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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Children and Young Persons (Reciprocal
Arrangements) Act 2000
Act No.
TABLE OF PROVISIONS
Clause Page
1. Purpose 1
2. Commencement 2
3. Principal Act 2
4. New Division 10 inserted in Part 3 2
Division 10--Transfer of Child Protection Orders and
Proceedings 3
5. New Schedule 2 substituted 3
6. New section 63A inserted 21
63A. Effect of conduct outside Victoria 21
7. Consequential and other amendments 21
8. Amendment of Victorian Civil and Administrative Tribunal
Act 1998 23
ENDNOTES 25
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PARLIAMENT OF VICTORIA
Initiated in Assembly 17 August 2000
A BILL
to amend the Children and Young Persons Act 1989 so as to provide
for the transfer of child protection orders and proceedings between
Victoria and another State or a Territory of Australia or between
Victoria and New Zealand and for other purposes.
Children and Young Persons
(Reciprocal Arrangements) Act 2000
The Parliament of Victoria enacts as follows:
1. Purpose
The purpose of this Act is to provide for the
transfer of child protection orders and proceedings
between Victoria and another State or a Territory
5 of Australia or between Victoria and New
Zealand.
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2. Commencement
(1) Sections 1, 3 and this section come into operation
on the day after the day on which this Act receives
the Royal Assent.
5 (2) Section 7(4) comes into operation on the day on
which section 21(1) of the Children and Young
Persons Act 1989 comes into operation.
(3) Subject to sub-section (4), the remaining
provisions of this Act come into operation on a
10 day or days to be proclaimed.
(4) If a provision referred to in sub-section (3) does
not come into operation before 1 July 2001, it
comes into operation on that day.
3. Principal Act
See:
15 In this Act, the Children and Young Persons Act Act No.
1989 is called the Principal Act. 56/1989.
Reprint No. 6
as at
26 June 2000
and
amending
Acts Nos
69/1992 (as
amended by
No. 19/1994),
32/2000 and
41/2000.
LawToday:
www.dms.
dpc.vic.
gov.au
4. New Division 10 inserted in Part 3
After Division 9 of Part 3 of the Principal Act
insert--
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"Division 10--Transfer of Child Protection
Orders and Proceedings
126A. Schedule 2
Schedule 2 sets out provisions relating to the
5 transfer of child protection orders and
proceedings between Victoria and another
State or a Territory of Australia or between
Victoria and New Zealand.".
5. New Schedule 2 substituted
10 For Schedule 2 to the Principal Act substitute--
'SCHEDULE 2
TRANSFER OF CHILD PROTECTION ORDERS AND
PROCEEDINGS
PART 1--INTRODUCTORY
15 1. Purpose of Schedule
The purpose of this Schedule is to provide for the transfer of
child protection orders and proceedings between Victoria
and another State or a Territory of Australia or between
Victoria and New Zealand--
20 (a) so that children who are in need of protection may be
protected despite moving from one jurisdiction to
another; and
(b) so as to facilitate the timely and expeditious
determination of court proceedings relating to the
25 protection of a child.
