CHILDREN, YOUTH AND FAMILIES BILL 2005

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CHILDREN, YOUTH AND FAMILIES BILL 2005

PARLIAMENT OF VICTORIA Children, Youth and Families Act 2005 Act No. TABLE OF PROVISIONS Clause Page CHAPTER 1--PRELIMINARY 2 PART 1.1--INTRODUCTION 2 1. Purposes 2 2. Commencement 2 3. Definitions 3 4. Guardianship 19 5. Custody 19 6. Aboriginal agency 19 7. References to Parts 20 PART 1.2--PRINCIPLES 21 Division 1--Decision Makers to Have Regard to Principles 21 8. Decision makers to have regard to principles 21 9. Role of principles 21 Division 2--Best Interests Principles 22 10. Best interests principles 22 Division 3--Decision-making Principles 24 11. Decision-making principles 24 Division 4--Additional Decision-making Principles for Aboriginal Children 26 12. Additional decision-making principles 26 13. Aboriginal Child Placement Principle 27 14. Further principles for placement of Aboriginal child 28 CHAPTER 2--ADMINISTRATION 30 15. Functions and powers of the Secretary 30 16. Responsibilities of the Secretary 30 17. Delegation 32 18. Secretary may authorise principal officer of Aboriginal agency to act 33 i 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page 19. Secretary may authorise person in charge of community service to act 34 20. Role of Ombudsman in relation to certain administrative actions 35 CHAPTER 3--CHILD AND FAMILY SERVICES 37 PART 3.1--SUPPORT FOR COMMUNITY-BASED SERVICES AND FAMILIES 37 21. Object of Part 37 22. Purposes of community-based child and family services 37 23. Power of Secretary to provide funds 38 24. Family assistance grants 38 25. Authority to use Crown property 38 26. Agreements relating to use of Crown property 39 PART 3.2--CONCERN ABOUT WELLBEING OF CHILD 40 27. Object of Part 40 28. Report to Secretary about child 40 29. Report to Secretary about unborn child 40 30. Response by Secretary to report 40 31. Referral to community-based child and family service about child 41 32. Referral to community-based child and family service about unborn child 41 33. Response by community-based child and family service to referral 41 34. Is the report about a child in need of protection? 42 35. Who may the Secretary consult? 42 36. Who may the community-based child and family service consult? 43 37. Disclosers protected 44 38. Consultation with Secretary 44 39. Records of disclosures 45 40. Reporters protected 45 41. Identity of reporter confidential 45 42. Review by Victorian Civil and Administrative Tribunal 46 PART 3.3--COMMUNITY SERVICES 47 Division 1--Object of Part 47 43. Object of Part 47 Division 2--Departmental Services 47 44. Departmental community services and secure welfare services 47 ii 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page Division 3--Registration of Community Services 47 45. Application for registration 47 46. Registration 47 47. Categories of registration 48 48. Conditions on registration 48 49. Period of registration 48 50. Renewal of registration 48 51. Revocation of registration 48 52. Notice to community service 49 53. Application for review 49 54. Register of community services 50 55. What information is to be included in the register? 50 56. Registered community service to notify changes 50 57. Register to be made public 50 Division 4--Performance Standards and Responsibilities of Community Services 50 58. Performance standards 50 59. What can performance standards provide for? 51 60. Community service to comply with performance standards 52 61. Responsibilities of registered community services 52 Division 5--Monitoring and Review of Community Services 52 62. Secretary may conduct inquiries 52 63. Appointment of assessor 52 64. Visits to community services 53 65. Community service to assist 54 Division 6--Appointment of Administrator 54 66. Displacement of other laws 54 67. Appointment of administrator 54 68. Period of appointment of administrator 55 69. Powers of administrator 55 70. Revocation of appointment of administrator 56 71. Remuneration of administrator 56 Division 7--Information Privacy and Registered Community Services 57 72. Registered community services 57 iii 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page PART 3.4--OUT OF HOME CARERS 58 Division 1--Introductory 58 73. Object of Part 58 74. Definitions 58 Division 2--Approval, Employment or Engagement of Out of Home Carers 59 75. Approval of foster carers 59 76. Employment or engagement of carer 59 77. Matters to be considered 60 78. Notice of approval, employment or engagement of carer 60 79. Notice of revocation of approval or termination of employment or engagement of carer 61 Division 3--Register of Out of Home Carers 61 80. Register of carers 61 Division 4--Conduct of Out of Home Carers 63 81. Report to Secretary by service of allegation about carer 63 82. Other reports to Secretary of allegations about carers 64 83. Secretary to report allegation to police 64 84. Notice to carer of allegation 64 85. Consideration by Secretary of report 65 86. Decision by Secretary on report 65 87. Notice to carer of decision 65 88. Record of reports 66 89. Appointment of investigator 66 90. Powers of authorised investigator 66 91. Out of home care service to assist investigator 67 92. Report by authorised investigator 67 93. Decision of Secretary following investigation 67 94. Notice to carer of result of investigation 68 95. Notice to out of home care service of result of investigation 68 96. Referral to Suitability Panel 69 97. Secretary not to proceed if police investigation is proceeding 69 Division 5--The Suitability Panel 70 Subdivision 1--Establishment and Constitution 70 98. Establishment of Panel 70 99. Constitution of Panel 70 100. Terms and conditions of appointment 71 101. Functions of Panel 71 102. Executive officer of Panel 72 103. Constitution of Suitability Panel for hearings 72 iv 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page Subdivision 2--Procedure of Suitability Panel in respect of Allegation 72 104. Notice to parties of hearing 72 105. Finding of Panel on allegation 73 106. Finding in relation to disqualification 74 107. Notice of Panel's findings and determinations 75 108. Secretary to record finding 76 109. Notice to out of home care service 76 Subdivision 3--Review by Suitability Panel of Disqualification 76 110. Application for review of disqualification 77 111. Notice to parties of hearing of application 77 112. Finding in relation to application 78 113. Notice of Panel's determination on application 79 114. Secretary to record removal of disqualification 80 Subdivision 4--General Procedure of Suitability Panel 80 115. Conduct of hearing 80 116. Procedure at hearings 80 117. Powers of panel conducting a formal hearing 81 Subdivision 5--Review by VCAT 81 118. Review by VCAT 81 Division 6--Offences 82 119. Out of home care service not to approve, engage or employ disqualified person 82 120. Out of home care service must ask Secretary if person is disqualified 82 121. Offence to apply for work as out of home carer while disqualified 83 122. Offence to apply to work as out of home carer without disclosing investigation 83 Division 7--General 83 123. Information provided not to be used in criminal proceedings 83 124. Protection of reporter 84 125. Disclosure of information to police and investigator 84 126. Secretary may provide information for the purpose of proceedings 84 127. Limited disclosure of information to out of home care services 85 128. Disclosure by Chief Commissioner of Police 86 129. Disclosure of information by Secretary 86 v 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page 130. Confidentiality of information acquired by authorised investigator 87 131. Confidentiality of proceedings 87 132. Disclosure allowed for referee checks 88 PART 3.5--CHILD CARE AGREEMENTS 89 Division 1--Introduction 89 133. Object 89 134. Definitions 89 Division 2--Short-Term Child Care Agreements 90 135. Short-term child care agreements 90 136. Return of child to parent who has custody 90 137. Extension of agreement 91 138. Maximum period for care under agreement 91 139. Review of agreement 92 140. Agreement may be made with minor 92 141. Termination of agreement 92 142. Return of child to parent at end of agreement 92 143. Rates of payment under agreement 92 Division 3--Long-Term Child Care Agreements 93 144. Children who may be the subject of a long-term child care agreement 93 145. Long-term child care agreements 93 146. When will the Secretary approve an agreement? 94 147. Who may have the care of the child under an agreement? 94 148. Who is a suitable person? 95 149. What must an agreement include? 96 150. Maximum period of care under agreement 96 151. Return of child at request of parent with custody 97 152. Review of agreement 97 153. Agreement may be with minor 98 154. Termination of agreement 98 155. Return of child at end of agreement 98 156. Rates of payment under agreement 99 Division 4--Review of Decision-Making and Reports 99 157. Review by Secretary 99 158. Review by Victorian Civil and Administrative Tribunal 99 159. Report by service providers 100 160. Report by Secretary 100 vi 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page PART 3.6--RESTRICTIONS ON LONG-TERM CARE OF CHILDREN 101 161. Restrictions on who may provide long-term care of children 101 CHAPTER 4--CHILDREN IN NEED OF PROTECTION 103 PART 4.1--CHILDREN IN NEED OF PROTECTION 103 162. When is a child in need of protection? 103 163. Effect of conduct outside Victoria 104 PART 4.2--RESPONSIBILITIES OF MINISTER 105 164. Responsibilities of Minister 105 165. Central register 105 PART 4.3--RESPONSIBILITIES OF SECRETARY 106 Division 1--Case Planning and Stability Planning 106 166. What is a case plan? 106 167. Preparation of case plan 106 168. Review of case plan 107 169. What is a stability plan? 107 170. Preparation of stability plan 108 171. When is a stability plan not required? 109 Division 2--Responsibilities of Secretary as Guardian or Custodian 110 172. Powers of Secretary as guardian or custodian 110 173. Placement of children 111 174. Secretary's duties in placing child 112 175. Support for child moving from secure welfare service 112 176. Cultural plan for Aboriginal child 112 177. State Guardianship Fund 113 Division 3--Responsibility to Provide Information 114 178. Responsibility of Secretary to provide information to parents 114 179. Responsibility of Secretary or out of home care service to provide information to carers 115 180. Confidentiality 115 PART 4.4--REPORTING 116 Division 1--Introduction 116 181. Who is a protective intervener? 116 182. Who is a mandatory reporter? 116 vii 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page Division 2--Report to Protective Intervener 118 183. Report to protective intervener 118 184. Mandatory reporting 118 185. Report on child in need of therapeutic treatment 119 186. Grounds for belief 119 187. Determination by Secretary about report 119 188. Record of report 120 Division 3--Protection of Reporters 120 189. Reporters protected 120 190. Evidence and legal proceedings 120 191. Confidentiality 122 PART 4.5--DISCLOSURE OF INFORMATION 123 Division 1--Voluntary Disclosure of Information 123 192. Secretary may request provision of information 123 193. Disclosers protected 123 Division 2--Compulsory Disclosure of Information 124 194. Who is an authorised officer? 124 195. Secretary may authorise direction to disclose 124 196. Authorised officer may require disclosure of information 124 197. Refusal or failure to comply with requirement 125 198. Protection against self-incrimination 125 199. Legal professional privilege 125 200. Medical professional privilege does not apply 125 201. Offence to give false or misleading information 126 202. Exclusion of evidence of disclosed information 126 203. Reporting of authorisations and directions 127 PART 4.6--INVESTIGATION 128 Division 1--Investigation of Protective Intervention Report 128 204. Directions for protective interveners 128 205. Investigation by protective intervener 128 206. Record of investigation 129 207. Provision of protection report to police 130 208. Protection of givers of information 131 209. Confidentiality 131 Division 2--Investigation of Therapeutic Treatment Report 132 210. Investigation by Secretary 132 211. Record of investigation 133 212. Protection of givers of information 134 213. Confidentiality 134 viii 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page PART 4.7--PROCEDURE IN FAMILY DIVISION 136 Division 1--General 136 214. How proceeding in Family Division commenced 136 215. Conduct of proceedings in Family Division 136 216. Power of Family Division to make certain orders by consent in absence of parties 137 Division 2--Dispute Resolution Conferences 138 217. Referral of application to dispute resolution conference 138 218. What is a facilitative conference? 138 219. What is an advisory conference? 139 220. Guidelines for dispute resolution conferences 139 221. Time and place of dispute resolution conference 139 222. Who is to attend a dispute resolution conference? 140 223. Report to Court by convenor 141 224. Court to consider report of convenor 141 225. Immunity of participants 141 226. Confidentiality of dispute resolution conferences 142 227. Dispute resolution convenors 143 PART 4.8--PROTECTIVE INTERVENTION 144 Division 1--Temporary Assessment Orders 144 228. Application for temporary assessment order by notice 144 229. Application for temporary assessment order without notice 145 230. Matters to be considered by Court 146 231. Temporary assessment order 146 232. What may a temporary assessment order provide for? 147 233. Child not to be medically examined in certain cases 148 234. Protection of privileges 149 235. Application for variation or revocation of order made in absence of child 149 236. Duration of temporary assessment order 150 237. Secretary may apply for warrant 150 238. Report to Court by Secretary 152 239. Appeal against temporary assessment order 152 Division 2--Action by Protective Intervener 154 240. Action by protective intervener 154 241. Protective intervener may take child in need of protection into safe custody 155 242. Actions on taking child into safe custody 155 243. Making a protection application without taking child into safe custody 157 ix 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page Division 3--Child in Need of Therapeutic Treatment 158 Subdivision 1--When is a Child in Need of Therapeutic Treatment? 158 244. When is a child in need of therapeutic treatment? 158 245. Referral to Therapeutic Treatment Board for advice 158 Subdivision 2--Therapeutic Treatment Orders 159 246. Secretary may apply for therapeutic treatment order 159 247. Issue of search warrant if child does not appear 160 248. When Court may make order under this Division 160 249. Therapeutic treatment order 160 250. Duration of order 161 251. Statements by child not admissible in criminal proceedings 161 Subdivision 3--Therapeutic Treatment (Placement) Orders 161 252. When can a therapeutic treatment (placement) order be made? 161 253. Therapeutic treatment (placement) order 162 254. Duration of order 162 Subdivision 4--Extension of Orders 163 255. Application for extension of order 163 256. Extension of order 163 Subdivision 5--Variation and Revocation of Orders 164 257. Variation of order 164 258. Revocation of order 165 Division 4--Irreconcilable Differences 166 259. Application if there is an irreconcilable difference 166 260. Conciliation counselling 167 261. Proceeding on application if party does not appear 168 Division 5--Interim Accommodation Orders 169 262. Interim accommodation order 169 263. Conditions of interim accommodation order 171 264. Duration of interim accommodation order 174 265. Parent entitled to know child's whereabouts 174 266. Power of Secretary to transfer child 175 267. Extension of interim accommodation order 175 268. Application for variation of interim accommodation order 177 269. Procedure on breach of interim accommodation order 179 270. Application for new interim accommodation order 181 271. Appeal against interim accommodation order 183 x 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page Division 6--Undertakings 184 272. Order requiring undertaking 184 273. Variation or revocation of undertaking 185 PART 4.9--PROTECTION ORDERS 186 Division 1--General 186 274. When Court may make order under this Part 186 275. Types of protection order 186 276. Restrictions on the making of protection orders 187 277. Service of applications 188 Division 2--Undertaking 189 278. Undertaking--protection order 189 279. Variation or revocation of undertaking 189 Division 3--Supervision Order 190 280. Supervision order 190 281. Supervision order may impose conditions 191 282. Powers of Secretary under supervision order 192 Division 4--Custody to Third Party Order 192 283. Custody to third party order 192 Division 5--Supervised Custody Order 194 284. Supervised custody order 194 285. Powers of Secretary under supervised custody order 195 286. Change to nature of order on reunification 196 Division 6--Custody to Secretary Order 197 287. Custody to Secretary order 197 288. Lapsing of custody to Secretary order 198 Division 7--Guardianship to Secretary Order 198 289. Guardianship to Secretary order 198 Division 8--Long-term Guardianship to Secretary Order 199 290. Long-term guardianship to Secretary order 199 Division 9--Interim Protection Order 201 291. Interim protection order 201 292. Interim accommodation order if hearing adjourned 203 xi 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page Division 10--Extension of Protection Orders 204 293. Application for extension of protection order 204 294. Extension of order 204 295. Matters to be taken into account 204 296. Duration of extension 206 297. Limited extension pending other orders 206 298. Review of extended orders 207 Division 11--Variation of Protection Orders 208 299. Application of Division 208 300. Application for variation of order 208 301. Decision of Court on application for variation 209 302. Interim variation of custody to Secretary order 209 Division 12--Revocation of Protection Orders 209 303. Application of Division 209 304. Application for revocation of order--general 210 305. Application for revocation of guardianship to Secretary order 210 306. Application for revocation of long-term guardianship to Secretary order 211 307. Decision of Court on application for revocation 212 308. Revocation of custody to Secretary order or guardianship to Secretary order 212 309. Revocation of long-term guardianship to Secretary order 213 310. Court may make further orders on revocation 213 Division 13--Breach of Protection Order 214 311. Application of Division 214 312. Breach of protection order--notice to appear 215 313. Taking child into safe custody when notice is served 216 314. Taking child into safe custody without notice 216 315. Requirements when taking child into safe custody 217 316. Order to continue 217 317. Interim protection order expires on making of interim accommodation order 217 318. Decision of Court 218 PART 4.10--PERMANENT CARE ORDERS 220 319. When Court may make permanent care order 220 320. Application for permanent care order 221 321. Permanent care order 222 322. Restrictions on the making of permanent care orders 223 323. Restrictions on the making of a permanent care order in respect of an Aboriginal child 224 324. Lapsing of permanent care order 225 xii 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page 325. Disputes between joint custodians or guardians 225 326. Variation or revocation of permanent care order 226 327. Decision on application for variation or revocation 227 PART 4.11--APPEALS AND REVIEWS 228 Division 1--Appeals 228 328. Appeal to County Court or Supreme Court 228 329. Appeal to Supreme Court on a question of law 233 330. Appeals to be heard in open court 234 Division 2--Reviews 235 331. Internal review 235 332. Review of decisions relating to recording of information 236 333. Review by Victorian Civil and Administrative Tribunal 237 PART 4.12--INTERSTATE MOVEMENT OF CHILDREN AND TRANSFERS 238 Division 1--Interstate Movement of Children 238 334. Definition 238 335. Interstate movement of children 238 336. Financial or other arrangements 239 337. Transfer agreements 239 Division 2--Transfer of Child Protection Orders and Proceedings 240 338. Transfer of child protection orders and proceedings 240 PART 4.13--THERAPEUTIC TREATMENT BOARD 241 339. Establishment of Therapeutic Treatment Board 241 340. Constitution of Board 241 341. Functions of Board 241 342. Committees 241 343. Procedure of the Board 242 CHAPTER 5--CHILDREN AND THE CRIMINAL LAW 243 PART 5.1--CRIMINAL RESPONSIBILITY OF CHILDREN 243 344. Children under 10 years of age 243 xiii 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page PART 5.2--PROCEDURES AND STANDARD OF PROOF 244 Division 1--Custody and Bail 244 345. Children to be proceeded against by summons except in exceptional circumstances 244 346. Child in custody to be brought before Court or bail justice 244 347. Child in custody to be placed in remand centre 246 348. Breach of bail 247 Division 2--Referral for Investigation 247 349. Referral to Secretary 247 350. Report of investigation 248 351. Report on outcome of application 249 352. Court must adjourn in case of therapeutic treatment order 249 353. Report to Criminal Division on outcome of therapeutic treatment order 249 354. Hearing of adjourned case 250 355. Pre-sentence report to Court 251 Division 3--Procedure for Indictable Offences Triable Summarily 251 356. Procedure for indictable offences triable summarily 251 Division 4--Standard of Proof 253 357. Proof beyond reasonable doubt 253 Division 5--Reports and other Matters to be Taken into Account in Considering Sentence 253 358. Court may only consider certain reports and other matters 253 359. Victim impact statements 254 PART 5.3--SENTENCING ORDERS 257 Division 1--Sentencing generally 257 360. Sentencing orders 257 361. Sentencing hierarchy 258 362. Matters to be taken into account 259 Division 2--Undertaking 260 363. Non-accountable undertaking 260 364. Breach of undertaking 260 Division 3--Accountable Undertaking 261 365. Accountable undertaking 261 366. Breach of undertaking 261 xiv 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page Division 4--Good Behaviour Bond 262 367. Good behaviour bond 262 368. Dismissal where bond observed 264 369. Child required to appear 264 370. Failure to appear 264 371. Breach of bond 265 372. Time for application 266 Division 5--Fines 267 373. Fines 267 374. Financial circumstances of child to be considered 267 375. Instalment orders 268 376. Time to pay 268 377. Application for time to pay, for instalment order or for variation of instalment order 269 378. Default in payment of fine or instalment 269 379. Reduction of order by payment of portion of fine 270 Division 6--Probation Orders 271 380. Court may order probation 271 381. Conditions of probation orders 271 382. Concurrent probation orders 273 383. Court may require Secretary to report 274 384. Breach of probation 274 385. Secretary's report 276 386. Time for application 277 Division 7--Youth Supervision Orders 278 387. Court may impose youth supervision order 278 388. Concurrent youth supervision orders 278 389. Youth supervision orders 279 390. Suspension of youth supervision order 282 391. Court may require Secretary to report 283 392. Breach of youth supervision order 283 393. Penalties for breach 285 394. Matters to be taken into account 285 395. Time for application 287 Division 8--Youth Attendance Orders 287 396. Definitions 287 397. Youth attendance order 287 398. Restrictions on power to make youth attendance order 288 399. Sentencing court to impose requirements 288 400. Concurrent orders 289 401. Copy of order to be given 290 402. Reporting 290 xv 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page 403. Suspension of youth attendance order 292 404. Court may require Secretary to report 293 405. Objects of youth attendance order 294 406. Person subject to control etc. of Secretary etc. 294 407. Community service 295 408. Breach of youth attendance order 296 409. Application for variation or revocation of order 299 Division 9--Youth Residential Centre Orders 302 410. Court may make youth residential centre order 302 411. Youth residential centre orders 303 Division 10--Youth Justice Centre Orders 305 412. Court may make youth justice centre order 305 413. Youth justice centre orders 306 Division 11--Deferral of Sentencing 307 414. Deferral of sentencing 307 415. Group conference 308 416. Hearing of adjourned case 310 Division 12--Orders in Addition to Sentence 311 417. Orders in addition to sentence 311 418. Enforcement of orders in addition to sentence 312 Division 13--General 313 419. Provisions applicable to warrants 313 420. Bail 313 421. Variation or revocation of order 314 422. Suspension of order 316 423. Proceedings for breach of sentencing order 316 PART 5.4--APPEALS TO COUNTY COURT AND SUPREME COURT 320 424. Appeal to County Court or Supreme Court 320 425. County Court or the Supreme Court may reserve question of law for Full Court 323 426. Appeals to Full Court from County Court or Supreme Court 324 427. Appeal to Supreme Court on a question of law 325 428. Appeal by child under 15 years 327 429. Parent may enter into bail 327 430. Appeals to be heard in open court 327 xvi 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page PART 5.5--PAROLE 329 Division 1--Youth Residential Board 329 431. Establishment of Youth Residential Board 329 432. Terms and conditions of office 329 433. Alternate members 331 434. Meetings of the Youth Residential Board 332 435. Validity of acts or decisions of the Youth Residential Board 333 436. Secretary or member may act on behalf of Youth Residential Board 333 437. Evidentiary provisions 333 438. Powers etc. of Youth Residential Board 334 439. Powers to take evidence etc. 334 440. Saving of members of Youth Residential Board from liability 334 441. Reports by Youth Residential Board 334 Division 2--Youth Parole Board 336 442. Establishment of Youth Parole Board 336 443. Terms and conditions of office 336 444. Alternate members 338 445. Meetings of the Youth Parole Board 339 446. Validity of acts or decisions of the Youth Parole Board 340 447. Secretary or member may act on behalf of Youth Parole Board 340 448. Evidentiary provisions 340 449. Powers etc. of Youth Parole Board 341 450. Powers to take evidence etc. 341 451. Saving of members of Youth Parole Board from liability 341 452. Reports by Youth Parole Board 341 Division 3--Youth Parole Officers 342 453. Youth parole officers 342 Division 4--Release on Parole from Youth Residential Centre 343 454. Release on parole from youth residential centre 343 455. Person still under sentence until end of parole period 344 456. Cancellation of parole 345 457. Youth Residential Board may release on parole more than once 347 Division 5--Release on Parole from Youth Justice Centre 347 458. Release on parole from youth justice centre 347 459. Person still under sentence until end of parole period 348 460. Cancellation of parole 349 461. Youth Parole Board may release on parole more than once 351 xvii 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page PART 5.6--TRANSFERS 352 Division 1--Jurisdiction over Detainees 352 462. Persons detained in youth residential centre subject to Youth Residential Board 352 463. Persons detained in youth justice centre subject to Youth Parole Board 352 Division 2--Transfer from Youth Residential Centre to Youth Justice Centre 352 464. Power of Youth Residential Board to transfer person to a youth justice centre 352 465. Restriction on transfer of under 14 year olds 353 466. Transfer to youth justice centre 353 Division 3--Transfer from Youth Justice Centre to Prison 354 467. Power of Youth Parole Board to transfer person to prison 354 468. Detainee may request transfer to prison 355 469. Transfer to prison 356 Division 4--Transfer from Youth Justice Centre to Youth Residential Centre 357 470. Persons in youth justice centre may be transferred to youth residential centre 357 Division 5--Transfers to and from Prison 359 471. Persons in prison may be transferred to youth justice centre 359 472. Person in prison may be transferred to youth residential centre 361 473. Person transferred from prison to YJC or YRC may be transferred back to prison 363 Division 6--General 365 474. Person in youth residential centre sentenced to detention in youth justice centre or imprisonment 365 475. Person in youth justice centre sentenced to imprisonment 366 476. Person in youth justice centre sentenced to detention in youth residential centre 368 477. Person in prison sentenced to detention in youth justice centre 369 PART 5.7--ESTABLISHMENT OF CORRECTIVE SERVICES FOR CHILDREN 371 478. Governor in Council may establish corrective services 371 479. Approval of service as youth justice unit 372 480. Approval of service as group conference program 372 481. Standard of services 373 482. Form of care, custody or treatment 373 xviii 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page PART 5.8--PERSONS IN DETENTION 375 483. Legal custody 375 484. Removal of person from remand centre etc. 375 485. Temporary leave from legal custody 376 486. Search 379 487. Prohibited actions 381 488. Isolation 382 489. Detention in default of payment of a fine 383 490. Bringing of person before court or inquest 383 491. Power of police to arrest person in youth justice centre 384 492. Interstate transfer of young offenders 385 CHAPTER 6--OFFENCES 386 PART 6.1--OFFENCES RELATING TO THE PROTECTION OF CHILDREN 386 493. Offence to fail to protect child from harm 386 494. Offence to leave child unattended 387 495. Offence to harbour or conceal child 387 496. Offence to counsel or induce child to be absent without lawful authority etc. 388 497. Offences in relation to community service etc. 389 PART 6.2--OFFENCES RELATING TO DETAINED PERSONS 391 498. Offence to escape or attempt to escape etc. 391 499. Offence to harbour or conceal person 392 500. Offence to counsel or induce person to escape 392 501. Offences in relation to persons held in centres 393 PART 6.3--GENERAL OFFENCES 395 502. Offence to impersonate Secretary as protective intervener 395 503. Offence to obstruct Secretary or employee 395 CHAPTER 7--THE CHILDREN'S COURT OF VICTORIA 396 PART 7.1--THE CHILDREN'S COURT 396 504. The Children's Court 396 505. Where and when Court to be held 397 506. President, magistrate or acting magistrate to be in attendance 397 507. Assignment of magistrates or acting magistrates 398 508. President 399 509. Acting President 400 510. Assignment of duties 401 511. Delegation by the President 401 xix 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page 512. Protection of President 401 513. Protection of magistrates or acting magistrates 401 514. Annual report 402 PART 7.2--JURISDICTION 403 515. Jurisdiction of Family Division 403 516. Jurisdiction of Criminal Division 405 517. Koori Court (Criminal Division) 407 518. Jurisdiction of Koori Court (Criminal Division) 409 519. Circumstances in which Koori Court (Criminal Division) may deal with certain offences 409 520. Sentencing procedure in Koori Court (Criminal Division) 410 521. Application of Act to other Courts 411 PART 7.3--PROCEDURE 412 522. Procedural guidelines to be followed by Court 412 523. Proceedings to be heard in open court 413 524. Legal representation 414 525. Proceedings in which child is required to be legally represented 417 526. Interpreter 420 527. Explanation of and reasons for orders 420 PART 7.4--POWERS 425 528. Court to have powers of Magistrates' Court 425 529. Recall and cancellation of warrant 426 530. Power to adjourn proceeding 427 531. Power to dispense with service 429 532. Witness summonses 430 533. Court may reserve question of law for determination by Supreme Court 433 PART 7.5--RESTRICTION ON PUBLICATION OF PROCEEDINGS 434 534. Restriction on publication of proceedings 434 PART 7.6--COURT OFFICERS 437 535. Principal registrar, registrars and deputy registrars 437 536. Appointment of Aboriginal elders or respected persons 438 537. Court register 438 538. Process 439 539. Powers of registrar 440 xx 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page 540. Fees 440 541. Extortion by and impersonation of court officials 440 542. Protection of registrars 441 PART 7.7--COURT SERVICES 442 543. Youth justice officers 442 544. Duties of youth justice officers 443 545. Children's Court Liaison Office 444 546. Children's Court Clinic 444 PART 7.8--REPORTS TO THE COURT 446 Division 1--General 446 547. Reports to which Part applies 446 548. Notification of requirement to submit report 446 549. Warning to be given to persons being interviewed 447 550. Attendance at Court of author of report 447 551. Disputed report 448 552. Confidentiality of reports 449 Division 2--Protection Reports 450 553. Protection reports 450 554. Secretary to forward report to Court 450 555. Content of protection report 450 556. Access to protection report 450 Division 3--Disposition Reports and Additional Reports 452 557. Disposition reports 452 558. Content of disposition report 453 559. Access to disposition report 454 560. Additional report 455 561. Access to additional report 455 562. Access to additional reports prepared by Secretary to Department of Justice 457 Division 4--Therapeutic Treatment Application Reports 459 563. Therapeutic treatment application reports 459 564. Content of therapeutic treatment application report 460 565. Secretary to forward report to Court 460 566. Access to therapeutic treatment application report 460 Division 5--Therapeutic Treatment (Placement) Reports 462 567. Therapeutic treatment (placement) reports 462 568. Content of therapeutic treatment (placement) report 462 569. Secretary to forward report to Court 462 570. Access to therapeutic treatment (placement) report 463 xxi 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page Division 6--Pre-Sentence Reports 464 571. Court may order pre-sentence report 464 572. Who prepares pre-sentence reports? 465 573. Contents of pre-sentence report 465 574. Pre-sentence report to be filed with registrar 466 575. Access to pre-sentence reports 467 Division 7--Group Conference Reports 468 576. Group conference report 468 577. Who prepares group conference reports? 468 578. Content of group conference report 468 579. Group conference report to be filed with registrar 469 580. Access to group conference report 469 PART 7.9--CHILDREN AND YOUNG PERSONS INFRINGEMENT NOTICE SYSTEM 470 581. CAYPINS procedure 470 582. Certain agencies may give information for enforcement purposes 470 PART 7.10--GENERAL 472 583. Witness who has previously appeared in Children's Court 472 584. Defendant or other person who has previously appeared in Children's Court 473 585. Transfer of proceedings from Magistrates' Court to Children's Court 474 586. Supreme Court or County Court may exercise sentencing powers of Children's Court 474 587. Notice required to be filed if child is taken into safe custody or apprehended without warrant 475 PART 7.11--RULES 476 588. Rules 476 589. Rules of court 476 590. Rules of court--Koori Court (Criminal Division) 477 591. Disallowance 477 592. Practice notes 477 CHAPTER 8--GENERAL 478 PART 8.1--SERVICE OF DOCUMENTS 478 593. Service of documents 478 594. Service on parent or child or other person 479 595. Proof of service 479 596. Person may cause document to be served 480 xxii 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Clause Page PART 8.2--POWERS OF SECRETARY IN RELATION TO MEDICAL SERVICES 481 597. Powers of Secretary in relation to medical services and operations 481 PART 8.3--TAKING CHILD INTO SAFE CUSTODY 484 598. Circumstances in which child may be taken into safe custody 484 PART 8.4--JURISDICTION OF SUPREME COURT 486 599. Supreme Court--limitation of jurisdiction 486 PART 8.5--REGULATIONS 487 600. Regulations 487 PART 8.6--REPEALS AND TRANSITIONAL PROVISIONS 492 601. Repeal of Children and Young Persons Act 1989 492 602. Amendment of Community Services Act 1970 492 603. Amendment of Children and Young Persons Act 1989 492 604. Amendment of Child Wellbeing and Safety Act 2005 494 605. Repeal of Koori Court (Criminal Division) provisions of this Act 494 606. Transitional and saving provisions 495 __________________ SCHEDULES 496 SCHEDULE 1--Transfer of Child Protection Orders and Proceedings 496 SCHEDULE 2--Interstate Transfer of Young Offenders 515 SCHEDULE 3--Children and Young Persons Infringement Notice System 525 SCHEDULE 4--Transitional and Saving Provisions 540 ENDNOTES 543 xxiii 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

