
ought to be notified. The notice must be given within 3 business days after
the day of the decision. The notice must state the date of the decision and
that if the person wishes to make a judicial review application in relation to
the decision they must do so and give notice of the application to the chief
executive within 28 days after the day of the decision. The reasons for this
proposed section are discussed under the heading "Consistency with
fundamental legislative principles" earlier in this document.
Proposed section 191N (Limited time for applying for judicial review)
limits the time in which a person may make a judicial review application to
28 days after the day of the decision. The clause provides that the Supreme
Court may not extend the time for making the application. The clause also
provides that an application for judicial review is taken not to have been
made until notice of the application is given to the chief executive and that
the application stays the operation of the chief executive's decision. The
reasons for this proposed section are discussed under the heading
"Consistency with fundamental legislative principles" earlier in this
document.
21
Child Protection Amendment
Division 3--Judicial transfers
Proposed section 191O (Application for transfer) enables an authorised
officer to apply to the Childrens Court for an order transferring a child
protection order to a participating State and sets out the requirements in
relation to the application.
Proposed section 191P (Procedural matters) applies certain procedural
provisions in the principal Act to the application.
Proposed section 191Q (Court may transfer order) sets out the
requirements for the making of an order to transfer the child protection
order to the participating State.
Proposed section 191R (Provisions of proposed interstate order) requires
the Childrens Court to decide the provisions of the proposed interstate order
if it decides to order the transfer of the child protection order. It also sets out
the matters the court must be satisfied of in relation to the making of the
proposed interstate order. The clause also requires the court to decide the
time period for which the proposed interstate order is to have effect in the
participating State and to state that time in the proposed interstate order. It
requires that the time stated in the proposed interstate order must not be
more than the maximum time for which an order of that type could be made
under the child welfare law of the participating State.
Proposed section 191S (Notice of decision) sets out the notice
requirements in relation to a decision of the court to transfer a child
protection order.
Division 4--Effect of transfer and registration
Proposed section 191T (Application of div 4) explains that the division
applies where a child protection order is transferred to a participating State
and registered under the interstate law of that State.
Proposed section 191U (Order ceases to have effect in Queensland)
provides that the child protection order ceases to have effect in Queensland.
Proposed section 191V (Order may be revived in Queensland) provides
for the revival of the child protection order in Queensland if the registration
of the order is revoked under an interstate law of the participating State to
which the order had been transferred.
22
Child Protection Amendment
Part 3--Transfer of an order to Queensland
Proposed section 191W (Application of pt 3) explains that part 3 applies
to the transfer of a child protection order from a participating State to
Queensland.
Proposed section 191X (Chief executive's consent to transfer) requires
the written consent of the chief executive to the transfer and to the
provisions of the order. The clause requires the chief executive to give
consent unless the chief executive is satisfied that the order could not be
made under chapter 2, part 4 of the Child Protection Act 1999 or the transfer
or the provisions of the order would not be in the child's best interests.
Proposed section 191Y (Filing and registration of order) relates to the
filing and registration of an order transferred to Queensland. Before doing
so the chief executive must be satisfied that that the period for appealing or
applying for review of the interstate transfer decision under the interstate law
has expired and that the decision is not subject to appeal, review or a stay.
Proposed section 191Z (Effect of registration) sets out the effects of
registering the order in the Childrens Court.
Proposed section 191ZA (Revocation of registration) provides for the
process by which the registration of the child protection order which has
been transferred from a participating State may be revoked.
Part 4--Transfer of proceedings to another State
Proposed section 191ZB (Application for transfer) enables an authorised
officer to apply to the Childrens Court for an order transferring a child
protection proceeding to a participating State and sets out the requirements
in relation to the application.
Proposed section 191ZC (Registrar to fix time and place for hearing)
requires the registrar of the Childrens Court to fix the time and place for
hearing the application immediately once the application is filed. In doing
so, the registrar is required to have regard to the principle that it is in the best
interests of the child for the application to be heard as early as possible.
23
Child Protection Amendment
Proposed section 191ZD (Notice of application) sets out the notice
requirements for the application.
Proposed section 191ZE (Court may transfer proceeding) enables the
Childrens Court to order the transfer of the proceedings to the participating
State if the interstate officer of the participating State has given written
consent to the transfer.
Proposed section 191ZF (Considerations for Childrens Court) sets out
the matters the Court must consider in deciding whether to order the transfer
of the proceeding. Proposed section 191ZG (Court may make interim
order) enables the Childrens Court to make an interim order about the
custody or supervision of the child for an interim period of not more than
30 days if the court orders the transfer of the proceeding to the participating
State.
