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TASMANIA
__________
CHILD CARE AMENDMENT BILL 2005
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 13 amended (Application for licence)
6. Section 14 repealed
7. Section 15 amended (Investigation of application)
8. Sections 15A and 15B inserted
15A. Criteria for grant of, or holding, licence
15B. Police report for determination of fit and proper
person
9. Section 16 amended (Grant or refusal of licence)
10. Section 17 amended (Issue of licence or notice of refusal)
11. Section 22 amended (Amendment of licence)
12. Section 23 amended (Renewal of licence)
13. Section 25 amended (Disciplinary action)
14. Section 26 amended (When licence ceases to have effect)
15. Section 27 amended (Surrender of licence)
16. Section 30 substituted
30. Insurance
17. Section 33 substituted
33. Display of licence or certificate of registration
[Bill 68]-IV
18. Section 34 amended (Advertising not to be false or misleading)
19. Section 38 amended (Inspections of child care and child care
services)
20. Section 44 amended (Emergency removal of children)
21. Section 45 amended (Emergency suspension of licence or
registration)
22. Section 47 amended (Child Care Standards)
23. Section 50 amended (Reviewable decisions)
24. Part 8, Divisions 2, 3 and 4 repealed
25. Section 64 amended (Register of child care services)
26. Section 75 amended (Regulations)
27. Section 77 repealed
28. Schedule 1 repealed
2
CHILD CARE AMENDMENT BILL 2005
(Brought in by the Minister for Education, the Honourable
Paula Catherine Wriedt)
A BILL FOR
An Act to amend the Child Care Act 2001
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Child Care
Amendment Act 2005.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
3. Principal Act
In this Act, the Child Care Act 2001* is referred
to as the Principal Act.
*No. 62 of 2001
[Bill 68] 3
s. 4 No. Child Care Amendment 2005
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by omitting "by a child care service
provider or" from the definition of
"ancillary staff";
(b) by omitting the definitions of "Appeals
Panel" and "Appeals Panel Register";
(c) by omitting the definition of "child care
service provider";
(d) by omitting the definition of "responsible
person" and substituting the following
definition:
"responsible person", in respect of a
child care service provided under
a licence held by an individual or
an incorporated or unincorporated
body, means
(a) an individual, other than
the person in charge of
the child care service, to
whom is assigned by the
licensee the general
responsibility for, and
supervision of the
operations of, the
provision of the child care
service under the licence;
or
(b) any other body or
individual, other than the
person-in-charge of the
4
2005 Child Care Amendment No. s. 5
child care service, who
has the authority to give
directions and make
decisions in respect of the
management of that child
care service;
5. Section 13 amended (Application for licence)
Section 13 of the Principal Act is amended as
follows:
(a) by omitting paragraphs (b) and (c) from
subsection (2);
(b) by omitting subsection (3).
6. Section 14 repealed
Section 14 of the Principal Act is repealed.
7. Section 15 amended (Investigation of application)
Section 15 of the Principal Act is amended as
follows:
(a) by inserting the following subparagraph
after subparagraph (ii) in subsection
(3)(b):
(iia) each person who the applicant
intends to employ or use, or is
likely to be employed or used, as
a responsible person;
5
s. 8 No. Child Care Amendment 2005
(b) by omitting from subsection (3)(b)(iii)
"responsible person,";
(c) by omitting from subsection (3)(b)(iv)
"subparagraph (i), (ii) or (iii)" and
substituting "subparagraph (i), (ii), (iia)
or (iii)";
(d) by omitting paragraphs (c) and (d) from
subsection (3);
(e) by omitting subsections (5), (6) and (7).
8. Sections 15A and 15B inserted
Before section 16 of the Principal Act, the
following sections are inserted in Division 3:
15A. Criteria for grant of, or holding, licence
(1) In this section
"applicant" means applicant for a
licence;
"child care service" includes a child
care service that would be
authorised by the prospective
licence if granted;
"former Act" means the Child Care
Act 1960 (cited as the Child
Welfare Act 1960 before
1 July 2000);
"licence" includes a prospective
licence;
6
2005 Child Care Amendment No. s. 8
"person-in-charge, ancillary staff
and child carer" includes a
person that an applicant has
nominated in the application for a
licence, or has later been
nominated by the holder of a
licence, by notice provided to the
Secretary, to be employed or used
in that position.