PARLIAMENT OF VICTORIA A BILL to provide for community services to support children and their families, to provide for the protection of children, to make provision in relation to children who have been charged with, or who have been found guilty of, offences, to continue The Children's Court of Victoria as a specialist court dealing with matters relating to children, to repeal the Children and Young Persons Act 1989, to amend the Community Services Act 1970 and other Acts and for other purposes. Children, Youth and Families Act 2005 The Parliament of Victoria enacts as follows: 1 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 1 CHAPTER 1--PRELIMINARY PART 1.1--INTRODUCTION 1. Purposes The main purposes of this Act are-- (a) to provide for community services to support 5 children and families; and (b) to provide for the protection of children; and (c) to make provision in relation to children who have been charged with, or who have been found guilty of, offences; and 10 (d) to continue The Children's Court of Victoria as a specialist court dealing with matters relating to children. 2. Commencement (1) Sections 1, 603 and this section come into 15 operation on the day after the day on which this Act receives the Royal Assent. (2) Subject to sub-section (3), section 605 comes into operation on a day to be proclaimed. (3) If section 605 does not come into operation before 20 1 July 2007, it comes into operation on that day. (4) Subject to sub-section (5), the remaining provisions of this Act come into operation on a day or days to be proclaimed. (5) If a provision of this Act referred to in sub- 25 section (4) does not come into operation before 1 October 2007, it comes into operation on that day. 2 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 3. Definitions (1) In this Act-- "Aboriginal agency" means an organisation declared to be an Aboriginal agency under section 6; 5 "Aboriginal elder or respected person" means a person who holds office as an Aboriginal elder or respected person under section 536; "Aboriginal person" means a person who-- (a) is descended from an Aborigine or 10 Torres Strait Islander; and (b) identifies as an Aborigine or Torres Strait Islander; and (c) is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or 15 Torres Strait Island community; "access" means the contact of a child with a person who does not have custody of the child by way of-- (a) a visit by or to that person, including 20 attendance for a period of time at a place other than the child's usual place of residence; or (b) communication with that person by letter, telephone or other means-- 25 and includes overnight access; "accountable undertaking" means a sentencing order referred to in section 360(1)(c); "Adult Parole Board" means the Adult Parole Board established by section 61 of the 30 Corrections Act 1986; "age" means, in the absence of positive evidence as to age, apparent age; 3 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 "appropriate registrar" means the registrar at the proper venue of the Court; "authorised officer" means a person authorised under section 194; "care", in relation to a child, means the daily care 5 and control of the child, whether or not involving custody of the child; "case plan" means-- (a) in relation to the Secretary, a case plan as defined in section 166; 10 (b) in relation to a community service, a statement of any decision concerning a child for whom it provides, or is to provide, services; "central register" means the register established 15 under section 165; "Chief Magistrate" means the Chief Magistrate appointed under section 7(2) of the Magistrates' Court Act 1989 and includes an Acting Chief Magistrate appointed under 20 section 8 of that Act; "child" means-- (a) in the case of a person who is alleged to have committed an offence, a person who at the time of the alleged 25 commission of the offence was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the 30 offence is commenced in the Court; and 4 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 (b) in any other case, a person who is under the age of 17 years or, if a protection order, a child protection order within the meaning of Schedule 1 or an interim order within the meaning of that 5 Schedule continues in force in respect of him or her, a person who is under the age of 18 years; "Children's Koori Court officer" means a person who-- 10 (a) is employed under Part 3 of the Public Administration Act 2004; and (b) exercises powers or performs functions in relation to the Koori Court (Criminal Division) of the Court; 15 "community-based child and family service" means a body registered under section 46 in the category of community-based child and family service; "community service" means-- 20 (a) a community service established under section 44; or (b) a body registered under section 46; "Court" means The Children's Court of Victoria; "court liaison officer" means a court liaison 25 officer appointed under section 545; "court official" means-- (a) the principal registrar of the Court; or (b) a registrar or deputy registrar of the Court; or 30 (c) a court liaison officer; or (d) any person employed in any of the offices of the Court; 5 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 "court register" means the register kept under section 537; "cultural plan" means a cultural plan prepared under section 176; "custody" means custody as defined in section 5; 5 "custody to Secretary order" means an order referred to in section 275(1)(e); "custody to third party order" means an order referred to in section 275(1)(c); "decision-making process" means-- 10 (a) in relation to the Secretary, means the process of decision-making by the Secretary concerning a child beginning when the Secretary receives a report under section 28, 33(2), 183, 184 15 or 185; (b) in relation to a community based child and family service, means the process of decision-making by the service concerning a child beginning when the 20 service receives a referral under section 31; "Department" means the Department of Human Services; "development" means physical, social, 25 emotional, intellectual, cultural and spiritual development; "disposition report" means a report referred to in section 557; "Division" means Division of the Court; 30 6 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 "domestic partner" of a person means a person to whom the person is not married but with whom the person is living as a couple on a genuine domestic basis (irrespective of gender); 5 "employee" means a person employed under Part 3 of the Public Administration Act 2004 in the Department; "extension application" means an application under section 293 for an extension or further 10 extension of a protection order; "fine" includes any penalties, forfeitures, sums of money and costs ordered to be paid by the person fined; "Fund" means the State Guardianship Fund 15 established under section 177; "group conference" means a group conference under section 415; "group conference outcome plan" means an outcome plan included in a group conference 20 report; "group conference report" means a report referred to in Division 7 of Part 7.8; "guardianship" means guardianship as defined in section 4; 25 "guardianship to Secretary order" means an order referred to in section 275(1)(f); "hearing date", in relation to a proceeding, means the date on which the proceeding is listed for hearing; 30 7 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 "information holder" means-- (a) a member of the police force; (b) an employee of the Department; (c) an employee of another Department; (d) a person who is registered as a teacher 5 under the Victorian Institute of Teaching Act 2001 or has been granted permission to teach under that Act; (e) the head teacher or principal of a State school within the meaning of the 10 Education Act 1958 or of a school registered under Part III of that Act; (f) a person in charge of a relevant health service within the meaning of section 141 of the Health Services Act 15 1988; (g) a person in charge of a relevant psychiatric service within the meaning of section 120A of the Mental Health Act 1986; 20 (h) a registered medical practitioner; (i) a registered psychologist within the meaning of the Psychologists Registration Act 2000; (j) a person registered under the Nurses 25 Act 1993; (k) a person in charge of a children's service within the meaning of the Children's Services Act 1996; 8 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 (l) the person in charge of a body that receives funding from the Secretary under a State contract to provide disability services to a child who is an eligible person within the meaning of 5 the Intellectually Disabled Persons' Services Act 1986 or the Disability Services Act 1991; (m) the person in charge of a body that receives funding from the Secretary 10 under a State contract to provide drug or alcohol treatment services; (n) any person in a prescribed class of persons; "interim accommodation order" means an order 15 under section 262; "interim protection order" means an order referred to in section 275(1)(h); "interpreter" means-- (a) an interpreter accredited with the 20 National Accreditation Authority for Translators and Interpreters Limited A.C.N. 008 596 996; or (b) a competent interpreter; "irreconcilable difference application" means 25 an application under section 259; "legal practitioner" means an Australian legal practitioner within the meaning of the Legal Profession Act 2004; "legal representation" means representation by a 30 legal practitioner; "long-term guardianship to Secretary order" means an order referred to in section 275(1)(g); 9 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 "magistrate" means a magistrate for the Court; "medical examination" includes-- (a) physical examination, psychological examination and psychiatric examination; and 5 (b) in the course of the examination, the taking of samples for analysis and the use of any machine or device to enable or assist in the examination; "order", in relation to the Criminal Division, 10 includes judgment and conviction; "out of home care" means care of a child by a person other than a parent of the child; "out of home care service" means-- (a) a registered out of home care service; 15 or (b) a community service established under section 44 to provide out of home care; "parent", in relation to a child, includes-- (a) the father and mother of the child; and 20 (b) the spouse of the father or mother of the child; and (c) the domestic partner of the father or mother of the child; and (d) a person who has custody of the child; 25 and (e) a person whose name is entered as the father of the child in the register of births in the Register maintained by the Registrar of Births, Deaths and 30 Marriages under Part 7 of the Births, Deaths and Marriages Registration Act 1996; and 10 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 (f) a person who acknowledges that he is the father of the child by an instrument of the kind described in section 8(2) of the Status of Children Act 1974; and (g) a person in respect of whom a court has 5 made a declaration or a finding or order that the person is the father of the child; "parole order" means an order under Division 4 or 5 of Part 5.5; "parole period" means the period from a person's 10 release on parole until the end of the period of his or her detention; "period", in relation to detention, includes the aggregate of two or more periods, whether cumulative or concurrent; 15 "permanent care order" means an order under section 321; "police gaol" has the same meaning as in the Corrections Act 1986; "post-secondary qualification" means a 20 qualification from an institution, person or body providing or offering to provide (whether in or outside Victoria) post- secondary education as defined in the Tertiary Education Act 1993 (whether or 25 not that institution, person or body has since ceased to exist) and includes a qualification from a post-secondary education provider as defined in that Act; "pre-sentence report" means a report referred to 30 in Division 6 of Part 7.8; "prison" has the same meaning as in the Corrections Act 1986; 11 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 "proceeding" means any matter in the Court, including a committal proceeding, but does not include the exercise by a registrar of any jurisdiction, power or authority vested in the registrar as registrar under Schedule 3; 5 "process" includes witness summons, charge- sheet, summons to answer to a charge, warrant to arrest, remand warrant, search warrant, warrant to seize property, warrant to imprison, warrant to detain in a youth 10 residential centre or a youth justice centre, warrant of delivery and any process by which a proceeding in the Court is commenced; "progress report" means a report prepared under 15 section 385, 391, 404 or 409(5)(a); "proper venue"-- (a) in relation to a proceeding in the Family Division, means the venue of the Court that is nearest to-- 20 (i) the place of residence of the child; or (ii) the place where the subject-matter of the application arose; and (b) in relation to a proceeding in the 25 Criminal Division, means the venue of the Court that is nearest to-- (i) the place of residence of the child; or (ii) the place where the offence is 30 alleged to have been committed; 12 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 "protection application" means an application made to the Court for a finding that a child is in need of protection; "protection order" means an order referred to in section 275(1); 5 "protection report" means a report referred to in Division 2 of Part 7.8; "protective intervener" means a person referred to in section 181; "protective intervention report" means-- 10 (a) a report to a member of the police force as a protective intervener under section 183; or (b) a report to the Secretary under section 183 or 184 that the Secretary 15 has determined under section 187 to be a protective intervention report; or (c) a report to the Secretary under section 28 or 33(2) that the Secretary has determined under section 34 to be a 20 protective intervention report; "publish" means-- (a) insert in a newspaper or other periodical publication; or (b) disseminate by broadcast, telecast or 25 cinematograph; or (c) otherwise disseminate to the public by any means; 13 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 "register of community services" means the register of community services kept under section 54; "register of out of home care services" means the register of out of home care services kept 5 under section 80; "registered community service" means a body registered under section 46; "registered medical practitioner" has the same meaning as in the Medical Practice Act 10 1994; "registered out of home care service" means a body registered under section 46 in the category of out of home care service; "registered psychologist" has the same meaning 15 as in the Psychologists Registration Act 2000; "relative", in relation to a child, means a grandparent, brother, sister, uncle or aunt of the child, whether of the whole blood or half- 20 blood or by marriage, and whether or not the relationship depends on adoption of the child; "remand centre" means a remand centre established under section 478(a); 25 "return date", in relation to a proceeding, means any date on which the proceeding is listed before the Court; "safe custody" means placement in accordance with section 242(5); 30 14 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 "search warrant", means a warrant which authorises the person to whom it is directed-- (a) to break, enter and search any place where the person named or described in 5 the warrant is suspected to be; and (b) except in Division 1 of Part 4.8, to take into safe custody or arrest the person and-- (i) bring the person before a bail 10 justice or the Court as soon as practicable to be dealt with according to law; or (ii) release the person on an interim accommodation order in 15 accordance with the endorsement on the warrant; "Secretary" means the Secretary to the Department; "secure welfare service" means a community 20 service that has lock-up facilities; "sentencing order" means any order made by the Criminal Division following a finding of guilt and includes-- (a) any order made under Part 5.3 (other 25 than an order granting bail made under section 420); and (b) the recording of a conviction; "service agency" means-- (a) a Department established under the 30 Public Administration Act 2004; (b) a relevant health service within the meaning of section 141 of the Health Services Act 1988; 15 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 (c) a relevant psychiatric service within the meaning of section 120A of the Mental Health Act 1986; (d) a body that receives funding from the Secretary under a State contract to 5 provide disability services to a child who is an eligible person within the meaning of the Intellectually Disabled Persons' Services Act 1986 or the Disability Services Act 1991; 10 (e) a body that receives funding from the Secretary under a State contract to provide drug or alcohol treatment services; (f) a prescribed body or a body in a 15 prescribed class; "spouse" of a person means a person to whom the person is married; "stability plan" has the meaning set out in section 169; 20 "State contract" means a contract entered into by or on behalf of the State; "supervised custody order" means an order referred to in section 275(1)(d); "supervision order" means an order referred to 25 in section 275(1)(b); "temporary assessment order" means an order referred to in section 231; "therapeutic treatment application report" means a report referred to in Division 4 of 30 Part 7.8; 16 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 "Therapeutic Treatment Board" means the Therapeutic Treatment Board established under section 339; "therapeutic treatment order" means an order referred to in section 249; 5 "therapeutic treatment (placement) order" means an order referred to in section 253; "therapeutic treatment (placement) order report" means an order referred to in Division 5 of Part 7.8; 10 "victim", in relation to an offence, means a person who, or body that, has suffered injury, loss or damage as a direct result of the offence, whether or not that injury, loss or damage was reasonably foreseeable by the 15 child found guilty of the offence; "working day", in relation to the Court, means a day on which the offices of the Court are open; "youth attendance order" means an order made 20 under section 397; "youth justice centre" means a youth justice centre established under section 478(c); "youth justice centre order" means an order referred to in section 360(1)(j); 25 "youth justice officer" includes the Secretary, and every honorary youth justice officer; "youth justice unit" means-- (a) a youth justice unit established under section 478(d); or 30 (b) a youth justice unit approved under section 479(1); 17 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 3 "Youth Parole Board" means the Youth Parole Board established by section 442; "youth parole officer" includes an honorary youth parole officer; "Youth Residential Board" means the Youth 5 Residential Board established by section 431(1); "youth residential centre" means a youth residential centre established under section 478(b); 10 "youth residential centre order" means an order referred to in section 360(1)(i); "youth supervision order" means an order referred to in section 360(1)(g). (2) For the purposes of the definition of "domestic 15 partner" in sub-section (1), in determining whether persons are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 275(2) 20 of the Property Law Act 1958 as may be relevant in a particular case. (3) If under the Public Administration Act 2004 the name of the Department is changed, the reference in the definition of "Department" in 25 sub-section (1) to the "Department of Human Services" is from the date when the name is changed to be taken to be a reference to the Department by its new name. (4) Unless the context otherwise requires, a reference 30 in this Act to the Criminal Division includes a reference to the Koori Court (Criminal Division). 18 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 4 4. Guardianship A person (including the Secretary) who has, or under this Act is granted, guardianship of a child, has responsibility for the long-term welfare of the child and has, in relation to the child, all the 5 powers, rights and duties that are, apart from this Act, vested by law or custom in the guardian of a child, other than-- (a) the right to have the daily care and control of the child; and 10 (b) the right and responsibility to make decisions concerning the daily care and control of the child. 5. Custody A person (including the Secretary) who has, or 15 under this Act is granted, custody of a child has-- (a) the right to have the daily care and control of the child; and (b) the right and responsibility to make decisions concerning the daily care and control of the 20 child. 6. Aboriginal agency (1) The Governor in Council may, by Order published in the Government Gazette, declare an organisation to be an Aboriginal agency. 25 (2) An organisation may only be declared to be an Aboriginal agency if-- (a) it is a registered community service; and (b) the Secretary is satisfied-- (i) that it is managed by Aboriginal 30 persons; and (ii) that its activities are carried on for the benefit of Aboriginal persons. 19 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.1--Introduction s. 7 (3) An Order in Council made under sub-section (1) with respect to an organisation must state that the Secretary is satisfied as to the matters referred to in sub-section (2). 7. References to Parts 5 Unless the context otherwise requires, a reference in this Act to a Part by a number must be construed as a reference to the Part, designated by that number, of this Act. __________________ 20 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.2--Principles s. 8 PART 1.2--PRINCIPLES Division 1--Decision Makers to Have Regard to Principles 8. Decision makers to have regard to principles (1) The Court must have regard to the principles set out in this Part (where relevant) in making any 5 decision or taking any action under this Act. (2) The Secretary must have regard to the principles set out in this Part (where relevant) in making any decision or taking any action under this Act or in providing any service under this Act to children 10 and families. (3) A community service must have regard to the principles set out in this Part (where relevant) in making any decision or taking any action in relation to a child for whom it is providing, or is 15 to provide, services under this Act. (4) This section does not apply in relation to any decision or action under Chapter 5 or Chapter 7 (in relation to any matter under Chapter 5). 9. Role of principles 20 (1) The principles set out in this Part are intended to give guidance in the administration of this Act. (2) The principles do not apply to Chapter 5 or Chapter 7 (in relation to any matter under Chapter 5). 25 21 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.2--Principles s. 10 Division 2--Best Interests Principles 10. Best interests principles (1) For the purposes of this Act the best interests of the child must always be paramount. (2) When determining whether a decision or action is 5 in the best interests of the child, the need to protect the child from harm, to protect his or her rights and to promote his or her development (taking into account his or her age and stage of development) must always be considered. 10 (3) In addition to sub-sections (1) and (2), in determining what decision to make or action to take in the best interests of the child, consideration must be given to the following, where they are relevant to the decision or action-- 15 (a) the need to give the widest possible protection and assistance to the parent and child as the fundamental group unit of society and to ensure that intervention into that relationship is limited to that necessary 20 to secure the safety and wellbeing of the child; (b) the need to strengthen, preserve and promote positive relationships between the child and the child's parent, family members and 25 persons significant to the child; (c) the need, in relation to an Aboriginal child, to protect and promote his or her Aboriginal cultural and spiritual identity and development by, wherever possible, 30 maintaining and building their connections to their Aboriginal family and community; 22 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.2--Principles s. 10 (d) the child's views and wishes, if they can be reasonably ascertained, and they should be given such weight as is appropriate in the circumstances; (e) the effects of cumulative patterns of harm on 5 a child's safety and development; (f) the desirability of continuity and stability in the child's care; (g) that a child is only to be removed from the care of his or her parent if there is an 10 unacceptable risk of harm to the child; (h) if the child is to be removed from the care of his or her parent, that consideration is to be given first to the child being placed with an appropriate family member or other 15 appropriate person significant to the child, before any other placement option is considered; (i) the desirability, when a child is removed from the care of his or her parent, to plan the 20 reunification of the child with his or her parent; (j) the capacity of each parent or other adult relative or potential care giver to provide for the child's needs and any action taken by the 25 parent to give effect to the goals set out in the case plan relating to the child; (k) access arrangements between the child and the child's parents, siblings, family members and other persons significant to the child; 30 (l) the child's social, individual and cultural identity and religious faith (if any) and the child's age, maturity, sex and sexual identity; 23 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.2--Principles s. 11 (m) where a child with a particular cultural identity is placed in out of home care with a care giver who is not a member of that cultural community, the desirability of the child retaining a connection with their 5 culture; (n) the desirability of the child being supported to gain access to appropriate educational services, health services and accommodation and to participate in appropriate social 10 opportunities; (o) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance; (p) the possible harmful effect of delay in 15 making the decision or taking the action; (q) the desirability of siblings being placed together when they are placed in out of home care; (r) any other relevant consideration. 20 Division 3--Decision-making Principles 11. Decision-making principles In making a decision or taking an action in relation to a child, the Secretary or a community service must also give consideration to the 25 following principles-- (a) the child's parent should be assisted and supported in reaching decisions and taking actions to promote the child's safety and wellbeing; 30 24 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.2--Principles s. 11 (b) where a child is placed in out of home care, the child's care giver should be consulted as part of the decision-making process and given an opportunity to contribute to the process; 5 (c) the decision-making process should be fair and transparent; (d) the views of all persons who are directly involved in the decision should be taken into account; 10 (e) decisions are to be reached by collaboration and consensus, wherever practicable; (f) the child and all relevant family members (except if their participation would be detrimental to the safety or wellbeing of the 15 child) should be encouraged and given adequate opportunity to participate fully in the decision-making process; (g) the decision-making process should be conducted in such a way that the persons 20 involved are able to participate in and understand the process, including any meetings that are held and decisions that are made; (h) persons involved in the decision-making 25 process should be-- (i) provided with sufficient information, in a language and by a method that they can understand, and through an interpreter if necessary, to allow them 30 to participate fully in the process; and (ii) given a copy of any proposed case plan and sufficient notice of any meeting proposed to be held; and 25 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.2--Principles s. 12 (iii) provided with the opportunity to involve other persons to assist them to participate fully in the process; and (i) if the child has a particular cultural identity, a member of the appropriate cultural 5 community who is chosen or agreed to by the child or by his or her parent should be permitted to attend meetings held as part of the decision-making process. Division 4--Additional Decision-making Principles for 10 Aboriginal Children 12. Additional decision-making principles In recognition of the principle of Aboriginal self- management and self-determination, in making a decision or taking an action in relation to an 15 Aboriginal child, the Secretary or a community service must also give consideration to the following principles-- (a) in making a decision or taking an action in relation to an Aboriginal child, an 20 opportunity should be given, where relevant, to members of the Aboriginal community to which the child belongs and other respected Aboriginal persons to contribute their views; (b) a decision in relation to an Aboriginal child, 25 should involve a meeting convened by an Aboriginal convener who has been approved by an Aboriginal agency and, wherever possible, attended by-- (i) the child; and 30 (ii) the child's parent; and (iii) members of the extended family of the child; and 26 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.2--Principles s. 13 (iv) other appropriate members of the Aboriginal community as determined by the child's parent; (c) in making a decision to place an Aboriginal child in out of home care, an Aboriginal 5 agency must first be consulted and the Aboriginal Child Placement Principle must be applied. 