2. Definitions
(1) In this Schedule--
"Children's Court"--
(a) in relation to Victoria, means the Children's
30 Court of Victoria; and
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(b) in relation to a State other than Victoria, means
the court with jurisdiction to hear and determine
a child protection proceeding at first instance;
"child protection order", in relation to a child, means a
5 final order made under a child welfare law or an
interstate law that gives--
(a) a Minister of the Crown in right of a State; or
(b) a government department or statutory authority;
or
10 (c) a person who is the head of a government
department or statutory authority or otherwise
holds an office or position in, or is employed in,
a government department or statutory authority;
or
15 (d) an organisation or the chief executive (by
whatever name called) of an organisation--
responsibility in relation to the guardianship, custody
or supervision of the child, however that
responsibility is described;
20 "child protection proceeding" means any proceeding
brought in a court under a child welfare law for--
(a) the making of a finding that a child is in need
of protection or any other finding (however
described) the making of which is under the
25 child welfare law a prerequisite to the exercise
by the court of a power to make a child
protection order; or
(b) the making of a child protection order or an
interim order or for the variation or revocation
30 or the extension of the period of such an order;
"child welfare law" means--
(a) Part 3 of this Act; or
(b) a law of another State that, under an Order in
force under sub-clause (2), is declared to be a
35 child welfare law for the purposes of this
Schedule; or
(c) a law of another State that substantially
corresponds to Part 3 of this Act;
"interim order" means--
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(a) an order made under clause 17; or
(b) an equivalent order made under an interstate
law;
"interstate law" means--
5 (a) a law of another State that, under an Order in
force under sub-clause (3), is declared to be an
interstate law for the purposes of this Schedule;
or
(b) a law of another State that substantially
10 corresponds to this Schedule;
"interstate officer", in relation to a State other than
Victoria, means--
(a) the holder of an office or position that, under an
Order in force under sub-clause (4), is declared
15 to be an office or position the holder of which is
the interstate officer in relation to that State for
the purposes of this Schedule; or
(b) the person holding the office or position to
which there is given by or under the child
20 welfare law of that State principal responsibility
for the protection of children in that State;
"participating State" means a State in which an interstate
law is in force;
"sending State" means the State from which a child
25 protection order or proceeding is transferred under
this Schedule or an interstate law;
"State" means--
(a) a State or a Territory of Australia; or
(b) New Zealand;
30 "working day"--
(a) in relation to a court, means a day on which the
offices of the court are open; and
(b) in relation to the Secretary, means a day on
which the principal office of the Department is
35 open.
(2) The Governor in Council, by Order published in the
Government Gazette, may declare a law of a State (other
than Victoria) to be a child welfare law for the purposes of
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this Schedule if satisfied that the law substantially
corresponds to Part 3 of this Act.
(3) The Governor in Council, by Order published in the
Government Gazette, may declare a law of a State (other
5 than Victoria) to be an interstate law for the purposes of this
Schedule if satisfied that the law substantially corresponds
to this Schedule.
(4) The Governor in Council, by Order published in the
Government Gazette, may declare an office or position in a
10 State (other than Victoria) to be an office or position the
holder of which is the interstate officer in relation to that
State for the purposes of this Schedule.
PART 2--TRANSFER OF CHILD PROTECTION ORDERS
Division 1--Administrative Transfers
15 3. When Secretary may transfer order
(1) The Secretary may transfer a child protection order (the
"home order") to a participating State if--
(a) in his or her opinion a child protection order to the
same or a similar effect as the home order could be
20 made under the child welfare law of that State; and
(b) the home order is not subject to an appeal to the
Supreme Court or the County Court; and
(c) the relevant interstate officer has consented in writing
to the transfer and to the proposed terms of the child
25 protection order to be transferred (the "proposed
interstate order"); and
(d) any person whose consent to the transfer is required
under clause 4 has so consented; and
(e) the child who is the subject of the order has not given
30 written notice of opposition to the decision to transfer
the order in accordance with clause 6(3)(b) and the
Secretary certifies in writing that he or she made all
reasonable efforts to ensure that the child had an
opportunity to seek legal advice in relation to the
35 decision.
(2) The Secretary may include in the proposed interstate order
any conditions that could be included in a child protection
order of that type made in the relevant participating State.
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(3) In determining whether a child protection order to the same
or a similar effect as the home order could be made under
the child welfare law of a participating State, the Secretary
must not take into account the period for which it is possible
5 to make such an order in that State.
(4) The Secretary must determine, and specify in the proposed
interstate order--
(a) the type of order under the child welfare law of the
participating State that the proposed interstate order is
10 to be; and
(b) the period for which it is to remain in force.
(5) The period must be--
(a) if the same period as that of the home order is
possible for the proposed interstate order under the
15 child welfare law of the participating State
commencing on, and including, the date of the
registration of the interstate order in that State, that
period; or
(b) in any other case, as similar a period as is possible
20 under that law but in no case longer than the period of
the home order.