Proposed section 191ZH (Notice of decision to transfer) sets out the
notice requirements in relation to a decision of the court to transfer a child
protection order.
Proposed section 191ZI (Effect of registration of order) provides that if
the court's order transferring the proceeding is registered in the participating
State, the proceeding is discontinued in the Childrens Court in Queensland
and any interim order made by the court on ordering the transfer ceases to
have effect in Queensland.
Part 5--Transfer of proceedings to Queensland
Proposed section 191ZJ (Application of pt 5) provides that Part 5 applies
to the transfer of a child protection proceeding to Queensland from a
participating State.
Proposed section 191ZK (Chief executive's consent to transfer) requires
the written consent of the chief executive to the transfer and to the
provisions of the order. The clause requires the chief executive to give
consent unless the chief executive is satisfied that the transfer would not be
in the child's best interests.
24
Child Protection Amendment
Proposed section 191ZL (Filing and registration of interstate transfer
decision) relates to the filing and registration of an order transferred to
Queensland. It requires the chief executive to file a copy of the interstate
transfer decision and any associated interim order in the Childrens Court in
Queensland. Before doing so the chief executive must be satisfied that that
the period for appealing or applying for review of the interstate transfer
decision under the interstate law has expired and that the decision is not
subject to appeal, review or a stay.
Proposed section 191ZM (Effect of registration of interstate transfer
decision) sets out the effect of registering the interstate transfer decision in
the Childrens Court in Queensland.
Proposed section 191ZN (Effect of registration of associated interim
order) sets out the effect of registering the associated interim order in the
Childrens Court in Queensland.
Proposed section 191ZO (Revocation of registration) provides for the
process by which the registration of the child protection order which has
been transferred from a participating State may be revoked.
Part 6--Miscellaneous
Division 1--Appeals
Proposed section 191ZP (Appeal against decision of Childrens Court)
sets out the process for appeals against a decision of the Childrens Court
about an application to transfer a child protection order or an application to
transfer a child protection proceeding to a participating State.
Proposed section 191ZQ (Interim orders) provides that if an interim
order was made by the Childrens Court when it made an order transferring
a child protection proceeding to a participating State, then the interim order
is not affected merely because there is an appeal against the transfer order.
The appellate court may stay, vary, revoke or extend the time of an interim
order. It may also make any interim order that the Childrens Court could
make on ordering the transfer of a proceeding.
25
Child Protection Amendment
Division 2--Court files
Proposed section 191ZR (Transfer of court file) relates to the transfer of
the Childrens Court file to the participating State if the Childrens Court has
made an order transferring a child protection order or proceeding to the
participating State.
Part 7--Interstate transfer for non-participating States
This part re-enacts the current Chapter 4 of the principal Act with some
consequential changes.
Proposed section 191ZS (Definitions for pt 7) defines particular words
for this part.
Proposed section 191ZT (Transfer from a non-participating State)
re-enacts the current section 120 of the principal Act. It outlines the
procedure for the chief executive to accept a transfer of custody or
guardianship order for a child from a non-participating State. When the
chief executive assumes custody or guardianship by signing a declaration,
the interstate order becomes a Queensland child protection order as if made
under the principal Act. The duration of the order is translated to be
consistent with a child protection order under the principal Act.
Proposed section 191ZU (Notice of declaration) re-enacts the current
section 121 of the principal Act. It requires the chief executive to advise the
child and the child's parents of the making of the declaration, ie that the
order is now a Queensland child protection order.
Proposed section 191ZV (Transfer to a non-participating State) re-enacts
the current section 122 of the principal Act. It enables the chief executive to
arrange a transfer of guardianship of a child under the chief executive's
custody or guardianship from Queensland to a non-participating State.
Written notice of the planned transfer must be given to the child, the child's
parents, and, if applicable, the carers. The chief executive must consider any
submissions they make that the transfer should not be made. Transfer of
guardianship decisions can be appealed to the tribunal.
26
Child Protection Amendment
Proposed section 191ZW (Effect of State becoming a participating State)
clarifies that a child protection order made by declaration under clause
191ZT is not affected if the State in which the order was originally made
becomes a participating State.
Clause 44 inserts a new section 193A (Numbering and renumbering of
Act) into the principal Act to require that the next reprint of the Act be
numbered and renumber as permitted by the Reprints Act 1992, section 43.