13. Aboriginal Child Placement Principle (1) For the purposes of this Act the Aboriginal Child 10 Placement Principle is that if it is in the best interests of an Aboriginal child to be placed in out of home care, in making that placement, regard must be had-- (a) to the advice of the relevant Aboriginal 15 agency; and (b) to the criteria in sub-section (2); and (c) to the principles in section 14. (2) The criteria are-- (a) as a priority, wherever possible, the child 20 must be placed within the Aboriginal extended family or relatives and where this is not possible other extended family or relatives; (b) if, after consultation with the relevant 25 Aboriginal agency, placement with extended family or relatives is not feasible or possible, the child may be placed with-- (i) an Aboriginal family from the local community and within close 30 geographical proximity to the child's natural family; (ii) an Aboriginal family from another Aboriginal community; 27 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.2--Principles s. 14 (iii) as a last resort, a non-Aboriginal family living in close proximity to the child's natural family; (c) any non-Aboriginal placement must ensure the maintenance of the child's culture and 5 identity through contact with the child's community. 14. Further principles for placement of Aboriginal child Self-identification and expressed wishes of child (1) In determining where a child is to be placed, 10 account is to be taken of whether the child identifies as Aboriginal and the expressed wishes of the child. Child with parents from different Aboriginal communities 15 (2) If a child has parents from different Aboriginal communities, the order of placement set out in sections 13(2)(b)(i) and 13(2)(b)(ii) applies but consideration should also be given to the child's own sense of belonging. 20 (3) If a child with parents from different Aboriginal communities is placed with one parent's family or community, arrangements must be made to ensure that the child has the opportunity for continuing contact with his or her other parent's family, 25 community and culture. Child with one Aboriginal parent and one non-Aboriginal parent (4) If a child has one Aboriginal parent and one non-Aboriginal parent, the child must be placed 30 with the parent with whom it is in the best interests of the child to be placed. 28 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 1.2--Principles s. 14 Placement of child in care of a non-Aboriginal person (5) If an Aboriginal child is placed with a person who is not within an Aboriginal family or community, arrangements must be made to ensure that the child has the opportunity for continuing contact 5 with his or her Aboriginal family, community and culture. __________________ 29 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Chapter 2--Administration s. 15 CHAPTER 2--ADMINISTRATION 15. Functions and powers of the Secretary The Secretary has the functions and powers conferred on the Secretary under this Act. 16. Responsibilities of the Secretary 5 (1) Without limiting any other responsibility of the Secretary under this Act, the Secretary has the following responsibilities-- (a) to promote the prevention of child abuse and neglect; 10 (b) to assist children who have suffered abuse and neglect and to provide services to their families to prevent further abuse and neglect from occurring; (c) to work with community services to promote 15 the development and adoption of common policies on risk and need assessment for vulnerable children and families; (d) to implement or promote the implementation of appropriate requirements for checks to 20 ensure that all persons employed, engaged or appointed by a community service to work with children-- (i) are and continue to be suitable to work with children; and 25 (ii) comply with appropriate ethical and professional standards; (e) to work with other government agencies and community services to ensure that children in out of home care receive appropriate 30 educational, health and social opportunities; 30 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Chapter 2--Administration s. 16 (f) to publish and promote a Charter for children in out of home care to provide a framework of principles to promote the wellbeing of those children; (g) to provide or arrange for the provision of 5 services to assist in supporting a person under the age of 21 years to gain the capacity to make the transition to independent living where the person-- (i) has been in the custody or under the 10 guardianship of the Secretary; and (ii) on leaving the custody or guardianship of the Secretary is of an age to, or intends to, live independently; (h) to conduct research on child development, 15 abuse and neglect and to evaluate the effectiveness of community based and protective interventions in protecting children from harm, protecting their rights and promoting their development; 20 (i) to lead the on-going development of an integrated child and family service system; (j) to give effect to any protocol existing between the Secretary and an Aboriginal agency. 25 (2) The statement of responsibilities of the Secretary under this section does not create, or confer on any person, any right or entitlement enforceable at law. 31 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Chapter 2--Administration s. 17 (3) The matters that may be addressed in the Charter for children in out of home care may include-- (a) the protection and enhancement of a child's identity and sense of self; (b) treatment in care; 5 (c) quality of placement; (d) support and provision of services. (4) The kinds of services that may be provided to support a person to make the transition to independent living include-- 10 (a) the provision of information about available resources and services; (b) depending on the Secretary's assessment of need-- (i) financial assistance; 15 (ii) assistance in obtaining accommodation or setting up a residence; (iii) assistance with education and training; (iv) assistance with finding employment; (v) assistance in obtaining legal advice; 20 (vi) assistance in gaining access to health and community services; (c) counselling and support. 17. Delegation (1) The Secretary may, by instrument, delegate to any 25 employee or class of employees any function or power of the Secretary under this Act or the regulations, except-- (a) the power to make an authorisation under section 18; and 30 32 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Chapter 2--Administration s. 18 (b) the power to make an authorisation under section 19, 215(3)(c), 597(3) or 597(4); and (c) the power to disclose information under Part 3.4; and (d) the power to make an authorisation under 5 section 195; and (e) a function under section 323; and (f) the power to approve under section 488(3) a period of isolation of more than 24 hours; and 10 (g) this power of delegation. (2) The Secretary may, by instrument, delegate to an executive within the meaning of the Public Administration Act 2004 the power to make authorisations under section 19, 597(3) or 597(4). 15 (3) The Secretary may, by instrument, delegate to an executive within the meaning of the Public Administration Act 2004 the power to disclose information under Part 3.4. (4) The Secretary may, by instrument, delegate to an 20 executive within the meaning of the Public Administration Act 2004 who is employed at the level of EO�2 or above the power to approve under section 488(3) a period of isolation of more than 24 hours. 25 18. Secretary may authorise principal officer of Aboriginal agency to act (1) The Secretary may in writing authorise the principal officer of an Aboriginal agency to perform specified functions and exercise specified 30 powers conferred on the Secretary by or under this Act in relation to a protection order in respect of an Aboriginal child. 33 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Chapter 2--Administration s. 19 (2) An authorisation under this section may only be made with the agreement of the Aboriginal agency and the principal officer. (3) The principal officer may only be authorised if he or she is an Aboriginal person. 5 (4) Before giving an authorisation, the Secretary must have regard to any view expressed by the child and the parent of the child if those views can be reasonably obtained. (5) On an authorisation being given, this Act applies 10 in relation to the performance of the specified function or the exercise of the specified power as if the principal officer were the Secretary. (6) The Secretary may at any time in writing revoke an authorisation under this section and on that 15 revocation the Secretary may continue and complete any action commenced under the authorisation by the principal officer. 19. Secretary may authorise person in charge of community service to act 20 (1) The Secretary may authorise the person in charge of a registered community service or any person for the time being acting in or performing the duties of that person to exercise or perform on the Secretary's behalf any function or power conferred 25 on the Secretary by or under-- (a) section 282; or (b) section 285; or (c) section 320(1) (to the extent that it applies to the approval of persons as suitable to have 30 custody and guardianship of a child); or (d) section 324. 34 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Chapter 2--Administration s. 20 (2) An authorisation under sub-section (1) must be made by instrument and with the agreement of the person in charge of the community service, or of the person acting in or performing the duties of that person, at the time the authorisation is made. 5 20. Role of Ombudsman in relation to certain administrative actions (1) The Ombudsman may enquire into or investigate-- (a) any administrative action of a registered 10 community service in carrying out any duty or function or exercising any power under this Act; and (b) any administrative action of a person authorised under section 18 or 19 in carrying 15 out any duty or function or exercising any power under this Act; and (c) any administrative action by an authorised assessor under Division 5 of Part 3.3; and (d) any administrative action of an authorised 20 investigator under Division 4 of Part 3.4. Note: Under the Ombudsman Act 1973, an "administrative action" is defined as including, among other things, a refusal or failure to take 25 a decision, or to perform an act. As a result of sub-section (2), this definition applies to references to administrative actions in this sub- section. (2) For the purposes of sub-section (1), the Ombudsman Act 1973 applies as if-- 30 (a) the registered community service, authorised person, authorised assessor or authorised investigator were a public statutory body within the meaning of that Act; and 35 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Chapter 2--Administration s. 20 (b) the senior executive officer of the registered community service (by whatever title he or she is known) were the principal officer of that public statutory body; and (c) a reference to the responsible Minister in 5 sections 17 and 23(3) of that Act were a reference to the Minister responsible for administering this section. __________________ 36 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.1--Support for Community-Based Services and Families s. 21 CHAPTER 3--CHILD AND FAMILY SERVICES PART 3.1--SUPPORT FOR COMMUNITY-BASED SERVICES AND FAMILIES 21. Object of Part The object of this Part is to enable the provision of 5 funding and resources for community-based child and family services and other services for families. 22. Purposes of community-based child and family services 10 The purposes of a community-based child and family service are-- (a) to provide a point of entry into an integrated local service network that is readily accessible by families, that allows for early 15 intervention in support of families and that provides child and family services; (b) to receive reports about vulnerable children and families where there are significant concerns about their wellbeing; 20 (c) to undertake assessments of needs and risks in relation to children and families to assist in the provision of services to them and in determining if a child is in need of protection; 25 (d) to make referrals to other relevant agencies if this is necessary to assist vulnerable children and families; 37 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.1--Support for Community-Based Services and Families s. 23 (e) to promote and facilitate integrated local service networks working collaboratively to co-ordinate services and supports to children and families; (f) to provide on-going services to support 5 vulnerable children and families. 23. Power of Secretary to provide funds (1) Subject to the approval of the Minister and having regard to the objects of this Part and, where relevant, the purposes of a community-based child 10 and family service, the Secretary may allocate funds to any community-based child and family service, municipal council, or non-government agency out of money available for the purpose. (2) The Secretary may allocate funds under sub- 15 section (1) to be used for such purposes and subject to such conditions as the Secretary considers appropriate. 24. Family assistance grants Subject to the approval of the Minister, the 20 Secretary may make any grants to assist families that the Secretary considers appropriate out of money available for the purpose. 25. Authority to use Crown property (1) The Secretary may authorise any community- 25 based child and family service, voluntary organisation, Government department, municipal council, person or body, to use for any purpose relating to the provision of services for children and families-- 30 (a) any real or personal property vested in the Secretary and used for the purposes of the Department; or 38 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.1--Support for Community-Based Services and Families s. 26 (b) any land of the Crown reserved for any public purpose and used for the purposes of the Department (whether or not vested in trustees or jointly in trustees and the Minister for the time being administering the Crown 5 Land (Reserves) Act 1978). (2) The Secretary must consult with the Secretary to the Department of Sustainability and Environment before giving an authority under this section. (3) An authority under this section is given by the 10 Secretary for and on behalf of the Crown. (4) This section applies despite anything to the contrary in the Land Act 1958, the Crown Land (Reserves) Act 1978 or any other Act. 26. Agreements relating to use of Crown property 15 (1) The Secretary may refuse to grant an authority under section 25 until the community-based child and family service, voluntary organisation, Department head of the Government department, municipal council, person or body enters into an 20 agreement with the Secretary for the expenditure of money towards-- (a) the making of improvements, renovations or repairs on any land authorised by the Secretary to be used; or 25 (b) the improvement or repair of any equipment authorised by the Secretary to be used; or (c) the provision of any equipment or materials to be used for the purposes of the Department. 30 (2) An agreement under this section is entered into by the Secretary for and on behalf of the Crown. __________________ 39 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.2--Concern about Wellbeing of Child s. 27 PART 3.2--CONCERN ABOUT WELLBEING OF CHILD 27. Object of Part The object of this Part is to enable a confidential report or referral to be made about a child if there is a significant concern for the wellbeing of the 5 child. 28. Report to Secretary about child A person may make a report to the Secretary if the person has a significant concern for the wellbeing of a child. 10 29. Report to Secretary about unborn child A person may make a report to the Secretary, before the birth of a child, if the person has a significant concern for the wellbeing of the child after his or her birth. 15 30. Response by Secretary to report (1) If the Secretary receives a report under section 28, the Secretary may-- (a) provide advice to the person who made the report; 20 (b) provide advice and assistance to the child or the family of the child; (c) refer the matter to a community-based child and family service or a service agency to provide advice, services and support to the 25 child or the family of the child; (d) make a determination, under section 34, that the report is a protective intervention report. (2) If the Secretary receives a report under section 29, the Secretary may-- 30 (a) provide advice to the person who made the report; 40 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.2--Concern about Wellbeing of Child s. 31 (b) provide advice and assistance to the mother of the unborn child; (c) refer the matter to a community-based child and family service or a service agency to provide advice, services and support to the 5 mother of the unborn child. 31. Referral to community-based child and family service about child A person who has a significant concern for the wellbeing of a child may refer the matter to a 10 community-based child and family service. 32. Referral to community-based child and family service about unborn child A person who, before the birth of a child, has a significant concern for the wellbeing of the child 15 after his or her birth may refer the matter to a community-based child and family service. 33. Response by community-based child and family service to referral (1) If a matter is referred to a community-based child 20 and family service under section 31, the service may-- (a) provide advice to the person who made the report; (b) provide advice and assistance to the child or 25 the family of the child; (c) refer the matter to a service agency to provide advice, services and support to the child or the family of the child. (2) If a referral is made to a community-based child 30 and family service under section 31 and it considers that the child may be in need of protection, the service must report the matter to the Secretary. 41 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.2--Concern about Wellbeing of Child s. 34 (3) If a referral is made to a community-based child and family service under section 32, the service may-- (a) seek advice from the Secretary in relation to the referral; 5 (b) provide advice to the person who made the referral; (c) provide advice and assistance to the mother of the unborn child; (d) refer the matter to a service agency to 10 provide advice, services and support to the mother of the unborn child. 34. Is the report about a child in need of protection? If the Secretary receives a report under section 28 or 33(2) and the Secretary considers that the child 15 may be in need of protection, the Secretary may determine that the report is a protective intervention report for the purposes of this Act. Note: Part 4.4 deals with protective intervention reports. 35. Who may the Secretary consult? 20 (1) If the Secretary receives a report under this Part, the Secretary may-- (a) consult with a community-based child and family service or a service agency; and (b) provide information about the child or family 25 or the mother of the unborn child to, and receive information about them from, that service or agency. (2) A consultation or a disclosure of information under this section may only be for the purpose 30 of-- (a) seeking advice on or assessing a risk to a child; or 42 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.2--Concern about Wellbeing of Child s. 36 (b) seeking advice on or determining which community-based child and family service or service agency is an appropriate body to provide assistance for the child or the family of the child or the mother of the unborn 5 child. 36. Who may the community-based child and family service consult? (1) This section applies if a community-based child and family service receives a referral under this 10 Part. (2) The community-based child and family service may, for the purpose of assessing a risk to a child, consult with any of the following-- (a) the Secretary; 15 (b) another community-based child and family service; (c) a service agency; (d) an information holder. (3) The community-based child and family service 20 may, for the purpose of determining which community-based child and family service or service agency is an appropriate body to provide assistance for the child or the family of the child or the mother of the unborn child, consult with 25 any of the following-- (a) the Secretary; (b) another community-based child and family service; (c) a service agency. 30 43 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.2--Concern about Wellbeing of Child s. 37 (4) For the purpose only of a consultation under this section, a community-based child and family service may disclose information about the child or family to, and receive information about them from, the person or body permitted to be 5 consulted. (5) A community-based child and family service to which information is disclosed under this Part must not disclose that information to any other person except in accordance with this Part. 10 Penalty: 60 penalty units. 37. Disclosers protected A disclosure of information made under section 35 or 36 in good faith-- (a) does not for any purpose constitute 15 unprofessional conduct or a breach of professional ethics on the part of the person by whom it is made; and (b) does not make the person by whom it is made subject to any liability in respect of it; 20 and (c) without limiting paragraphs (a) and (b), does not constitute a contravention of-- (i) section 141 of the Health Services Act 1988; or 25 (ii) section 120A of the Mental Health Act 1986. 38. Consultation with Secretary A community-based child and family service may consult with the Secretary in relation to any matter 30 relating to the purposes of the community-based child and family service as set out in section 22. 44 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.2--Concern about Wellbeing of Child s. 39 39. Records of disclosures The Secretary and a community-based child and family service must make a written record of each report or referral received and each disclosure made to or by them under this Part. 5 40. Reporters protected A report to the Secretary under section 28 or 29 or a referral to a community-based child and family service under section 31 or 32 if made in good faith-- 10 (a) does not for any purpose constitute unprofessional conduct or a breach of professional ethics on the part of the person by whom it is made; and (b) does not make the person by whom it is 15 made subject to any liability in respect of it; and (c) without limiting paragraphs (a) and (b), does not constitute a contravention of-- (i) section 141 of the Health Services Act 20 1988; or (ii) section 120A of the Mental Health Act 1986. 41. Identity of reporter confidential (1) If a report is made to the Secretary under 25 section 28 or 29 or a referral is made to a community-based child and family service under section 31 or 32, a person (other than the person who made it) must not disclose to any person other than the Secretary or the community-based 30 child and family service-- (a) the name of the person who made the report or referral; or 45 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.2--Concern about Wellbeing of Child s. 42 (b) any information that is likely to lead to the identification of the person who made the report or referral. Penalty: 60 penalty units. (2) Sub-section (1) does not apply if the person who 5 made the report or referral-- (a) gives written consent to the Secretary; or (b) gives written or oral consent to the community-based child and family service. 42. Review by Victorian Civil and Administrative 10 Tribunal (1) A child or a child's parent may apply to VCAT for review of a decision relating to the recording of information about the child or parent by a community-based child and family service under 15 section 39. (2) An application for review must be made within 28 days after the later of-- (a) the day on which the decision is made; (b) if, under the Victorian Civil and 20 Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that 25 a statement of reasons will not be given. __________________ 46 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.3--Community Services s. 43 PART 3.3--COMMUNITY SERVICES Division 1--Object of Part 43. Object of Part The object of this Part is to provide for the establishment, registration and monitoring of 5 community services. Division 2--Departmental Services 44. Departmental community services and secure welfare services The Governor in Council may, by Order published 10 in the Government Gazette, establish or abolish community services and secure welfare services to be operated by the Department to meet the needs of children requiring protection, care or accommodation. 15 Division 3--Registration of Community Services 45. Application for registration (1) A body corporate may apply to the Secretary for registration of the body as a community service. (2) An application must be in a form approved by the 20 Secretary. 46. Registration (1) The Secretary may register a body as a community service if the Secretary is satisfied that the body-- 25 (a) is established to provide services to meet the needs of children requiring care, support, protection or accommodation and of families requiring support; and 47 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.3--Community Services s. 47 (b) will be able to meet the performance standards applicable to community services of that kind. (2) A body may be registered in one or more of the categories of registration set out in section 47. 5 47. Categories of registration The categories of registration are-- (a) out of home care service; (b) community-based child and family service; (c) a prescribed category of service. 10 48. Conditions on registration The Secretary may impose any conditions or restrictions that the Secretary considers appropriate on the registration of a community service under this Division. 15 49. Period of registration Subject to this Division, registration has effect for a period of 3 years. 50. Renewal of registration (1) A registered community service may apply to the 20 Secretary for renewal of registration as a community service. (2) An application for renewal must be in a form approved by the Secretary. (3) A renewal of registration has effect for 3 years. 25 51. Revocation of registration The Secretary may revoke the registration of a body as a community service if the Secretary considers it appropriate to do so as a result of-- (a) a report from an authorised assessor under 30 Division 5; or 48 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.3--Community Services s. 52 (b) an inquiry under Division 5; or (c) a recommendation of an administrator under Division 6. 52. Notice to community service The Secretary must give a registered community 5 service at least 14 days notice and the opportunity to make submissions before-- (a) refusing an application by the community service for a renewal of registration; or (b) revoking the registration of the community 10 service. 53. Application for review (1) A body may apply to VCAT for review of a decision by the Secretary-- (a) to refuse to register the body as a community 15 service; or (b) to refuse to renew the registration of the body as a community service; or (c) to revoke the registration of the body as a community service. 20 (2) An application for review must be made within 28 days after the later of-- (a) the day on which the decision is made; (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the 25 person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given. 30 49 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.3--Community Services s. 54 54. Register of community services The Secretary must keep a register of community services. 55. What information is to be included in the register? The Secretary must include the following 5 information in the register of community services in respect of each body that is registered under this Division-- (a) the name of the body; (b) the address of the body; 10 (c) contact information for the body; (d) the category of registration of the body; (e) any other information that is prescribed. 56. Registered community service to notify changes A registered community service must notify the 15 Secretary in writing within 14 days if there is any change to the information recorded in the register of community services in respect of that registered community service. Penalty: 10 penalty units. 20 57. Register to be made public The Secretary must make a copy of the register of community services available for inspection on the Department's Internet site. Division 4--Performance Standards and Responsibilities of 25 Community Services 58. Performance standards (1) The Minister may from time to time determine performance standards to be met by community services. 30 50 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.3--Community Services s. 59 (2) The Minister may determine different performance standards for different categories of community services. (3) The Minister must ensure that each performance standard is published in the Government Gazette. 5 (4) A performance standard takes effect-- (a) on the day that is 30 days after the day that the performance standard is published in the Government Gazette; or (b) if a later day is specified in the 10 determination, on that later day. (5) The Minister may, by determination published in the Government Gazette, amend or revoke a performance standard. 59. What can performance standards provide for? 15 Performance standards may be made in respect of any matter relating to the operation of a community service including, but not limited to-- (a) governance; (b) probity; 20 (c) information management; (d) financial viability; (e) client care, including cultural standards applicable to client care; (f) pre-employment checks and pre-placement 25 checks; (g) service delivery and case management; (h) privacy and confidentiality; (i) complaints management; (j) human resource management; 30 (k) compliance with this Act and the regulations. 51 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.3--Community Services s. 60 60. Community service to comply with performance standards A community service must comply with the relevant performance standards applicable to that community service. 5 61. Responsibilities of registered community services A registered community service must-- (a) provide its services in relation to a child in a manner that is in the best interests of the child; and 10 (b) ensure that the services provided by the service are accessible to and made widely known to the public, recognising that prioritisation of provision of services will occur based on need; and 15 (c) participate collaboratively with local service networks to promote the best interests of children. Division 5--Monitoring and Review of Community Services 62. Secretary may conduct inquiries 20 The Secretary may make or cause to be made any inquiries the Secretary considers appropriate relating to any matter arising from the performance by a community service of its powers and functions. 25 63. Appointment of assessor (1) The Secretary may in writing authorise any person as an assessor to conduct an independent review of the performance by a community service of its powers and functions. 30 52 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.3--Community Services s. 64 (2) An authorised assessor must report in writing to the Secretary within the time required by the Secretary on the results of the review and any recommendations arising from the review. (3) An authorised assessor must not disclose to any 5 person other than the Secretary or the person in charge of or an employee of the community service, whether directly or indirectly, any information acquired by the authorised assessor in carrying out a review under this Division. 10 Penalty: 10 penalty units. 64. Visits to community services The Secretary or an authorised assessor may at any time visit any community service-- (a) to make any examinations or inspections that 15 appear to be necessary regarding the management of the community service; and (b) to inspect any part of the premises of that community service; and (c) to see any child who is receiving services 20 from the community service; and (d) to make inquiries relating to the care of children in the care of that community service; and (e) to inspect any document or record relating to 25 the child or that is required to be kept under this Act or the regulations. 