4. Persons whose consent is required
(1) For the purposes of clause 3(1)(d) but subject to sub-clause
(2), if the home order is a custody to Secretary order,
25 supervision order or a supervised custody order, consent to
a transfer under this Division is required from the child's
parents and any other person who is granted access to the
child under the order.
(2) If a parent of the child or any other person who is granted
30 access to the child under the order is residing in, or is
intending to reside in, the relevant participating State,
consent to the transfer is not required from that parent or
other person or from any other parent or other person who is
granted access to the child under the order who consents to
35 the child residing in that State.
5. Secretary to have regard to certain matters
In determining whether to transfer a child protection order
to a participating State under this Division, the Secretary
must have regard to--
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(a) all the matters referred to in section 119 including that
decisions must, as far as possible, be made according
to the following principles--
(i) the welfare and interests of the child must be
5 given paramount importance;
(ii) the child (except if his or her participation
would be detrimental to his or her safety or
well-being) must be encouraged and (through
consultation and discussion) given adequate
10 opportunity to participate fully in the decision-
making process and must be given a copy of
any proposed case plan relating to the transfer
and sufficient notice of any meeting proposed
to be held;
15 (iii) the family of the child (except if its
participation would be detrimental to the safety
or well-being of the child) must be encouraged
and (through consultation and discussion) given
adequate opportunity to participate fully in the
20 decision-making process and must be given a
copy of any proposed case plan relating to the
transfer and sufficient notice of any meeting
proposed to be held; and
(b) whether the Secretary or an interstate officer is in the
25 better position to exercise powers and responsibilities
under a child protection order relating to the child;
and
(c) the fact that it is preferable that a child is subject to a
child protection order made under the child welfare
30 law of the State where the child resides; and
(d) any sentencing order under any Act, other than a fine,
in force in respect of the child or any criminal
proceeding pending against the child in any court.
6. Notification to child and his or her parents
35 (1) If the Secretary has decided to transfer a child protection
order to a participating State under this Division, the
Secretary must cause--
(a) the parent of the child who is the subject of the order;
and
40 (b) if the child is of or above the age of 7 years, the
child--
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to be served with a notice of the decision as soon as
practicable but in any event no later than 3 working days
after making it.
(2) A notice under sub-clause (1) served on a parent of the child
5 must, in addition to providing notice of the decision, inform
the parent that--
(a) the decision may be reviewed on its merits by the
Victorian Civil and Administrative Tribunal or on
certain grounds by the Supreme Court; and
10 (b) the application for review must be made, and the
relevant documents served on the Secretary, within 28
days after the date of the decision or, in the case of an
application to the Victorian Civil and Administrative
Tribunal, the later day on which a statement of
15 reasons for the decision is given or refused to be
given under the Victorian Civil and Administrative
Tribunal Act 1998; and
(c) a request under section 45(1) of the Victorian Civil
and Administrative Tribunal Act 1998 for a written
20 statement of reasons for the decision must be made in
writing within 28 days after the date of the decision;
and
(d) the parent may make an application for review and
provide details of how such an application may be
25 made.
(3) A notice under sub-clause (1) served on the child must, in
addition to providing notice of the decision, inform the child
that--
(a) the child may seek legal advice in relation to the
30 decision; and
(b) the child may oppose the decision by writing, or by a
legal practitioner writing on his or her behalf, to the
employee nominated in the notice within 28 days after
service of the notice and stating the fact that the child
35 opposes the decision; and
(c) if notice of opposition is given to the nominated
employee in accordance with paragraph (b), the order
cannot be transferred by the Secretary under this
Division.
40 (4) The Secretary must make all reasonable efforts to ensure
that a child on whom a notice is served under sub-clause (1)
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has an opportunity to seek legal advice in relation to the
decision to transfer the child protection order.
(5) Service of a notice on a person is not required under sub-
clause (1) if it cannot be effected after making all reasonable
5 efforts.