(2) In determining whether an applicant for a
licence or a holder of a licence is a fit
and proper person to hold or to continue
to hold a licence, the Secretary must take
into account any matter the Secretary
considers relevant including, but not
limited to, any of the following matters:
(a) whether the applicant or holder is
a suitable person to operate or
provide the child care service;
(b) where the applicant or holder is
(i) an incorporated or
unincorporated body; or
(ii) the servant or agent of an
incorporated or
unincorporated body
whether each director and other
person concerned in the
management of that body is a
suitable person to be concerned in
the operation or provision of the
child care service;
7
s. 8 No. Child Care Amendment 2005
(c) whether any responsible person is
a suitable person
(i) to have responsibility for,
and supervision of the
operations of, the
provision of the child care
service under the licence;
or
(ii) to have the authority to
give directions and make
decisions in relation to the
management of the child
care service provided
under the licence;
(d) whether any person-in-charge,
child carer and ancillary staff are
suitable persons to care for or
have contact with children who
are being, or would be, provided
with the child care service under
the licence;
(e) whether any spouse or other close
relative of a person referred to in
paragraph (a), (b), (c), (d) or (f)
might have contact with children
who are being, or would be,
provided with the child care
service under the licence and, if
so, whether that spouse or other
close relative is a suitable person
to have contact with such
children;
(f) whether any other person who the
Secretary considers may have
8
2005 Child Care Amendment No. s. 8
frequent or extended contact with
children who are being, or would
be, provided with the child care
service under the licence is a
suitable person to have contact
with such children;
(g) whether any person referred to in
paragraph (a), (b), (c), (d), (e) or
(f) has been charged with, or
found guilty of, in Tasmania or
elsewhere, within the period of 10
years immediately preceding the
time at which the Secretary is
determining whether the
applicant or holder is a fit and
proper person to hold the licence,
an offence punishable by a period
of imprisonment;
(h) whether any person referred to in
paragraph (a), (b), (c), (d), (e) or
(f) has been charged with, or
found guilty of, or otherwise
disciplined for, an offence
against
(i) this Act, the regulations
or the Standards; or
(ii) a previous Act or law that
substantially corresponds
to this Act, the regulations
or the Standards,
including the former Act,
the Child Protection Act
1974 and any regulations
or Standards made under
either of those Acts; or
9
s. 8 No. Child Care Amendment 2005
(iii) the Family Violence Act
2004; or
(iv) the Children, Young
Persons and Their
Families Act 1997; or
(v) an enactment or law of
another State or a
Territory that
substantially corresponds
to this Act, the
regulations, the Standards
or another enactment or
law referred to in
subparagraph (ii), (iii) or
(iv);
(i) whether any person referred to in
paragraph (a), (b), (c), (d), (e) or
(f) is or has been subject to
(i) an order made under the
former Act, the Children,
Young Persons and Their
Families Act 1997 or the
Family Violence Act
2004; or
(ii) a restraint order made
under the Justices Act
1959;
(j) whether any person referred to in
paragraph (a), (b), (c), (d), (e) or
(f) has, in Tasmania or
elsewhere
10
2005 Child Care Amendment No. s. 8
(i) been refused a licence or
other permission of any
type to provide child care
or provide, manage or
operate a service or
business which provides
child care; or
(ii) had such a licence or
other permission
suspended or cancelled;
(k) whether any person referred to in
paragraph (a), (b), (c), (d), (e) or
(f) is, or previously has been,
concerned in the provision,
management or operation of a
service or business which
provides child care, or in the
provision of child care, in
Tasmania or elsewhere and, if so,
the quality and standard of that
service or business and the child
care so provided;
(l) any reports provided by the
Commissioner of Police under
section 15B(5);
(m) the result of any assessment
undertaken in respect of any
person referred to in
paragraph (a), (b), (c), (d), (e) or
(f) in compliance with a
requirement of the Standards or
otherwise undertaken;
(n) whether each person referred to
in paragraph (a), (b), (c), (d), (e)
11
s. 8 No. Child Care Amendment 2005
or (f) is of good repute having
regard to character, honesty and
integrity;
(o) the qualifications and experience
of the persons referred to in
paragraphs (a), (b), (c) and (d);
(p) the knowledge of the persons
referred to in paragraphs (a), (b),
(c) and (d) relating to this Act, the
regulations and the relevant
Standards;
(q) any other matter prescribed by
the regulations or Standards.
(3) In determining whether any person, other
than the applicant, is a fit and proper
person, or a suitable person, for the
purposes of subsection (2), the Secretary
must apply that subsection, with
necessary modification and adaptation, as
if the person concerned were the
applicant or holder of the licence.
15B. Police report for determination of fit and
proper person
(1) In this section
"investigation" means an
investigation by the Secretary to
determine
(a) whether an applicant for a
licence should be granted
that licence; or
12
2005 Child Care Amendment No. s. 8
(b) whether a holder of a
licence is a fit and proper
person to continue to hold
that licence; or
(c) whether a person
nominated by an applicant
for a licence or a holder of
a licence, either in an
application for a licence
or by notice provided to
the Secretary, for a
position of responsible
person, person-in-charge,
child carer or ancillary
staff is a fit and proper
person to hold or to
continue to hold that
position.