53 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.3--Community Services s. 65 65. Community service to assist The person in charge of the community service and every member of staff of the community service must provide the Secretary or the authorised assessor with such reasonable 5 assistance and access to records and employees as the Secretary or the authorised assessor requires in carrying out a function under this Division. Division 6--Appointment of Administrator 66. Displacement of other laws 10 (1) Sections 67 to 71 are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of Chapter 5 of that Act. 15 Note: Section 5G of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision for the purposes of that section, any provision of the Corporations legislation with which the State 20 provision would otherwise be inconsistent does not operate to the extent necessary to avoid the inconsistency. (2) This Division applies despite anything to the contrary in the Co-operatives Act 1996 or the Associations Incorporation Act 1981 or any 25 other Act establishing a body that is a registered community service. 67. Appointment of administrator (1) If the Minister is satisfied that a registered community service is inefficiently or 30 incompetently managed, the Minister may recommend to the Governor in Council that an administrator of the service be appointed. 54 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.3--Community Services s. 68 (2) If the Minister proposes that a registered community service should be administered by an administrator, the Minister-- (a) must give notice in the prescribed form to the registered community service of his or 5 her proposal; and (b) must consider any submissions made to the Minister by the registered community service within 7 days after the giving of the notice; and 10 (c) may consider any other submissions and any other matters the Minister considers appropriate-- before deciding whether or not to recommend the appointment of an administrator. 15 68. Period of appointment of administrator If the Minister recommends the appointment of an administrator, the Governor in Council may appoint an administrator of the registered community service for the period and subject to 20 the terms and conditions that are specified in the instrument of appointment. 69. Powers of administrator (1) An administrator of a registered community service appointed under this Division has and may 25 exercise all the powers and is subject to all the duties of the board or other governing body of the registered community service. (2) On the appointment of an administrator, the members of the board or other governing body of 30 the registered community service cease to hold office. 55 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.3--Community Services s. 70 70. Revocation of appointment of administrator (1) If the Minister recommends to the Governor in Council that the appointment of an administrator of a registered community service should be revoked, the Governor in Council may by notice 5 published in the Government Gazette declare that the appointment will be revoked on the date specified in the notice. (2) The date specified in the notice must be a date not less than 28 days after the publication of the 10 notice. (3) If a notice is published under sub-section (1) in relation to a registered community service-- (a) members of the board or other governing body of the registered community service are 15 to be elected or appointed in accordance with the rules or other constituting document of the agency; and (b) on the date specified in the notice-- (i) the appointment of the administrator is 20 revoked; and (ii) the board or other governing body of the registered community service is re-established. 71. Remuneration of administrator 25 The remuneration of an administrator appointed under this Division and any expenses of the administrator necessarily incurred in the administration of the registered community service are to be paid by the Secretary. 30 56 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.3--Community Services s. 72 Division 7--Information Privacy and Registered Community Services 72. Registered community services The Information Privacy Act 2000 applies to a registered community service in relation to the 5 collection and handling of information under this Act as if the registered community service were an organisation within the meaning of that Act. Note: The Health Records Act 2001 may also apply to a 10 registered community service. __________________ 57 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 73 PART 3.4--OUT OF HOME CARERS Division 1--Introductory 73. Object of Part The object of this Part is to provide increased protection for children in out of home care 5 through the registration of persons who are, or are to be, approved or employed or engaged as out of home carers. 74. Definitions In this Part-- 10 "allegation" means allegation in a report under section 81 or 82; "disqualified person" means a person who is disqualified from registration under this Part; "out of home carer" means-- 15 (a) a person who acts as a foster carer for an out of home care service; or (b) a person employed or engaged by an out of home care service-- (i) as a carer for children; or 20 (ii) as a provider of services to children at an out of home care residence managed by the service; "registered foster carer" means a person registered as a foster carer under Division 3; 25 "registered out of home carer" means a person registered as an out of home carer under Division 3; 58 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 75 "services to children" means services provided to children where the provision of the services usually involves or is likely to usually involve working in close proximity to the children. 5 Division 2--Approval, Employment or Engagement of Out of Home Carers 75. Approval of foster carers (1) An out of home care service must have regard to the prescribed matters before approving a person 10 to act as a foster carer for the service. (2) A disqualified person is not eligible to be approved by an out of home care service as a foster carer. 76. Employment or engagement of carer 15 (1) An out of home service must have regard to the prescribed matters before employing or engaging a person-- (a) as a carer for children placed with the service; or 20 (b) as a provider of services to children at an out of home care residence managed by the service. (2) A disqualified person is not eligible to be employed or engaged by an out of home care 25 service to carry out a function specified under sub-section (1). 59 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 77 77. Matters to be considered The matters prescribed for the purposes of this Division may include matters relating to-- (a) the checking of criminal records and criminal history; 5 (b) suitability and fitness; (c) medical, including psychiatric, health; (d) skills, experience and qualifications. 78. Notice of approval, employment or engagement of carer 10 (1) An out of home care service must notify the Secretary of-- (a) the approval of a person as a foster carer by that service; (b) the employment or engagement of a 15 person-- (i) as a carer for children placed with the service; or (ii) as a provider of services to children at an out of home care residence managed 20 by the service. (2) A notice under this section must be given within 14 days after the approval, employment or engagement of the person. (3) A notice under this section must include the 25 prescribed information (if any). 60 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 79 79. Notice of revocation of approval or termination of employment or engagement of carer (1) An out of home care service must notify the Secretary within 14 days of-- (a) the revocation by the service of the approval 5 of a person as a foster carer; or (b) if a person ceases to be employed or engaged by the service-- (i) as a carer for children placed with the service; or 10 (ii) as a provider of services to children at an out of home care residence managed by the service. (2) A notice under this section must include the prescribed information (if any). 15 Division 3--Register of Out of Home Carers 80. Register of carers (1) The Secretary must keep a register of out of home carers. (2) The register of out of home carers must record the 20 following information in respect of each person of whom notice is given to the Secretary under Division 2-- (a) name; (b) address; 25 (c) date of birth; (d) date of approval as a foster carer by the out of home care service, if applicable; 61 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 80 (e) date of employment or engagement as an out of home carer by the out of home care service, if applicable; (f) name of notifying out of home care service; (g) any other prescribed information. 5 (3) The information about a person's name to be recorded on the register must include-- (a) the name by which the person is registered under the Births, Deaths and Marriages Registration Act 1996, or an equivalent law 10 of another jurisdiction; and (b) any previous name of that person that was registered under that Act or such a law; and (c) any other name used by the person or by which the person is known. 15 (4) The Secretary must not record information in respect of a disqualified person in the register. (5) The Secretary must remove from the register any entry relating to-- (a) a person of whom the Secretary receives 20 notice under section 79 that the person has ceased to be approved, employed or engaged as an out of home carer by an out of home care service; or (b) a person who is a disqualified person. 25 (6) Subject to this Part, a person who is recorded on the register of out of home carers is registered under this Division. 62 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 81 Division 4--Conduct of Out of Home Carers 81. Report to Secretary by service of allegation about carer (1) The person in charge of a registered out of home care service must make a report to the Secretary 5 if-- (a) the person in charge receives or becomes aware of an allegation that-- (i) a person who is or was a registered foster carer has sexually or physically 10 abused a child placed in his or her care by that service; or (ii) a person who is or was a registered out of home carer employed or engaged by the service as an out of home carer has 15 sexually or physically abused a child in the course of that employment or engagement; and (b) the person in charge is reasonably satisfied that an investigation of the allegation by the 20 Secretary is warranted. (2) The report must be given within 7 days after the person in charge receives or becomes aware of the allegation. (3) The report must include details of any inquiries 25 made by the out of home care service into the allegation. (4) The report may relate to conduct occurring on or after or not more than 3 years before the date on which this Act receives the Royal Assent. 30 63 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 82 82. Other reports to Secretary of allegations about carers (1) Any person may make a report to the Secretary alleging that-- (a) a person who is or was a registered foster 5 carer has sexually or physically abused a child placed in his or her care by an out of home care service; or (b) a person who is or was a registered out of home carer has sexually or physically abused 10 a child in the course of the person's employment or engagement by an out of home care service as an out of home carer. (2) The report may relate to conduct occurring on or after or not more than 3 years before the date on 15 which this Act receives the Royal Assent. 83. Secretary to report allegation to police The Secretary must report to the Chief Commissioner of Police any allegation of sexual or physical abuse made in a report under 20 section 81 or 82. 84. Notice to carer of allegation The Secretary must, without delay after receiving a report under section 81 or 82, advise the person about whom the allegation is made-- 25 (a) that a report has been made; and (b) the nature of the allegation; and (c) that the Secretary-- (i) will consider the report and decide whether an independent investigation of 30 the allegation is warranted; or (ii) has considered the report and decided that no investigation is warranted. 64 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 85 85. Consideration by Secretary of report (1) If the Secretary receives a report under section 81 or 82, the Secretary may ask the following persons for more information about the allegation-- (a) the person who made the report; and 5 (b) the person about whom the allegation was made. (2) A person may but is not required to provide any information requested of the person under this section. 10 86. Decision by Secretary on report If the Secretary receives a report under section 81 or 82, the Secretary must consider whether there is a reasonable basis for conducting an investigation and may decide-- 15 (a) that an independent investigation of the allegation is warranted; or (b) that no investigation is warranted. 87. Notice to carer of decision (1) The Secretary must give notice of a decision 20 under section 86 to the person about whom the allegation was made. (2) The notice must be given without delay after the decision is made. (3) If the Secretary decides that an independent 25 investigation is warranted, the notice must specify each allegation to be investigated. (4) The notice is not required to be given if the person has already been notified under section 84 that no investigation is warranted. 30 65 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 88 88. Record of reports The Secretary must keep a written record of any report made under section 81 or 82 in respect of which the Secretary has decided that an independent investigation of the allegation is 5 warranted. 89. Appointment of investigator (1) If the Secretary decides under this Division that an independent investigation of an allegation is warranted, the Secretary may authorise a person to 10 conduct that investigation. (2) An authorisation must be in writing. 90. Powers of authorised investigator (1) The authorised investigator may at any time visit the out of home care service that approved, 15 employed or engaged the person who is the subject of the investigation-- (a) to inspect any document or record relating to a person who is the subject of the investigation or the child in relation to whom 20 the allegation was made; and (b) to interview any person employed or engaged by the out of home care service whom the authorised investigator considers to be relevant to the investigation. 25 (2) The authorised investigator may interview-- (a) the child in relation to whom the allegation was made; and (b) the person who is the subject of the investigation. 30 (3) Before interviewing a child, the authorised investigator must consider, and take all reasonable steps to mitigate, any negative effect that the interview may have on the child. 66 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 91 (4) The person who is the subject of the investigation may, but is not required to, answer any question of, or provide any information to, the authorised investigator. 91. Out of home care service to assist investigator 5 The person in charge of the out of home care service and every member of staff of the out of home care service must provide an authorised investigator with such reasonable assistance and access to records and employees of and persons 10 engaged by the service as the authorised investigator requires in carrying out an investigation under this Part. 92. Report by authorised investigator (1) An authorised investigator must report in writing 15 to the Secretary, within the time required by the Secretary, on the results of the investigation. (2) The report must set out the findings of the investigation. (3) The report may include a finding that on the 20 balance of probabilities, the person who was the subject of the investigation has physically or sexually abused the child. 93. Decision of Secretary following investigation (1) After receiving a report from the authorised 25 investigator in relation to an allegation against a person, the Secretary must decide whether to refer the matter for hearing by the Suitability Panel. (2) The Secretary must not refer the matter to the Suitability Panel unless-- 30 (a) the report of the authorised investigator includes a finding specified in section 92(3) in respect of the person; and 67 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 94 (b) the Secretary considers that the person poses an unacceptable risk of harm to children. (3) In making a decision, the Secretary must not draw any adverse inference from a failure or refusal by the person who is the subject of the investigation 5 to answer any question by, or provide any information to, the authorised investigator. 94. Notice to carer of result of investigation (1) The Secretary must, within 14 days after receiving a report of an investigation under this Part, advise 10 the person who was the subject of the investigation-- (a) as to the result of the investigation; and (b) as to whether or not the matter is to be referred for hearing by the Suitability Panel. 15 (2) If the notice states that the matter is to be referred for hearing by the Suitability Panel, the notice must be accompanied by a copy of the report of the investigation. 95. Notice to out of home care service of result of 20 investigation If the Secretary decides not to refer the matter for hearing by the Suitability Panel, the Secretary must within 14 days after receiving a report of an investigation under this Part, advise any out of 25 home care service to which information has been provided under section 127 about the investigation-- (a) that the investigation has been completed; and 30 (b) that the matter will not be referred for hearing by the Suitability Panel. 68 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 96 96. Referral to Suitability Panel (1) If the Secretary decides to refer a matter to the Suitability Panel under this Part, the Secretary must give notice of the referral to the chairperson of the Suitability Panel. 5 (2) The notice must-- (a) be in the prescribed form and include-- (i) the decision of the Secretary in relation to the report of the investigation; and (ii) the reasons for that decision; and 10 (b) be accompanied by a copy of the report of the investigation. 97. Secretary not to proceed if police investigation is proceeding (1) Despite anything to the contrary in this Division, 15 if the Secretary is or becomes aware that an allegation is the subject of a police investigation, the Secretary must defer giving any notice or further notice or taking any step or further step or making any decision or further decision under this 20 Division in respect of the allegation until the completion of that investigation. (2) On completion of the police investigation, the Secretary may take into account any information he or she receives as to the results of the 25 investigation to reconsider or to make any decision under this Division. (3) If the Secretary has given notice to a person under section 84, and the Secretary subsequently defers the matter, the Secretary must notify the person in 30 writing of the deferral and of the ending of the deferral. 69 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 98 Division 5--The Suitability Panel Subdivision 1--Establishment and Constitution 98. Establishment of Panel There is established a Panel to be called the Suitability Panel. 5 99. Constitution of Panel (1) The Suitability Panel consists of a chairperson and up to 5 other members appointed by the Governor in Council on the recommendation of the Minister. 10 (2) The chairperson must be a legal practitioner. (3) In recommending other persons for appointment to the Suitability Panel, the Minister must have regard to the need to appoint people with the qualifications and experience in law, social work, 15 psychology and the treatment of sex offenders and in any other discipline required for the Panel to perform its functions. (4) The Governor in Council may appoint a person who is a legal practitioner to be acting chairperson 20 during any period when-- (a) there is a vacancy in the office of chairperson; or (b) the chairperson is absent on leave or for any reason is temporarily unable to perform the 25 duties of chairperson. (5) The acting chairperson has during the period of acting as chairperson the same powers and duties as the chairperson. 70 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 100 100. Terms and conditions of appointment (1) A member of the Suitability Panel is appointed for a term of 3 years and is eligible to be reappointed. (2) The acting chairperson may be appointed for a period of not more than 3 years specified in the 5 instrument of appointment. (3) A member of the Suitability Panel is entitled to be paid the remuneration and allowances fixed from time to time by the Governor in Council in respect of that member. 10 (4) The Public Administration Act 2004 (other than Part 5 of that Act) does not apply to a member of the Suitability Panel in respect of the office of member. (5) A member of the Suitability Panel may at any 15 time resign from office by letter in writing delivered to the Minister. (6) The Governor in Council may at any time remove a member of the Suitability Panel from office. (7) Sub-sections (3) to (6) apply to the acting 20 chairperson. 101. Functions of Panel The functions of the Suitability Panel are-- (a) to hear any matter referred to it by the Secretary under this Part; and 25 (b) to determine whether or not a person should be disqualified from being placed on the register of out of home carers; and (c) to hear and determine any application by a person for the removal of a disqualification 30 under this Part. 71 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 102 102. Executive officer of Panel (1) An executive officer of the Suitability Panel shall be employed under Part 3 of the Public Administration Act 2004. (2) The functions of the executive officer are-- 5 (a) to assist the Suitability Panel; and (b) to give notice of hearings and determinations of the Suitability Panel; and (c) to fix times and dates for hearings of the Suitability Panel. 10 103. Constitution of Suitability Panel for hearings (1) The Suitability Panel is be constituted for the purposes of a particular matter by the chairperson and 2 other members of the Suitability Panel. (2) The chairperson determines the members who are 15 to constitute the Suitability Panel for a particular matter. (3) The chairperson must preside at any hearing by the Suitability Panel. Subdivision 2--Procedure of Suitability Panel in respect of 20 Allegation 104. Notice to parties of hearing (1) If the Secretary refers a matter to the Suitability Panel under this Part, the executive officer of the Panel must cause notice of the hearing of the 25 matter to be served on the person who was the subject of the investigation to which the matter relates. (2) The notice of hearing must-- (a) be in the prescribed form; and 30 (b) state the nature of the hearing and the allegation made against the person; and 72 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 105 (c) give the time, date and place of the hearing; and (d) state that the person has the right to be present at the hearing and to make submissions and to be legally represented at 5 the hearing; and (e) state that the hearing is not open to the public; and (f) list the findings that the Suitability Panel can make; and 10 (g) state that there is a right to apply for a review of a decision of the Suitability Panel; and (h) be accompanied by a copy of the notice given by the Secretary under section 96. (3) The notice must be served at least 28 days before 15 the date set for the hearing of the matter. 105. Finding of Panel on allegation (1) At a hearing the Suitability Panel must first determine whether or not the allegation that the person has physically or sexually abused the child 20 is proved on the balance of probabilities. (2) In making the determination, the Suitability Panel must have regard to-- (a) the allegation referred by the Secretary to the Panel; and 25 (b) any evidence presented to the Panel by any of the parties to the hearing; and (c) any other matters that the Panel considers relevant to its determination. (3) The Suitability Panel must not consider any other 30 allegations or findings of misconduct by the person when making the determination. 73 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 106 (4) The Suitability Panel must not draw any adverse inference from a failure or refusal by the person to answer any question by, or provide any information to, the authorised investigator or the Panel when making the determination. 5 (5) If the Suitability Panel determines that the allegation is proved, the Panel must make a finding of misconduct against the person. (6) If the Suitability Panel determines that the allegation is not proved, the Panel must state that 10 fact and that no finding of misconduct has been made against the person in respect of the allegation. 106. Finding in relation to disqualification (1) If the Suitability Panel has made a finding of 15 misconduct against a person, the Panel must then determine on the balance of probabilities whether or not the person poses an unacceptable risk of harm to children. (2) In making the determination the Suitability Panel 20 must consider any of the following factors that the Panel considers relevant, giving a factor the weighting that the Panel considers appropriate in the circumstances-- (a) the gravity of the misconduct; 25 (b) any previous findings of misconduct by the Suitability Panel in respect of the person; (c) the likelihood of the person physically or sexually abusing a child in the future; (d) the recency of the misconduct; 30 (e) the relevance of the misconduct to the role of the person as an out of home carer; (f) the history of the person's work with the out of home care agency as an out of home carer. 74 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 107 (3) If the Suitability Panel finds that the person poses an unacceptable risk of harm to children, the Panel must find that the person should be disqualified from registration under this Part. (4) If the Suitability Panel determines that the person 5 does not pose an unacceptable risk of harm to children, the Panel must state that fact and that no finding of disqualification has been made against the person. (5) If the Suitability Panel finds that the person 10 should be disqualified from registration under this Part, the person is disqualified from registration under this Part. 107. Notice of Panel's findings and determinations (1) The Suitability Panel must notify the Secretary 15 without delay of its findings and determinations under sections 105 and 106 in respect of an allegation. (2) The Suitability Panel must notify the Secretary within the meaning of the Working With 20 Children Act 2005 without delay if it finds under section 106 that a person should be disqualified. (3) The Suitability Panel must give the person about whom the allegation was made written notice of its findings and determinations under sections 105 25 and 106 in respect of the allegation within 14 days after the findings and determinations are made. 75 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 108 108. Secretary to record finding (1) On receipt of the notice under section 107 of a finding of disqualification of a person, the Secretary must immediately make a record of the disqualification of the person. 5 (2) The record of disqualification of a person must set out the following information in respect of the person-- (a) name; (b) address; 10 (c) date of birth; (d) date of disqualification; (e) the reason given by the Suitability Panel for the disqualification. (3) The information about a person's name to be 15 recorded under this section must include-- (a) the name by which the person is registered under the Births, Deaths and Marriages Registration Act 1996, or an equivalent law of another jurisdiction; and 20 (b) any previous name of that person that was registered under that Act or such a law; and (c) any other name used by the person or by which the person is known. 109. Notice to out of home care service 25 If an allegation is made against a person under this Part, the Secretary must notify the out of home care service by which the person is currently approved, employed or engaged of the findings or determinations of the Suitability Panel or of 30 VCAT in respect of the allegation. 76 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 110 Subdivision 3--Review by Suitability Panel of Disqualification 110. Application for review of disqualification (1) A disqualified person may apply to the Suitability Panel for the removal of the disqualification. 5 (2) An application must be in the prescribed form and must state the reasons why the person believes the disqualification should be removed. (3) The application must set out the way in which the applicant's circumstances have changed and why 10 the applicant no longer poses an unacceptable risk of harm to children. (4) An application may not be brought under this section before the end of the period of 12 months after the disqualification takes effect unless the 15 Panel considers that exceptional circumstances exist. 111. Notice to parties of hearing of application (1) The executive officer of the Suitability Panel must give notice to the applicant and the Secretary of 20 the hearing of an application under this Division. (2) The notice of hearing must-- (a) be in the prescribed form; and (b) state the nature of the hearing; and (c) give the time, date and place of the hearing; 25 and (d) state that any party to the hearing has the right to be present at the hearing and to make submissions and to be legally represented at the hearing; and 30 (e) state that the hearing is not open to the public; and 77 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 112 (f) list the findings that the Suitability Panel can make; and (g) state that there is a right to apply for a review of a decision of the Suitability Panel; and (h) in the case of a notice to the Secretary, be 5 accompanied by a copy of the application. (3) The notice must be served at least 28 days before the date set for the hearing of the application. 112. Finding in relation to application (1) In considering an application under this Division 10 the Panel must determine whether or not on the balance of probabilities the person should continue to be disqualified or should have the disqualification removed. (2) In making the determination, the Suitability Panel 15 must consider-- (a) if the conduct that resulted in the disqualification was dealt with as an offence-- (i) any finding of a court in respect of the 20 offence and any reasons for that finding; and (ii) any sentence imposed by a court in respect of the offence; (b) the applicant's behaviour since he or she was 25 disqualified; (c) any information, evidence or submissions presented to the Panel by the applicant, the Secretary or any other person. 78 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 113 (3) In making a determination, the Suitability Panel may also consider any of the following factors, that the Panel considers relevant-- (a) if the conduct that resulted in the disqualification was an offence at the time 5 the conduct occurred, whether the conduct has since been decriminalised; (b) the period of time that has elapsed since the person was disqualified; (c) any other matter the Panel considers relevant 10 to the application. (4) If the Suitability Panel determines that the applicant's disqualification from registration should be removed-- (a) the Panel must make a finding to that effect; 15 and (b) the person is no longer disqualified from being registered under this Part. 113. Notice of Panel's determination on application (1) The Suitability Panel must notify the Secretary 20 without delay of its determination in respect of an application under this Division. (2) The Suitability Panel must notify the Secretary within the meaning of the Working With Children Act 2005 without delay if it finds under 25 section 112 that a person's disqualification should be removed. (3) The Suitability Panel must give the applicant written notice of its determination in respect of the application within 14 days after the determination 30 is made. 79 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 114 114. Secretary to record removal of disqualification On receipt of a notice under section 113 of a determination that a disqualification of a person should be removed, the Secretary must immediately make a record of the removal of 5 the disqualification in the record kept under section 108. Subdivision 4--General Procedure of Suitability Panel 115. Conduct of hearing (1) At a hearing-- 10 (a) the Suitability Panel must hear and determine the matter before it; and (b) the person who is the subject of the hearing and the Secretary are entitled to be present, to make submissions and to be legally 15 represented. (2) A hearing must be closed to the public. 