Clause 45 amends the heading of Chapter 9 by omitting the word
"Repeals". This amendment is consequential to the amendment made by
Clause 56.
Clause 46 omits Chapter 9, part 1 (Repeals). This amendment is
consequential to the amendment made by Clause 56.
Clause 47 omits the heading of Chapter 9, part 2 (Savings and
Transitional Provisions) as it is no longer necessary. This amendment is
consequential to the amendment made by Clause 56.
Clause 48 amends section 196 (Definitions for pt 2) of the principal Act,
by changing the wording of the heading and including the definition of the
"replaced Act" to replace reference to the "repealed Act". These
amendments are consequential to the amendment made by Clause 56.
Clause 49 amends section 197 (Existing section 47 declarations and care
and protection orders) of the principal Act by replacing a reference to the
`repealed Act' with a reference to the `replaced Act'. This amendment is
consequential to the amendment made by Clause 56.
Clause 50 amends section 199 (Existing section 134 declarations) of the
principal Act by changing the section number reference and adding a
definition of "interstate order".
Clause 51 amends section 200 (Licensed institutions under repealed Act)
of the principal Act by replacing references to the `repealed Act' with
references to the `replaced Act'. This amendment is consequential to the
amendment made by Clause 56.
Clause 52 amends section 201 (Approved foster parents) of the principal
Act by replacing a reference to the `repealed Act' with a reference to the
`replaced Act'. This amendment is consequential to the amendment made
by Clause 56.
27
Child Protection Amendment
Clause 53 replaces section 202 (Existing applications and proceedings
for care and protection proceedings) to re-word the section and clarify that
all existing applications commenced in the Childrens Court but not
completed at the time of proclamation will be deemed, upon transition, to be
applications for a child protection order granting short term guardianship of
the child to the chief executive. The existing clause provided for transition
of the proceedings but omitted to stipulate the type of child protection order
to which existing applications would translate under the principal Act.
Clause 54 amends section 203 (Applications to revoke or substitute
certain orders under repealed Act) of the principal Act by replacing a
reference to the `repealed Act' with a reference to the `replaced Act'. This
amendment is consequential to the amendment made by Clause 56.
Clause 55 omits section 204 (Exemption from expiry of Children's
Services Regulation 1966) of the principal Act. This provision is no longer
necessary because the Regulation expired on 31 December 1999.
Clause 56 inserts a new section 204A (Amendment of Children's
Services Act 1965) into the principal Act. This clause amends the
Children's Services Act 1965 by omitting all provisions other than section 1
(Short title), section 8 (Meaning of terms) and 69A (Tattooing of children
prohibited). The clause also amends the long title of the Children's Services
Act 1965 and amends section 8 (Meaning of terms) by omitting all
definitions other than the definition of `child'. The purpose of this clause is
to omit all provisions of the Children's Services Act 1965 other than the
offence provision in relation to the tattooing of children and the definition of
`child' which supports the interpretation of this offence provision.
The clause inserts a subsection (2) into section 69A to clarify that
proceedings for an offence under section 69A are to be taken under the
Justices Act 1886.
The intent of clause 56 is to maintain the status quo, making it an offence
under the Children's Services Act 1965 to tattoo a child, pending a policy
review of this issue and the related issue of body piercing of children.
Clause 57 makes a consequential amendment to Schedule 2 (Appealable
decisions and aggrieved persons) of the principal Act and clarifies that an
aggrieved person for the purpose of appealing a decision to arrange for an
interstate welfare authority to assume custody or guardianship of a child
under section 191ZV is a person to whom notice of the decision must be
given under section 191ZV(6).
28
Child Protection Amendment
The effect of this amendment is that a child's carer has administrative
appeal rights against the decision to transfer the child's order if the carer is
affected by the decision because they will continue to care for the child
interstate. A carer who is not caring for the child when the child moves
interstate is not afforded the right to appeal the transfer decision. They may
however appeal any decision to remove the child from their care.
Clause 58 amends Schedule 4 (Dictionary) of the principal Act. The
amendments include new definitions of terms used in this Bill and
consequential changes to the definition of terms used in the principal Act.
Schedule--Amendments for omission of Chapter 7A,
Part 7
The Schedule sets out further amendments to the Act which will occur
upon proclamation of the Schedule. The Schedule will omit Chapter 7A,
Part 7 (Interstate transfers for non-participating States) and make
consequential omissions. It is intended that the Schedule will be proclaimed
upon all States becoming participating States.
© The State of Queensland 2000