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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Children and Community Services Bill
2003
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Terms used in this Act 2
4. Presumptions of parentage 7
5. Status of notes 7
Part 2 -- Objects and principles
Division 1 -- Objects
6. Objects 8
Division 2 -- General principles relating to
children
7. Principle that best interests of child paramount 8
8. Determining the best interests of a child 8
9. Guiding principles 10
10. Principle of child participation 11
Division 3 -- Principles relating to Aboriginal and
Torres Strait Islander children
11. Relationship with principles in Division 2 13
12. Aboriginal and Torres Strait Islander child placement
principle 13
13. Principle of self-determination 13
14. Principle of community participation 14
265--2 page i
Children and Community Services Bill 2003
Contents
Part 3 -- Administrative matters
Division 1 -- The Minister
15. Agreements in respect of social services 15
16. Delegation by Minister 15
Division 2 -- The Community Development
Ministerial Body
17. Meaning of "Ministerial Body" 16
18. The Community Development Ministerial Body 16
19. Purpose and nature of the Ministerial Body 16
20. Execution of documents by the Ministerial Body 17
Division 3 -- The CEO
21. Functions of CEO 18
22. Cooperation and assistance 19
23. Exchange of information 20
24. Delegation by CEO 21
Division 4 -- Authorised officers
25. Appointment of authorised officers 22
26. Identity cards 22
Division 5 -- Advisory bodies
27. Establishment of advisory bodies 22
Part 4 -- Protection and care of
children
Division 1 -- Introductory matters
28. When child is in need of protection 24
29. Provisional protection and care: meaning and effect 25
30. Child in the CEO's care 26
Division 2 -- Powers available to safeguard or
promote child's wellbeing
Subdivision 1 -- General powers of CEO
31. CEO may cause inquiries to be made about child 26
32. Further action by CEO 26
Subdivision 2 -- Powers relating to investigation
33. Access to child for purposes of investigation 28
34. Warrant (access) 29
Subdivision 3 -- Provisional protection and care
35. Warrant (provisional protection and care) 29
page ii
Children and Community Services Bill 2003
Contents
36. Action after child taken into provisional protection
and care under warrant 30
37. Provisional protection and care without warrant if
child at immediate and substantial risk 31
38. Action after child taken into provisional protection
and care without warrant 31
39. Provisional care plan 33
Subdivision 4 -- Other powers
40. Power to keep child under 6 years of age in hospital 34
41. Power to move child to safe place 35
Division 3 -- Protection orders
Subdivision 1 -- Introductory matters
42. Terms used in this Division 37
43. Protection order 37
Subdivision 2 -- Applications for, and making of,
protection orders
44. Application for protection order 37
45. Court may make protection order 38
46. No order principle 38
Subdivision 3 -- Protection orders (supervision)
47. Protection order (supervision) 39
48. Duration of protection order (supervision) 39
49. Extension of protection order (supervision) 39
50. Conditions of protection order (supervision) 40
51. Variation of conditions of protection order
(supervision) 40
52. Authorised officer entitled to have access to child 41
53. Provision of social services 42
Subdivision 4 -- Protection orders (time-limited)
54. Protection order (time-limited) 42
55. Duration of protection order (time-limited) 42
56. Extension of protection order (time-limited) 42
Subdivision 5 -- Protection orders (until 18)
57. Protection order (until 18) 43
58. Restriction on making protection order (until 18) 44
59. Duration of protection order (until 18) 44
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Children and Community Services Bill 2003
Contents
Subdivision 6 -- Protection orders (enduring
parental responsibility)
60. Protection order (enduring parental responsibility) 44
61. Restriction on making protection order (enduring
parental responsibility) 44
62. Duration of protection order (enduring parental
responsibility) 45
63. Conditions of protection order (enduring parental
responsibility) 46
64. Variation of conditions of protection order (enduring
parental responsibility) 46
65. Court may order payments to enduring parental carer 47
66. Provision of social services 47
Subdivision 7 -- Revocation and replacement of
protection orders
67. Revocation of protection order 47
68. Replacement of protection order 48
Subdivision 8 -- General
69. Applications for extension, variation, revocation or
replacement of protection orders 48
70. Form of protection order 49
71. Child's date of birth 49
72. Parties to proceedings to be given copy of protection
order 49
73. Maintenance of children under certain orders 50
Division 4 -- Negotiated placement
74. Meaning of "child" 51
75. Negotiated placement agreement 51
76. Duration of negotiated placement agreement 52
77. Termination of negotiated placement agreement 52
Division 5 -- Children in the CEO's care
Subdivision 1 -- Charter of Rights
78. CEO to prepare Charter of Rights 53
Subdivision 2 -- Placement arrangements
79. Power of CEO to arrange placement of child 53
80. Guidelines for placement of certain children 54
81. Matters relevant to placement of Aboriginal or Torres
Strait Islander children 54
82. Payment for care under placement arrangement 55
page iv
Children and Community Services Bill 2003
Contents
83. Inspection of place where child living 55
84. Authorised officer may request carer to hand over
child 55
85. Warrant (apprehension) where child not handed over 55
86. Warrant (apprehension) where child absent or taken
without authority 56
87. Apprehension without warrant in certain
circumstances 56
Subdivision 3 -- Care plans
88. Meaning of "parent" 57
89. Care plan 57
90. Review of care plan 58
Subdivision 4 -- Review of case planning decisions
91. Terms used in this Subdivision 59
92. Case review panel 59
93. Initial review 60
94. Review of CEO's decision 61
95. Procedure 62
Division 6 -- Provisions about leaving the CEO's
care
96. People who qualify for assistance 62
97. Entitlement to personal material 62
98. Social services 63
99. Information and advisory services 63
100. Financial assistance 64
Division 7 -- Offences
Subdivision 1 -- Children generally
101. Failing to protect child from significant harm 64
102. Leaving child unsupervised in vehicle 65
103. Tattooing or branding 66
104. Providing long-term care for young children 66
Subdivision 2 -- Children under placement
arrangements
105. Terms used in this Subdivision 67
106. Removing child from State 68
107. Removing child from place of residence 68
108. Harbouring child 69
109. Preventing child's return 69
page v
Children and Community Services Bill 2003
Contents
110. CEO may prohibit communication with child 69
111. Evidentiary provision 69
Division 8 -- Powers of restraint, search and
seizure
112. Terms used in this Division 69
113. Prerequisites for exercise of power 70
114. Child may be restrained 71
115. Child may be searched 71
116. Certain articles may be seized 72
117. How seized articles to be dealt with 72
118. Use of reasonable force 73
119. Prescribed procedures 73
Division 9 -- Warrants
120. Applying for warrant 73
121. Authority conferred by warrant (access) 75
122. Authority conferred by warrant (apprehension) 76
123. Authority conferred by warrant (provisional
protection and care) 77
124. Execution of warrant 77
Division 10 -- General
125. Access to child 78
126. Recovery of certain expenditure 78
127. Power of CEO to give consent 79
128. Records 79
129. Protection from liability for giving information 79
130. General powers of police officers not affected 80
Part 5 -- Protection proceedings
Division 1 -- Terms used in this Part
131. Terms used in this Part 81
Division 2 -- Adjournment and interim orders
132. Adjournment of proceedings 81
133. Interim orders 81
134. Variation or revocation of interim order 82
135. Authorised officer entitled to have access to the child 83
Division 3 -- Pre-hearing conferences
136. Court may order pre-hearing conference 84
137. Confidentiality of pre-hearing conference 85
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Children and Community Services Bill 2003
Contents
Division 4 -- Reports about child
138. Meaning of "report" 86
139. Court may require report 86
140. Access to written report 87
141. Confidentiality of report 87
142. Protection from liability for preparing or giving report 88
Division 5 -- Proposals about arrangements for
child
143. CEO to provide Court with proposal for child 88
144. Court to consider proposal 90
Division 6 -- Procedural matters
145. General conduct of protection proceedings 90
146. Court not bound by rules of evidence 91
147. Parties to the proceedings 91
148. Legal representation of child 92
149. Presence of child in court 92
150. Evidence of child 93
151. Standard of proof 93
152. Intervention by Attorney General 94
153. Court to facilitate party's participation in proceedings 94
154. Court may dispense with requirement for service 94
155. Frivolous or vexatious proceedings 95
Part 6 -- Transfer of child protection
orders and proceedings
Division 1 -- Introductory matters
156. Purpose of Part 96
157. Terms used in this Part 96
Division 2 -- Transfer of child protection orders
Subdivision 1 -- Administrative transfers
158. When CEO may transfer order 99
159. Persons whose consent is required 100
160. CEO to have regard to certain matters 101
161. Notification of decision to transfer 101
162. Limited period in which to apply for judicial review
of decision 102
163. Review by State Administrative Tribunal 102
page vii
Children and Community Services Bill 2003
Contents
Subdivision 2 -- Judicial transfers
164. When Court may transfer order 103
165. Service of application 103
166. Court to have regard to certain matters 103
167. Type of order 104
168. Court must consider report from the CEO 104
169. Appeals 105
Division 3 -- Transfer of child protection
proceedings
170. When Court may transfer child protection proceeding 106
171. Service of application 106
172. Court to have regard to certain matters 106
173. Interim order 107
174. Appeals 108
Division 4 -- Registration
175. Filing of interstate orders in the Court 109
176. Registration of interstate orders 110
177. Notification by registrar of Court 110
178. Effect of registration 110
179. Revocation of registration 111
Division 5 -- General
180. Legal representation of child 112
181. Effect of registration of transferred order 112
182. Transfer of Court file 112
183. Hearing and determination of transferred proceeding 113
184. Disclosure of information 113
185. Discretion of CEO to consent to transfer 113
186. Evidence of consent of relevant interstate officer 114
187. Offence to remove child 114
Part 7 -- Employment of children
188. Terms used in this Part 115
189. School Education Act 1999 not affected 115
190. Prohibition on employment of child under 15 115
191. Exceptions to section 190 116
192. Prohibition on employment of child to perform in
indecent manner 117
193. Power of CEO to prohibit or limit employment of
child 118
194. False information 119
page viii
Children and Community Services Bill 2003
Contents
195. Powers of authorised officers 119
196. Proceedings against employers may be taken by
industrial inspectors 120
Part 8 -- Child care services
Division 1 -- Introductory matters
197. Terms used in this Part 122
198. Meaning of "child care service" 124
199. Guiding principles 125
200. Crown bound 126
Division 2 -- Licensing requirement
201. Requirement for licence 126
Division 3 -- Application for and grant of licence
202. Who may apply for licence 126
203. Application for licence 127
204. Further information relevant to application 127
205. Grant of licence 128
206. General restrictions on grant of licence 128
207. Restrictions on grant of licence: individual applicant 129
208. Restrictions on grant of licence: corporate applicant 129
209. Restrictions on grant of licence: public authority 130
210. Licence document 130
211. Licence not transferable 131
Division 4 -- Licence conditions and amendment
212. Condition as to supervision and control 131
213. Other conditions 131
214. Contravention of conditions 131
215. Amendment of licence 131
Division 5 -- Duration and renewal
216. Duration of licence 132
217. Application for renewal of licence 132
218. Restrictions on renewal of licence 133
219. Renewal of licence 133
Division 6 -- Suspension and cancellation
220. Suspension of licence 133
221. Notice of proposed suspension 134
222. Revocation of suspension 135
223. Duration of suspension 135
224. Cancellation of licence 135
page ix
Children and Community Services Bill 2003
Contents
Division 7 -- Review
225. Review by State Administrative Tribunal 136
Division 8 -- General
226. Advertising 137
227. Production of licence document for amendment 137
228. Return of licence document if licence no longer in
effect 137
229. Power to exempt 137
230. Evidentiary certificate 138
231. Powers of entry and inspection 139
232. Regulations 139
Part 9 -- Provision of financial or other
assistance
233. Power to provide financial or other assistance 142
234. Power to assist with funeral expenses 142
235. Application for assistance 142
236. Recovery of overpayments in certain circumstances 143
Part 10 -- Confidentiality provisions
237. Restriction on publication of certain information or
material 144
238. Production of departmental records 145
239. Objection to disclosure of certain information during
proceedings 146
240. Confidentiality of notifier's identity 147
241. Confidentiality of information 149
Part 11 -- Other matters
242. Obstruction 151
243. Impersonating an officer 151
244. False information 151
245. Legal proceedings 151
246. Protection from liability for wrongdoing 152
247. Effect of provision requiring document to be given to
particular person or child 152
248. Regulations 153
249. Review of Act 153
250. Repeal, transitional and savings provisions 153
251. Other Acts amended 154
page x
Children and Community Services Bill 2003
Contents
Schedule 1 -- Transitional and savings
provisions
Division 1 -- Introductory matters
1. Meaning of terms used in this Schedule 155
2. Interpretation Act 1984 not affected 155
Division 2 -- Provisions related to repeal of Child
Welfare Act 1947
3. Existing orders 156
4. Extended orders 156
5. Existing proceedings 156
6. Existing appeals 157
7. Records under s. 11 157
8. Operation of orders under s. 13 or 14 157
9. Children detained under s. 29(3a) 158
10. Orders under s. 40A 158
11. Applications under s. 47 158
12. Notices under s. 107A or 107B 158
13. Warrants 158
14. Authorisations under s. 111 or 112 158
15. Orders and proceedings under Part VIIIA 159
16. Orders under s. 146A 159
Division 3 -- Provisions related to repeal of
Community Services Act 1972
17. Status of Ministerial Body 159
18. Licences and permits under s. 17B 159
19. Existing applications 160
20. Appeals under s. 17C 160
21. Bodies established under s. 22 160
Division 4 -- Provisions related to repeal of
Welfare and Assistance Act 1961
22. Advances and grants of assistance 160
23. Applications for assistance 161
Division 5 -- General
24. References to repealed Acts 161
25. Powers in relation to transitional matters 161
page xi
Children and Community Services Bill 2003
Contents
Schedule 2 -- Amendments to other
Acts
1. Aboriginal Affairs Planning Authority Act 1972
amended 163
2. Adoption Act 1994 amended 163
3. Bail Act 1982 amended 168
4. Children's Court of Western Australia Act 1988
amended 168
5. Constitution Acts Amendment Act 1899 amended 171
6. Coroners Act 1996 amended 172
7. Disability Services Act 1993 amended 172
8. Electoral Act 1907 amended 173
9. Evidence Act 1906 amended 173
10. Family Court Act 1997 amended 174
11. Guardianship and Administration Act 1990 amended 175
12. Health Act 1911 amended 176
13. Hire-Purchase Act 1959 amended 176
14. Human Reproductive Technology Act 1991 amended 177
15. Industrial Relations Act 1979 amended 178
16. Juries Act 1957 amended 179
17. Legal Aid Commission Act 1976 amended 180
18. Legal Representation of Infants Act 1977 amended 180
19. Parks and Reserves Act 1895 amended 181
20. Prostitution Act 2000 amended 181
21. Protective Custody Act 2000 amended 182
22. Rates and Charges (Rebates and Deferments)
Act 1992 amended 182
23. Restraining Orders Act 1997 amended 183
24. School Education Act 1999 amended 184
25. Spent Convictions Act 1988 amended 184
26. Tobacco Control Act 1990 amended 185
27. Young Offenders Act 1994 amended 185
Defined Terms
page xii
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Children and Community Services
Bill 2003
A Bill for
An Act --
· to confer functions in relation to the provision of social services,
the provision of financial and other assistance, and other matters
concerning the wellbeing of children, other individuals, families
and communities;
· to make provisions about the protection and care of children, the
employment of children, and child care services;
· to repeal the Child Welfare Act 1947;
· to repeal the Community Services Act 1972;
· to repeal the Welfare and Assistance Act 1961;
· to amend certain Acts,
and to provide for related matters.