116. Procedure at hearings (1) At a hearing of the Suitability Panel under this Part-- 20 (a) subject to this Part and the regulations, the procedure of the Panel is in its discretion; and (b) the proceedings must be conducted with as little formality and technicality as the 25 requirements of this Part and the proper consideration of the matter permit; and (c) the Panel is not bound by rules of evidence but may inform itself in any way it thinks fit; and 30 (d) the Panel is bound by the rules of natural justice. 80 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 117 (2) Subject to the regulations, before permitting a child to appear before or be questioned in any hearing, the Suitability Panel must consider and take all reasonable steps to mitigate any negative effect that the hearing may have on the child. 5 117. Powers of panel conducting a formal hearing Sections 14, 15, 16 and 21A of the Evidence Act 1958 apply to the Suitability Panel in the conduct of a hearing as if it were a Board or the Chairman of a Board appointed by the Governor in Council. 10 Subdivision 5--Review by VCAT 118. Review by VCAT (1) A person may apply to VCAT for review of a finding or determination of the Suitability Panel under section 105, 106 or 112. 15 (2) An application for review must be made within 28 days after the later of-- (a) the day on which the applicant is given notice under this Part of the finding or determination; 20 (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the finding, the day on which the statement of reasons is given to the person or the person is 25 informed under section 46(5) of that Act that a statement of reasons will not be given. 81 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 119 Division 6--Offences 119. Out of home care service not to approve, engage or employ disqualified person (1) An out of home care service is guilty of an offence if the out of home care service knowingly 5 or recklessly-- (a) approves a disqualified person as a foster carer; or (b) employs or engages a disqualified person-- (i) as a carer for children placed with the 10 service; or (ii) to provide services to children at an out of home care residence managed by the service. (2) An out of home care service that is guilty of an 15 offence under this section is liable to a penalty not exceeding 240 penalty units. 120. Out of home care service must ask Secretary if person is disqualified An out of home care service must ask the 20 Secretary for advice as to whether or not a person is a disqualified person before-- (a) approving the person as a foster carer; or (b) employing or engaging the person-- (i) as a carer for children placed with the 25 service; or (ii) to provide services to children at an out of home care residence managed by the service. Penalty: 300 penalty units. 30 82 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 121 121. Offence to apply for work as out of home carer while disqualified A disqualified person must not knowingly apply for approval, employment or engagement by an out of home care service as an out of home carer. 5 Penalty: 240 penalty units or 2 years imprisonment. 122. Offence to apply to work as out of home carer without disclosing investigation A person who knows that he or she is the subject 10 of an allegation that is the subject of a continuing investigation under Division 4 or 5 or a continuing police investigation must not apply for approval, employment or engagement by an out of home care service as an out of home carer without 15 disclosing the existence of that investigation. Penalty: 60 penalty units. Division 7--General 123. Information provided not to be used in criminal proceedings 20 The following information is not admissible in criminal proceedings (other than proceedings for perjury) against a person-- (a) any information provided to the Secretary, an authorised investigator, the Suitability Panel 25 or VCAT in the investigation of an allegation or hearing of a matter relating to an allegation against a person; and (b) any finding or determination of the Secretary, Suitability Panel or VCAT about a 30 person under this Part. 83 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 124 124. Protection of reporter Subject to section 125, the Secretary must not disclose the identity of or disclose any information that is likely to lead to the disclosure of the identity of a person who made a report to the 5 Secretary under section 82 if the Secretary is satisfied that-- (a) the disclosure of the identity of the person making the report is likely to place the child who is alleged to have been abused at risk of 10 harm; or (b) the identity of the person who made the report should be protected for the sake of the health or safety of that person or members of his or her family. 15 125. Disclosure of information to police and investigator The Secretary may disclose to a member of the police force and to any person appointed under this Part to conduct the independent investigation-- 20 (a) the decision that an investigation is warranted; and (b) the nature of the allegation to be investigated; and (c) any information obtained by the Secretary in 25 relation to the allegation. 126. Secretary may provide information for the purpose of proceedings The Secretary may provide information from any record kept by the Secretary under this Part for the 30 purpose of any proceeding by the Suitability Panel or VCAT under this Part. 84 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 127 127. Limited disclosure of information to out of home care services (1) The Secretary may disclose to an out of home care service, or the person in charge of the out of home care service, by whom a person is employed or 5 engaged the fact that an investigation is to be or is being conducted under this Part into an allegation about that person. (2) At the request of an out of home care service, or the person in charge of an out of home care 10 service, the Secretary must provide a statement as to whether or not an investigation is to be or is being conducted under this Part in relation to a person whom the service is proposing to-- (a) approve as a foster carer; or 15 (b) employ or engage-- (i) as a carer for children placed with the service; or (ii) as a provider of services to children at an out of home care residence managed 20 by the service. (3) The Secretary must not disclose under sub- section (1) or (2)-- (a) the nature of the allegation; or (b) any other information obtained by the 25 Secretary in relation to the allegation. (4) At the request of an out of home care service or the person in charge of an out of home care service, the Secretary must provide a statement as to whether or not a person whom the service is 30 proposing to-- 85 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 128 (a) approve as a foster carer; or (b) employ or engage-- (i) as a carer for children placed with the service; or (ii) as a provider of services to children at 5 an out of home care residence managed by the service-- is a disqualified person. (5) An out of home care service or person to whom information is disclosed under this section must 10 not disclose that information to any other person. Penalty: 60 penalty units. 128. Disclosure by Chief Commissioner of Police The Chief Commissioner of Police may disclose to the Secretary any information he or she holds in 15 relation to an allegation being considered by the Secretary under this Part. 129. Disclosure of information by Secretary Except as provided in this Part, the Secretary must not disclose to any person-- 20 (a) any record kept by the Secretary under this Part; or (b) any information provided to the Secretary by an authorised investigator or the Chief Commissioner of Police under this Part. 25 86 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 130 130. Confidentiality of information acquired by authorised investigator An authorised investigator must not disclose to any person other than the Secretary or the Suitability Panel, whether directly or indirectly, 5 any information acquired by the authorised investigator in carrying out an investigation under this Part, except as far as is necessary to carry out the investigation. Penalty: 10 penalty units. 10 131. Confidentiality of proceedings A person must not publish or broadcast or cause to be published or broadcast any report of a hearing of the Suitability Panel under this Part which contains information which would enable-- 15 (a) in the case of a hearing under Subdivision 2 of Division 5, the person against whom the allegation has been made to be identified; or (b) in the case of the hearing of an application under Subdivision 3 of Division 5, the 20 applicant to be identified; or (c) a child to whom an allegation that has been considered by the Panel relates to be identified; or (d) if the Panel has made a determination 25 prohibiting the publication or broadcast of the identity of a witness, that witness to be identified. Penalty: In the case of a natural person, 60 penalty units; 30 In the case of a body corporate, 300 penalty units. 87 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.4--Out of Home Carers s. 132 132. Disclosure allowed for referee checks An out of home care service by whom a disqualified person has been approved, employed or engaged as an out of home carer is not guilty of an offence under section 127(5) or 131 if it 5 discloses the fact that a person is a disqualified person to another out of home care service in the course of a referee check in respect of that person. __________________ 88 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.5--Child Care Agreements s. 133 PART 3.5--CHILD CARE AGREEMENTS Division 1--Introduction 133. Object The object of this Part is to regulate arrangements for voluntary child care agreements to place 5 children in out of home care. 134. Definitions In this Part-- "care" in relation to a child, means the daily care and control of the child but not involving 10 custody of the child; "child care agreement" means an agreement under Division 2 or 3; "long-term child care agreement" means an agreement entered into under Division 3; 15 "service provider" means-- (a) the Secretary; or (b) the person in charge of a registered out of home care service; or (c) a registered residential service within 20 the meaning of the Intellectually Disabled Persons' Services Act 1986; "short-term child care agreement" means an agreement entered into under Division 2; "suitable person" has the meaning set out in 25 section 148; "suitable person agreement" means an agreement referred to in section 147(b). 89 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.5--Child Care Agreements s. 135 Division 2--Short-Term Child Care Agreements 135. Short-term child care agreements (1) A parent of a child may enter into a written agreement with a service provider to place the child in the care of the service provider for the 5 purpose of supporting the child and his or her parent and encouraging and assisting the child's parent to resume the care of the child. (2) An agreement under sub-section (1) does not affect the guardianship and custody of a child. 10 (3) An agreement under sub-section (1) must specify a period not exceeding 6 months, for which the agreement is to have effect. (4) The wishes of the child must be taken into account in making an agreement under this Division. 15 (5) A service provider (other than the Secretary) must notify the Secretary in writing of each agreement entered into by the service provider under sub- section (1) within 14 days after entering into the agreement. 20 136. Return of child to parent who has custody (1) If a parent who does not have custody of a child is a party to a short-term child care agreement, the person who does have custody of the child may request the service provider to return the child to 25 that person. (2) As soon as is practicable after receiving a request under sub-section (1), the service provider must notify the parent who was a party to the agreement of the making of the request. 30 90 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.5--Child Care Agreements s. 137 (3) Subject to any provision to the contrary made by or under the authority of this or any other Act, the service provider must cause the child to be returned to the person who has custody of the child-- 5 (a) as soon as practicable after notifying the parent under sub-section (2); or (b) within a reasonable time if the parent cannot be notified. 137. Extension of agreement 10 (1) Subject to sub-section (2), the parties to a short- term child care agreement, after reviewing the agreement, may agree to extend the agreement before it expires for a further period not exceeding 6 months. 15 (2) If the agreement relates to a child who has been in the care of the service provider for a continuous period of 6 months or for an aggregate of 6 months during a period of 9 months, the service provider must consult with the Secretary before 20 agreeing to extend the agreement. 138. Maximum period for care under agreement (1) A child may not be placed in the care of a service provider by virtue of this Division for a period exceeding 12 months, or for periods which in 25 aggregate exceed 12 months in any period of 18 months unless the Secretary has consented in writing to that placement. (2) A child may not be placed in the care of a service provider under this Division for a period 30 exceeding 2 years or for periods which in the aggregate exceed 2 years in any period of 3 years. 91 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.5--Child Care Agreements s. 139 139. Review of agreement (1) The Secretary must review each short-term child care agreement-- (a) after the first 6 months of the agreement; and (b) annually after the first review. 5 (2) The Secretary must advise the parties to a short- term agreement of the results of a review and the Secretary's recommendations arising from the review. (3) The following may result from a review of an 10 agreement under sub-section (1)-- (a) the agreement may remain unchanged; (b) the agreement may be terminated; (c) the terms of the agreement may be varied. 140. Agreement may be made with minor 15 A short-term child care agreement is not void or voidable by reason only that a party to it has not attained the age of 18 years. 141. Termination of agreement A short-term child care agreement may be 20 terminated by either party giving notice in writing to the other party. 142. Return of child to parent at end of agreement On the expiry or termination of a short-term child care agreement, the person having the care of the 25 child must, as soon as is practicable, cause the child to be returned to his or her parent. 143. Rates of payment under agreement The Minister may determine the rates to be paid in respect of children under a short-term child care 30 agreement. 92 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.5--Child Care Agreements s. 144 Division 3--Long-Term Child Care Agreements 144. Children who may be the subject of a long-term child care agreement Subject to this Division, an agreement may be entered into under this Division with respect to a 5 child who, immediately before the entering into of that agreement, had for a period of at least 2 years or an aggregate of at least 2 years in the preceding period of 3 years-- (a) been the subject of a short-term child care 10 agreement or agreements; or (b) been in the care of an out of home care service; or (c) been in the care of-- (i) a registered residential service; or 15 (ii) a residential institution-- within the meaning of the Intellectually Disabled Persons' Services Act 1986; or (d) been in the care of the Department at any premises proclaimed to be a residential 20 program under section 19 of the Intellectually Disabled Persons' Services Act 1986. 145. Long-term child care agreements (1) A parent of a child may, with the written approval 25 of the Secretary, enter into a written agreement with a service provider with respect to the care of the child. (2) If the agreement provides for the child to be in the care of a suitable person, that person must also be 30 a party to the agreement. 93 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.5--Child Care Agreements s. 146 146. When will the Secretary approve an agreement? The Secretary must not approve the entering into of a long-term child care agreement unless the Secretary is satisfied that-- (a) the agreement is in the best interests of the 5 child; and (b) there are no alternative means available that would enable the parent of the child to resume the care of the child; and (c) the wishes of the child have, having regard to 10 the age and understanding of the child, been taken into account in making the agreement; and (d) the agreement provides for the parent of the child to have an on-going involvement with 15 the child in the terms specified in the agreement. 147. Who may have the care of the child under an agreement? A long-term child care agreement may provide for 20 a child to be in the care of-- (a) an out of home care service; or (b) a suitable person other than-- (i) a parent of the child; or (ii) the Secretary in his or her official 25 capacity; or (iii) a person employed by a community service in his or her official capacity; or (c) a registered residential service within the meaning of the Intellectually Disabled 30 Persons' Services Act 1986 or a residential institution within the meaning of that Act; or 94 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.5--Child Care Agreements s. 148 (d) the Department at any premises proclaimed to be a residential program under section 19 of the Intellectually Disabled Persons' Services Act 1986. 148. Who is a suitable person? 5 (1) A person is a suitable person for the purposes of this Division if the person is approved in writing by the Secretary or by a person authorised by the Secretary to give approvals under this section as being a person suitable to have the long-term care 10 of a child. (2) An authorisation under sub-section (1)-- (a) must be made by instrument; and (b) may be made to the holder of an office or position or to any person for the time being 15 acting in or performing the duties of an office or position. (3) The Secretary must have regard to the prescribed matters before approving a person as a suitable person for the purposes of this Division. 20 (4) For the purposes of this section the matters prescribed for the purposes of this section may include matters relating to-- (a) the checking of criminal records and criminal history of the person and other usual 25 members of the person's household; (b) suitability and fitness of the person; (c) previous history of the person as a carer of children. 95 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.5--Child Care Agreements s. 149 149. What must an agreement include? A long-term child care agreement must-- (a) set out the objectives of the agreement; and (b) set out the role of the service provider which must include-- 5 (i) participating in any review of the agreement; and (ii) assisting in the resolution of any disputes that may arise relating to the care of the child; and 10 (iii) assisting, if required, in the provision of particular services specified in the agreement; and (c) clarify the respective roles of the parent of the child, the service provider and, if the 15 agreement provides for the child to be in the care of a suitable person, that suitable person. 150. Maximum period of care under agreement A long-term child care agreement must specify the 20 period for which the agreement is to have effect which-- (a) in the case of an agreement (other than a suitable person agreement), must not exceed 2 years; and 25 (b) in the case of a suitable person agreement, may be for any period up to the day on which the child attains the age of 18 years. 96 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.5--Child Care Agreements s. 151 151. Return of child at request of parent with custody (1) If a parent who does not have custody of a child is a party to a long-term child care agreement, the person who does have custody of the child may request the service provider to return the child to 5 that person. (2) As soon as is practicable after receiving a request under sub-section (1), the service provider must notify the parent who was a party to the agreement of the making of the request. 10 (3) Subject to any provision to the contrary made by or under the authority of this or any other Act, the service provider must cause the child to be returned to the person who has custody of the child-- 15 (a) as soon as practicable after notifying the parent under sub-section (2); or (b) within a reasonable time if the parent cannot be notified. 152. Review of agreement 20 (1) A long-term child care agreement (other than a suitable person agreement)-- (a) may be reviewed at any time during the period of the agreement at the request of one of the parties to the agreement; and 25 (b) must be reviewed by the Secretary at the end of the first 6 months of the agreement and then annually after the first review; and (c) may, with the written approval of the Secretary, be extended for a period not 30 exceeding 2 years with or without any variation in its terms or another long-term child care agreement may be entered into. 97 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.5--Child Care Agreements s. 153 (2) A suitable person agreement-- (a) may be reviewed at any time during the period of the agreement at the request of one of the parties to the agreement; and (b) must be reviewed by the Secretary at the end 5 of the first 6 months of the agreement and then annually after the first review. (3) Any of the following may result from a review of an agreement under sub-section (2)-- (a) the agreement may be terminated; 10 (b) the agreement may be extended for a period that does not extend beyond the day on which the child attains the age of 18 years; (c) the terms of the agreement may be varied; (d) another long-term child care agreement may 15 be entered into. 153. Agreement may be with minor A long-term child care agreement is not void or voidable by reason only that a party to it has not attained the age of 18 years. 20 154. Termination of agreement A long-term child care agreement may be terminated by any party by giving notice in writing to the other party or parties. 155. Return of child at end of agreement 25 On the expiry or termination of a long-term child care agreement, the person having the care of the child must, as soon as is practicable, cause the child to be returned his or her parent. 98 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.5--Child Care Agreements s. 156 156. Rates of payment under agreement The Minister may determine the rates to be paid in respect of children under a long-term child care agreement. Division 4--Review of Decision-Making and Reports 5 157. Review by Secretary (1) The Secretary must prepare and implement procedures for the review of decisions relating to the care of the child made under or in relation to a child care agreement. 10 (2) The Secretary must ensure that a copy of the procedures is given to-- (a) the child; and (b) the parent of the child; and (c) the service provider; and 15 (d) in the case of a suitable person agreement, the suitable person under the agreement. 158. Review by Victorian Civil and Administrative Tribunal (1) Any of the following may apply to VCAT for 20 review of a decision made under or in relation to a child care agreement relating to the care of a child-- (a) the child; (b) a parent of the child; 25 (c) any other person whose interests are affected by the decision. 99 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.5--Child Care Agreements s. 159 (2) An application for review must be made within 28 days after the later of-- (a) the day on which the decision is made; (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the 5 person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given. 10 (3) Before a person is entitled to apply to VCAT for the review of a decision referred to in sub- section (1), the person must have exhausted all available avenues for the review of the decision under section 157. 15 159. Report by service providers A service provider (other than the Secretary) must report to the Secretary by 31 December in each year on-- (a) the number of child care agreements that the 20 service provider has been a party to in the preceding 12 months; and (b) the duration of each of those agreements. 160. Report by Secretary The Secretary must publish on the Department's 25 Internet site details of-- (a) the number of child care agreements entered into in the previous 12 months; and (b) the number of child care agreements that the Secretary is aware exist. 30 __________________ 100 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.6--Restrictions on Long-term Care of Children s. 161 PART 3.6--RESTRICTIONS ON LONG-TERM CARE OF CHILDREN 161. Restrictions on who may provide long-term care of children (1) A person must not, for fee or reward, provide care 5 for a period longer than 24 hours for a child who is under 15 years of age. Penalty: 15 penalty units. (2) Sub-section (1) does not apply to the provision of care for a child-- 10 (a) by a parent or relative of the child; or (b) in the case of an Aboriginal child, by a member of the Aboriginal community of that child; or (c) by an out of home care service or a secure 15 welfare service; or (d) by a person under a child care agreement within the meaning of Part 3.5; or (e) by an institution or establishment conducted wholly for educational purposes or as a 20 hospital or convalescent home; or (f) by an institution or establishment conducted wholly as a holiday camp or for another similar purpose; or (g) in a private house (including a boarding 25 house) in which a child is temporarily accommodated; or 101 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 3.6--Restrictions on Long-term Care of Children s. 161 (h) by an institution or establishment or an institution or establishment included in a class of institutions or establishments exempted from the operation of sub- section (1) by the Secretary by notice sent by 5 post to the institution or establishment concerned. __________________ 102 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.1--Children in Need of Protection s. 162 CHAPTER 4--CHILDREN IN NEED OF PROTECTION PART 4.1--CHILDREN IN NEED OF PROTECTION 162. When is a child in need of protection? (1) For the purposes of this Act a child is in need of 5 protection if any of the following grounds exist-- (a) the child has been abandoned by his or her parents and after reasonable inquiries-- (i) the parents cannot be found; and (ii) no other suitable person can be found 10 who is willing and able to care for the child; (b) the child's parents are dead or incapacitated and there is no other suitable person willing and able to care for the child; 15 (c) the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected, or are unlikely to protect, the child from harm of that type; 20 (d) the child has suffered, or is likely to suffer, significant harm as a result of sexual abuse and the child's parents have not protected, or are unlikely to protect, the child from harm of that type; 25 (e) the child has suffered, or is likely to suffer, emotional or psychological harm of such a kind that the child's emotional or intellectual development is, or is likely to be, significantly damaged and the child's parents 30 have not protected, or are unlikely to protect, the child from harm of that type; 103 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.1--Children in Need of Protection s. 163 (f) the child's physical development or health has been, or is likely to be, significantly harmed and the child's parents have not provided, arranged or allowed the provision of, or are unlikely to provide, arrange or 5 allow the provision of, basic care or effective medical, surgical or other remedial care. (2) For the purposes of sub-sections (1)(c) to (1)(f), the harm may be constituted by a single act, omission or circumstance or accumulate through a 10 series of continuing acts, omissions or circumstances. 163. Effect of conduct outside Victoria For the purposes of this Act it does not matter whether the conduct constituting a ground referred 15 to in section 162 occurred wholly or partly outside Victoria. __________________ 104 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.2--Responsibilities of Minister s. 164 PART 4.2--RESPONSIBILITIES OF MINISTER 164. Responsibilities of Minister The Minister has the following responsibilities-- (a) to establish and maintain child protection services; and 5 (b) to promote a clear definition of the respective responsibilities, in relation to children at risk of harm, of protective interveners, community services and other persons and bodies working with children 10 and their families in a professional capacity. 165. Central register (1) The Minister may give directions for the maintenance of a central register for the purposes of this Act. 15 (2) There is to be recorded on the central register-- (a) the information required to be recorded under section 240(2); and (b) any other information required to be recorded in the central register under this Act 20 or the regulations. __________________ 105 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.3--Responsibilities of Secretary s. 166 PART 4.3--RESPONSIBILITIES OF SECRETARY Division 1--Case Planning and Stability Planning 166. What is a case plan? (1) A case plan is a plan prepared by the Secretary for a child. 5 (2) A case plan must contain all decisions made by the Secretary concerning a child that-- (a) the Secretary considers to be significant decisions; and (b) relate to the present and future care and 10 wellbeing of the child, including the placement of, and access to, the child. (3) A case plan for a child includes any stability plan prepared for that child. 167. Preparation of case plan 15 (1) The Secretary must ensure that a case plan is prepared in respect of a child within 6 weeks after the making by the Court of-- (a) a supervision order; or (b) a supervised custody order; or 20 (c) a custody to Secretary order; or (d) a guardianship to Secretary order; or (e) a long-term guardianship to Secretary order; or (f) a therapeutic treatment (placement) order. 25 (2) The Secretary must ensure that a copy of the case plan is given to the child and his or her parent within 14 days after its preparation. 106 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.3--Responsibilities of Secretary s. 168 168. Review of case plan The Secretary must ensure that the case plan is reviewed from time to time by the Secretary as appears necessary. 169. What is a stability plan? 5 (1) A stability plan is a plan prepared by the Secretary for a child. (2) A stability plan for a child must plan for stable long-term out of home care for the child. (3) A stability plan may include details of-- 10 (a) the proposed long-term carer of the child or the type of carer who should be sought to provide for the long-term stable care of the child; (b) the appropriate Court order under this 15 Chapter that the Secretary considers best supports the long-term stable placement of the child; (c) matters relevant to the out of home care of the child that may relate to the family or 20 environmental circumstances that caused the child to be placed in out of home care and that may give rise to particular needs or requirements in relation to the child; (d) planning for arrangements for access by the 25 child to the child's parent and siblings; (e) steps to be taken by the child's carer to meet the developmental needs of the child, including steps relating to the child's health, emotional and behavioural development, 30 education, family and social relationships and identity. 107 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.3--Responsibilities of Secretary s. 170 170. Preparation of stability plan (1) The Secretary must ensure that a stability plan is prepared for each child who is in out of home care as a result of-- (a) an interim accommodation order made by 5 the Court; or (b) a protection order. (2) The stability plan for a child must be prepared by the required time after an interim accommodation order or protection order or either of them placing 10 the child in out of home care is first made by a court for the child. (3) The required time for completing a stability plan is-- (a) in the case of a child who is under 2 years of 15 age at the date of the order, once that child has been in out of home care for one or more periods totalling 12 months; (b) in the case of a child who is 2 years of age but under 7 years of age at the date of the 20 order, once that child has been in out of home care for a period or periods totalling 18 months; (c) in the case of a child who is 7 years of age or over at the date of the order, once that child 25 has been in out of home care, for a period or periods totalling 2 years within a period of 3 years from the date of the order. (4) A stability plan can only be prepared for a child who is in out of home care. 30 108 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.3--Responsibilities of Secretary s. 171 (5) The Secretary must provide a copy of a stability plan within 6 weeks after it is prepared to-- (a) the parent of the child; and (b) if the child is of or above the age of 12 years, the child. 