7. Limited period for judicial review of decision
(1) A proceeding in the Supreme Court for judicial review of a
decision of the Secretary to transfer a child protection order
to a participating State under this Division must be
10 instituted, and written notice of it must be served on the
Secretary, within 28 days after the date of the decision of
the Secretary.
(2) Subject to sub-clause (1), a proceeding referred to in that
sub-clause must be brought in accordance with the rules of
15 the Supreme Court.
(3) The Supreme Court cannot extend the time limit fixed by
sub-clause (1).
(4) The institution of a proceeding referred to in sub-clause (1)
and service of written notice of it on the Secretary stays the
20 operation of the decision pending the determination of the
proceeding.
Division 2--Judicial Transfers
8. When Court may make order under this Division
The Court may make an order under this Division
25 transferring a child protection order to a participating State
if--
(a) an application for the making of the order is made by
the Secretary; and
(b) the child protection order is not subject to an appeal
30 to the Supreme Court or the County Court; and
(c) the relevant interstate officer has consented in writing
to the transfer and to the proposed terms of the child
protection order to be transferred.
9. Service of application
35 The Secretary must as soon as possible cause a copy of an
application for an order transferring a child protection order
to a participating State to be sent by post or given to any
person to whom he or she would have been required under
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Part 3 of this Act to send or give a copy of an application
made by him or her for the variation of the order sought to
be transferred.
10. Type of order
5 (1) If the Court determines to transfer a child protection order
(the "home order") under this Division, the proposed terms
of the child protection order to be transferred (the "proposed
interstate order") must be terms that could be the terms of a
child protection order made under the child welfare law of
10 the participating State and that the Court believes to be--
(a) to the same or a similar effect as the terms of the
home order; or
(b) otherwise in the best interests of the child.
(2) The Court may include in the proposed interstate order any
15 conditions that could be included in a child protection order
of that type made in the relevant participating State.
(3) In determining whether an order to the same or a similar
effect as the home order could be made under the child
welfare law of a participating State, the Court must not take
20 into account the period for which it is possible to make such
an order in that State.
(4) The Court must determine, and specify in the proposed
interstate order, the period for which it is to remain in force.
(5) The period must be any period that is possible for a child
25 protection order of the type of the proposed interstate order
under the child welfare law of the participating State
commencing on, and including, the date of its registration in
that State and that the Court considers to be appropriate.
11. Court to have regard to certain matters
30 (1) The Court must not make an order under this Division
unless it has received and considered a report by the
Secretary that contains the matters required by section 49 to
be included in a disposition report.
(2) In determining what order to make on an application under
35 this Division the Court must have regard to--
(a) the matters referred to in section 87(1); and
(b) whether the Secretary or an interstate officer is in the
better position to exercise powers and responsibilities
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under a child protection order relating to the child;
and
(c) the fact that it is preferable that a child is subject to a
child protection order made under the child welfare
5 law of the State where the child resides; and
(d) any information given to the Court by the Secretary
under clause 12.
(3) Section 51 applies to a report referred to in sub-clause (1) as
if it were a disposition report required under section 48(1).
10 12. Duty of the Secretary to inform the Court of certain matters
If the Secretary is aware that--
(a) a sentencing order under any Act, other than a fine, is
in force in respect of the child who is the subject of an
application under this Division; or
15 (b) a criminal proceeding is pending against that child in
any court--
the Secretary must, as soon as possible, inform the Court of
that fact and of the details of the sentencing order or
pending criminal proceeding.
20 13. Appeals
(1) A party to an application for an order under this Division or
the Attorney-General, if he or she appeared or was
represented in the proceeding under section 82(2), may
appeal to the Supreme Court, on a question of law, from a
25 final order made in that proceeding transferring, or refusing
to transfer, a child protection order to a participating State.
(2) An appeal under sub-clause (1)--
(a) must be instituted, and (except where instituted by the
Secretary) written notice of it must be served on the
30 Secretary, within 10 working days after the day on
which the order complained of was made; and
(b) operates as a stay of an order transferring the child
protection order to a participating State.