(2) In an investigation, the Secretary may
require one or more of the following
persons to authorise the Secretary to
obtain a report from the Commissioner of
Police in respect of convictions and
proceedings taken against the person:
(a) the applicant for the licence or
holder of the licence;
(b) if that applicant or holder is
(i) an incorporated or
unincorporated body; or
(ii) any servant or agent of
any such body
13
s. 8 No. Child Care Amendment 2005
each director and other person
concerned in the management of
that body;
(c) any responsible person;
(d) any person-in-charge, child carer
or ancillary staff;
(e) any spouse or other close relative
of a person referred to in
paragraph (a), (b), (c), (d) or (f)
who might have contact with
children who are being, or would
be, provided with the child care
service under the licence;
(f) any other person who the
Secretary considers may have
frequent or extended contact with
children who are being, or would
be, provided with the child care
service under the licence.
(3) In an investigation, the Secretary may
require a person referred to in
subsection (2) to have his or her
photograph, fingerprints and palm prints
taken as specified in the requirement for
the purposes of the report of the
Commissioner of Police made under
subsection (5).
(4) The Secretary may refer to the
Commissioner of Police
(a) the name of any person referred
to in subsection (2); and
14
2005 Child Care Amendment No. s. 9
(b) any photographs, fingerprints and
palm prints taken from that
person; and
(c) any information and
documentation that the Secretary
considers relevant to the
investigation.
(5) The Commissioner of Police must
inquire into and report to the Secretary
on any matters concerning the
application that the Secretary requests.
(6) Sections 22(1), 31(1), 45(1) and 108 of
the Youth Justice Act 1997 do not apply
to the identification in a report under
subsection (5) of a youth, within the
meaning of that Act, in respect of any
action or proceedings referred to in those
sections.
9. Section 16 amended (Grant or refusal of licence)
Section 16 of the Principal Act is amended as
follows:
(a) by omitting from subsection (3)(c) "any
fee payable under section 13 or";
(b) by omitting subsection (4) and
substituting the following subsection:
(4) In determining whether an
applicant is a fit and proper
person to hold the licence applied
for, the Secretary must take into
account any matter that the
15
s. 10 No. Child Care Amendment 2005
Secretary considers relevant
including, but not limited to, the
matters specified in
section 15A(2).
(c) by omitting subsection (5).
10. Section 17 amended (Issue of licence or notice of
refusal)
Section 17(1) of the Principal Act is amended by
omitting "for the licence".
11. Section 22 amended (Amendment of licence)
Section 22 of the Principal Act is amended as
follows:
(a) by omitting paragraph (b) from
subsection (2);
(b) by inserting the following subsection
after subsection (2):
(2A) A prescribed fee is payable to the
Secretary for a request under this
section.
12. Section 23 amended (Renewal of licence)
Section 23 of the Principal Act is amended as
follows:
(a) by omitting from subsection (3)(b)
"application" first occurring;
16
2005 Child Care Amendment No. s. 13
(b) by omitting subsection (4);
(c) by omitting from subsection (5)
"Section 13(2), (3) and (4) and
sections 14, 15, 16, 17 and 18" and
substituting "Section 13(2) and (4) and
sections 15, 15A, 15B, 16, 17 and 18".
13. Section 25 amended (Disciplinary action)
Section 25 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)(b)
"section 16(4)" and substituting
"section 15A(2)";
(b) by inserting the following subsection
after subsection (2):
(2A) Subject to this section, the
Secretary may take disciplinary
action, by issuing a letter of
censure or by the imposition of a
fine not exceeding 20 penalty
units, against a responsible
person who has contravened this
Act, the regulations, the
Standards or a condition to which
the relevant licence is subject.
(c) by inserting in subsection (3) "or
responsible person" after "licence";
(d) by inserting in subsection (4) "or
responsible person" after "licence";
17
s. 14 No. Child Care Amendment 2005
(e) by inserting in subsection (6) "or
responsible person" after "licence";
(f) by inserting in subsection (7) "or
responsible person" after "licence".
14. Section 26 amended (When licence ceases to have
effect)
Section 26(1) of the Principal Act is amended by
omitting paragraph (b) and substituting the
following paragraph:
(b) if the licence is surrendered, when that
surrender takes effect under section 27;
or
15. Section 27 amended (Surrender of licence)
Section 27(2) of the Principal Act is amended by
omitting ", not less than 4 weeks after the notice
is provided to the Secretary,".
16. Section 30 substituted
Section 30 of the Principal Act is repealed and
the following section is substituted:
30. Insurance
The holder of a licence must ensure that
insurance cover is taken out and
maintained in respect of the child care
service as required by the regulations, the
Standards or a condition to which the
licence is subject.