5 (6) A stability plan for an Aboriginal child must accord with the Aboriginal Child Placement Principle. 171. When is a stability plan not required? (1) The Secretary is not required to prepare a stability 10 plan for a child within the required time under section 170 if the Secretary considers that the completion of a stability plan for a child is not in the best interests of the child. (2) If the Secretary decides not to prepare a stability 15 plan for a child, the Secretary must provide an explanation as to why a stability plan should not be prepared-- (a) in the disposition report or in an additional report provided to the Court in respect of the 20 child; and (b) in writing to the following persons within 6 weeks after making the decision not to prepare the stability plan-- (i) the parent of the child; and 25 (ii) if the child is of or above the age of 12 years, the child. 109 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.3--Responsibilities of Secretary s. 172 Division 2--Responsibilities of Secretary as Guardian or Custodian 172. Powers of Secretary as guardian or custodian (1) The Secretary, in relation to a child who is under his or her guardianship-- 5 (a) is the guardian of the person and estate of the child to the exclusion of all other persons; and (b) has the same rights, powers, duties, obligations and liabilities as a natural parent 10 of the child would have. (2) The Secretary, in relation to a child who is in the custody or under the guardianship of the Secretary-- (a) has the sole right to the custody of the child; 15 and (b) may demand, sue for and recover any money due to the child; and (c) in the name and on behalf of the child may commence and prosecute any proceeding 20 relating to any property or rights of the child. (3) The Secretary may detain without warrant any child who is in the custody or under the guardianship of the Secretary. (4) This section applies except as otherwise expressly 25 provided by this Chapter or by any order made under this Chapter. 110 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.3--Responsibilities of Secretary s. 173 173. Placement of children (1) This section applies in relation to a child-- (a) who is in the custody or under the guardianship of the Secretary under this Act; or 5 (b) of whom the Secretary is the guardian under the Adoption Act 1984; or (c) in respect of whom the Secretary has authority under the Adoption Act 1984 to exercise any rights of custody. 10 (2) The Secretary may deal with the child in any of the following ways-- (a) place him or her in an out of home care service; (b) place him or her in a secure welfare service 15 for a period not exceeding 21 days (and, in exceptional circumstances, for one further period not exceeding 21 days) if the Secretary is satisfied that there is a substantial and immediate risk of harm to the 20 child; (c) place him or her for adoption under the Adoption Act 1984 if he or she is under the guardianship of the Secretary and available for adoption; 25 (d) place him or her in any other suitable situation as circumstances require. (3) For the purposes of sub-section (2)(b), the assessment of risk may be made on the basis of a single incident or an accumulated risk. 30 111 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.3--Responsibilities of Secretary s. 174 174. Secretary's duties in placing child (1) In dealing with a child under section 173, the Secretary-- (a) must have regard to the best interests of the child as the first and paramount 5 consideration; and (b) must make provision for the physical, intellectual, emotional and spiritual development of the child in the same way as a good parent would; and 10 (c) must have regard to the fact that the child's lack of adequate accommodation is not by itself a sufficient reason for placing the child in a secure welfare service; and (d) must have regard to the treatment needs of 15 the child. (2) In placing a child under section 173(2)(d), the Secretary must have regard to the prescribed criteria (if any). 175. Support for child moving from secure welfare 20 service If a child is placed in a secure welfare service under section 173, the Secretary must plan for and support the transfer of the child to and integration of the child in another suitable placement in order 25 to reduce the need for the child to be placed in a secure welfare service again. 176. Cultural plan for Aboriginal child (1) The Secretary must prepare a cultural plan for each Aboriginal child placed in out of home care 30 under a guardianship to Secretary order or long- term guardianship to Secretary order. 112 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.3--Responsibilities of Secretary s. 177 (2) A cultural plan must set out how the Aboriginal child placed in out of home care is to remain connected to his or her Aboriginal community and to his or her Aboriginal culture. (3) For the purposes of sub-section (2), a child's 5 Aboriginal community is-- (a) the Aboriginal community to which the child has a sense of belonging, if this can be ascertained by the Secretary; or (b) if paragraph (a) does not apply, the 10 Aboriginal community in which the child has primarily lived; or (c) if paragraphs (a) and (b) do not apply, the Aboriginal community of the child's parent or grandparent. 15 (4) The Secretary must monitor compliance by the carer of a child with the cultural plan prepared for a child. 177. State Guardianship Fund (1) All money received by the Secretary as guardian 20 of the estate of a child must be paid to the credit of an account established and kept in an authorised deposit-taking institution within the meaning of the Banking Act 1959 of the Commonwealth by the Secretary under the name 25 of the "State Guardianship Fund". (2) The Secretary must keep an account showing the current amount at credit in the Fund on account of each child. (3) Money standing to the credit of a child in the 30 Fund which is not immediately required for use by the child may be invested in any manner in which trust money may be invested by a trustee under the Trustee Act 1958 and interest earned must be 113 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.3--Responsibilities of Secretary s. 178 credited to the account of the child at least once a year. (4) Money standing to the credit of a child in the Fund may only be used for the benefit of the child and with the approval of the Secretary. 5 (5) On the child ceasing to be under the guardianship of the Secretary all money standing to the credit of the child in the Fund-- (a) if the child is over 18 years of age, must be paid to the child; and 10 (b) in any other case, may be paid to the child or may, if the Secretary considers it to be in the interests of the child to do so, be retained (wholly or in part) in the Fund until the child is 18 years of age. 15 (6) The Secretary must, on a child ceasing to be under the guardianship of the Secretary, notify the child of the amount standing to his or her credit in the Fund. Division 3--Responsibility to Provide Information 20 178. Responsibility of Secretary to provide information to parents (1) If a child is in out of home care because of a protection order or a therapeutic treatment (placement) order, the Secretary has a 25 responsibility to provide information to the parents about the child, including the provision of personal information. (2) The Secretary is not required to provide information to a parent under sub-section (1) if-- 30 (a) the child is over the age of 12 years and does not consent to the provision of the information and the Secretary considers the refusal of consent to be reasonable; or 114 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.3--Responsibilities of Secretary s. 179 (b) the Secretary considers that it is not in the best interests of the child to provide the information; or (c) the Court has made an order under section 531 dispensing with service of all 5 documents on that parent. 179. Responsibility of Secretary or out of home care service to provide information to carers (1) If the Secretary or an out of home care service intends to place a child in the care of a person 10 other than the parent of the child, the Secretary or out of home care service must provide the carer with all information that is known to the Secretary or the service and that is reasonably necessary to assist the carer to make an informed decision as to 15 whether or not to accept the care of the child. (2) If the Secretary or an out of home care service has placed a child in the care of a person other than the parent of the child, the Secretary or out of home care service must provide the carer with any 20 information known to the Secretary or the service regarding the medical status of the child to enable the carer to provide appropriate care for the child. 180. Confidentiality A person who is given information about a child 25 under section 179 must not disclose that information to any other person except for the purpose of providing appropriate care for the child. Penalty: 10 penalty units. 30 __________________ 115 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.4--Reporting s. 181 PART 4.4--REPORTING Division 1--Introduction 181. Who is a protective intervener? For the purposes of this Act the following persons are protective interveners-- 5 (a) the Secretary; (b) all members of the police force. 182. Who is a mandatory reporter? (1) The following persons are mandatory reporters for the purposes of this Act-- 10 (a) a registered medical practitioner; (b) a person registered under the Nurses Act 1993; (c) a person who is registered as a teacher under the Victorian Institute of Teaching Act 15 2001 or has been granted permission to teach under that Act; (d) the head teacher or principal of a State school within the meaning of the Education Act 1958 or of a school registered under 20 Part III of that Act; (e) a member of the police force; (f) on and from the relevant date, the proprietor of, or a person with a post-secondary qualification in the care, education or 25 minding of children who is employed by, a children's service to which the Children's Services Act 1996 applies or a person nominated under section 16(2)(b)(iii) of that Act; 30 116 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.4--Reporting s. 182 (g) on and from the relevant date, a person with a post-secondary qualification in youth, social or welfare work who works in the health, education or community or welfare services field and who is not referred to in 5 paragraph (h); (h) on and from the relevant date, a person employed under Part 3 of the Public Administration Act 2004 to perform the duties of a youth and child welfare worker; 10 (i) on and from the relevant date, a registered psychologist; (j) on and from the relevant date, a youth justice officer; (k) on and from the relevant date, a youth parole 15 officer; (l) on and from the relevant date, a member of a prescribed class of persons. (2) In paragraph (f), (g), (h), (i), (j), (k) or (l) of sub- section (1) "the relevant date", in relation to a 20 person or class of persons referred to in that paragraph, means the date fixed for the purposes of that paragraph by an Order made by the Governor in Council and published in the Government Gazette. 25 (3) In the case of sub-section (1)(l), different dates may be fixed by Order in Council for the purposes of different prescribed classes of persons. 117 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.4--Reporting s. 183 Division 2--Report to Protective Intervener 183. Report to protective intervener Any person who believes on reasonable grounds that a child is in need of protection may report to a protective intervener that belief and the reasonable 5 grounds for it. 184. Mandatory reporting (1) A mandatory reporter who, in the course of practising his or her profession or carrying out the duties of his or her office, position or employment 10 as set out in section 182, forms the belief on reasonable grounds that a child is in need of protection on a ground referred to in section 162(c) or 162(d) must report to the Secretary that belief and the reasonable grounds for it as soon as 15 practicable-- (a) after forming the belief; and (b) after each occasion on which he or she becomes aware of any further reasonable grounds for the belief. 20 Penalty: 10 penalty units. (2) It is a defence to a charge under sub-section (1) for the person charged to prove that he or she honestly and reasonably believed that all of the reasonable grounds for his or her belief had been 25 the subject of a report to the Secretary made by another person. (3) The requirement imposed by sub-section (1)(b) applies to a mandatory reporter referred to in paragraph (f) to (l) of section 182(1) even if his or 30 her belief was first formed before the relevant date under section 182(1) for that paragraph. 118 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.4--Reporting s. 185 (4) For the purposes of this section, a belief is a belief on reasonable grounds if a reasonable person practising the profession or carrying out the duties of the office, position or employment, as the case requires, would have formed the belief on those 5 grounds. 185. Report on child in need of therapeutic treatment Any person who believes on reasonable grounds that a child who is 10 years of age or over but under 15 years of age is in need of therapeutic 10 treatment (as defined in section 244) may report to the Secretary that belief and the reasonable grounds for it. 186. Grounds for belief Grounds for a belief referred to in this Division 15 are-- (a) matters of which a person has become aware; and (b) any opinions based on those matters. 187. Determination by Secretary about report 20 (1) If a report is made to the Secretary under section 183 or 184, the Secretary may-- (a) provide advice to the person who made the report; or (b) determine that the report is a protective 25 intervention report for the purposes of this Act; or (c) determine that the report should be dealt with as a report to the Secretary under section 28. (2) If the Secretary makes a determination under sub- 30 section (1)(c), the report may be dealt with under this Act as if it were a report to the Secretary under section 28. 119 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.4--Reporting s. 188 188. Record of report The Secretary must keep a written record of each report made to the Secretary under this Division. Division 3--Protection of Reporters 189. Reporters protected 5 A report made under Division 2 in good faith-- (a) does not for any purpose constitute unprofessional conduct or a breach of professional ethics on the part of the person by whom it is made; and 10 (b) does not make the person by whom it is made subject to any liability in respect of it; and (c) without limiting paragraphs (a) and (b), does not constitute a contravention of-- 15 (i) section 141 of the Health Services Act 1988; or (ii) section 120A of the Mental Health Act 1986. 190. Evidence and legal proceedings 20 (1) In any legal proceeding evidence may be given as to the grounds contained in-- (a) a report under section 183 or 184 or a report determined to be a protective intervention report under section 34; or 25 (b) a report under section 185 that a child is in need of therapeutic treatment. (2) However in a legal proceeding evidence that a particular matter is contained in a report referred to in sub-section (1) or evidence that identifies the 30 person who made that report as the reporter, or is likely to lead to the identification of that person as 120 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.4--Reporting s. 190 the reporter is only admissible in the proceeding if-- (a) the court or tribunal grants leave for the evidence to be given; or (b) the reporter consents in writing to the 5 admission of that evidence. (3) A witness appearing in a legal proceeding must not be asked and, if asked, is entitled to refuse to answer-- (a) any question to which the answer would or 10 might identify the person who made a report referred to in sub-section (1) as the reporter or would or might lead to the identification of that person as the reporter; or (b) any question as to whether a particular 15 matter is contained in a report referred to in sub-section (1)-- unless the court or tribunal grants leave for the question to be asked or the reporter has consented in writing to the question being asked. 20 (4) A court or tribunal may only grant leave under sub-section (2) or (3) if-- (a) in the case of a proceeding in the Court or in any other court arising out of a proceeding in the Court or in VCAT on a review under 25 section 333, it is satisfied that it is necessary for the evidence to be given to ensure the safety and wellbeing of the child; (b) in any other case, it is satisfied that the interests of justice require that the evidence 30 be given. 121 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.4--Reporting s. 191 191. Confidentiality (1) If a report referred to in section 190(1) is made, a person (other than the person who made it or a person acting with the written consent of the person who made it) must not disclose to any 5 person other than a protective intervener-- (a) the name of the person who made the report; or (b) any information that is likely to lead to the identification of the person who made the 10 report. Penalty: 10 penalty units. (2) Sub-section (1) does not apply to a disclosure made to a court or tribunal in accordance with section 190. 15 (3) Sub-section (1) does not apply to a disclosure to the Therapeutic Treatment Board of the name or information leading to the identification of a member of the police force who made a report under section 185. 20 __________________ 122 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.5--Disclosure of Information s. 192 PART 4.5--DISCLOSURE OF INFORMATION Division 1--Voluntary Disclosure of Information 192. Secretary may request provision of information (1) If the Secretary believes on reasonable grounds that an information holder or a person in charge 5 of, or employed in, a registered community service has information that is relevant to the protection or development of a child in respect of whom the Secretary has received a protective intervention report, the Secretary may ask that 10 person to provide that information to the Secretary. (2) A person who is asked under sub-section (1) to provide information to the Secretary may provide that information to the Secretary. 15 193. Disclosers protected A disclosure of information made under section 192 in good faith-- (a) does not for any purpose constitute unprofessional conduct or a breach of 20 professional ethics on the part of the person by whom it is made; and (b) does not make the person by whom it is made subject to any liability in respect of it; and 25 (c) without limiting paragraphs (a) and (b), does not constitute a contravention of-- (i) section 141 of the Health Services Act 1988; or (ii) section 120A of the Mental Health Act 30 1986. 123 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.5--Disclosure of Information s. 194 Division 2--Compulsory Disclosure of Information 194. Who is an authorised officer? (1) The Secretary may authorise any person in a prescribed class of employees as an authorised officer for the purposes of this Division. 5 (2) An authorisation may be general or limited to specified functions. 195. Secretary may authorise direction to disclose The Secretary may authorise a direction to be given to an information holder (other than a 10 member of the police force) under this Division, if the Secretary believes on reasonable grounds that the information holder has information that is relevant to the protection or development of a child in respect of whom a protection order is in 15 force. 196. Authorised officer may require disclosure of information (1) This section applies if the Secretary has authorised under section 195 the giving of a direction in 20 relation to a child in respect of whom a protection order is in force. (2) An authorised officer may in writing direct any information holder-- (a) to give information to the authorised officer, 25 orally or in writing on any matter concerning the protection or development of the child; and (b) to produce documents to the authorised officer that relate to any matter concerning 30 the protection or development of the child; and (c) to give reasonable assistance to the authorised officer in relation to the child. 124 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.5--Disclosure of Information s. 197 (3) An authorised officer may disclose to the Secretary any information or document provided to the authorised officer under this Division. (4) Nothing in this section permits a direction requiring the disclosure by any person employed 5 at or appointed to the Children's Court Clinic of any information or document relating to the carrying out the Clinic's functions. 197. Refusal or failure to comply with requirement A person must not, without reasonable excuse, 10 refuse or fail to comply with a requirement of an authorised officer under this Division. Penalty: 10 penalty units. 198. Protection against self-incrimination It is a reasonable excuse for a natural person to 15 refuse or fail to give information or do any other thing that the person is required to do by or under this Division, if the giving of the information or the doing of that other thing would tend to incriminate the person. 20 199. Legal professional privilege It is a reasonable excuse for a person to refuse or fail to give information or do any other thing that the person is required to do by or under this Division, if the giving of the information or the 25 doing of that other thing would be a breach of legal professional privilege. 200. Medical professional privilege does not apply (1) It is not a reasonable excuse for a person to refuse or fail to give information or produce documents 30 to an authorised officer under this Division on the ground of medical professional privilege. 125 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.5--Disclosure of Information s. 201 (2) Sections 28(2), 28(3) and 32C of the Evidence Act 1958 do not apply to prevent-- (a) the giving of information or production of documents to an authorised officer as required under this Division; or 5 (b) the information given or documents produced to the authorised officer under this Division in relation to a child being given in evidence in any proceedings under this Chapter in relation to the child. 10 201. Offence to give false or misleading information A person must not-- (a) give information to an authorised officer under this Division that the person believes to be false or misleading in any material 15 particular; or (b) produce a document to an authorised officer under this Division that the person knows to be false or misleading in a material particular without indicating the respect in which it is 20 false or misleading and, if practicable, providing correct information. Penalty: 10 penalty units. 202. Exclusion of evidence of disclosed information Information given or documents produced to an 25 authorised officer in relation to a child under this Division must not be given in evidence in a legal proceeding other than a proceeding in relation to the child under this Chapter. 126 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.5--Disclosure of Information s. 203 203. Reporting of authorisations and directions The Secretary must include in the annual report of the Department prepared under the Financial Management Act 1994 a report on the operation of this Division in respect of the relevant financial 5 year including-- (a) the number of authorisations made under section 195; and (b) the number of directions given under section 196; and 10 (c) the extent of compliance with directions under section 196; and (d) the number of persons prosecuted under section 197. __________________ 127 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.6--Investigation s. 204 PART 4.6--INVESTIGATION Division 1--Investigation of Protective Intervention Report 204. Directions for protective interveners (1) The Minister may-- (a) issue directions to be followed by protective 5 interveners in the exercise of their functions; or (b) amend, in whole or in part, any directions issued under paragraph (a). (2) The Minister must consult with the Minister 10 administering the Police Regulation Act 1958 before issuing directions relating to protective interveners who are members of the police force. (3) The Minister must cause any directions issued and any amendments made under sub-section (1) to be 15 published in the Government Gazette. 205. Investigation by protective intervener (1) A protective intervener must, as soon as practicable after receiving a protective intervention report, investigate, or cause another 20 protective intervener to investigate, the subject- matter of the report in a way that will be in the best interests of the child. (2) A protective intervener who is investigating the subject-matter of a report-- 25 (a) must inform the child and the child's parents that any information they give may be used for the purposes of a protection application; and 128 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.6--Investigation s. 206 (b) must not disclose any information arising from the investigation to anyone other than-- (i) a court; or (ii) a person referred to in any paragraph of 5 section 206(2); or (iii) a person to whom the protective intervener is authorised by the Secretary to disclose the information. (3) The Secretary may only authorise the disclosure 10 of information to a person under sub-section (2)(b) if he or she believes on reasonable grounds that the disclosure is necessary to assist in the investigation of the subject-matter of the report. 206. Record of investigation 15 (1) On completing an investigation of a protective intervention report, the protective intervener must, as soon as practicable, make a written record of-- (a) details of the investigation; and (b) the results of the investigation. 20 (2) If after completing an investigation of a protective intervention report the protective intervener decides not to make a protection application, a person must not disclose the record of the investigation made under sub-section (1) to 25 anyone other than-- (a) the child; or (b) the child's parents; or (c) the Secretary; or (d) the Chief Commissioner of Police; or 30 129 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.6--Investigation s. 207 (e) a person in connection with a review by VCAT or a panel appointed under section 332 of decisions relating to the recording of information in the central register; or 5 (f) a person who is, or is a member of a class of persons who are, authorised in writing by the Secretary or the Chief Commissioner of Police to have access to that record or the class of records to which that record belongs. 10 Penalty: 10 penalty units. (3) Despite anything to the contrary in the Freedom of Information Act 1982, sub-section (2) does not have the effect of making the record of the investigation an exempt document for the 15 purposes of that Act. 207. Provision of protection report to police (1) The Secretary must, on a request made in accordance with any directions of the Minister by a member of the police force who is investigating 20 the subject-matter of a protective intervention report, submit a protection report to that member of the police force within 21 days. (2) A member of the police force who receives a protection report under sub-section (1) or the 25 author of that report must not disclose any information contained in it to any person other than another protective intervener who is investigating the subject-matter of the protective intervention report. 30 Penalty: 10 penalty units. 130 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.6--Investigation s. 208 (3) Nothing in sub-section (2) prevents the disclosure to a court by a member of the police force of information contained in a protection report received by that member. 208. Protection of givers of information 5 The giving of information to a protective intervener in good faith during the course of the investigation of the subject-matter of a protective intervention report-- (a) does not for any purpose constitute 10 unprofessional conduct or a breach of professional ethics on the part of the person by whom it is given; and (b) does not make the person by whom it is given subject to any liability in respect of it; 15 and (c) does not constitute a contravention of-- (i) section 141 of the Health Services Act 1988; or (ii) section 120A of the Mental Health Act 20 1986. 209. Confidentiality (1) A protective intervener must not disclose to any person, other than to another protective intervener or to a person in connection with a court 25 proceeding or to a person in connection with a review by VCAT or a panel appointed under section 332 of decisions relating to the recording of information in the central register-- (a) the name of a person who gave information 30 in confidence to a protective intervener during the course of the investigation of the subject-matter of a protective intervention report; or 131 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.6--Investigation s. 210 (b) any information that is likely to lead to the identification of a person referred to in paragraph (a)-- without the written consent of the person referred to in paragraph (a) or authorisation by the 5 Secretary. Penalty: 10 penalty units. (2) The Secretary may only authorise the disclosure of information to a person under sub-section (1) if the Secretary believes on reasonable grounds that 10 the disclosure is necessary to ensure the safety and wellbeing of the child. (3) In this section "court proceeding" includes a proceeding in the Family Court of Australia. Division 2--Investigation of Therapeutic Treatment Report 15 210. Investigation by Secretary (1) The Secretary must, as soon as practicable after receiving a report under section 185 that a child is in need of therapeutic treatment, investigate the subject-matter of the report in a way that will best 20 promote the provision of assistance and, where appropriate, therapeutic treatment to the child. (2) The Secretary, in carrying out the investigation-- (a) must inform the child and the child's parents that any information they give may be used 25 for the purposes of a therapeutic treatment application; and (b) must not disclose any information arising from the investigation to anyone other than-- 30 (i) a court; or (ii) a person referred to in any paragraph of section 211(2); or 132 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.6--Investigation s. 211 (iii) a person to whom the Secretary believes on reasonable grounds that it is necessary to disclose the information to assist in the investigation of the subject- matter of the report. 5 211. Record of investigation (1) On completing an investigation of the subject- matter of a report under section 185, the Secretary must, as soon as practicable, make a written record of-- 10 (a) details of the investigation; and (b) the results of the investigation. (2) If, after completing an investigation of a report under section 185, the Secretary decides not to make a therapeutic treatment application, a person 15 must not disclose the record of the investigation made under sub-section (1) to anyone other than-- (a) the child; or (b) the child's parents; or 20 (c) the Secretary; or (d) the Chief Commissioner of Police; or (e) a person in connection with a review by VCAT or a panel appointed under section 332 of decisions relating to the 25 recording of information in the central register; or (f) a person who is, or is a member of a class of persons who are, authorised in writing by the Secretary or the Chief Commissioner of 30 Police to have access to that record or the class of records to which that record belongs. Penalty: 10 penalty units. 133 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.6--Investigation s. 212 (3) Despite anything to the contrary in the Freedom of Information Act 1982, sub-section (2) does not have the effect of making the record of the investigation an exempt document for the purposes of that Act. 5 212. Protection of givers of information The giving of information to the Secretary in good faith during the course of the investigation of a report under section 185-- (a) does not for any purpose constitute 10 unprofessional conduct or a breach of professional ethics on the part of the person by whom it is given; and (b) does not make the person by whom it is given subject to any liability in respect of it; 15 and (c) does not constitute a contravention of-- (i) section 141 of the Health Services Act 1988; or (ii) section 120A of the Mental Health Act 20 1986. 