The Parliament of Western Australia enacts as follows:
page 1
Children and Community Services Bill 2003
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Children and Community
Services Act 2003.
5 2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. Terms used in this Act
10 In this Act, unless the contrary intention appears --
"Aboriginal person" means a person who is a descendant of
Aboriginal people of Australia, and "Aboriginal child"
has a corresponding meaning;
"adult" means a person who has reached 18 years of age;
15 "authorised officer" means an officer appointed under
section 25 for the purposes of this Act or for the purposes
of the provision in which the term is used;
"carer" means a person who provides care for a child under a
placement arrangement;
20 "CEO" means the chief executive officer of the Department;
"child" means a person who is under 18 years of age, and in the
absence of positive evidence as to age, means a person who
is apparently under 18 years of age;
"Court" means the Children's Court;
25 "Department" means the department of the Public Service
principally assisting the Minister in the administration of
this Act;
page 2
Children and Community Services Bill 2003
Preliminary Part 1
s. 3
"disability" means a disability --
(a) that is attributable to an intellectual, psychiatric,
cognitive, neurological, sensory, or physical
impairment or a combination of those impairments;
5 (b) that is permanent or likely to be permanent;
(c) that may or may not be of a chronic or episodic
nature; and
(d) that results in --
(i) a substantially reduced capacity of the person
10 for communication, social interaction,
learning or mobility; and
(ii) a need for continuing support services;
"first listing date", in relation to a protection application,
means the day fixed under section 44(4) in respect of the
15 application;
"harm", in relation to a child, includes harm to the child's
physical, emotional or psychological development;
"in need of protection" has the meaning given to that term in
section 28(2);
20 "in the CEO's care" has the meaning given to that term in
section 30;
"interim order", except in Part 6, means an order made under
section 133;
"magistrate" means a magistrate of the Court;
25 "negotiated placement agreement" means an agreement under
section 75(1);
"officer" means a person employed in, or engaged by, the
Department whether as a public service officer under the
Public Sector Management Act 1994, under a contract for
30 services, or otherwise;
page 3
Children and Community Services Bill 2003
Part 1 Preliminary
s. 3
"parent", in relation to a child, means a person, other than the
CEO, who at law has responsibility for --
(a) the long-term care, welfare and development of the
child; or
5 (b) the day-to-day care, welfare and development of the
child;
"parental responsibility", in relation to a child, means all the
duties, powers, responsibilities and authority which, by
law, parents have in relation to children;
10 "party", in relation to protection proceedings, means a person
who is a party to the proceedings under section 147;
"place" means anywhere at all, and includes anywhere in or on
something that is moving or can move;
"placed" means placed under a placement arrangement;
15 "placement" means placement under a placement arrangement;
"placement arrangement" means an arrangement under
section 79(2) for the placement of a child;
"police officer" has the meaning given to that term in the
Protective Custody Act 2000 section 3;
20 "pre-hearing conference" means a conference referred to in
section 136(1);
"protection application" means an application to the Court for
a protection order;
"protection order" has the meaning given to that term in
25 section 43;
"protection order (enduring parental responsibility)" has the
meaning given to that term in section 60;
"protection order (supervision)" has the meaning given to that
term in section 47;
30 "protection order (time-limited)" has the meaning given to
that term in section 54;
"protection order (until 18)" has the meaning given to that
term in section 57;
page 4
Children and Community Services Bill 2003
Preliminary Part 1
s. 3
"protection proceedings" means proceedings in respect of, or
in connection with, a protection application or other
application to the Court under Part 4 (excluding an
application under section 65, 73 or 126);
5 "provisional protection and care" has the meaning given to
that term in section 29(1);
"public authority" means --
(a) a department of the Public Service;
(b) a State agency or instrumentality;
10 (c) a local government or regional local government; or
(d) a body, whether corporate or unincorporate, or the
holder of an office, post or position, established or
continued for a public purpose under a written law;
"relative", in relation to a child, means each of the following
15 people --
(a) the child's --
(i) parent, grandparent or other ancestor;
(ii) step-parent;
(iii) sibling;
20 (iv) uncle or aunt;
(v) cousin;
(vi) spouse or de facto partner,
whether the relationship is established by, or traced
through, consanguinity, marriage, a de facto
25 relationship, a written law or a natural relationship;
(b) in the case of an Aboriginal child, a person regarded
under the customary law or tradition of the child's
community as the equivalent of a person mentioned
in paragraph (a);
30 (c) in the case of a Torres Strait Islander child, a person
regarded under the customary law or tradition of the
page 5
Children and Community Services Bill 2003
Part 1 Preliminary
s. 3
Torres Strait Islands as the equivalent of a person
mentioned in paragraph (a);
"service provider" means a person or body who or which --
(a) provides or promotes social services; or
5 (b) conducts research and development,
under an agreement referred to in section 15(1);
"social services" means services provided to assist children,
other individuals, families and communities including, but
not limited to, the following services --
10 (a) preventative services;
(b) protective services;
(c) placement services;
(d) child care services;
(e) information and advisory services;
15 (f) education and training services;
(g) counselling services;
(h) therapeutic services;
(i) advocacy services;
(j) mediation services;
20 (k) crisis services;
(l) family and domestic violence services;
(m) support services;
"Torres Strait Islander" means a person who is a descendant
of the indigenous inhabitants of the Torres Strait Islands,
25 and "Torres Strait Islander child" has a corresponding
meaning;
"wellbeing" of a child includes the care, development, health
and safety of the child;
"working day", except in Part 6, means a day other than a
30 Saturday, Sunday, public holiday or public service holiday.
page 6
Children and Community Services Bill 2003
Preliminary Part 1
s. 4
4. Presumptions of parentage
(1) The presumptions of parentage set out in the Family Court
Act 1997 Part 5 Division 11 Subdivision 3 apply when
considering, for the purposes of Parts 4 and 5, who is a parent of
5 a child.
(2) The Family Court Act 1997 section 193 applies, for the
purposes of Parts 4 and 5, in relation to the presumptions
referred to in subsection (1).
5. Status of notes
10 Notes in this Act are provided to assist understanding and do not
form part of this Act.
page 7
Children and Community Services Bill 2003
Part 2 Objects and principles
Division 1 Objects
s. 6
Part 2 -- Objects and principles
Division 1 -- Objects
6. Objects
The objects of this Act are --
5 (a) to promote the wellbeing of children, other individuals,
families and communities;
(b) to acknowledge the primary role of parents, families and
communities in safeguarding and promoting the
wellbeing of children;
10 (c) to encourage and support parents, families and
communities in carrying out that role;
(d) to provide for the protection and care of children in
circumstances where their parents have not given, or are
unlikely or unable to give, that protection and care;
15 (e) to protect children from exploitation in employment;
and
(f) to protect, and promote the best interests of, children
who receive child care services.
Division 2 -- General principles relating to children
20 7. Principle that best interests of child paramount
In performing a function or exercising a power under this Act in
relation to a child, a person or the Court must regard the best
interests of the child as the paramount consideration.
8. Determining the best interests of a child
25 (1) In determining for the purposes of this Act what is in a child's
best interests the following matters must be taken into
account --
(a) the need to protect the child from harm;
page 8
Children and Community Services Bill 2003
Objects and principles Part 2
General principles relating to children Division 2
s. 8
(b) the capacity of the child's parents to protect the child
from harm;
(c) the capacity of the child's parents, or of any other
person, to provide for the child's needs;
5 (d) the nature of the child's relationship with the child's
parents, siblings and other relatives and with any other
people who are significant in the child's life;
(e) the attitude to the child, and to parental responsibility,
demonstrated by the child's parents;
10 (f) any wishes or views expressed by the child, having
regard to the child's age and level of understanding in
determining the weight to be given to those wishes or
views;
(g) the importance of permanency in the child's living
15 arrangements and the likely effect on the child of
disruption of those living arrangements, including
separation from --
(i) the child's parents;
(ii) a sibling or other relative of the child;
20 (iii) a carer or any other person (including a child)
with whom the child is, or has recently been,
living; or
(iv) any other person who is significant in the child's
life;
25 (h) the need for the child to maintain contact with the
child's parents, siblings and other relatives and with any
other people who are significant in the child's life;
(i) the child's age, maturity, sex, sexuality, background and
language;
30 (j) the child's cultural, ethnic or religious identity
(including any need to maintain a connection with the
lifestyle, culture and traditions of Aboriginal people or
Torres Strait Islanders);
page 9
Children and Community Services Bill 2003
Part 2 Objects and principles
Division 2 General principles relating to children
s. 9
(k) the child's physical, emotional, intellectual, spiritual,
developmental and educational needs;
(l) any other relevant characteristics of the child;
(m) the likely effect on the child of any change in the child's
5 circumstances.
(2) Subsection (1) does not limit the matters that may be taken into
account in determining what is in the best interests of a child.
9. Guiding principles
In the administration of this Act the following principles must
10 be observed --
(a) the principle that the parents, family and community of a
child have the primary role in safeguarding and
promoting the child's wellbeing;
(b) the principle that the preferred way of safeguarding and
15 promoting a child's wellbeing is to support the child's
parents, family and community in the care of the child;
(c) the principle that every child should be cared for and
protected from harm;
(d) the principle that every child should live in an
20 environment free from violence;
(e) the principle that every child should have stable, secure
and safe relationships and living arrangements;
(f) the principle that intervention action (as defined in
section 32(2)) should only be taken in respect of a child
25 in circumstances where there is no other reasonable way
to safeguard and promote the child's wellbeing;
(g) the principle that if a child is removed from the child's
family then, so far as is consistent with the child's best
interests, the child should be given encouragement and
30 support in maintaining contact with the child's parents,
siblings and other relatives and with any other people
who are significant in the child's life;
page 10
Children and Community Services Bill 2003
Objects and principles Part 2
General principles relating to children Division 2
s. 10
(h) the principle that decisions about a child should be made
promptly having regard to the age, characteristics,
circumstances and needs of the child;
(i) the principle that decisions about a child should be
5 consistent with cultural, ethnic and religious values and
traditions relevant to the child;
(j) the principle that a child's parents and any other people
who are significant in the child's life should be given an
opportunity and assistance to participate in
10 decision-making processes under this Act that are likely
to have a significant impact on the child's life;
(k) the principle that a child's parents and any other people
who are significant in the child's life should be given
adequate information, in a manner and language that
15 they can understand, about --
(i) decision-making processes under this Act that
are likely to have a significant impact on the
child's life;
(ii) the outcome of any decision about the child,
20 including an explanation of the reasons for the
decision; and
(iii) any relevant complaint or review procedures;
(l) the principle set out in section 10(1).