18
2005 Child Care Amendment No. s. 17
Penalty: Fine not exceeding 20 penalty
units.
17. Section 33 substituted
Section 33 of the Principal Act is repealed and
the following section is substituted:
33. Display of licence or certificate of
registration
(1) In this section
"certificate of registration" means a
certificate or other document
that
(a) is issued to a person by an
approved registration
body; and
(b) acknowledges that the
person is registered by
that body as a registered
carer;
"parent" means a parent of a child
who is being provided, or may be
provided, with child care by a
registered carer.
(2) The holder of a licence must ensure that
the current licence is displayed in a
prominent position for public view at the
address where child care is provided or at
the address of the child care service.
Penalty: Fine not exceeding 2 penalty
units.
19
s. 18 No. Child Care Amendment 2005
(3) A registered carer must display any
certificate of registration issued to him or
her in a prominent position for view by
parents at the address where the carer
provides child care.
Penalty: Fine not exceeding 2 penalty
units.
18. Section 34 amended (Advertising not to be false or
misleading)
Section 34 of the Principal Act is amended as
follows:
(a) by inserting "and a responsible person"
after "a licence";
(b) by inserting "or in which the responsible
person has an interest" after "the holder".
19. Section 38 amended (Inspections of child care and
child care services)
Section 38(4) of the Principal Act is amended by
omitting paragraph (b) and substituting the
following paragraph:
(b) where the applicant or holder is
(i) an incorporated or unincorporated
body; or
(ii) a servant or agent of any such
body
20
2005 Child Care Amendment No. s. 20
a director or other person concerned in
the management of that body; or
20. Section 44 amended (Emergency removal of
children)
Section 44(6) of the Principal Act is amended by
inserting "registered with that approved
registration body" after "carer".
21. Section 45 amended (Emergency suspension of
licence or registration)
Section 45 of the Principal Act is amended as
follows:
(a) by omitting subsection (5) and
substituting the following subsections:
(5) If the Secretary suspends a
licence under this section, the
Secretary may proceed to take
disciplinary action under
Division 4 of Part 3 or the
Standards.
(5A) If an approved registration body
suspends a registration under this
section, it may proceed to take
disciplinary action under the
Standards.
(b) by omitting from subsection (6) "child
care service that is the provision of child
care by" and substituting "person who
has been registered by that body as".
21
s. 22 No. Child Care Amendment 2005
22. Section 47 amended (Child Care Standards)
Section 47(3) of the Principal Act is amended as
follows:
(a) by omitting from paragraph (a)(iii)
"services;" and substituting "services;
and";
(b) by inserting the following subparagraph
after subparagraph (iii) in paragraph (a):
(iv) responsible persons;
(c) by omitting paragraph (e) and
substituting the following paragraph:
(e) the assessment of
(i) the operators or providers
of child care or child care
services; and
(ii) persons employed by the
operators or providers, or
employed in the operation
or provision, of child care
or child care services; and
(iii) other responsible
persons
and the provision of assessments
and the recognition of
assessments and qualifications
gained by such persons;
(d) by inserting in paragraph (g)(iii)
"registered with that approved
registration body" after "carer".
22
2005 Child Care Amendment No. s. 23
23. Section 50 amended (Reviewable decisions)
Section 50 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)
"Appeals Panel" and substituting
"Magistrates Court (Administrative
Appeals Division) under the Magistrates
Court (Administrative Appeals Division)
Act 2001";
(b) by inserting the following subsection
after subsection (2):
(3) If, on the commencement of the
Child Care Amendment Act 2005,
an appeal against a reviewable
decision has been instituted but
not finally determined under this
Act, this Act continues to apply
to the appeal as if the
amendments made by that Act
had not taken effect.
24. Part 8, Divisions 2, 3 and 4 repealed
Divisions 2, 3 and 4 of Part 8 of the Principal
Act are repealed.
25. Section 64 amended (Register of child care services)
Section 64(1) of the Principal Act is amended by
omitting paragraph (b) and substituting the
following paragraph:
23
s. 26 No. Child Care Amendment 2005
(b) persons-in-charge and persons acting in
the position of person-in-charge.
26. Section 75 amended (Regulations)
Section 75 of the Principal Act is amended by
inserting after subsection (2) the following
subsections:
(2A) The regulations may provide that any fee
payable under this Act may vary by
reference to a reasonable estimate of the
cost of investigations and other work
required to be done by the Secretary for
the purposes of this Act.
(2B) The regulations may provide that the
Secretary may waive payment of part or
all of any fee payable under the
regulations.
27. Section 77 repealed
Section 77 of the Principal Act is repealed.
28. Schedule 1 repealed
Schedule 1 to the Principal Act is repealed.
24 Government Printer, Tasmania