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(3) Subject to sub-clause (2), an appeal under sub-clause (1)
must be brought in accordance with the rules of the
Supreme Court.
(4) The Supreme Court cannot extend the time limit fixed by
5 sub-clause (2)(a).
(5) The Supreme Court must hear and determine the appeal as
expeditiously as possible.
(6) After hearing and determining the appeal, the Supreme
Court may make such order as it thinks appropriate,
10 including an order remitting the case for re-hearing to the
Court with or without any direction in law.
(7) An order made by the Supreme Court on an appeal under
sub-clause (1), other than an order remitting the case for re-
hearing to the Court, may be enforced as an order of the
15 Supreme Court.
(8) Pending the hearing of the appeal the Supreme Court may--
(a) make any interim accommodation order that the
Children's Court has jurisdiction to make; or
(b) make any variation of the child protection order that
20 the Children's Court would have jurisdiction to make
on an application made under Part 3 of this Act.
(9) Section 118 applies to an appeal under sub-clause (1) as if--
(a) a reference to section 116 or 117 were a reference to
this clause; and
25 (b) references to the County Court were omitted.
PART 3--TRANSFER OF CHILD PROTECTION
PROCEEDINGS
14. When Court may make order under this Part
(1) The Court may make an order under this Part transferring a
30 child protection proceeding pending in the Court to the
Children's Court in a participating State if--
(a) an application for the making of the order is made by
the Secretary; and
(b) the relevant interstate officer has consented in writing
35 to the transfer.
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(2) The proceeding is discontinued in the Court on the
registration in the Children's Court in the participating State
in accordance with the interstate law of an order referred to
in sub-clause (1).
5 15. Service of application
The Secretary must as soon as possible cause a copy of an
application for an order transferring a child protection
proceeding to the Children's Court in a participating State to
be served on--
10 (a) the child's parent or other person with whom the child
is living; and
(b) if the child is of or above the age of 12 years, the
child.
16. Court to have regard to certain matters
15 (1) In determining whether to make an order transferring a
proceeding under this Part the Court must have regard to--
(a) the matters referred to in section 87(1); and
(b) whether any other proceedings relating to the child
are pending, or have previously been heard and
20 determined, under the child welfare law in the
participating State; and
(c) the place where any of the matters giving rise to the
proceeding in the Court arose; and
(d) the place of residence, or likely place of residence, of
25 the child, his or her parents and any other people who
are significant to the child; and
(e) whether the Secretary or an interstate officer is in the
better position to exercise powers and responsibilities
under a child protection order relating to the child;
30 and
(f) the fact that it is preferable that a child is subject to a
child protection order made under the child welfare
law of the State where the child resides; and
(g) any information given to the Court by the Secretary
35 under sub-clause (2).
(2) If the Secretary is aware that--
(a) a sentencing order under any Act, other than a fine, is
in force in respect of the child who is the subject of
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the proceeding to which an application under this
Division relates; or
(b) a criminal proceeding is pending against that child in
any court--
5 the Secretary must, as soon as possible, inform the Court of
that fact and of the details of the sentencing order or
pending criminal proceeding.
17. Interim order
(1) If the Court makes an order transferring a proceeding under
10 this Part, the Court may also make an interim order.
(2) An interim order--
(a) may release the child or place the child into the care
of any person, subject to any conditions that the Court
considers to be appropriate; and
15 (b) may give responsibility for the supervision of the
child to the interstate officer in the participating State
or any other person in that State to whom
responsibility for the supervision of a child could be
given under the child welfare law of that State; and
20 (c) remains in force for the period (not exceeding
30 days) specified in the order.
(3) The Children's Court in the participating State may revoke
an interim order in accordance with the relevant interstate
law.
25 18. Appeals
(1) A party to an application for an order under this Part or the
Attorney-General, if he or she appeared or was represented
in the proceeding under section 82(2), may appeal to the
Supreme Court, on a question of law, from a final order
30 made in that proceeding transferring, or refusing to transfer,
a child protection proceeding to the Children's Court in a
participating State.