213. Confidentiality The Secretary must not disclose to any person, other than to the Therapeutic Treatment Board or to a person in connection with a court proceeding 25 or to a person in connection with a review by VCAT or a panel appointed under section 332 of decisions relating to the recording of information in the central register-- (a) the name of a person who gave information 30 in confidence to the Secretary during the course of the investigation of the subject- matter of a report under section 185; or 134 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.6--Investigation s. 213 (b) any information that is likely to lead to the identification of a person referred to in paragraph (a)-- without the written consent of the person referred to in paragraph (a) unless the Secretary believes 5 on reasonable grounds that the disclosure is necessary to ensure provision of assistance or therapeutic treatment for the child. __________________ 135 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.7--Procedure in Family Division s. 214 PART 4.7--PROCEDURE IN FAMILY DIVISION Division 1--General 214. How proceeding in Family Division commenced A proceeding in the Family Division is commenced by filing an application with the 5 appropriate registrar. 215. Conduct of proceedings in Family Division (1) The Family Division-- (a) must conduct proceedings before it in an informal manner; and 10 (b) must proceed without regard to legal forms; and (c) must consider evidence on the balance of probabilities; and (d) may inform itself on a matter in such manner 15 as it thinks fit, despite any rules of evidence to the contrary. (2) The Attorney-General may appear or be represented in any proceeding before the Family Division and may call and examine or cross- 20 examine witnesses and make submissions. (3) Despite anything to the contrary in this or any other Act, the Secretary or his or her delegate, in the capacity of being a party to any proceeding before the Family Division whether as a protective 25 intervener or otherwise, may appear-- (a) personally; or (b) by a legal practitioner; or 136 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.7--Procedure in Family Division s. 216 (c) by an employee of the public service (whether or not admitted as a barrister and solicitor of the Supreme Court) who is authorised by the Secretary to appear in proceedings before the Family Division. 5 (4) An authorisation under sub-section (3)(c)-- (a) must be made by instrument; (b) may be of a particular employee or of a class of employees; (c) may be subject to any conditions or 10 limitations that the Secretary may specify in it. (5) For the purposes of sections 226(4)(b), 226(4)(c) and 537(4), an employee representing a party in accordance with sub-section (3)(c) must be taken 15 to be that party's legal practitioner or legal representative. (6) Nothing in sub-section (3) affects any right of the Secretary or his or her delegate to appear in any other matter in the Court personally or by a legal 20 practitioner. 216. Power of Family Division to make certain orders by consent in absence of parties If on an application to the Family Division for the extension of a custody to Secretary order or a 25 guardianship to Secretary order the Court is satisfied that the parties to the proceeding have agreed on the terms of the order and that the making of the order is in the best interests of the child, the Court may make the order without 30 requiring the parties to attend, or be represented at, the proceeding. 137 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.7--Procedure in Family Division s. 217 Division 2--Dispute Resolution Conferences 217. Referral of application to dispute resolution conference (1) The Family Division may, on the application of a party or without that application, order that any 5 application made to the Family Division under this Act be referred for a dispute resolution conference to one or two convenors appointed under section 227. (2) The purpose of the dispute resolution conference 10 is to give the parties to the application the opportunity to agree or advise on the action that should be taken in the best interests of the child. (3) On that referral the convenor or convenors may determine whether the dispute resolution 15 conference is to be-- (a) a facilitative conference; or (b) an advisory conference. 218. What is a facilitative conference? (1) The purpose of a facilitative conference is to 20 enable the parties to the application, with the assistance of the convenor or convenors-- (a) to identify the issues in dispute; and (b) to consider alternatives; and (c) to try to reach an agreement as to the action 25 to be taken in the best interests of the child. 138 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.7--Procedure in Family Division s. 219 (2) The role of a convenor or the convenors of a facilitative conference is-- (a) to chair the conference; and (b) to advise on and determine the process to be followed for the conference; and 5 (c) to provide to the Court a written report of the conclusions reached at the conference. 219. What is an advisory conference? (1) The purpose of an advisory conference is to recommend to the Court the action to be taken in 10 the best interests of the child. (2) The role of a convenor or the convenors of an advisory conference is-- (a) to chair the conference; and (b) to consider and appraise the matters in 15 dispute; and (c) to provide to the Court a written report as to the facts of the dispute and the possible outcomes of the dispute and how these outcomes might be achieved. 20 220. Guidelines for dispute resolution conferences A dispute resolution conference must be conducted in accordance with any guidelines issued from time to time by the Court. 221. Time and place of dispute resolution conference 25 The Court may fix a time and place for the holding of the dispute resolution conference or may direct that a convenor fix, within 14 working days, a time and place. 139 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.7--Procedure in Family Division s. 222 222. Who is to attend a dispute resolution conference? (1) A dispute resolution conference is to be attended by the child's parent and the Secretary. (2) The Court may, in addition, order that any of the following attend-- 5 (a) the child; (b) a relative or relatives of the child; (c) in the case of an Aboriginal child, a member of the child's Aboriginal community as agreed to by the child; 10 (d) if the child's parent is an Aboriginal person, a member of the parent's Aboriginal community as agreed to by the parent; (e) in the case of a child from an ethnic background, a member of the appropriate 15 ethnic community who is chosen or agreed to by the child or by his or her parent; (f) if the child has a disability, an advocate for the child; (g) if the child's parent has a disability, an 20 advocate for the parent; (h) any other support person for the child requested by the child. (3) If a parent of the child has a legal representative, the legal representative may attend the dispute 25 resolution conference. (4) If the child is mature enough to give instructions and has a separate legal representative, the legal representative may attend. (5) If, in exceptional circumstances, the Court 30 determines that it is in the best interests of a child who, in the opinion of the Court is not mature enough to give instructions, for the child to be 140 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.7--Procedure in Family Division s. 223 legally represented at a dispute resolution conference, the legal representative may attend. (6) Nothing in section 524 (except sub-sections (10) and (11)) or 525 applies to a dispute resolution conference. 5 223. Report to Court by convenor (1) A written report made by a convenor under section 218 as a result of a facilitative conference is admissible in the proceedings of the Family Division in respect of the child who is the subject 10 of the conference for the purpose of establishing the conclusions reached at the conference. (2) A written report made by a convenor under section 219 as a result of an advisory conference is admissible in the proceedings of the Family 15 Division in respect of the child who is the subject of the conference for the purpose of advising the Court on the matters set out in section 219(2)(c). 224. Court to consider report of convenor If the Family Division has referred an application 20 to a dispute resolution conference under this Division, the Court may consider the written report of the convenor or convenors of the conference in determining what order or finding to make in respect of the application. 25 225. Immunity of participants (1) A convenor has, in the performance of his or her duties as convenor of a dispute resolution conference under this Division, the same protection and immunity as a magistrate has in the 30 performance of his or her duties. (2) A person representing a party in a dispute resolution conference has the same protection and immunity as a legal practitioner has in representing a party in proceedings in the Court. 35 141 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.7--Procedure in Family Division s. 226 226. Confidentiality of dispute resolution conferences (1) Evidence of anything said or done or admissions made at a dispute resolution conference is only admissible in a proceeding before a court if the court grants leave or all the parties to the dispute 5 resolution conference consent. (2) A court may only grant leave under sub- section (1) if satisfied that it is necessary to do so to ensure the safety and wellbeing of the child. (3) Subject to sub-section (4), a person who attends a 10 dispute resolution conference must not disclose any statement made at, or information provided to, the conference without the leave of the Court or the consent of all the parties to the dispute resolution conference. 15 Penalty: 10 penalty units. (4) Nothing in sub-section (3) prevents-- (a) the convenor making a record of the proceedings at the dispute resolution conference; 20 (b) discussions taking place between a person who attended the conference and his or her legal representative; (c) discussions taking place between the legal representatives of persons who attended the 25 conference; (d) discussions taking place between protective interveners about the conference. 142 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.7--Procedure in Family Division s. 227 227. Dispute resolution convenors (1) The Governor in Council, on the recommendation of the Attorney-General, may appoint as many convenors as are necessary for the purposes of this Division. 5 (2) A convenor is to be appointed on the terms and conditions set out in the instrument of appointment. (3) The Minister may remove a convenor from office at any time. 10 (4) The Minister must not appoint a person as a convenor unless the Minister is satisfied that the person is of good character and has appropriate qualifications and experience. (5) A convenor is not, in respect of the office of 15 convenor, subject to the Public Administration Act 2004. __________________ 143 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 228 PART 4.8--PROTECTIVE INTERVENTION Division 1--Temporary Assessment Orders 228. Application for temporary assessment order by notice (1) The Secretary may give a notice under this section 5 if the Secretary-- (a) has a reasonable suspicion that a child is, or is likely to be, in need of protection; and (b) is of the opinion that further investigation and assessment of the matter is warranted; 10 and (c) is of the opinion that the investigation and assessment cannot properly proceed unless a temporary assessment order is made. (2) The Secretary may by notice direct-- 15 (a) the child to appear; and (b) the child's parents to produce the child-- before the Court for the hearing of an application for a temporary assessment order. (3) A notice cannot be given under this section if-- 20 (a) a protection order (other than an undertaking) is in force in respect of the child; or (b) an application for a protection order has been made in respect of the child but has not been 25 determined. 144 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 229 (4) A notice under this section must-- (a) be issued out of the Court by the appropriate registrar; and (b) be served, in accordance with section 594, on the child's parent and, if the child is of or 5 above the age of 12 years, the child. 229. Application for temporary assessment order without notice (1) The Secretary may apply to the Court for leave for the hearing of an application for a temporary 10 assessment order in respect of a child without giving the notice under section 228 if the Secretary-- (a) has a reasonable suspicion that a child is, or is likely to be, in need of protection; and 15 (b) is of the opinion that further investigation and assessment of the matter is warranted; and (c) is of the opinion that the investigation and assessment cannot properly proceed unless a 20 temporary assessment order is made; and (d) is satisfied that the giving of the notice required by section 228 is inappropriate in the circumstances. (2) An application cannot be made under this section 25 if-- (a) a protection order (other than an undertaking) is in force in respect of the child; or (b) an application for a protection order has been 30 made in respect of the child but has not been determined. 145 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 230 (3) The Court may grant leave for the application to be dealt with without giving the notice under section 228 if the Court is satisfied that it is appropriate to do so. 230. Matters to be considered by Court 5 In deciding whether or not to make a temporary assessment order, the Court must consider-- (a) whether there is information or evidence that would lead to a person having a reasonable suspicion that the child is, or is likely to be, 10 in need of protection; and (b) whether a further investigation and assessment of the matter is warranted; and (c) whether the Court is satisfied that the investigation and assessment cannot properly 15 proceed unless a temporary assessment order is made; and (d) whether the proposed investigation or assessment is likely to provide relevant information that is unlikely to be obtained 20 elsewhere; and (e) whether any distress the investigation or assessment is likely to cause the child will be outweighed by the value of the information that might be obtained; and 25 (f) any other matter that the Court considers relevant. 231. Temporary assessment order After considering the matters set out in section 230, the Court may make a temporary 30 assessment order if it is satisfied that-- (a) the making of the order is in the best interests of the child; and 146 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 232 (b) it is necessary for the Secretary to assess whether or not the child is in need of protection; and (c) the Secretary cannot properly carry out the investigation or assessment unless the order 5 is made. 232. What may a temporary assessment order provide for? (1) A temporary assessment order may-- (a) authorise the Secretary to enter the premises 10 where the child is living; (b) require the parent of the child or any person with whom the child is living to permit the Secretary to enter the premises where the child is living; 15 (c) require the parent of the child or any person with whom the child is living to permit the Secretary to interview the child and to take the child to a place determined by the Secretary for that interview; 20 (d) authorise, subject to section 233, the medical examination of the child by a registered medical practitioner or a registered psychologist; (e) direct the parent of the child or any person 25 with whom the child is living to permit the Secretary to take the child for that medical examination; (f) authorise the provision of the results of the medical examination to be given to the 30 Secretary; 147 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 233 (g) require the parent of the child or any person with whom the child is living to attend an interview with the Secretary and, subject to section 234, to answer any questions put to them in the interview; 5 (h) give any other directions or impose any conditions that the Court considers to be in the best interests of the child. (2) If the application for a temporary assessment order is made under section 229, the order must 10 include a statement setting out the right of the child or the parent of the child to apply to the Court under section 235 for the order to be varied or revoked. (3) If the temporary assessment order authorises the 15 medical examination of the child, the order must include a statement setting out the terms of section 233. (4) A temporary assessment order must direct the Secretary to provide to the Court by a date 20 specified in the order a report about the outcome of the investigation or assessment. 233. Child not to be medically examined in certain cases Despite a temporary assessment order, a registered medical practitioner or registered psychologist by 25 whom the child is to be examined under the order must not examine the child if-- (a) the medical practitioner or psychologist is of the opinion that the child has sufficient understanding to give or refuse consent to 30 the examination; and (b) the child refuses that consent. 148 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 234 234. Protection of privileges (1) Despite a temporary assessment order, a person may refuse to answer a question put by the Secretary in an interview authorised by the order on the ground that-- 5 (a) to answer might tend to incriminate the person; or (b) the information is privileged on the ground of legal professional privilege. (2) Before the Secretary begins an interview of a 10 person authorised by a temporary assessment order, the Secretary must advise the person of the person's rights under sub-section (1). 235. Application for variation or revocation of order made in absence of child 15 (1) If a temporary assessment order has been made without notice to the child and the parent of the child, the child or the parent of the child may at any time apply to the Court for the variation or revocation of the order. 20 (2) The applicant must serve notice of the application on the Secretary and each other party to the order a reasonable time before the hearing of the application. (3) An application under this section must be heard 25 expeditiously. (4) On an application under this section, the Court may-- (a) vary the terms of the order; or (b) revoke the order; or 30 (c) dismiss the application. 149 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 236 236. Duration of temporary assessment order (1) A temporary assessment order made after notice is given under section 228 remains in force for the period (not exceeding 21 days) beginning on the date of the order that is specified in the order. 5 (2) A temporary assessment order that is made on an application under section 229 remains in force for the period (not exceeding 10 days) beginning on the date of the order that is specified in the order. (3) A temporary assessment order cannot be 10 extended. (4) Despite sub-sections (2) and (3), if an application is made under section 235 to vary or revoke an order referred to in sub-section (2), the Court, if it considers exceptional circumstances exist, may 15 extend the period of operation of the order to a total period not exceeding 21 days. 237. Secretary may apply for warrant (1) The Secretary may apply to the Court for the issue of a search warrant to authorise a member of the 20 police force to enter any premises where a child is believed to be located and search for and apprehend the child to enable the Secretary to exercise his or her powers under a temporary assessment order. 25 (2) The Court may grant the search warrant if the Court is satisfied by evidence on oath or by affidavit by the Secretary that it is necessary to issue the warrant to authorise a member of the police force to enter any premises where a child is 30 believed to be located and search for and apprehend the child to enable the Secretary to exercise his or her powers under a temporary assessment order. 150 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 237 (3) The search warrant authorises a member of the police force to whom it is directed to use reasonable force to enter any premises where a child to whom the temporary assessment order relates is believed to be located, by force if 5 necessary, and search for and apprehend the child and bring the child to the Secretary to enable the Secretary to exercise his or her powers under the temporary assessment order. (4) The search warrant is executed only when the 10 member of the police force enters the premises where the child is actually located. (5) On executing a search warrant, the member of the police force executing the warrant-- (a) must announce that he or she is authorised 15 by the warrant to enter the place; and (b) if the member of the police force has been unable to obtain unforced entry, must give any person at the place an opportunity to allow entry to the place. 20 (6) A member of the police force need not comply with sub-section (5) if he or she believes on reasonable grounds that immediate entry to the place is required to ensure-- (a) the safety of any person; or 25 (b) that the effective execution of the search warrant is not frustrated. (7) Unless executed earlier, a search warrant issued under this section remains in force for the duration of the temporary assessment order. 30 (8) Subject to this section, the rules that apply to search warrants under the Magistrates' Court Act 1989 extend and apply to a search warrant under this section. 151 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 238 238. Report to Court by Secretary (1) The Secretary must provide a report in writing to the Court by the date for that report specified in the temporary assessment order. (2) The report must set out-- 5 (a) details of the action taken by the Secretary under the order; and (b) the results of the investigation and assessment; and (c) any other information that the Secretary 10 considers ought to be provided to the Court or that the Court directs to be included in the report. (3) Unless otherwise directed by the Court, the Secretary must cause a copy of the report to be 15 given to each of the following-- (a) the child who is the subject of the report; (b) the child's parent; (c) the legal practitioners representing that child; (d) the legal practitioners representing that 20 child's parent; (e) any other person specified by the Court. 239. Appeal against temporary assessment order (1) If the Court makes a temporary assessment order in respect of a child or dismisses an application 25 for a temporary assessment order in respect of a child, then-- (a) the child; or (b) a parent of the child; or (c) the Secretary-- 30 may appeal to the Supreme Court against the order or the dismissal. 152 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 239 (2) If the Court makes an order dismissing an application by the Secretary for leave for the hearing of an application for a temporary assessment order in respect of a child without giving notice under section 228, the Secretary 5 may appeal to the Supreme Court against that order. (3) On an appeal under this section against a temporary assessment order, the Supreme Court must-- 10 (a) if it thinks that a different temporary assessment order should have been made-- (i) set aside the order of the Children's Court; and (ii) make any other order that it thinks 15 ought to have been made; or (b) if it thinks that a temporary assessment order should not have been made, set aside the order of the Children's Court; or (c) in any other case, dismiss the appeal. 20 (4) On an appeal under this section against the dismissal of an application for a temporary assessment order, the Supreme Court must-- (a) if it thinks that the application should not have been dismissed, make the order that it 25 thinks ought to have been made; or (b) in any other case, dismiss the appeal. 153 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 240 Division 2--Action by Protective Intervener 240. Action by protective intervener (1) If a protective intervener is satisfied on reasonable grounds that a child is in need of protection, he or she may-- 5 (a) serve a notice under section 243 directing that the child appear, or be produced, before the Court for the hearing of a protection application; or (b) with or without a warrant, under section 241, 10 take the child into safe custody or cause another protective intervener to take the child into safe custody pending the hearing of a protection application. (2) After considering what procedure (if any) to take 15 under sub-section (1) in respect of the child, the protective intervener must record in the central register the information arising from the investigation that the Minister determines should be recorded in that register. 20 (3) If the procedure set out in sub-section (1)(a) or (1)(b) has been taken in respect of a child, a protective intervener must as soon as possible make a protection application to the Court and give a copy of the application to-- 25 (a) the child's parents, unless they cannot be found after reasonable inquiries; and (b) the child, if he or she is of or above the age of 12 years. 154 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 241 241. Protective intervener may take child in need of protection into safe custody (1) If a protective intervener is satisfied on reasonable grounds that a child is in need of protection and that it is inappropriate to take the procedure set 5 out in section 240(1)(a), he or she may-- (a) without a warrant, take the child into safe custody or cause another protective intervener to take the child into safe custody; or 10 (b) apply to a magistrate for the issue of a search warrant for the purpose of having the child taken into safe custody. (2) A search warrant issued under sub-section (1)-- (a) may only be directed to a named member of 15 the police force or generally all members of the police force; and (b) may be endorsed by the person issuing it with a direction that the child be released on an interim accommodation order of the type 20 referred to in section 263(1)(a) or 263(1)(b) as specified in the endorsement. 242. Actions on taking child into safe custody (1) A protective intervener must on taking a child into safe custody under section 241 give to-- 25 (a) the child's parents, unless they cannot be found after reasonable inquiries; and (b) the child, if he or she is of or above the age of 12 years-- a written statement containing the prescribed 30 information relating to the taking of children into safe custody under that section. 155 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 242 (2) Subject to sub-section (4), a child taken into safe custody under section 241 must be brought before the Court for the hearing of an application for an interim accommodation order as soon as practicable and, in any event, within one working 5 day after the child was taken into safe custody. (3) Unless a child is brought before the Court under sub-section (2) within 24 hours after the child was taken into safe custody, he or she must, subject to sub-section (4), be brought before a bail justice as 10 soon as possible within that period of 24 hours for the hearing of an application for an interim accommodation order. (4) A child of tender years need not be brought before the Court under sub-section (2) or a bail justice 15 under sub-section (3) unless the Court or bail justice otherwise orders but the Court or bail justice may deal with the application in the absence of the child. (5) Until a child taken into safe custody under 20 section 241 is brought before the Court or a bail justice for the making of an interim accommodation order, the child may only be placed-- (a) in an out of home care service; or 25 (b) if there is a substantial and immediate risk of harm to the child, in a secure welfare service; or (c) in other accommodation approved by the Secretary in accordance with the prescribed 30 criteria (if any). 156 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 243 243. Making a protection application without taking child into safe custody (1) If a protective intervener is satisfied on reasonable grounds that a child is in need of protection, he or she may by notice direct-- 5 (a) the child to appear; and (b) the child's parent to produce the child-- before the Court for the hearing of a protection application. (2) A notice under sub-section (1) must-- 10 (a) be issued out of the Court by the appropriate registrar; and (b) set out the grounds on which a protective intervener intends to make a protection application; and 15 (c) be served on the child's parent and, if the child is of or above the age of 12 years, the child, in accordance with section 594. (3) If a notice under sub-section (1) is served in accordance with sub-section (2)(c) and the child 20 does not appear before the Court at the time stated in the notice, the Court may, if satisfied that the notice has come to the attention of the child's parent or, if the child is of or above the age of 12 years, the child and, if practicable, the child's 25 parent, issue a search warrant for the purpose of having the child taken into safe custody. (4) Sections 241 and 242 apply to the issue and execution of a warrant under sub-section (3) as if it were a warrant issued under section 241(1). 30 157 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 244 Division 3--Child in Need of Therapeutic Treatment Subdivision 1--When is a Child in Need of Therapeutic Treatment? 244. When is a child in need of therapeutic treatment? For the purposes of this Division, a child is in 5 need of therapeutic treatment if the child-- (a) is of or above the age of 10 years and under the age of 15 years; and (b) has exhibited sexually abusive behaviours. 245. Referral to Therapeutic Treatment Board for advice 10 (1) This section applies if-- (a) the Secretary receives a report under section 185 that a child is in need of therapeutic treatment; or (b) the Court has referred a matter to the 15 Secretary under section 349(2). (2) If the Secretary receives a report from a member of the police force under section 185, the Secretary must refer the matter to the Therapeutic Treatment Board for advice. 20 (3) If the Secretary receives a report from any other person under section 185, the Secretary may refer the matter to the Therapeutic Treatment Board for advice. (4) If the Secretary receives a referral from the Court 25 under section 349(2), the Secretary must refer the matter to the Therapeutic Treatment Board for advice. 158 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 246 (5) If a matter is to be referred to the Therapeutic Treatment Board, it must be referred before the Secretary applies for a therapeutic treatment order in relation to the matter. (6) On a referral to it under this section, the 5 Therapeutic Treatment Board must provide advice as to whether it is appropriate to seek a therapeutic treatment order in respect of the child. (7) The Secretary must consider any advice received from the Therapeutic Treatment Board under this 10 section before applying for a therapeutic treatment order. Subdivision 2--Therapeutic Treatment Orders 246. Secretary may apply for therapeutic treatment order 15 (1) If the Secretary is satisfied on reasonable grounds that a child is in need of therapeutic treatment, the Secretary may by notice direct-- (a) the child to appear; and (b) the child's parent to produce the child-- 20 before the Court for the hearing of a therapeutic treatment application. (2) A notice under sub-section (1) must-- (a) be issued out of the Court by the appropriate registrar; and 25 (b) set out the grounds on which the Secretary intends to make a therapeutic treatment application; and (c) be served on the child's parent and the child in accordance with section 594. 30 159 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 247 247. Issue of search warrant if child does not appear (1) If the child does not appear before the Court for the hearing of the therapeutic treatment application, the Court may issue a search warrant for the purpose of having the child taken into safe 5 custody. (2) Sections 241 and 242 apply (with any necessary modifications) to the issue and execution of the warrant as if it were a warrant issued under section 241(1). 10 248. When Court may make order under this Division The Court may make a therapeutic treatment order in respect of a child of or over the age of 10 years and under the age of 15 years if the Court is satisfied-- 15 (a) that the child has exhibited sexually abusive behaviours; and (b) that the order is necessary to ensure the child's access to, or attendance at, an appropriate therapeutic treatment program. 