10. Principle of child participation
25 (1) If a decision under this Act is likely to have a significant impact
on a child's life then, for the purpose of ensuring that the child
is able to participate in the decision-making process, the child
should be given --
(a) adequate information, in a manner and language that the
30 child can understand, about --
(i) the decision to be made;
(ii) the reasons for the Department's involvement;
page 11
Children and Community Services Bill 2003
Part 2 Objects and principles
Division 2 General principles relating to children
s. 10
(iii) the ways in which the child can participate in the
decision-making process; and
(iv) any relevant complaint or review procedures;
(b) the opportunity to express the child's wishes and views
5 freely, according to the child's abilities;
(c) any assistance that is necessary for the child to express
those wishes and views;
(d) adequate information as to how the child's wishes and
views will be recorded and taken into account;
10 (e) adequate information about the decision made and a full
explanation of the reasons for the decision; and
(f) an opportunity to respond to the decision made.
(2) In the application of the principle set out in subsection (1), due
regard must be had to the age and level of understanding of the
15 child concerned.
(3) Decisions under this Act that are likely to have a significant
impact on a child's life include but are not limited to --
(a) decisions about the placement of the child;
(b) decisions in the course of preparing, modifying or
20 reviewing care plans or provisional care plans for the
child;
(c) decisions about the provision of social services to the
child; and
(d) decisions about contact with the child's parents, siblings
25 and other relatives and with any other people who are
significant in the child's life.
(4) In subsection (3)(b) --
"care plan" has the meaning given to that term in section 89(1);
"provisional care plan" has the meaning given to that term in
30 section 39(1).
page 12
Children and Community Services Bill 2003
Objects and principles Part 2
Principles relating to Aboriginal and Torres Strait Islander Division 3
children
s. 11
Division 3 -- Principles relating to Aboriginal and Torres Strait
Islander children
11. Relationship with principles in Division 2
The principles set out in this Division are in addition to, and do
5 not derogate from, the principles set out in Division 2.
12. Aboriginal and Torres Strait Islander child placement
principle
(1) The objective of the principle in subsection (2) is to maintain a
connection with family and culture for Aboriginal children and
10 Torres Strait Islander children who are the subject of placement
arrangements.
(2) In making a decision under this Act about the placement of an
Aboriginal child or a Torres Strait Islander child, a principle to
be observed is that any placement of the child must be
15 considered as far as is practicable in the following order of
priority --
(a) placement with a member of the child's family;
(b) placement with a person who is an Aboriginal person or
a Torres Strait Islander in the child's community in
20 accordance with local customary practice;
(c) placement with a person who is an Aboriginal person or
a Torres Strait Islander;
(d) placement with a person who is not an Aboriginal
person or a Torres Strait Islander but who, in the opinion
25 of the CEO, is sensitive to the needs of the child and
capable of promoting the child's ongoing affiliation with
the child's culture, and where possible, the child's
family.
13. Principle of self-determination
30 In the administration of this Act a principle to be observed is
that Aboriginal people and Torres Strait Islanders should be
page 13
Children and Community Services Bill 2003
Part 2 Objects and principles
Division 3 Principles relating to Aboriginal and Torres Strait Islander
children
s. 14
allowed to participate in the protection and care of their children
with as much self-determination as possible.
14. Principle of community participation
In the administration of this Act a principle to be observed is
5 that a kinship group, community or representative organisation
of Aboriginal people or Torres Strait Islanders should be given,
where appropriate, an opportunity and assistance to participate
in decision-making processes under this Act that are likely to
have a significant impact on the life of a child who is a member
10 of, or represented by, the group, community or organisation.
page 14
Children and Community Services Bill 2003
Administrative matters Part 3
The Minister Division 1
s. 15
Part 3 -- Administrative matters
Division 1 -- The Minister
15. Agreements in respect of social services
(1) The Minister may, on behalf of the State, enter into an
5 agreement with a person or body for --
(a) the provision or promotion of social services by that
person or body; or
(b) the conduct of research and development by that person
or body in relation to the provision of social services.
10 (2) An agreement under subsection (1) may contain any provisions
that the Minister considers appropriate.
(3) Nothing in this section limits any power that the Minister has,
apart from this section, to enter into an agreement or other
arrangement.
15 16. Delegation by Minister
(1) The Minister may delegate to the CEO any power or duty of the
Minister under another provision of this Act.
(2) Without limiting the powers or duties that may be delegated
under subsection (1), they include any power to be exercised or
20 duty to be performed in the course of governing the affairs of
the Community Development Ministerial Body under
section 18(4).
(3) The delegation must be in writing signed by the Minister.
(4) The delegation may expressly authorise the CEO to further
25 delegate the power or duty.
(5) A person exercising or performing a power or duty that has been
delegated to the person under, or as authorised under, this
section, is to be taken to do so in accordance with the terms of
the delegation unless the contrary is shown.
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Children and Community Services Bill 2003
Part 3 Administrative matters
Division 2 The Community Development Ministerial Body
s. 17
(6) Nothing in this section limits the ability of the Minister to
perform a function through an officer or agent.
Division 2 -- The Community Development Ministerial Body
17. Meaning of "Ministerial Body"
5 In this Division --
"Ministerial Body" means the Community Development
Ministerial Body established by section 18(1).
18. The Community Development Ministerial Body
(1) A body called the Community Development Ministerial Body is
10 established.
(2) The Ministerial Body is a body corporate with perpetual
succession.
(3) Proceedings may be taken by or against the Ministerial Body in
its corporate name.
15 (4) The Ministerial Body is to be governed by the Minister.
(5) The Ministerial Body is an agent of the State and has the status,
immunities and privileges of the State.
19. Purpose and nature of the Ministerial Body
(1) The Ministerial Body is established to provide a body corporate
20 through which the Minister can perform any of the Minister's
functions under this Act that can more conveniently be
performed by a body corporate than an individual.
(2) Despite the employment under the Public Sector Management
Act 1994 of ministerial officers for the purpose of assisting the
25 Minister to perform functions that the Minister performs
through the Ministerial Body, the Ministerial Body and those
officers are not an organisation for the purposes of that Act.
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Children and Community Services Bill 2003
Administrative matters Part 3
The Community Development Ministerial Body Division 2
s. 20
20. Execution of documents by the Ministerial Body
(1) The Ministerial Body is to have a common seal.
(2) A document is duly executed by the Ministerial Body if --
(a) the common seal of the Ministerial Body is affixed to it
5 in accordance with subsections (3) and (4);
(b) it is signed on behalf of the Ministerial Body by the
Minister; or
(c) it is signed on behalf of the Ministerial Body, as
authorised under subsection (5), by the CEO or another
10 person.
(3) The common seal of the Ministerial Body is not to be affixed to
a document except as authorised by the Ministerial Body.
(4) The common seal of the Ministerial Body is to be affixed to a
document in the presence of the Minister, and the Minister is to
15 sign the document to attest that the common seal was so affixed.
(5) The Ministerial Body may, by writing under its common seal,
authorise the CEO or another officer to sign documents on
behalf of the Ministerial Body, either generally or subject to any
conditions or restrictions specified in the authorisation.
20 (6) A document purporting to be executed in accordance with this
section is to be presumed to be duly executed until the contrary
is shown.
(7) A document executed by the CEO or another person under this
section without the common seal of the Ministerial Body is not
25 to be regarded as a deed unless it is executed as a deed as
authorised under subsection (5).
(8) When a document is produced bearing a seal purporting to be
the common seal of the Ministerial Body, it is to be presumed
that the seal is the common seal of the Ministerial Body until
30 the contrary is shown.
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Children and Community Services Bill 2003
Part 3 Administrative matters
Division 3 The CEO
s. 21
(9) For the purposes of this Act, a facsimile of --
(a) the Ministerial Body's common seal; or
(b) the signature of the Minister or a person authorised
under subsection (5) to execute deeds or other
5 documents,
may be used, and a deed or other document purporting to be
endorsed with such a facsimile is, until the contrary is shown, to
be regarded as bearing the facsimile under this subsection.
Division 3 -- The CEO
10 21. Functions of CEO
(1) The functions of the CEO include --
(a) to consider and initiate, or assist in, the provision of
social services to children, other individuals, families
and communities;
15 (b) to take, or cause to be taken, any action, not inconsistent
with this Act, in respect of a child or a class or group of
children that the CEO considers reasonably necessary
for the purpose of safeguarding or promoting the
wellbeing of the child or children concerned;
20 (c) to provide, and where appropriate, manage facilities
(including land, buildings and other property) for
purposes consistent with the objects of this Act;
(d) to establish procedures for dealing with complaints
about social services provided under this Act or
25 otherwise relating to the administration of this Act;
(e) to promote, encourage, conduct and publish research on
matters relating to the objects of this Act; and
(f) to collect and publish, or assist in the collection and
publication of, information and statistics on matters
30 relating to the objects of this Act.
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Children and Community Services Bill 2003
Administrative matters Part 3
The CEO Division 3
s. 22
(2) In performing functions under this Act and in assisting the
Minister in the administration of this Act, the CEO must have
regard to --
(a) the need to promote the wellbeing of children, other
5 individuals, families and communities;
(b) the need to encourage a collaborative approach between
public authorities, non-government agencies and
families --
(i) in the provision of social services directed
10 towards strengthening families and communities
and maximising the wellbeing of children and
other individuals; and
(ii) in responding to child abuse and neglect;
(c) the need to promote diversity and increased participation
15 in community life, giving particular consideration to the
interests and aspirations of --
(i) children and other young people;
(ii) Aboriginal people and Torres Strait Islanders;
(iii) people from culturally or linguistically diverse
20 backgrounds;
(iv) people with disabilities; and
(v) women and men of all ages as distinct groups
within society;
(d) the need to promote the development and strengthening
25 of families and communities so that they have the
capacity to achieve self-reliance and to provide for the
care and wellbeing of their members.
22. Cooperation and assistance
(1) In performing functions under this Act, the CEO must
30 endeavour to work in cooperation with public authorities,
non-government agencies and service providers.
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Children and Community Services Bill 2003
Part 3 Administrative matters
Division 3 The CEO
s. 23
(2) The CEO must promote the establishment, implementation and
regular review of procedures that facilitate such cooperation
particularly in relation to the protection and care of children and
the provision of financial or other assistance.
5 (3) If the CEO considers that a public authority or service provider
can, by taking specified action, assist in the performance of
functions under this Act, the CEO may request the assistance of
that authority or provider, specifying the action that is sought.
(4) A public authority or service provider must endeavour to
10 comply with a request under subsection (3) if compliance is
consistent with its duties and responsibilities and does not
unduly prejudice the performance of its functions.
(5) Nothing in this section is to be taken to limit the operation of
section 23.
15 23. Exchange of information
(1) In this section --
"corresponding authority" means a person or body in another
State or a Territory, or another country, that has functions
corresponding to those of the CEO under this Act;
20 "interested person" means a person or body who or which, in
the opinion of the CEO, has a direct interest in the
wellbeing of a child or a class or group of children;
"relevant information" means information that, in the opinion
of the CEO, is, or is likely to be, relevant to --
25 (a) the wellbeing of a child or a class or group of
children; or
(b) the performance of a function under this Act.
(2) The CEO or an authorised officer may disclose relevant
information to a public authority, a corresponding authority, a
30 service provider or an interested person.
page 20
Children and Community Services Bill 2003
Administrative matters Part 3
The CEO Division 3
s. 24
(3) The CEO or an authorised officer may request a public
authority, a corresponding authority, a service provider or an
interested person who or which holds relevant information to
disclose the information to the CEO or authorised officer, as the
5 case requires.
(4) A public authority, a service provider or an interested person
may comply with a request under subsection (3) despite any law
of this State relating to secrecy or confidentiality.
(5) If information is disclosed, in good faith, under subsection (2)
10 or in compliance with a request under subsection (3) --
(a) no civil or criminal liability is incurred in respect of the
disclosure;
(b) the disclosure is not to be regarded as a breach of any
duty of confidentiality or secrecy imposed by law; and
15 (c) the disclosure is not to be regarded as a breach of
professional ethics or standards or as unprofessional
conduct.
(6) The CEO must establish procedures for the disclosure of
information under subsection (2).