(2) An appeal under sub-clause (1)--
(a) must be instituted, and (except where instituted by the
35 Secretary) written notice of it must be served on the
Secretary, within 3 working days after the day on
which the order complained of was made; and
(b) operates as a stay of an order transferring the child
protection proceeding to a participating State but not
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of any interim order made at the same time as the
order.
(3) Subject to sub-clause (2), an appeal under sub-clause (1)
must be brought in accordance with the rules of the
5 Supreme Court.
(4) The Supreme Court cannot extend the time limit fixed by
sub-clause (2)(a).
(5) The Supreme Court must hear and determine the appeal as
expeditiously as possible.
10 (6) After hearing and determining the appeal, the Supreme
Court may make such order as it thinks appropriate,
including an order remitting the case for re-hearing to the
Court with or without any direction in law.
(7) An order made by the Supreme Court on an appeal under
15 sub-clause (1), other than an order remitting the case for re-
hearing to the Court, may be enforced as an order of the
Supreme Court.
(8) The Supreme Court may--
(a) make an order staying the operation of any interim
20 order made at the same time as the order that is the
subject of the appeal or may, by order, vary or revoke,
or extend the period of, that interim order; and
(b) make any interim accommodation order pending the
hearing of the appeal that the Children's Court has
25 jurisdiction to make.
(9) Section 118 applies to an appeal under sub-clause (1) as if--
(a) a reference to section 116 or 117 were a reference to
this clause; and
(b) references to the County Court were omitted.
30 PART 4--REGISTRATION
19. Filing and registration of interstate documents
(1) Subject to sub-clause (3), the Secretary must as soon as
possible file in the Court for registration a copy of a child
protection order transferred to Victoria under an interstate
35 law.
(2) Subject to sub-clause (3), the Secretary must as soon as
possible file in the Court for registration a copy of an order
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under an interstate law to transfer a child protection
proceeding to Victoria, together with a copy of any interim
order made in relation to that order.
(3) The Secretary must not file in the Court a copy of a child
5 protection order or of an order to transfer a child protection
proceeding if--
(a) the decision or order to transfer the child protection
order or the order to transfer the child protection
proceeding (as the case requires) is subject to appeal
10 or review or a stay; or
(b) the time for instituting an appeal or seeking a review
has not expired--
under the interstate law.
20. Notification by appropriate registrar
15 The appropriate registrar must immediately notify the
appropriate officer of the Children's Court in the sending
State and the interstate officer in that State of--
(a) the registration of any document filed under
clause 19; or
20 (b) the revocation under clause 22 of the registration of
any document so filed.
21. Effect of registration
(1) A child protection order registered in the Court under this
Part must be taken for all purposes (except for the purposes
25 of appeal) to be a protection order of the relevant type made
by the Court on the day on which it is registered and it may
be varied or revoked, or the period of the order extended, or
a breach of it dealt with, under Part 3 of this Act
accordingly.
30 (2) An interim order registered in the Court under this Part must
be taken for all purposes (except for the purposes of appeal)
to be an interim accommodation order made by the Court on
the day on which it is registered, even if it includes terms
that could not be terms of an interim accommodation order.
35 (3) An interim order registered in the Court under this Part
cannot be varied, or the period of the order extended, under
Division 4 of Part 3 of this Act but nothing in this sub-
clause prevents the Court from making a new interim
accommodation order under section 80A (without being
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limited to the circumstances for an application for a new
order set out in that section) and revoking the interim order.
(4) Despite sub-clause (3), a breach of an interim order
registered in the Court under this Part may be dealt with
5 under Part 3 of this Act in the same way as a breach of any
other interim accommodation order.
(5) If an order under an interstate law to transfer a child
protection proceeding to Victoria is registered under this
Part, the proceeding must be taken to have been commenced
10 in the Court on the day on which the order is registered.