20 249. Therapeutic treatment order (1) A therapeutic treatment order must require the child to participate in an appropriate therapeutic treatment program. (2) A therapeutic treatment order may include-- 25 (a) a condition directing the parent of the child or any person who has the care of the child to take any necessary steps to enable the child to participate in a therapeutic treatment program; and 30 160 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 250 (b) a condition directing the child to permit reports of his or her progress and attendance at the therapeutic treatment program to be given to the Secretary; and (c) any other conditions that the Court considers 5 appropriate. 250. Duration of order A therapeutic treatment order remains in force for the period (not exceeding 12 months) specified in the order. 10 251. Statements by child not admissible in criminal proceedings Any statement made by a child when participating in a therapeutic treatment program under a therapeutic treatment order is not admissible in 15 any criminal proceedings in relation to the child. Subdivision 3--Therapeutic Treatment (Placement) Orders 252. When can a therapeutic treatment (placement) order be made? (1) The Court, on the application of the Secretary, 20 may make a therapeutic treatment (placement) order in respect of a child if-- (a) the Court makes or has made a therapeutic treatment order in respect of the child; and (b) the Court is satisfied that the therapeutic 25 treatment (placement) order is necessary for the treatment of the child. (2) The Secretary must serve notice of the application on the child and the child's parent a reasonable time before the hearing of the application. 30 161 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 253 (3) A notice under sub-section (2) must-- (a) be issued out of the Court by the appropriate registrar; and (b) set out the grounds on which the Secretary has made the application for a therapeutic 5 treatment (placement) order; and (c) be served on the child's parent and the child in accordance with section 594. 253. Therapeutic treatment (placement) order A therapeutic treatment (placement) order-- 10 (a) grants sole custody of the child to the Secretary; and (b) does not affect the guardianship of the child; and (c) may include any conditions that the Court 15 considers to be in the best interests of the child, including-- (i) a condition concerning access by a parent or other person; and (ii) in the case of an Aboriginal child, a 20 condition incorporating a cultural plan for the child. 254. Duration of order A therapeutic treatment (placement) order remains in force for the period (not exceeding the period of 25 the therapeutic treatment order to which it relates) specified in the order. 162 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 255 Subdivision 4--Extension of Orders 255. Application for extension of order (1) The Secretary may apply to the Court for one extension of the period of-- (a) a therapeutic treatment order; or 5 (b) a therapeutic treatment (placement) order. (2) An application to extend a therapeutic treatment order may be made at any time while the order is in force. (3) An application to extend a therapeutic treatment 10 (placement) order may be made at any time while the order and the therapeutic treatment order to which it relates is in force. (4) If an application is made under this section to extend an order, the order continues in force until 15 the application is determined. (5) The Secretary must cause a copy of an application under this section to be served, in accordance with section 594, on the child's parent and the child. 256. Extension of order 20 (1) If an application is made under section 255 to extend a therapeutic treatment order, the Court may extend the order for a period not exceeding 12 months if it is satisfied that the child is still in need of therapeutic treatment. 25 (2) If an application is made under section 255 to extend a therapeutic treatment (placement) order, the Court may extend the order for a period not exceeding the period of the therapeutic treatment order to which it relates if the Court is satisfied 30 that the therapeutic treatment (placement) order is still necessary for the therapeutic treatment of the child. 163 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 257 (3) The Court must not extend an order under this section unless the Court is satisfied that therapeutic treatment is still available for the child. Subdivision 5--Variation and Revocation of Orders 5 257. Variation of order (1) An application for a variation of the conditions of a therapeutic treatment order or a therapeutic treatment (placement) order may be made to the Court by-- 10 (a) the Secretary; or (b) the child in respect of whom the order is made; or (c) a parent of the child. (2) An applicant under sub-section (1) must serve a 15 copy of the application on each other person who may make an application under this section in respect of the order a reasonable time before the hearing of the application. (3) On an application under sub-section (1) the Court 20 may vary any of the conditions included in the order or add or substitute a condition but must not-- (a) in the case of a therapeutic treatment order, make a change in the requirement to 25 participate in a therapeutic program or extend the period of the order; and (b) in the case of a therapeutic treatment (placement) order, make any change in custody or extend the period of the order. 30 164 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 258 258. Revocation of order (1) The Secretary may apply to the Court to revoke a therapeutic treatment order or a therapeutic treatment (placement) order. (2) If criminal proceedings against a child have been 5 adjourned pending the completion by the child of a therapeutic treatment program under a therapeutic treatment order, the Secretary must seek the advice of the Therapeutic Treatment Board for advice before applying to the Court to 10 revoke the therapeutic treatment order. (3) The Secretary must give notice of the application to the child and the child's parent. (4) A notice under sub-section (3) must-- (a) be issued out of the Court by the appropriate 15 registrar; and (b) set out the grounds on which the Secretary seeks the revocation of the order; and (c) be served on the child's parent and the child in accordance with section 594. 20 (5) The child or the parent of the child may apply to the Court for the revocation of a therapeutic treatment order or a therapeutic treatment (placement) order. (6) An applicant under sub-section (5) must serve a 25 copy of the application on the Secretary and any other person who was a party to the application for the therapeutic treatment order or therapeutic treatment (placement) order a reasonable time before the hearing of the application. 30 (7) On an application under this section, the Court may revoke the therapeutic treatment order or therapeutic treatment (placement) order. 165 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 259 (8) A therapeutic treatment (placement) order is revoked when the therapeutic treatment order to which it relates is revoked. Division 4--Irreconcilable Differences 259. Application if there is an irreconcilable difference 5 (1) A person who has custody of a child and who believes that there is a substantial and presently irreconcilable difference between himself or herself and the child to such an extent that the care and control of the child are likely to be seriously 10 disrupted may, subject to section 260, apply to the Court for a finding that such a difference exists. (2) A child who believes that there is a substantial and presently irreconcilable difference between himself or herself and the person who has custody 15 of him or her to such an extent that the care and control of him or her are likely to be seriously disrupted may, subject to section 260, apply to the Court for a finding that such a difference exists. (3) The applicant must cause notice of the 20 irreconcilable difference application to be served on all other parties to the application and on the Secretary at least 5 days before the hearing of the application. (4) A notice under sub-section (3) must-- 25 (a) be issued out of the Court by the appropriate registrar; and (b) set out the grounds on which the applicant has made the irreconcilable difference application; and 30 (c) be served on the child's parent or the child (as the case requires) in accordance with section 594. 166 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 260 (5) With the leave of the Court, the Secretary may appear or be represented on the hearing of the irreconcilable difference application and may call and examine or cross-examine witnesses and make submissions. 5 260. Conciliation counselling (1) Before an irreconcilable difference application may be filed with the appropriate registrar by a person, he or she must lodge with the Secretary an application for conciliation counselling and 10 produce to the appropriate registrar a certificate of conciliation counselling issued by the Secretary within the last 3 months. (2) If an application for conciliation counselling is lodged with the Secretary, he or she must-- 15 (a) cause information relating to conciliation counselling and appropriate support services to be given or sent by post to the child, the person who has custody of the child and any other relevant parties; and 20 (b) ensure that conciliation counselling is provided to those persons-- as soon as possible within the period of 21 days after that lodgement. (3) The purpose of conciliation counselling is to assist 25 the parties in the resolution of their differences and thereby avoid proceedings in the Court. (4) The person conducting conciliation counselling must-- (a) undertake conciliation counselling with each 30 of the parties separately; and (b) hold at least one conference involving all the parties. 167 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 261 (5) At the end of the period of 21 days referred to in sub-section (2) the Secretary must provide a certificate of conciliation counselling to each party who participated in the conciliation counselling. 5 (6) The Secretary may provide a certificate of conciliation counselling to a party even if a conference involving all the parties did not take place if-- (a) that party was willing to attend a conference 10 involving all the parties but one or more other parties refused to attend; or (b) the Secretary determined that exceptional circumstances existed which would have the effect that attendance at a conference 15 involving all the parties would subject one of the parties to extreme duress or emotional distress. 261. Proceeding on application if party does not appear (1) If the child does not appear before the Court for 20 the hearing of the irreconcilable difference application, the Court may issue a search warrant for the purpose of having the child taken into safe custody. (2) Sections 241 and 242 apply to the issue and 25 execution of the warrant as if it were a warrant issued under section 241(1). (3) If the person who has custody of the child does not appear before the Court for the hearing of the irreconcilable difference application, the Court 30 may proceed to hear and determine the application in that person's absence if the Court is satisfied that a copy of the application was served on that person in accordance with section 259(4). 168 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 262 Division 5--Interim Accommodation Orders 262. Interim accommodation order (1) The Court may make an interim accommodation order in respect of a child if-- (a) the child has been taken into safe custody by 5 a protective intervener under this Chapter; or (b) a protection application is filed with the appropriate registrar; or (c) a child has been taken into safe custody under section 247; or 10 (d) an irreconcilable difference application is filed with the appropriate registrar; or (e) an application for conciliation counselling is lodged with the Secretary under section 260; or 15 (f) the hearing by the Court of a proceeding in the Family Division (including a proceeding under this section) is adjourned; or (g) an application for an extension or further extension of the period of an interim 20 accommodation order has been made to the Court under section 267; or (h) an interim accommodation order or any condition attached to an interim accommodation order has not been complied 25 with; or (i) an application for a new interim accommodation order has been made to the Court under section 270(1); or (j) the child is taken into safe custody on a 30 warrant issued under this Chapter; or 169 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 262 (k) an appeal has been instituted under Part 4.11 to the Supreme Court or the County Court against an order made by the Children's Court under this Chapter; or (l) a question of law has been reserved by the 5 Family Division under section 533 for the opinion of the Supreme Court. (2) An application for an interim accommodation order may be made-- (a) by the child or a parent of the child; or 10 (b) by a protective intervener. (3) The Supreme Court or the County Court may also make an interim accommodation order in respect of a child if the hearing by it of an appeal against an order made by the Children's Court under this 15 Chapter is adjourned. (4) Without limiting any other power to make an interim accommodation order that is expressly conferred on a bail justice by this Division, a bail justice may also make an interim accommodation 20 order in respect of a child in the circumstances referred to in sub-section (1)(a), (c), (h), (i) and (j). (5) If a bail justice makes an interim accommodation order-- 25 (a) he or she must cause a written copy of the order to be given to every party to the application for the order at the time the order is made; and (b) the protective intervener or, if there is no 30 protective intervener involved, the bail justice must cause a copy of the order to be filed with the appropriate registrar as soon as possible. 170 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 263 (6) Despite anything to the contrary in this section, an interim accommodation order must not be made in respect of a child in relation to whom a custody to Secretary order, a guardianship to Secretary order or a long-term guardianship to Secretary order is 5 in force. (7) Despite anything to the contrary in this Chapter, if an interim accommodation order is made as a result of a breach of a supervision order or a supervised custody order, that supervision order or 10 supervised custody order is suspended on the making of the interim accommodation order and remains suspended for the period of operation of the interim accommodation order but the period of the supervision order or supervised custody order 15 is not extended by the suspension. 263. Conditions of interim accommodation order (1) An interim accommodation order may provide for-- (a) the release of the child on the signing by the 20 child of an undertaking to appear on the hearing, or the resumption of the hearing, of the relevant proceeding; or (b) the release of the child into the care of his or her parent pending that hearing or 25 resumption on the entering into (whether orally or in writing) by that parent of an undertaking to produce the child before the Court for the hearing, or the resumption of the hearing, of the relevant proceeding; or 30 (c) the placement of the child with a suitable person or suitable persons pending that hearing or resumption on the entering into (whether orally or in writing) by that person or those persons of an undertaking to 35 produce the child before the Court for the 171 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 263 hearing, or the resumption of the hearing, of the relevant proceeding and following a report (whether oral or written) from the Secretary on that person's or those persons' suitability; or 5 (d) the placement of the child in an out of home care service pending that hearing or resumption; or (e) the placement of the child in a secure welfare service pending that hearing or resumption if 10 there is a substantial and immediate risk of harm to the child; or (f) the placement of the child in a declared hospital on the provision to the Court or bail justice of a statement in the prescribed form 15 by or on behalf of the chief executive of the hospital that a bed is available for the child at the hospital; or (g) the placement of the child in a declared parent and baby unit on the provision to the 20 Court or bail justice of a statement in the prescribed form by or on behalf of the chief executive of the agency managing the parent and baby unit that a place is available for the child at the parent and baby unit. 25 (2) The Court or bail justice may determine not to require a suitable person referred to in sub- section (1)(c) to attend on the hearing of the application for an interim accommodation order if the undertaking required under that sub-section is 30 given by that person by statutory declaration in the prescribed form. 172 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 263 (3) An interim accommodation order must not be made providing for the placement of a child in a secure welfare service in any case referred to in section 262(1)(d) or 262(1)(e) unless the Court or bail justice making the order is of the opinion that 5 the placement is necessary to ensure the attendance of the child on the hearing of the irreconcilable difference application. (4) An interim accommodation order must not be made in any case referred to in section 262(1)(c) 10 unless the Court or bail justice making the order is of the opinion that the placement is necessary to ensure the attendance of the child on the hearing of the therapeutic treatment application. (5) The fact that the child does not have adequate 15 accommodation is not by itself a sufficient reason for the making of an order providing for the placement of a child in a secure welfare service. (6) In preparing a report under sub-section (1)(c), the Secretary must have regard to the prescribed 20 criteria (if any). (7) An interim accommodation order may include any conditions that the Court or bail justice considers should be included in the best interests of the child. 25 (8) Conditions included in an interim accommodation order may relate to the access of a parent or other person to the child. (9) The Governor in Council may by Order published in the Government Gazette declare hospitals and 30 parent and baby units for the purposes of sub- section (1). 173 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 264 264. Duration of interim accommodation order (1) Subject to this section, an interim accommodation order under section 263(1)(a) or 263(1)(b) remains in force for the period specified in the order and beginning on the day the order is made. 5 (2) Subject to this section an interim accommodation order of a kind referred to in paragraph (c), (d), (e), (f) or (g) of section 263(1) remains in force for the period (not exceeding 21 days) specified in the order and beginning on the day on which the 10 order is made. (3) An interim accommodation order made by a bail justice only remains in force until the application is heard by the Court on the next working day. (4) An interim accommodation order made in any 15 case referred to in section 262(1)(e) only remains in force until an irreconcilable difference application has been made to the Court or for the period of 21 days (beginning on the day on which the order is made), whichever is the shorter. 20 265. Parent entitled to know child's whereabouts (1) A parent is entitled to be given details of the child's whereabouts under an interim accommodation order unless the Court or bail justice making the order directs that those details 25 be withheld from the parent. (2) The Court or a bail justice may only give a direction under sub-section (1) if of the opinion that the direction is in the best interests of the child. 30 174 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 266 266. Power of Secretary to transfer child (1) If an interim accommodation order provides for the placement of a child in an out of home care service or a secure welfare service, the Secretary may from time to time, if he or she believes that it 5 is advisable in the best interests of the child, transfer the child-- (a) from one out of home care service to another out of home care service; or (b) from one secure welfare service to another 10 secure welfare service. (2) If the whereabouts of a child are changed under sub-section (1), the Secretary must give notice of that change to-- (a) the child's parent, unless a direction has been 15 given under section 265; and (b) the appropriate registrar. 267. Extension of interim accommodation order (1) Subject to sub-section (2), at any time while an interim accommodation order made by the Court 20 is in force an application for an extension or further extension of the period of the order may be made to the Court by a protective intervener. (2) On an application under sub-section (1) the Court may-- 25 (a) in the case of an order of a kind referred to in section 263(1)(a) or 263(1)(b), extend the order for the period specified in the order and beginning on the day the order is made if it is satisfied that it is in the best interests of 30 the child to do so; 175 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 267 (b) in the case of an order of a kind referred to in paragraph (c), (d), (f) or (g) of section 263(1), extend the order for the period (not exceeding 21 days) specified in the order and beginning on the day on which the order is 5 made if it is satisfied that it is in the best interests of the child to do so; (c) in the case of an order of a kind referred to in section 263(1)(e), extend the order (if it has not previously been extended) for one further 10 period (not exceeding 21 days) beginning on the day on which the order is made if it is satisfied that exceptional circumstances exist which justify it in doing so. (3) The Court may not vary or revoke an interim 15 accommodation order or make a new interim accommodation order on an application under sub-section (1). (4) The Court may, if in its opinion special circumstances exist which justify it in doing so, 20 refuse to hear an application under sub-section (1) unless the applicant has given notice of the application to-- (a) the person who applied for the interim accommodation order; and 25 (b) any other party to the proceeding in which that order was made; and (c) any person with whom the child is living-- a reasonable time before the hearing of the application. 30 176 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 268 (5) If the Court proceeds to hear an application under sub-section (1) without requiring notice of it to be given as specified in sub-section (4), it must cause a written copy of any order made by it on the application to be given as soon as possible to the 5 persons and parties referred to in paragraphs (a), (b) and (c) of sub-section (4). 268. Application for variation of interim accommodation order (1) If the Court makes an interim accommodation 10 order in respect of a child, the child or a parent of the child may apply to the Court for variation of the conditions included in the order if-- (a) the applicant was not legally represented at the hearing of the application for the order; 15 or (b) new facts or circumstances have arisen since the making of the order. (2) If-- (a) the Court makes an interim accommodation 20 order in respect of a child; and (b) new facts or circumstances have arisen since the making of the order-- a protective intervener may apply to the Court for variation of the conditions included in the order. 25 (3) On an application under sub-section (2) by a protective intervener, he or she may by notice direct-- (a) the child to appear; and (b) the parent or other person with whom the 30 child is living to produce the child-- before the Court. 177 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 268 (4) A notice under sub-section (3) must be served on-- (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, 5 the child-- a reasonable time before the hearing of the application. (5) If a notice under sub-section (3) is served in accordance with sub-section (4) and the child does 10 not appear before the Court at the time stated in the notice-- (a) a protective intervener may, without a warrant, take the child into safe custody; or (b) the Court may, if satisfied that the notice has 15 come to the attention of the child's parent or other person with whom the child is living or, if the child is of or above the age of 12 years, the child and, if practicable, the child's parent or other person with whom the 20 child is living, issue a search warrant for the purpose of having the child taken into safe custody. (6) Sections 241 and 242 apply with any necessary modifications to the taking of a child into safe 25 custody and the issue and execution of a search warrant under this section. (7) On the child appearing or being brought before the Court under this section, the Court may vary the conditions of the order. 30 178 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 269 269. Procedure on breach of interim accommodation order (1) If a protective intervener has reasonable grounds for believing that an interim accommodation order or any condition of an interim accommodation 5 order has not been, or is not being, complied with, he or she may by notice direct-- (a) the child to appear; and (b) the parent or other person with whom the child is living to produce the child-- 10 before the Court. (2) A notice under sub-section (1) must be served on-- (a) the child's parent or other person with whom the child is living; and 15 (b) if the child is of or above the age of 12 years, the child-- a reasonable time before the commencement of the hearing under this section. (3) If a notice under sub-section (1) is served in 20 accordance with sub-section (2) and the child does not appear before the Court at the time stated in the notice-- (a) a protective intervener may, without a warrant, take the child into safe custody; or 25 (b) the Court may, if satisfied that the notice has come to the attention of the child's parent or other person with whom the child is living or, if the child is of or above the age of 12 years, the child and, if practicable, the 30 child's parent or other person with whom the child is living, issue a search warrant for the purpose of having the child taken into safe custody. 179 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 269 (4) If a protective intervener-- (a) is satisfied that there is good reason not to proceed as specified in sub-section (1) or that service of a notice under sub-section (1) cannot be carried out; and 5 (b) is satisfied on reasonable grounds that there has been a failure to comply with the interim accommodation order or any condition attached to it-- he or she may, without a warrant, take the child 10 into safe custody or apply to a magistrate for the issue of a search warrant for the purpose of having the child taken into safe custody. (5) A child taken into safe custody under sub- section (4) must be brought before the Court or a 15 bail justice as soon as possible after being taken into safe custody and in any event within 24 hours after that event. (6) Sections 241 and 242 apply with any necessary modifications to the taking of a child into safe 20 custody and the issue and execution of a search warrant under this section. (7) On the child appearing or being brought before the Court or a bail justice under this section, the Court or bail justice-- 25 (a) may revoke the interim accommodation order and make another interim accommodation order; or (b) may refuse to revoke the interim accommodation order; or 30 (c) may make another interim accommodation order if the interim accommodation order expired after the notice was served under sub-section (1) or the protective intervener proceeded as specified in sub-section (4), as 35 the case requires. 180 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 270 270. Application for new interim accommodation order (1) If an interim accommodation order is in force in respect of a child, the child or a parent of the child may apply to the Court for a new interim accommodation order if-- 5 (a) the applicant was not legally represented at the hearing of the application for the order; or (b) new facts or circumstances have arisen since the making of the order. 10 (2) If the Court makes an interim accommodation order in respect of a child, a protective intervener (whether or not the order is still in force) may apply to the Court for a new interim accommodation order if-- 15 (a) new facts or circumstances have arisen since the making of the order; or (b) the protective intervener is satisfied on reasonable grounds that the child is living in conditions which are unsatisfactory in terms 20 of the safety and wellbeing of the child. (3) On an application under sub-section (2), the protective intervener may by notice direct-- (a) the child to appear; and (b) the parent or other person with whom the 25 child is living to produce the child-- before the Court. 181 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 270 (4) A notice under sub-section (3) must be served on-- (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, 5 the child-- a reasonable time before the commencement of the hearing under this section. (5) If a notice under sub-section (3) is served in accordance with sub-section (4) and the child does 10 not appear before the Court at the time stated in the notice-- (a) a protective intervener may, without a warrant, take the child into safe custody; or (b) the Court may issue a search warrant for the 15 purpose of having the child taken into safe custody, if the Court is satisfied that the notice has come to the attention of the child's parent or other person with whom the child is living or, if the child is of or above the age 20 of 12 years, the child and, if practicable, the child's parent or other person with whom the child is living. (6) If on an application under sub-section (2) by a protective intervener in the circumstances set out 25 in sub-section (2)(b), the protective intervener is satisfied that there is good reason not to proceed as specified in sub-section (3) or that service of a notice under sub-section (3) cannot be carried out, he or she may-- 30 (a) without a warrant, take the child into safe custody; or (b) apply to a magistrate for the issue of a search warrant. 182 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 271 (7) Sections 241 and 242 apply with any necessary modifications to the taking of a child into safe custody and the issue and execution of a search warrant under this section. (8) A child taken into safe custody under sub- 5 section (6) must be brought before the Court or a bail justice as soon as possible after being taken into safe custody and in any event within 24 hours after that event. (9) On the child appearing or being brought before 10 the Court or a bail justice under this section, the Court or bail justice may make a new interim accommodation order. (10) Nothing in this section limits the power of the Court to make another interim accommodation 15 order where the existing order was made by a bail justice or was made by the Court on an adjournment of a proceeding. 271. Appeal against interim accommodation order (1) If the Court makes an interim accommodation 20 order in respect of a child or dismisses an application for an interim accommodation order in respect of a child, then-- (a) the child; or (b) a parent of the child; or 25 (c) a protective intervener-- may appeal to the Supreme Court against the order or the dismissal. (2) On an appeal under this section against an interim accommodation order, the Supreme Court must-- 30 (a) if it thinks that a different interim accommodation order should have been made-- 183 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10/2005

Children, Youth and Families Act 2005 Act No. Part 4.8--Protective Intervention s. 272 (i) set aside the order of the Children's Court; and (ii) make any other order that it thinks ought to have been made; or (b) in any other case, dismiss the appeal. 5 (3) On an appeal under this section against the dismissal of an application for an interim accommodation order, the Supreme Court must-- (a) if it thinks that the application should not have been dismissed, make the order that it 10 thinks ought to have been made; or (b) in any other case, dismiss the appeal. Division 6--Undertakings 272. Order requiring undertaking (1) In a proceeding under this Part, the Court may 15 make an order under this Division requiring a person to give an undertaking. (2) The order may require-- (a) the child; or (b) the child's parent; or 20 (c) the person with whom the child is living-- to enter into an undertaking in writing to do or refrain from doing the thing or things specified in the undertaking for the period specified in the undertaking. 25 (3) The period specified in the undertaking must be a period not exceeding 6 months or, if the Court is satisfied that there are special circumstances which warrant the making of an order for such a period, exceeding 6 months but not exceeding 30 12 months. 184 551272B.I1-5/10/2005 BILL LA INTRODUCTION 5/10