20 (7) The regulations may include provisions about --
(a) the receipt and storage of information disclosed under
this section; and
(b) the restriction of access to such information.
24. Delegation by CEO
25 (1) The CEO may delegate to an officer or other person any power
or duty of the CEO under another provision of this Act.
(2) The delegation must be in writing signed by the CEO.
(3) A person to whom a power or duty is delegated under this
section cannot delegate that power or duty.
page 21
Children and Community Services Bill 2003
Part 3 Administrative matters
Division 4 Authorised officers
s. 25
(4) A person exercising or performing a power or duty that has been
delegated to the person under this section, is to be taken to do so
in accordance with terms of the delegation unless the contrary is
shown.
5 (5) Nothing in this section limits the ability of the CEO to perform
a function through an officer or agent.
Division 4 -- Authorised officers
25. Appointment of authorised officers
The CEO may appoint officers as authorised officers --
10 (a) generally for the purposes of this Act; or
(b) for the purposes of provisions of the Act specified in the
appointment.
26. Identity cards
(1) The CEO must ensure that each authorised officer is issued with
15 an identity card in a form approved by the CEO.
(2) An authorised officer must produce his or her identity card
whenever asked to do so by a person in respect of whom the
officer has exercised, is exercising, or is about to exercise, a
power under this Act.
20 (3) In any proceedings the production by an authorised officer of
his or her identity card is conclusive evidence of his or her
appointment under section 25.
Division 5 -- Advisory bodies
27. Establishment of advisory bodies
25 (1) In this section --
"advisory body" means a body established under
subsection (2).
page 22
Children and Community Services Bill 2003
Administrative matters Part 3
Advisory bodies Division 5
s. 27
(2) The Minister may establish one or more bodies to provide
advice or assistance to the Minister or the CEO on matters
relevant to the operation or administration of this Act.
(3) Subsection (2) does not authorise the Minister to establish a
5 body corporate.
(4) An advisory body is to consist of such people as the Minister
thinks fit.
(5) An advisory body is to be established by an instrument signed
by the Minister that --
10 (a) identifies the members of the body and the length and
conditions of each of their appointments;
(b) sets out the duties and responsibilities of the body; and
(c) sets out any other matters in relation to the operation of
the body that the Minister considers appropriate.
15 (6) The Minister may, by instrument signed by the Minister, amend
or cancel an instrument made under subsection (5).
(7) The Minister must cause an instrument made under this section
to be published in the Gazette.
(8) Members of an advisory body are entitled to any remuneration
20 and allowances that the Minister may from time to time
determine on the recommendation of the Minister for Public
Sector Management.
page 23
Children and Community Services Bill 2003
Part 4 Protection and care of children
Division 1 Introductory matters
s. 28
Part 4 -- Protection and care of children
Division 1 -- Introductory matters
28. When child is in need of protection
(1) In this section --
5 "neglect" includes failure by a child's parents to provide,
arrange, or allow the provision of --
(a) adequate care for the child; or
(b) effective medical, therapeutic or remedial treatment
for the child.
10 (2) For the purposes of this Part a child is "in need of protection"
if --
(a) the child has been abandoned by his or her parents and,
after reasonable inquiries --
(i) the parents cannot be found; and
15 (ii) no suitable adult relative or other suitable adult
can be found who is willing and able to care for
the child;
(b) the child's parents are dead or incapacitated and, after
reasonable inquiries, no suitable adult relative or other
20 suitable adult can be found who is willing and able to
care for the child;
(c) the child has suffered, or is likely to suffer, harm as a
result of sexual abuse and the child's parents have not
protected, or are unlikely or unable to protect, the child
25 from harm, or further harm, of that kind;
(d) the child has suffered, or is likely to suffer, significant
harm as a result of any one or more of the following --
(i) physical abuse;
(ii) emotional abuse;
30 (iii) psychological abuse;
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Children and Community Services Bill 2003
Protection and care of children Part 4
Introductory matters Division 1
s. 29
(iv) neglect,
and the child's parents have not protected, or are
unlikely or unable to protect, the child from harm, or
further harm, of that kind; or
5 (e) the child has suffered, or is likely to suffer, significant
harm as a result of --
(i) the child's parents being unable to provide, or
arrange the provision of, adequate care for the
child; or
10 (ii) the child's parents being unable to provide, or
arrange the provision of, effective medical,
therapeutic or other remedial treatment for the
child.
29. Provisional protection and care: meaning and effect
15 (1) A reference in this Part to a child being in, taken into, or placed
in, provisional protection and care is a reference to the child
being in, taken into, or placed in, the care of the CEO.
(2) If a child is in provisional protection and care, the CEO, subject
to any interim order, has the right to make decisions about the
20 day-to-day care, welfare and development of the child,
including, without limitation, decisions about any medical or
dental examination, treatment or procedure in respect of the
child.
(3) A child ceases to be in provisional protection and care if --
25 (a) the child is returned to or placed in the care of a person
under section 38(2);
(b) the Court makes an interim order under
section 133(2)(a) that the child be returned to or placed
with a parent of the child;
30 (c) the Court makes an interim order under
section 133(2)(c); or
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Children and Community Services Bill 2003
Part 4 Protection and care of children
Division 2 Powers available to safeguard or promote child's wellbeing
s. 30
(d) the Court makes a protection order in respect of the
child or refuses to make such an order.
30. Child in the CEO's care
For the purposes of this Part a child is "in the CEO's care" if
5 the child --
(a) is in provisional protection and care;
(b) is the subject of a protection order (time-limited) or
protection order (until 18);
(c) is the subject of a negotiated placement agreement; or
10 (d) is provided with placement services under
section 32(1)(a).
Division 2 -- Powers available to safeguard or promote
child's wellbeing
Subdivision 1 -- General powers of CEO
15 31. CEO may cause inquiries to be made about child
If the CEO receives information that raises concerns about a
child's wellbeing, the CEO may cause any inquiries to be made
that the CEO considers reasonably necessary for the purpose of
determining whether action should be taken to safeguard or
20 promote the child's wellbeing.
32. Further action by CEO
(1) If the CEO determines that action should be taken to safeguard
or promote a child's wellbeing, the CEO must do any one or
more of the following --
25 (a) provide, or arrange for the provision of, social services
to the child and, if appropriate, a parent or other relative
of the child;
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Children and Community Services Bill 2003
Protection and care of children Part 4
Powers available to safeguard or promote child's wellbeing Division 2
s. 32
(b) arrange or facilitate a meeting between an officer and
any one or more of the following people --
(i) a parent or other relative of the child;
(ii) a person who is significant in the child's life;
5 (iii) a representative of a service provider;
(iv) a representative of a public authority,
for the purpose of developing a plan to address the
ongoing needs of the child in a way that ensures the best
outcome for the child;
10 (c) enter into a negotiated placement agreement in respect
of the child;
(d) cause an investigation to be conducted by an authorised
officer for the purpose of ascertaining whether the child
may be in need of protection;
15 (e) take, or cause to be taken, intervention action in respect
of the child;
(f) take, or cause to be taken, any other action in respect of
the child that the CEO considers reasonably necessary.
(2) In subsection (1)(e) --
20 "intervention action" means action that involves --
(a) making an application for a warrant (provisional
protection and care) under section 35;
(b) taking the child into provisional protection and care
under section 37; or
25 (c) making a protection application.
page 27
Children and Community Services Bill 2003
Part 4 Protection and care of children
Division 2 Powers available to safeguard or promote child's wellbeing
s. 33
Subdivision 2 -- Powers relating to investigation
33. Access to child for purposes of investigation
(1) If, in the course of an investigation referred to in
section 32(1)(d), an authorised officer believes on reasonable
5 grounds that --
(a) it is in the best interests of the child for the officer to
have access to the child before the child's parents
become aware of the investigation; or
(b) if the child's parents were to know in advance about the
10 proposed access, the proper and effective conduct of the
investigation would be likely to be jeopardised,
the authorised officer, without informing the child's parents,
may have access to the child at a school, hospital or place where
a child care service is provided, and remain at the school,
15 hospital or place, for as long as the officer reasonably considers
necessary for the purposes of the investigation.
(2) Before exercising the power in subsection (1), the authorised
officer must notify the person in charge of the school, hospital
or place of his or her intention to exercise the power.
20 (3) As soon as practicable after the authorised officer has had
access to the child, the officer must inform at least one of the
child's parents that the officer has had such access and the
reasons for it.
(4) An authorised officer does not have to comply with
25 subsection (3) if --
(a) the officer believes on reasonable grounds that a person
may be charged with an offence involving harm to the
child and the officer's compliance with the subsection
may jeopardise an investigation of the offence;
30 (b) the officer believes on reasonable grounds that
compliance with the subsection may expose the child to
harm or a risk of harm; or
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Children and Community Services Bill 2003
Protection and care of children Part 4
Powers available to safeguard or promote child's wellbeing Division 2
s. 34
(c) the child has requested that the child's parents not be
informed and the officer believes on reasonable grounds
that it is in the best interests of the child to comply with
the request.
5 34. Warrant (access)
(1) An authorised officer may apply to a magistrate for a warrant
(access) if, in the course of an investigation referred to in
section 32(1)(d), the officer --
(a) is denied access to a child;
10 (b) believes that he or she will be denied such access; or
(c) is unable to obtain entry to a place where the officer
suspects the child to be.
(2) An application under subsection (1) must be made in
accordance with section 120.
15 (3) On an application under subsection (1) a magistrate may issue a
warrant (access) if the magistrate is satisfied --
(a) as to a matter referred to in subsection (1)(a) or (c); or
(b) that there are reasonable grounds for the authorised
officer to have the belief referred to in subsection (1)(b).
20 Note: Section 121 contains provisions about the effect of a warrant (access).
Subdivision 3 -- Provisional protection and care
35. Warrant (provisional protection and care)
(1) An authorised officer who believes that a child is in need of
protection may apply to a magistrate for a warrant (provisional
25 protection and care) if the officer --
(a) is unable to find the child;
(b) believes that leaving the child at the place where the
child is living poses an unacceptable risk to the child's
wellbeing; or
page 29
Children and Community Services Bill 2003
Part 4 Protection and care of children
Division 2 Powers available to safeguard or promote child's wellbeing
s. 36
(c) believes that if a parent of the child or other person
becomes aware of a proposed protection application in
respect of the child, the child will be moved from the
place where the child is living and the officer will be
5 unable to find the child.
(2) An application under subsection (1) must be made in
accordance with section 120.
(3) On an application under subsection (1) a magistrate may issue a
warrant (provisional protection and care) if the magistrate is
10 satisfied --
(a) that there are reasonable grounds for the authorised
officer to believe that the child is in need of protection;
and
(b) that --
15 (i) the authorised officer has been unable to find the
child; or
(ii) there are reasonable grounds for the authorised
officer to have a belief referred to in
subsection (1)(b) or (c).
20 Note: Section 123 contains provisions about the effect of a warrant
(provisional protection and care).
36. Action after child taken into provisional protection and care
under warrant
(1) This section applies in relation to a child who is taken into
25 provisional protection and care following the execution of a
warrant (provisional protection and care) issued under
section 35(3).
(2) The CEO must make a protection application in respect of the
child --
30 (a) if the child is taken into provisional protection and care
in a prescribed area of the State, as soon as practicable
after the child is taken into provisional protection and
care; or
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Children and Community Services Bill 2003
Protection and care of children Part 4
Powers available to safeguard or promote child's wellbeing Division 2
s. 37
(b) otherwise, as soon as practicable, but in any event not
more than 2 working days, after the child is taken into
provisional protection and care.
(3) The Court must endeavour to ensure that the first listing date for
5 the protection application is not more than 3 working days after
the application is made.
37. Provisional protection and care without warrant if child at
immediate and substantial risk
(1) In this section --
10 "officer" means an authorised officer or a police officer.
(2) An officer may, at any time, take a child into provisional
protection and care if the officer suspects on reasonable grounds
that there is an immediate and substantial risk to the child's
wellbeing.
15 (3) For the purposes of subsection (1) the officer may --
(a) enter, at any time, any place where the officer suspects
the child to be; and
(b) search the place for the purpose of finding the child.
(4) As soon as practicable after a police officer takes a child into
20 provisional protection and care under this section, the police
officer must notify the CEO, in a manner approved by the CEO,
of his or her action and the reasons for it.
(5) An officer does not need a warrant to exercise the powers in this
section.
25 (6) When exercising a power in this section an officer may use
reasonable force and assistance.
38. Action after child taken into provisional protection and care
without warrant
(1) This section applies in relation to a child who is taken into
30 provisional protection and care under section 37.
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Children and Community Services Bill 2003
Part 4 Protection and care of children
Division 2 Powers available to safeguard or promote child's wellbeing
s. 38
(2) If the CEO decides not to make a protection application or other
application under this Part in respect of the child, then, subject
to subsection (3), the CEO must ensure that, as soon as
practicable after the child is taken into provisional protection
5 and care, the child is returned to or placed in the care of --
(a) a parent of the child;
(b) a person who was providing day-to-day care for the
child at the time the child was taken into provisional
protection and care; or
10 (c) with the consent of a parent of the child, any other
person.