22. Revocation of registration
(1) An application for the revocation of the registration of any
document filed under clause 19 may be made to the Court
by--
15 (a) the Secretary; or
(b) the child concerned; or
(c) a parent of the child concerned; or
(d) a party to the proceeding in the Children's Court in
the sending State in which the decision to transfer the
20 order or proceeding (as the case requires) was made.
(2) The appropriate registrar must cause a copy of an
application under sub-clause (1) to be sent by post or given
as soon as possible to--
(a) the relevant interstate officer; and
25 (b) any person by whom such an application could have
been made.
(3) The Court may only revoke the registration of a document
filed under clause 19 if satisfied that it was inappropriately
registered because--
30 (a) the decision or order to transfer the child protection
order or the order to transfer the child protection
proceeding (as the case requires) was at the time of
registration subject to appeal or review or a stay; or
(b) the time for instituting an appeal or seeking a review
35 had not expired--
under the interstate law.
(4) The appropriate registrar must cause any document filed in
the Court under clause 19 to be sent to the Children's Court
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in the sending State if the registration of the document is
revoked.
(5) The revocation of the registration of a document does not
prevent the later re-registration of that document.
5 PART 5--MISCELLANEOUS
23. Effect of registration of transferred order
(1) On an order being registered in a participating State under
an interstate law, the child protection order made by the
Court under Part 3 of this Act ceases to have effect.
10 (2) Despite sub-clause (1), an order that has ceased to have
effect by force of that sub-clause is revived if the
registration of the child protection order transferred from
Victoria is revoked in the participating State under the
interstate law.
15 (3) The period for which a child protection order is revived is
the balance of the period for which it would have remained
in force but for the registration of the transferred order.
24. Transfer of Court file
The appropriate registrar must cause all documents filed in
20 the Court in connection with a child protection proceeding,
and an extract from any part of the register that relates to a
child protection proceeding, to be sent to the Children's
Court in a participating State if--
(a) the child protection order or proceeding is transferred
25 to the participating State; and
(b) the decision or order to transfer the child protection
order or the order to transfer the child protection
proceeding (as the case requires) is not subject to
appeal or review or a stay; and
30 (c) the time for instituting an appeal or seeking a review
has expired--
under this Schedule.
25. Hearing and determination of transferred proceeding
In hearing and determining a child protection proceeding
35 transferred to the Court under an interstate law, the Court--
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(a) is not bound by any finding of fact made in the
proceeding in the Children's Court in the sending
State before its transfer; and
(b) may have regard to the transcript of, or any
5 evidence adduced in, the proceeding referred to in
paragraph (a).
26. Disclosure of information
(1) Despite anything to the contrary in this Act, the Secretary
may disclose to an interstate officer any information that has
10 come to his or her notice in the performance of duties or
exercise of powers under this Act if the Secretary considers
that it is necessary to do so to enable the interstate officer to
perform duties or exercise powers under a child welfare law
or an interstate law.
15 (2) Any information disclosed to the Secretary under a
provision of a child welfare law or an interstate law that
substantially corresponds to sub-clause (1) must be taken for
the purposes of any provision of this Act relating to the
disclosure of information to have been information given
20 directly to a protective intervener in Victoria instead of to an
interstate officer.
27. Discretion of Secretary to consent to transfer
(1) If, under an interstate law, there is a proposal to transfer a
child protection order to Victoria, the Secretary may consent
25 or refuse to consent to the transfer and the proposed terms
of the child protection order to be transferred.
(2) If, under an interstate law, there is a proposal to transfer a
child protection proceeding to the Children's Court in
Victoria, the Secretary may consent or refuse to consent to
30 the transfer.
28. Evidence of consent of relevant interstate officer
A document, or a copy of a document, purporting--
(a) to be the written consent of the relevant interstate
officer to--
35 (i) the transfer of a child protection order to a
participating State and to the proposed terms of
the child protection order to be transferred; or
(ii) the transfer of a child protection proceeding
pending in the Court to the Children's Court in
40 a participating State; and
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(b) to be signed by the relevant interstate officer or his or
her delegate--
is admissible in evidence in any proceeding under this
Schedule and, in the absence of evidence to the contrary, is
5 proof that consent in the terms appearing in the document
was duly given by the relevant interstate officer.'.
6. New section 63A inserted
After section 63 of the Principal Act insert--
"63A. Effect of conduct outside Victoria
10 For the purposes of this Act it does not
matter whether the conduct constituting a
ground referred to in section 63 occurred
wholly or partly outside Victoria.".
7. Consequential and other amendments
15 (1) In section 3(1) of the Principal Act--
(a) in paragraph (b) of the definition of "child",
after "protection order" insert ", a child
protection order within the meaning of
Schedule 2 or an interim order within the
20 meaning of that Schedule"; and
(b) in the definition of "Children's Court", after
"means" insert ", other than in Schedule 2,".
(2) In section 15(1) of the Principal Act, after
paragraph (j) insert--
25 "; or
(k) an order arising out of a child protection
proceeding within the meaning of Schedule 2
transferred to the Court under an interstate
law within the meaning of that Schedule.".
30 (3) In section 15(2) of the Principal Act, after
"Division by" insert "Schedule 2 or by an
interstate law within the meaning of that Schedule
or by".
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(4) In section 21(1) of the Principal Act, after
paragraph (j) insert--
"(k) application for an order transferring a child
protection order within the meaning of
5 Schedule 2 to a participating State within the
meaning of that Schedule;
(l) application for an order transferring a child
protection proceeding within the meaning of
Schedule 2 to the Children's Court in a
10 participating State within the meaning of that
Schedule;
(m) application for the revocation of the
registration of a document filed under
clause 19 of Schedule 2.".
15 (5) In section 264(1) of the Principal Act, after
paragraph (b) insert--
"(ba) without lawful authority or excuse, withdraw
a child from the custody or guardianship of
any person who has custody or guardianship
20 of the child under a permanent care order;
or".
(6) In section 264 of the Principal Act insert--
'(2) Sub-section (1) applies whether the conduct
is carried out wholly within or wholly
25 outside Victoria or partly within and partly
outside Victoria.
(3) A person must not, by any conduct carried
out within Victoria, without lawful authority
or excuse withdraw a child from the place in
30 which the child had been placed under a
child protection order, or an interim order,
within the meaning of Schedule 2 excluding
an order referred to in sub-section (1)(a).
Penalty: 15 penalty units or imprisonment
35 for 3 months.
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(4) If conduct constitutes an offence under two
or more laws, a person who is convicted or
found guilty or acquitted of the offence
under a law referred to in paragraph (b) or
5 (c) of sub-section (5) is not liable to be
prosecuted for the offence under this section.
(5) In sub-section (4) "law" means--
(a) this section; or
(b) a law of another State or a Territory of
10 Australia; or
(c) a law of New Zealand.
(6) A prosecution can only be commenced for an
offence under this section after the Secretary
has been consulted about the matter.'.
15 (7) In section 279A of the Principal Act, after sub-
section (4) insert--
"(5) It is the intention of clauses 7, 13 and 18 of
Schedule 2 to alter or vary section 85 of the
Constitution Act 1975.".
20 (8) Section 286 of the Principal Act is repealed.
8. Amendment of Victorian Civil and Administrative
Tribunal Act 1998
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In Part 3 of Schedule 1 to the Victorian Civil and See:
Act No.
Administrative Tribunal Act 1998, after clause 53/1998
5 insert-- Reprint No. 1
as at
"5A. Tribunal cannot alter time limits 1 July 1999
and
5 Section 126(1) and (2)(a) do not apply to a proceeding amending
in relation to a decision under Schedule 2 to the Act Nos
17/1999,
Children and Young Persons Act 1989.".
57/1999,
1/2000, 5/2000
and 35/2000.
LawToday:
www.dms.
dpc.vic.
gov.au
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Endnotes
Act No.
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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