(3) If the child was in the CEO's care immediately before being
taken into provisional protection and care, the CEO may make
any arrangement for the care of the child that the CEO considers
15 appropriate.
(4) If the CEO decides to make a protection application or other
application under this Part in respect of the child, the CEO must
make the application --
(a) if the child is taken into provisional protection and care
20 in a prescribed area of the State, as soon as practicable
after the child is taken into provisional protection and
care; or
(b) otherwise, as soon as practicable, but in any event not
more than 2 working days, after the child is taken into
25 provisional protection and care.
(5) If a protection application is made in respect of the child, the
Court must endeavour to ensure that the first listing date is not
more than 3 working days after the application is made.
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39. Provisional care plan
(1) In this section --
"provisional care plan" means a written plan that --
(a) identifies the needs of the child while the child is in
5 provisional protection and care;
(b) outlines steps or measures to be taken in order to
address those needs; and
(c) sets out decisions about the care of the child
including --
10 (i) decisions about placement; and
(ii) decisions about contact between the child and
a parent, sibling or other relative of the child
or any other person who is significant in the
child's life.
15 (2) If --
(a) a child is taken into provisional protection and care
under this Division; and
(b) the CEO decides, or is required, to make a protection
application in respect of the child,
20 the CEO must prepare and implement a provisional care plan
for the child within 7 working days after the child is taken into
provisional protection and care.
(3) The CEO may modify a provisional care plan at any time if the
CEO considers that it is appropriate to do so.
25 (4) As soon as practicable after the CEO prepares or modifies a
provisional care plan, the CEO must ensure that a copy of the
care plan or modification, as the case requires, is given to --
(a) the child;
(b) a parent of the child;
30 (c) any carer of the child; and
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(d) any other person considered by the CEO to have a direct
and significant interest in the wellbeing of the child.
Subdivision 4 -- Other powers
40. Power to keep child under 6 years of age in hospital
5 (1) In this section --
"officer in charge", in relation to a hospital, means the person
for the time being in charge of the hospital.
(2) If --
(a) a child under 6 years of age is brought to a hospital for
10 observation, assessment or treatment or is admitted to a
hospital; and
(b) the officer in charge believes on reasonable grounds that
the child is in need of protection,
the officer in charge may keep the child in the hospital for the
15 purpose of observation, assessment or treatment or otherwise to
safeguard or promote the wellbeing of the child.
(3) A child may be kept in a hospital under subsection (2) whether
or not a parent of the child consents to that action.
(4) If a child is kept in a hospital under subsection (2), the officer in
20 charge must notify the CEO of that action as soon as
practicable.
(5) Notification under subsection (4) may be given orally or in
writing, but if given orally must be confirmed in writing as soon
as practicable after it is given.
25 (6) The officer in charge may give to the CEO any information
relating to the child that the officer in charge reasonably
believes is necessary to safeguard or promote the wellbeing of
the child.
(7) A child must not be kept in a hospital under subsection (2) for
30 more than 2 working days.
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(8) A person must not take a child who is being kept in a hospital
under subsection (2) from the hospital except with the consent
of the CEO or the officer in charge.
Penalty: $12 000 and imprisonment for one year.
5 (9) The officer in charge must consult with the CEO before giving
consent for the purposes of subsection (8).
(10) It is a defence in proceedings for an offence under
subsection (8) to prove that the person charged did not know,
and could not reasonably have known, that the child was being
10 kept in the hospital under subsection (2).
41. Power to move child to safe place
(1) In this section --
"officer" means an authorised officer or a police officer;
"responsible person", in relation to a child, means --
15 (a) a parent of the child;
(b) an adult relative of the child; or
(c) an adult with whom the child usually lives.
(2) An officer may move a child to a safe place if the officer finds
the child at a place other than the child's usual place of
20 residence and the officer believes on reasonable grounds --
(a) that the child is not under the immediate supervision of a
parent of the child or an adult capable of adequately
supervising the child; and
(b) that --
25 (i) there is a risk to the wellbeing of the child
because of the nature of the place where the child
is found, the behaviour or vulnerability of the
child at that place, or any other circumstance; or
(ii) the child is an absentee student as defined in the
30 School Education Act 1999 section 32.
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(3) A lock-up (including a place that is prescribed as a lock-up for
the purposes of the Court Security and Custodial Services
Act 1999) is not a safe place for the purposes of subsection (2).
(4) An officer does not need a warrant to exercise the power in
5 subsection (2).
(5) When exercising the power in subsection (2) an officer may use
reasonable force and assistance.
(6) If, in the exercise of the power in subsection (2), an officer
moves a child to a place other than the child's usual place of
10 residence or school, the officer must immediately --
(a) cause reasonable steps to be taken to contact a
responsible person and inform that person --
(i) that the child has been moved to a safe place; and
(ii) of the location of that place;
15 and
(b) if the officer is a police officer, cause the CEO to be
informed of the matters mentioned in paragraph (a)(i)
and (ii).
(7) If a responsible person is contacted under subsection (6), an
20 officer must immediately cause arrangements to be made for the
child to be placed in, or returned to, the care of that person.
(8) If a responsible person cannot be contacted under
subsection (6), an officer must immediately cause arrangements
to be made for the care of the child until the child is placed in,
25 or returned to, the care of a responsible person or otherwise
dealt with under this Part.
Note: Division 8 confers certain powers on authorised officers and police
officers in relation to children moved to a safe place under this section.
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s. 42
Division 3 -- Protection orders
Subdivision 1 -- Introductory matters
42. Terms used in this Division
In this Division --
5 "child", in relation to a protection order, means the child in
respect of whom the order was made;
"enduring parental carer" means the person or persons given
parental responsibility for a child under a protection order
(enduring parental responsibility);
10 "parent", in relation to a child who is the subject of a
protection order other than a protection order (supervision),
includes any person who would have had parental
responsibility for the child if the order had not been made;
"party to the initial proceedings", in relation to a protection
15 order, means a person who was a party to the protection
proceedings in which the order was made.
43. Protection order
A reference in this Part to a protection order is a reference to
any of the following types of order --
20 (a) a protection order (supervision);
(b) a protection order (time-limited);
(c) a protection order (until 18);
(d) a protection order (enduring parental responsibility).
Subdivision 2 -- Applications for, and making of, protection orders
25 44. Application for protection order
(1) A protection application can only be made by the CEO.
(2) A protection application must --
(a) be lodged with the Court;
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(b) specify the type of protection order sought;
(c) state the grounds under section 28(2) on which it is
made; and
(d) otherwise comply with any applicable rules of court.
5 (3) If a protection order (enduring parental responsibility) is sought
a protection application must nominate the person or persons to
whom parental responsibility for the child is proposed to be
given.
(4) When a protection application is lodged, the Court must fix the
10 day, time and place for the Court to first deal with the
application.
(5) As soon as practicable after lodging a protection application, the
CEO must give a copy of it to --
(a) the child;
15 (b) a parent of the child; and
(c) any other person considered by the CEO to have a direct
and significant interest in the wellbeing of the child.
(6) Each copy of a protection application given under subsection (5)
must be accompanied by notice of the first listing date.
20 45. Court may make protection order
If, on a protection application, the Court finds that the child is in
need of protection the Court may, subject to this Part --
(a) make the protection order sought in respect of the child;
or
25 (b) make another protection order in respect of the child.
46. No order principle
The Court must not, on a protection application, make a
protection order in respect of a child unless the Court is satisfied
that making the order would be better for the child than making
30 no order at all.
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Protection orders Division 3
s. 47
Subdivision 3 -- Protection orders (supervision)
47. Protection order (supervision)
(1) A protection order (supervision) is an order providing for the
supervision of the wellbeing of a child by the CEO for the
5 period specified in the order.
(2) A protection order (supervision) does not affect the parental
responsibility of any person for the child except to the extent (if
any) necessary to give effect to the order.
48. Duration of protection order (supervision)
10 (1) A protection order (supervision) remains in force for the period
specified in it unless it is extended under section 49 or revoked
under Subdivision 7.
(2) The period specified in the order must not exceed 2 years and
must end before the child reaches 18 years of age.
15 49. Extension of protection order (supervision)
(1) The CEO may apply to the Court for the extension of a
protection order (supervision).
(2) If an application under subsection (1) is made but not
determined before the end of the period referred to in
20 section 48(1), the order remains in force until the application is
determined.
(3) On an application under subsection (1) the Court may, if
satisfied that it is in the best interests of the child to do so,
extend the order for a period not exceeding 2 years that ends
25 before the child reaches 18 years of age.
(4) A protection order (supervision) must not be extended more
than once under this section.
(5) If, on an application under subsection (1), the Court is satisfied
that each party to the initial proceedings consents to the
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s. 50
application, the Court may extend the order in the absence of
the parties.
(6) The reference in subsection (5) to each party to the initial
proceedings does not include the child unless --
5 (a) the child has legal representation; or
(b) the Court is satisfied that the child has sufficient
maturity and understanding to give consent.
50. Conditions of protection order (supervision)
(1) It is a condition of every protection order (supervision) that a
10 parent of the child keeps the CEO informed about where the
child is living.
(2) A protection order (supervision) may include conditions to be
complied with by --
(a) the child if, in the opinion of the Court, the child is able
15 to understand the condition;
(b) a parent of the child; or
(c) an adult with whom the child is living.
(3) A protection order (supervision) must not include a condition
about --
20 (a) the person or persons with whom the child is to live,
unless the condition relates to the child living with a
parent of the child specified in the order; or
(b) who is to have responsibility for the day-to-day care,
welfare and development of the child.
25 51. Variation of conditions of protection order (supervision)
(1) In this section --
"condition" means a condition of a protection order
(supervision) other than the condition referred to in
section 50(1).
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(2) A party to the initial proceedings may apply to the Court for the
variation, addition or substitution of a condition.
(3) On an application under subsection (2) the Court may --
(a) vary a condition in any manner that the Court considers
5 appropriate; or
(b) add or substitute a condition.
(4) The Court must not grant an application under subsection (2)
unless it is satisfied that --
(a) new facts or circumstances have arisen since the
10 condition was imposed or last varied, as the case may
be; or
(b) each party to the initial proceedings consents to the
application.
(5) The reference in subsection (4)(b) to each party to the initial
15 proceedings does not include the child unless --
(a) the child has legal representation; or
(b) the Court is satisfied that the child has sufficient
maturity and understanding to give consent.
52. Authorised officer entitled to have access to child
20 (1) While a protection order (supervision) is in force in respect of a
child, an authorised officer may have access to the child at any
reasonable time.
(2) An authorised officer may apply to a magistrate for a warrant
(access) if the officer --
25 (a) is denied access to the child; or
(b) is unable to find the child for the purposes of access.
(3) An application under subsection (2) must be made in
accordance with section 120.
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(4) On an application under subsection (2) a magistrate may issue a
warrant (access) if the magistrate is satisfied as to a matter
referred to in subsection (2)(a) or (b).
Note: Section 121 contains provisions about the effect of a warrant (access).
5 53. Provision of social services
While a protection order (supervision) is in force in respect of a
child the CEO must ensure that the child and the child's parents
are provided with any social services that the CEO considers
appropriate.
10 Subdivision 4 -- Protection orders (time-limited)
54. Protection order (time-limited)
(1) A protection order (time-limited) is an order giving the CEO
parental responsibility for a child for the period specified in the
order.
15 (2) While a protection order (time-limited) is in force in respect of a
child the CEO has parental responsibility for the child to the
exclusion of any other person.
55. Duration of protection order (time-limited)
(1) A protection order (time-limited) remains in force for the period
20 specified in the order unless it is extended or revoked under
section 56 or revoked under Subdivision 7.
(2) The period specified in the order must not exceed 2 years and
must end before the child reaches 18 years of age.
56. Extension of protection order (time-limited)
25 (1) The CEO may apply to the Court for the extension of a
protection order (time-limited).
(2) An application under subsection (1) may be made at any time
while the order is in force but only after a review of the care
plan for the child has been carried out under section 90.
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(3) If an application under subsection (1) is made but not
determined before the day on which the order would otherwise
expire, the order remains in force until the application is
determined.
5 (4) On an application under subsection (1) the Court may, if
satisfied that it is in the best interests of the child to do so --
(a) extend the order for a period not exceeding 2 years that
ends before the child reaches 18 years of age; or
(b) revoke the order and, subject to this Part, make another
10 protection order in respect of the child.
(5) A protection order (time-limited) may be extended more than
once under this section.
(6) If, on an application under subsection (1), the Court is satisfied
that each party to the initial proceedings consents to the
15 application, the Court may extend the order in the absence of
the parties.
(7) The reference in subsection (6) to each party to the initial
proceedings does not include the child unless --
(a) the child has legal representation; or
20 (b) the Court is satisfied that the child has sufficient
maturity and understanding to give consent.
Subdivision 5 -- Protection orders (until 18)
57. Protection order (until 18)
(1) A protection order (until 18) is an order giving the CEO parental
25 responsibility for a child until the child reaches 18 years of age.
(2) While a protection order (until 18) is in force in respect of a
child the CEO has parental responsibility for the child to the
exclusion of any other person.
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58. Restriction on making protection order (until 18)
The Court must not make a protection order (until 18) in respect
of a child unless the Court is satisfied that long-term
arrangements should be made for the wellbeing of the child.
5 59. Duration of protection order (until 18)
A protection order (until 18) remains in force until the child
reaches 18 years of age unless it is revoked under Subdivision 7.
Subdivision 6 -- Protection orders (enduring parental responsibility)
60. Protection order (enduring parental responsibility)
10 (1) A protection order (enduring parental responsibility) is an order
giving a natural person, or 2 natural persons jointly, parental
responsibility for a child until the child reaches 18 years of age.
(2) A protection order (enduring parental responsibility) cannot
give parental responsibility for a child to the CEO or a parent of
15 the child.
(3) While a protection order (enduring parental responsibility) is in
force in respect of a child the enduring parental carer has
parental responsibility for the child to the exclusion of any other
person.
20 61. Restriction on making protection order (enduring parental
responsibility)
(1) In this section --
"proposed carer" means --
(a) if the protection order (enduring parental
25 responsibility) is sought by the CEO, a person
nominated under section 44(3) or 68(3); or
(b) in any other case, a person to whom parental
responsibility for the child is proposed to be given
under the protection order (enduring parental
30 responsibility).
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(2) The Court must not make a protection order (enduring parental
responsibility) in respect of a child unless the Court is
satisfied --
(a) that long-term arrangements should be made for the
5 wellbeing of the child; and
(b) that, having regard to the report mentioned in
subsection (3), the proposed carer or each proposed
carer is --
(i) a suitable person to provide long-term care for
10 the child; and
(ii) willing and able to provide such care.
(3) The CEO must provide the Court with a written report that --
(a) contains information addressing the matters referred to
in subsection (2)(b)(i) and (ii); and
15 (b) outlines the proposed arrangements for the wellbeing of
the child.
(4) If the child is an Aboriginal child or a Torres Strait Islander
child, the Court must, in assessing the suitability of a proposed
carer for the purposes of subsection (2)(b), have regard to the
20 Aboriginal and Torres Strait Islander child placement principle
set out in section 12.
(5) If the child is from a culturally or linguistically diverse
background, the Court must, in assessing the suitability of a
proposed carer for the purposes of subsection (2)(b), have
25 regard to any guidelines established under section 80.
62. Duration of protection order (enduring parental
responsibility)
A protection order (enduring parental responsibility) remains in
force until the child reaches 18 years of age unless it is revoked
30 under Subdivision 7.
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63. Conditions of protection order (enduring parental
responsibility)
(1) A protection order (enduring parental responsibility) may
include conditions about contact between the child and another
5 person.
(2) A protection order (enduring parental responsibility) must not
include any other conditions.
64. Variation of conditions of protection order (enduring
parental responsibility)
10 (1) In this section --
"condition" means a condition referred to in section 63(1).
(2) A party to the initial proceedings may apply to the Court for the
variation, addition or substitution of a condition.
(3) On an application under subsection (2) the Court may --
15 (a) vary a condition in any manner that the Court considers
appropriate; or
(b) add or substitute a condition.
(4) The Court must not grant an application under subsection (2)
unless it is satisfied that --
20 (a) new facts or circumstances have arisen since the
condition was imposed or last varied, as the case may
be; or
(b) each party to the initial proceedings consents to the
application.
25 (5) The reference in subsection (4)(b) to each party to the initial
proceedings does not include the child unless --
(a) the child has legal representation; or
(b) the Court is satisfied that the child has sufficient
maturity and understanding to give consent.
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65. Court may order payments to enduring parental carer
(1) On the making of a protection order (enduring parental
responsibility), or at any time while such an order is in force,
the Court may, on the application of a party to the initial
5 proceedings, order the CEO to pay to the enduring parental
carer amounts in accordance with the prescribed scale at such
intervals as are prescribed.
(2) The CEO must give effect to an order made under
subsection (1).
10 (3) The Court may, on the application of a party to the initial
proceedings, revoke an order made under subsection (1).
(4) For the purposes of this section, the regulations --
(a) are to prescribe the scale of amounts payable;
(b) may prescribe different amounts for different classes of
15 children; and
(c) are to prescribe the intervals at which payments are to be
made.
66. Provision of social services
Without limiting section 21(1)(a), while a protection order
20 (enduring parental responsibility) is in force in respect of a child
the CEO may cause the child and the enduring parental carer to
be provided with any social services that the CEO considers
appropriate.
Subdivision 7 -- Revocation and replacement of protection orders
25 67. Revocation of protection order
(1) A party to the initial proceedings may apply to the Court for the
revocation of a protection order.
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(2) On an application under subsection (1) the Court may, if
satisfied that it is in the best interests of the child to do so --
(a) confirm the order;
(b) revoke the order; or
5 (c) revoke the order and, subject to this Part, make another
protection order in respect of the child.
68. Replacement of protection order
(1) The CEO may apply to the Court for the revocation of a
protection order and the making of another protection order in
10 respect of the child.
(2) An application under subsection (1) must specify the type of
protection order sought.
(3) If a protection order (enduring parental responsibility) is sought
an application under subsection (1) must nominate the person or
15 persons to whom parental responsibility for the child is
proposed to be given.
(4) On an application under subsection (1) the Court may, if
satisfied that it is in the best interests of the child to do so --
(a) confirm the order; or
20 (b) revoke the order and, subject to this Part, make the
protection order sought or another protection order in
respect of the child.
Subdivision 8 -- General
69. Applications for extension, variation, revocation or
25 replacement of protection orders
(1) This section applies to an application under this Division for the
extension, variation, revocation or replacement of a protection
order.
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(2) The application must --
(a) be lodged with the Court; and
(b) comply with any applicable rules of court.
(3) When the application is lodged, the Court must fix the day, time
5 and place for the hearing of the application.
(4) The applicant must, as soon as practicable after lodging the
application, give a copy of it to all other parties to the initial
proceedings.
(5) Each copy of the application given under subsection (4) must be
10 accompanied by notice of the day, time and place fixed under
subsection (3).
70. Form of protection order
(1) A protection order must be in writing and must state the child's
name and date of birth.
15 (2) A protection order, if made on a protection application, must
state the basis under section 28 for finding that the child is in
need of protection.
71. Child's date of birth
(1) In the absence of evidence of the child's date of birth, the Court
20 must determine a date of birth for the child for the purposes of
section 70(1).
(2) The date of birth of a child stated in a protection order is to be
taken to be the child's date of birth for the purposes of this Act
unless the Court otherwise determines.
25 72. Parties to proceedings to be given copy of protection order
If the Court makes a protection order it must take all reasonable
steps to ensure that each party is given a copy of the order.
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73. Maintenance of children under certain orders
(1) In this section --
"relevant person" means --
(a) if the order concerned is a protection order
5 (time-limited) or a protection order (until 18), the
CEO; or
(b) if the order concerned is a protection order (enduring
parental responsibility), the enduring parental carer.
(2) On the making of a protection order (time-limited), protection
10 order (until 18) or protection order (enduring parental
responsibility) in respect of a child, or at any time while such an
order is in force, the Court may, on the application of a party to
the initial proceedings, order a parent of the child who is able to
pay for, or contribute towards, the maintenance of the child to
15 pay to the relevant person --
(a) any amount for the past maintenance of the child by the
relevant person; and
(b) any amount, or such periodical amounts, for the future
maintenance of the child by the relevant person,
20 that the Court considers appropriate.
(3) The Court may make an order under subsection (2) in the
absence of the parent concerned if it is satisfied that the parent
has received adequate notice of the application.
(4) If an order is made under subsection (2), the Court must cause a
25 certified copy of the order to be sent to --
(a) the Family Court; or
(b) a court of a kind referred to in the Family Court
Act 1997 section 39(a) that can, under that section,
exercise the Family Court's non-federal jurisdictions,
30 whichever is nearest to the place at which the order was made,
for registration in accordance with the Family Court Act 1997
and the order, when so registered, is to be taken for all purposes
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Negotiated placement Division 4
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to be an order made under that Act by the Family Court or the
court referred to in paragraph (b), as the case requires.
Division 4 -- Negotiated placement
74. Meaning of "child"
5 In this Division --
"child", in relation to a negotiated placement agreement, means
the child in respect of whom the agreement is made.
75. Negotiated placement agreement
(1) Where the parents of a child are unable to care for the child, the
10 parents acting together and the CEO may enter into an
agreement under which the CEO is required to make a
placement arrangement for the child.
(2) The parents of the child acting together and the CEO may, at
any time before the expiry or termination of a negotiated
15 placement agreement, extend the agreement.
(3) Despite the requirement in subsections (1) and (2) for the
parents of the child to act together, a negotiated placement
agreement may be entered into or extended by a parent of the
child if --
20 (a) after reasonable inquiries any other parent of the child
cannot be found;
(b) any other parent of the child has failed to respond within
a reasonable time to a request that he or she enter into or
extend a negotiated placement agreement;
25 (c) any other parent of the child does not have ongoing
contact with the child; or
(d) it is not, in all the circumstances of the case, reasonably
practicable to request any other parent of the child to
enter into or extend a negotiated placement agreement.
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(4) In deciding whether to enter into, extend or terminate a
negotiated placement agreement, the CEO must take into
account any views expressed by the child.
(5) The CEO must not enter into or extend a negotiated placement
5 agreement in respect of a child if there are reasonable grounds
to believe that the child is in need of protection.
(6) A negotiated placement agreement and any extension of the
agreement must be --
(a) in writing; and
10 (b) signed by --
(i) the CEO; and
(ii) the parents of the child or, if subsection (3)
applies, the parent who is entering into or
extending the agreement.
15 76. Duration of negotiated placement agreement
A negotiated placement agreement has effect for the period
specified in the agreement or any extension of the agreement
unless it is terminated under section 77.
77. Termination of negotiated placement agreement
20 A negotiated placement agreement may be terminated at any
time by --
(a) the CEO; or
(b) a parent of the child (whether or not the parent is a party
to the agreement),
25 by written notice given to the parties, or other parties, to the
agreement.
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Division 5 -- Children in the CEO's care
Subdivision 1 -- Charter of Rights
78. CEO to prepare Charter of Rights
(1) Within 12 months after the commencement of this Part, the
5 CEO must prepare a Charter of Rights for all children in the
CEO's care.
(2) The CEO must promote compliance with the Charter of Rights.
(3) The CEO must ensure that all children in the CEO's care are
given a copy of the Charter of Rights and written information
10 about it.
(4) The CEO must cause the Charter of Rights to be published in a
manner that the CEO considers appropriate.
(5) The Charter of Rights must be laid before each House of
Parliament by the Minister within 6 sitting days after the
15 Charter is published by the CEO.
Subdivision 2 -- Placement arrangements
79. Power of CEO to arrange placement of child
(1) In this section --
"child" means a child who is in the CEO's care.
20 (2) The CEO may make --
(a) an arrangement for the placement of a child --
(i) with an individual approved by the CEO in
accordance with the regulations;
(ii) with a person or body who or which has entered
25 into an agreement under section 15(1) for the
provision of placement services; or
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(iii) in a residential facility operated or managed by
the Department or another public authority;
or
(b) any other arrangement for the placement of the child
5 that the CEO considers appropriate.
(3) The CEO may at any time cancel a placement arrangement
made in respect of a child and make another placement
arrangement in respect of the child.
(4) Without limiting section 248(1), the regulations may make
10 provision for and in relation to the approval of individuals for
the purposes of subsection (2)(a)(i).
80. Guidelines for placement of certain children
(1) Within 12 months after the commencement of this Part, the
CEO must establish written guidelines (the "guidelines") to be
15 observed when making placement arrangements for children
from culturally or linguistically diverse backgrounds.
(2) Without limiting the scope of the guidelines, they are to address
the need to preserve and enhance a child's cultural, ethnic and
religious identity.
20 (3) The CEO may amend or replace the guidelines.
(4) The guidelines are not to apply to Aboriginal or Torres Strait
Islander children.
Note: Section 12 sets out the relevant principle relating to the placement of
Aboriginal or Torres Strait Islander children.
25 81. Matters relevant to placement of Aboriginal or Torres Strait
Islander children
(1) The CEO must ensure that an officer who is an Aboriginal
person or a Torres Strait Islander is involved at all relevant
times in the making of a placement arrangement in respect of an
30 Aboriginal child or a Torres Strait Islander child.
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(2) The CEO must consult with an Aboriginal or Torres Strait
Islander agency, approved by the CEO for the purposes of this
section, regarding the prospective placement of an Aboriginal
child or a Torres Strait Islander child.
5 82. Payment for care under placement arrangement
The CEO may make payments to a person for or in relation to
the provision of care for a child under a placement arrangement.
83. Inspection of place where child living
An authorised officer may, at any time, enter a place where a
10 child is living under a placement arrangement for the purpose of
inspecting the place and making any inquiries in relation to the
wellbeing of the child that the authorised officer considers
appropriate.
84. Authorised officer may request carer to hand over child
15 An authorised officer may at any time request a carer of a child
to hand over the child to the officer.
85. Warrant (apprehension) where child not handed over
(1) If a carer does not comply with a request made by an authorised
officer under section 84 the officer may apply to a magistrate
20 for a warrant (apprehension).
(2) An application under subsection (1) must be made in
accordance with section 120.
(3) On an application made under subsection (1) a magistrate may
issue a warrant (apprehension) if the magistrate is satisfied that
25 the carer has not complied with the request.
Note: Section 122 contains provisions about the effect of a warrant
(apprehension).
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86. Warrant (apprehension) where child absent or taken
without authority
(1) If an authorised officer or a police officer believes on
reasonable grounds that a child is absent, or has been taken,
5 without lawful authority from a place where the child was living
under a placement arrangement the officer may apply to a
magistrate for a warrant (apprehension).
(2) An application under subsection (1) must be made in
accordance with section 120.
10 (3) On an application made under subsection (1) a magistrate may
issue a warrant (apprehension) if the magistrate is satisfied that
there are reasonable grounds for the suspicion mentioned in that
subsection.
Note: Section 122 contains provisions about the effect of a warrant
15 (apprehension).
87. Apprehension without warrant in certain circumstances
(1) In this section --
"officer" means an authorised officer or a police officer.
(2) If an officer suspects on reasonable grounds that --
20 (a) a child is absent, or has been taken, without lawful
authority from a place where the child was living under
a placement arrangement; and
(b) there is --
(i) an immediate or substantial risk to the wellbeing
25 of the child; or
(ii) a significant likelihood that unless the child is
apprehended immediately the officer will not be
able to find the child,
the officer may apprehend the child and take the child to the
30 place mentioned in paragraph (a) or such other place as the CEO
directs.
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(3) For the purposes of subsection (2) an officer may --
(a) enter, at any time, any place where the officer
reasonably believes the child to be; and
(b) search the place for the purpose of finding the child.
5 (4) An officer does not need a warrant to exercise the powers in this
section.
(5) When exercising a power under this section an officer may use
reasonable force and assistance.
(6) Without limiting subsection (5), when exercising a power under
10 this section an authorised officer may be accompanied by a
police officer.
Subdivision 3 -- Care plans
88. Meaning of "parent"
In this Subdivision --
15 "parent" has the meaning given to that term in section 42.
89. Care plan
(1) In this section --
"care plan" means a written plan that --
(a) identifies the needs of the child;
20 (b) outlines steps or measures to be taken in order to
address those needs; and
(c) sets out decisions about the care of the child
including --
(i) decisions about placement; and
25 (ii) decisions about contact between the child and
a parent, sibling or other relative of the child
or any other person who is significant in the
child's life.
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(2) As soon as practicable after a child first comes into the CEO's
care, the CEO must prepare and implement a care plan for the
child.
(3) Subsection (2) does not apply in the case of a child taken into
5 provisional protection and care.
Note: Section 39 requires the CEO to prepare and implement a provisional
care plan for a child taken into provisional protection and care.
(4) The CEO may modify a care plan at any time if the CEO
considers that it is appropriate to do so.
10 (5) Without limiting subsection (4), the CEO must, in the case of a
child who is about to leave the CEO's care, modify the care plan
for the child so that it --
(a) identifies the needs of the child in preparing to leave the
CEO's care and in his or her transition to other living
15 arrangements after leaving the CEO's care; and
(b) outlines steps or measures designed to assist the child to
meet those needs.
(6) As soon as practicable after the CEO prepares or modifies a care
plan, the CEO must ensure that a copy of the care plan or
20 modification, as the case requires, is given to --
(a) the child;
(b) each parent of the child;
(c) any carer of the child; and
(d) any other person considered by the CEO to have a direct
25 and significant interest in the wellbeing of the child.
90. Review of care plan
(1) The CEO must carry out a review of the operation and
effectiveness of every care plan at regular intervals not
exceeding 12 months.
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(2) In the course of the review the CEO must have regard to any
views expressed by --
(a) the child;
(b) a parent of the child; and
5 (c) any carer of the child.
(3) The CEO must prepare a written report on the outcome of the
review and must ensure that, where practicable, a copy of the
report is given to each of the people mentioned in
subsection (2).
10 (4) The CEO must keep a record of reviews carried out, and reports
prepared, under this section in a manner that the CEO considers
appropriate.
Subdivision 4 -- Review of case planning decisions
91. Terms used in this Subdivision
15 In this Subdivision, unless the contrary intention appears --
"applicant" means a person who makes an application under
section 93(1);
"care plan" has the meaning given to that term in section 89(1);
"case planning decision", in relation to a child, means a
20 decision set out in a care plan for the child;
"case review panel" means the case review panel established
under section 92;
"parent" has the meaning given to that term in section 82.
92. Case review panel
25 (1) The CEO must establish a case review panel for the purposes of
this Subdivision.
(2) The case review panel is to consist of not less than 3 members
appointed by the CEO.
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(3) The members of the case review panel are to be people who
have such experience, skills, attributes or qualifications as the
CEO considers appropriate to enable them to effectively
perform their review function.
5 (4) An officer is not eligible to be appointed, or hold office, as a
member of the case review panel.
(5) The CEO may remove and replace members of the case review
panel.
(6) The CEO must appoint one of the members of the case review
10 panel to be the chairperson.
(7) The CEO may --
(a) direct that the members of the case review panel (other
than an employee as defined in the Public Sector
Management Act 1994 section 3(1)) are to be paid
15 remuneration or allowances or both; and
(b) determine the amount of any such payments on the
recommendation of the Minister for Public Sector
Management.
(8) The CEO must provide the case review panel with such support
20 services as it may reasonably require.
93. Initial review
(1) An application for the review of a case planning decision may
be made to the CEO by --
(a) the child;
25 (b) a parent of the child; or
(c) any other person considered by the CEO to have a direct
and significant interest in the wellbeing of the child.
(2) The application --
(a) must be in writing; and
30 (b) must set out the grounds on which a review is sought.
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(3) The application must be made within --
(a) 14 days after the day on which the applicant received a
copy of a care plan or modification of a care plan setting
out the relevant case planning decision; or
5 (b) any longer period that the CEO in special circumstances
allows.
(4) The CEO must refer the application, together with such other
material as the CEO considers relevant, to the case review
panel.
10 (5) On a referral under subsection (4) the case review panel must
consider the application and other material (if any) and report to
the CEO on its recommendations in respect of the application.
(6) The CEO, after considering the report of the case review panel
and any other information available to the CEO, must --
15 (a) confirm, vary or reverse the case planning decision;
(b) substitute another decision for the case planning
decision; or
(c) refer the matter back to the case review panel for further
consideration and report.
20 (7) The CEO must give the applicant written notice of his or her
decision under subsection (6) and written reasons for it.
(8) If an application is made under subsection (1), the decision that
is the subject of the application continues to have effect pending
the review unless the CEO otherwise directs.
25 94. Review of CEO's decision
A person who is aggrieved by a decision made by the CEO
under section 93(6)(a) or (b) may apply to the State
Administrative Tribunal for a review of the decision.
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95. Procedure
(1) The CEO may give directions in writing to the case review
panel as to its procedure, but otherwise, subject to
subsection (2), the case review panel may determine its own
5 procedure.
(2) The case review panel must give each applicant a reasonable
opportunity to make submissions in respect of the application.
Division 6 -- Provisions about leaving the CEO's care
96. People who qualify for assistance
10 For the purposes of this Division a person qualifies for
assistance if --
(a) the person has left the CEO's care;
(b) the person is under 25 years of age; and
(c) the person at any time after the person reached 15 years
15 of age --
(i) was the subject of a protection order
(time-limited) or a protection order (until 18);
(ii) was the subject of a negotiated placement
agreement in force for a continuous period of at
20 least 6 months; or
(iii) was provided with placement services under
section 32(1)(a) for a continuous period of at
least 6 months.
97. Entitlement to personal material
25 (1) In this section --
"personal material", in relation to a child, means --
(a) the child's birth certificate;
(b) the child's passport;
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(c) any school report or other report relating to the
child's education;
(d) any photograph of the child; or
(e) any other document or material relating to the child
5 that is prescribed, or of a class prescribed, in the
regulations.
(2) When a child leaves the CEO's care, the child has a right to the
possession, free of charge, of any personal material held by the
Department or by any person or body who or which has
10 provided care for the child under a placement arrangement.
98. Social services
(1) The CEO must ensure that a child who leaves the CEO's care is
provided with any social services that the CEO considers
appropriate having regard to the needs of the child as identified
15 in the care plan for the child under section 89.
(2) Subsection (1) does not apply to a child who ceases to be in
provisional protection and care.
99. Information and advisory services
Without limiting section 98, the CEO must ensure that a person
20 who qualifies for assistance is provided with services to assist
the person to do any one or more of the following --
(a) obtain accommodation;
(b) undertake education and training;
(c) obtain employment;
25 (d) obtain legal advice;
(e) access health services;
(f) access counselling services.
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100. Financial assistance
(1) The CEO may provide a person who qualifies for assistance
with financial assistance in the form of --
(a) a contribution to expenses incurred in obtaining,
5 furnishing and equipping accommodation;
(b) a contribution to expenses incurred by the person in
living near the place where the person is, or will be --
(i) employed or seeking employment; or
(ii) undertaking education or training;
10 or
(c) a grant to enable the person to meet expenses connected
with his or her education or training.
(2) Financial assistance may be provided under this section on any
terms and conditions that the CEO considers appropriate.
15 (3) Without limiting subsection (2), the terms and conditions may
include provisions as to repayment and the recovery of
outstanding amounts.
Division 7 -- Offences
Subdivision 1 -- Children generally
20 101. Failing to protect child from significant harm
(1) A person who has the care or control of a child and who
engages in conduct --
(a) knowing that the conduct may result in the child
suffering significant harm as a result of any one or more
25 of the following --
(i) physical abuse;
(ii) emotional abuse;
(iii) psychological abuse; or
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(iv) neglect as defined in section 28(1);
or
(b) reckless as to whether the conduct may have that result,
is guilty of a crime, and is liable to imprisonment for 10 years.
5 (2) A person who has the care or control of a child and who
engages in conduct --
(a) knowing that the conduct may result in the child
suffering harm as a result of sexual abuse; or
(b) reckless as to whether the conduct may have that result,
10 is guilty of a crime, and is liable to imprisonment for 10 years.
(3) In this section --
"engage in conduct" means --
(a) to do an act; or
(b) to omit to do an act.
15 102. Leaving child unsupervised in vehicle
A person who has the care or control of a child and who leaves
the child in a motor vehicle (as defined in the Road Traffic
Act 1974) without proper supervision for such period or in such
circumstances that --
20 (a) the child becomes or is likely to become emotionally
distressed; or
(b) the child's health becomes or is likely to become
permanently or temporarily impaired,
is guilty of a crime, and is liable to imprisonment for 5 years.
25 Summary conviction penalty: $36 000 and imprisonment for
3 years.
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103. Tattooing or branding
A person must not in any manner tattoo or brand any part of the
body of a child unless the person has first obtained the written
consent of a parent of the child to tattoo or brand the child in
5 that manner and on that part of the child's body.
Penalty: $12 000 and imprisonment for one year.
104. Providing long-term care for young children
(1) In this section --
"prescribed period", in relation to --
10 (a) a child who is under 12 months of age, means
one month; or
(b) any other young child, means a period of
3 consecutive months;
"provide care", in relation to a young child, means to exercise
15 responsibility for the day-to-day care, welfare and
development of the child;
"residence order" means a residence order made under the
Family Law Act 1975 of the Commonwealth or the Family
Court Act 1997;
20 "specific issues order" means a specific issues order made
under the Family Law Act 1975 of the Commonwealth or
the Family Court Act 1997 which confers responsibility for
the day-to-day care, welfare and development of a child;
"young child" means a child who has not reached an age at
25 which the child is required to be enrolled in an educational
programme under the School Education Act 1999
section 9(1).
(2) A person must not provide care for a young child for longer
than the prescribed period unless the person is --
30 (a) a parent of the child;
(b) an adult relative of the child;
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(c) a carer of the child;
(d) a person who has made an application for a residence
order or specific issues order in relation to the child, at
any time before the application is finally determined;
5 (e) a person in whose favour a residence order or specific
issues order has been made in relation to the child, while
the order is in force; or
(f) a person who is providing care for the child in
accordance with an approval under subsection (3).
10 Penalty: $12 000 and imprisonment for one year.
(3) The CEO may give a person approval to provide care for a
young child.
(4) An approval under subsection (3) --
(a) must be in writing;
15 (b) has effect for such period not exceeding 12 months as is
specified in the approval;
(c) may be subject to such conditions as the CEO considers
appropriate;
(d) may be revoked at any time; and
20 (e) cannot be renewed.
Subdivision 2 -- Children under placement arrangements
105. Terms used in this Subdivision
(1) In this Subdivision --
"child" means a child who is the subject of a placement
25 arrangement;
"place of residence", in relation to a child, means the place
where the child lives under a placement arrangement.
(2) For the purposes of this Subdivision there is lawful authority for
an act if --
30 (a) the act is done with the written consent of the CEO;
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(b) except in section 106, the act is done by, or with the
written consent of, a carer of the child concerned; or
(c) in the case of a child who is the subject of a negotiated
placement agreement, the act is done by, or with the
5 written consent of, a parent of the child.
106. Removing child from State
A person must not, without lawful authority, remove a child, or
cause or permit a child to be removed, from the State.
Penalty: $24 000 and imprisonment for 2 years.
10 107. Removing child from place of residence
(1) In this section --
"another law" means a law of another State or a Territory or
New Zealand.
(2) A person must not, without lawful authority, remove a child
15 from the child's place of residence.
Penalty: $12 000 and imprisonment for one year.
(3) A person must not, without lawful authority, counsel, induce or
assist a child to leave the child's place of residence.
Penalty: $12 000 and imprisonment for one year.
20 (4) Subsections (2) and (3) apply whether the conduct constituting
the offence is carried out wholly within or wholly outside the
State or partly within and partly outside the State.
(5) If conduct constitutes an offence under this section and an
offence under another law, a person who is convicted, found
25 guilty or acquitted of the offence under another law is not liable
to be prosecuted for the offence under this section.
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108. Harbouring child
A person must not harbour a child if the person knows that the
child has left, or has been removed from, the child's place of
residence without lawful authority.
5 Penalty: $12 000 and imprisonment for one year.
109. Preventing child's return
A person must not prevent the return of a child to the child's
place of residence if the person knows that the child has left, or
has been removed from, the child's place of residence without
10 lawful authority.
Penalty: $12 000 and imprisonment for one year.
110. CEO may prohibit communication with child
(1) The CEO may, by written notice, direct a person not to
communicate, or attempt to communicate, in any way with a
15 child specified in the notice.
(2) A person who fails to comply with a direction under
subsection (1) commits an offence.
Penalty: $6 000.
111. Evidentiary provision
20 In proceedings for an offence under this Subdivision, an
averment in the complaint that an act was done without lawful
authority is, on proof that the act was done, proof that the act
was done without lawful authority unless the contrary is proved.
Division 8 -- Powers of restraint, search and seizure
25 112. Terms used in this Division
In this Division --
"disposable article" means --
(a) a disposable hypodermic needle or syringe;
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(b) a disposable cigarette lighter; or
(c) any other thing that is disposable in character and that
does not exceed the prescribed amount in value;
"firearm" has the meaning given to that term in the Firearms
5 Act 1973 section 4;
"intoxicant" means --
(a) alcohol; or
(b) a drug or other substance capable of intoxicating a
person;
10 "officer" means an authorised officer or a police officer;
"prohibited article" means a prohibited drug or a prohibited
plant as those terms are defined in the Misuse of Drugs
Act 1981 section 3(1);
"weapon" means a controlled weapon or a prohibited weapon
15 as those terms are defined in the Weapons Act 1999
section 3.
113. Prerequisites for exercise of power
(1) The powers conferred by this Division may be exercised by an
authorised officer only if --
20 (a) the child concerned --
(i) is in the CEO's care; or
(ii) is being moved, or has been moved, to a safe
place under section 41;
and
25 (b) the authorised officer believes on reasonable grounds
that, unless the power is exercised, the child concerned
is likely to --
(i) endanger the health or safety of the child or
another person; or
30 (ii) cause serious damage to property.
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(2) The powers conferred by this Division may be exercised by a
police officer only if --
(a) the child concerned is being moved, or has been moved,
to a safe place under section 41; and
5 (b) the police officer believes on reasonable grounds that,
unless the power is exercised, the child concerned is
likely to --
(i) endanger the health or safety of the child or
another person; or
10 (ii) cause serious damage to property.
114. Child may be restrained
An officer may restrain a child but only for the period, and to
the extent, necessary, in the opinion of the officer, to prevent the
child --
15 (a) endangering the health or safety of the child or another
person; or
(b) causing serious damage to property.
115. Child may be searched
(1) An officer may search a child, and any thing found on or with
20 the child, for any thing or substance that can be seized under
section 116.
(2) The search of a child must be done --
(a) by an officer, or a person designated under
subsection (3), who is of the same sex as the child; and
25 (b) in the presence of at least one other adult.
(3) If it is reasonably necessary in order to do the search, an officer
may designate another person to do the search or to assist in
doing the search.
(4) A person designated under subsection (3) --
30 (a) may do the search or assist in doing the search; and
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(b) must obey any lawful and reasonable direction of the
officer.
(5) Nothing in this section authorises a search that involves --
(a) the removal of some or all of a child's clothing; or
5 (b) an examination of the body cavities of a child.
116. Certain articles may be seized
An officer may seize from a child any thing or substance the
seizure of which is necessary, in the opinion of the officer --
(a) to prevent the child endangering the health or safety of
10 the child or another person; or
(b) to prevent the child causing serious damage to property.
117. How seized articles to be dealt with
(1) In this section --
"seized" means seized under section 116.
15 (2) If a firearm, weapon or prohibited article is seized from a child
by an authorised officer, the authorised officer must deliver it
into the custody of a police officer as soon as practicable after it
is seized.
(3) If a disposable article or an intoxicant (other than a prohibited
20 article) is seized from a child, an officer may destroy it.
(4) Any thing or substance seized from a child that is not dealt with
under subsection (2) or (3) --
(a) must be kept in safe keeping for such period as an
officer considers necessary --
25 (i) to protect the health or safety of the child or
another person; or
(ii) to prevent the child causing serious damage to
property;
and
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(b) at the end of that period, must be returned to the child or
dealt with under subsection (5).
(5) If, at the end of the period referred to in subsection (4)(a), it is
not reasonably practicable (for whatever reason) to return the
5 thing or substance seized to the child, an officer must deal with
the thing or substance in accordance with the regulations.
118. Use of reasonable force
Reasonable force may be used to do a search under section 115
and to seize any thing or substance that can be seized under
10 section 116.
119. Prescribed procedures
The regulations may prescribe procedures to be followed in
relation to the exercise of the powers conferred by this Division,
and an officer must ensure that those procedures are complied
15 with when exercising those powers.
Division 9 -- Warrants
120. Applying for warrant
(1) In this section --
"remote communication" means any way of communicating at
20 a distance including by telephone, telephone typewriter,
fax, email and radio.
(2) This section applies to and in respect of an application for a
warrant if another section in this Part requires the application to
be made in accordance with this section.
25 (3) The application must be made, and any information in support
of it must be given, on oath.
(4) The application must be made in person before a magistrate
unless --
(a) the warrant is needed urgently; and
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Children and Community Services Bill 2003
Part 4 Protection and care of children
Division 9 Warrants
s. 120
(b) the applicant reasonably believes that a magistrate is not
known to be available within a reasonable distance of
the applicant,
in which case it may be made to a magistrate by remote
5 communication.
(5) If the application is made to a magistrate by remote
communication --
(a) the applicant must prepare a written application and if
practicable send it to the magistrate;
10 (b) if it is not practicable to send the written application to
the magistrate, the applicant may make the application
orally;
(c) if it is not practicable to comply with subsection (3), the
applicant may make the application, and give any
15 information in support of it, in unsworn form; and
(d) the magistrate must not grant the application unless
satisfied that there are grounds under subsection (4) for
the application not to be made in person.
(6) If the application is made orally under subsection (5)(b), the
20 magistrate must complete a written application.
(7) If information in support of the application is given orally, the
magistrate must make a record of it.
(8) If --
(a) the applicant gives the magistrate unsworn information
25 under subsection (5)(c); and
(b) the magistrate issues a warrant,
the applicant must send the magistrate an affidavit containing all
that information as soon as practicable after the warrant is
issued.
page 74
Children and Community Services Bill 2003
Protection and care of children Part 4
Warrants Division 9
s. 121
(9) If the application is made by remote communication and the
magistrate issues a warrant, then --
(a) if it is reasonably practicable to send a copy of the
warrant to the applicant by remote communication, the
5 magistrate must immediately do so; or
(b) if it is not reasonably practicable to send a copy of the
warrant to the applicant by remote communication --
(i) the magistrate must immediately give the
applicant by remote communication any
10 information that is required to be set out in the
warrant;
(ii) the applicant must complete a form of the
warrant with the information given by the
magistrate;
15 (iii) the applicant must give the magistrate a copy of
the completed form as soon as practicable after
the warrant is issued; and
(iv) the magistrate must attach the copy of the
completed form to the original warrant issued by
20 the magistrate and any affidavit received from
the applicant in support of the application, and
make them available for collection by the
applicant.
(10) If a copy of a warrant is received by remote communication
25 under subsection (9)(a) or a form of warrant is completed in
accordance with subsection (9)(b)(ii) it has the same effect as
the original warrant issued by the magistrate.
121. Authority conferred by warrant (access)
(1) In this section --
30 "warrant (access)" means a warrant (access) issued under
section 34(3), 52(4) or 135(5).
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Part 4 Protection and care of children
Division 9 Warrants
s. 122
(2) A warrant (access) authorises any authorised officer --
(a) to enter, at any time, any place where the officer
reasonably believes the child to be;
(b) to search the place for the purpose of finding the child;
5 (c) to remain at the place for as long as the officer considers
reasonably necessary to find the child; and
(d) if the child is found, to remain at the place and have
access to the child for as long as the officer considers
reasonably necessary.
10 (3) The entitlement to have access to the child referred to in
subsection (2)(d) includes an entitlement to both see and talk
with the child without a parent of the child or any other person
being present.
122. Authority conferred by warrant (apprehension)
15 (1) In this section --
"warrant (apprehension)" means a warrant (apprehension)
issued under section 85(3) or 86(3).
(2) A warrant (apprehension) authorises any authorised officer or
police officer --
20 (a) to enter, at any time, any place where the officer
reasonably believes the child to be;
(b) to search the place for the purpose of finding the child;
(c) to remain at the place for as long as the officer considers
reasonably necessary to find the child; and
25 (d) if the child is found, to apprehend the child and --
(i) in the case of a warrant issued under section 85,
to take the child to such place as the CEO
directs; or
(ii) in the case of a warrant issued under section 86,
30 to take the child to the place referred to in
section 86(1) or such other place as the CEO
directs.
page 76
Children and Community Services Bill 2003
Protection and care of children Part 4
Warrants Division 9
s. 123
123. Authority conferred by warrant (provisional protection and
care)
(1) In this section --
"warrant (provisional protection and care)" means a warrant
5 (provisional protection and care) issued under section 35(3)
or 133(3).
(2) A warrant (provisional protection and care) authorises any
authorised officer or police officer --
(a) to enter, at any time, any place where the officer
10 reasonably believes the child to be;
(b) to search the place for the purpose of finding the child;
(c) to remain at the place for as long as the officer considers
reasonably necessary to find the child; and
(d) if the child is found, to take the child into provisional
15 protection and care and to such place as the CEO
directs.
124. Execution of warrant
(1) When executing a warrant issued under this Part, an authorised
officer or police officer, as the case may be --
20 (a) may use reasonable force and assistance; and
(b) must produce the warrant or a copy of the warrant if
asked to do so by a person at the place where the
warrant is, or is to be, executed.
(2) Without limiting subsection (1)(a), an authorised officer who is
25 executing a warrant issued under this Part may call on the
assistance of a police officer.
(3) A police officer who provides assistance under subsection (2)
may use reasonable force when doing so.
page 77
Children and Community Services Bill 2003
Part 4 Protection and care of children
Division 10 General
s. 125
Division 10 -- General
125. Access to child
If a provision of this Part authorises an authorised officer to
have access to a child, the officer is entitled to both see and talk
5 with the child without a parent of the child or any other person
being present.
126. Recovery of certain expenditure
(1) In this section --
"child" means a child --
10 (a) who is in provisional protection and care;
(b) who is the subject of a protection order (supervision);
(c) who is the subject of a negotiated placement
agreement; or
(d) to whom placement services are provided under
15 section 32(1)(a).
(2) If the Court is satisfied, on the application of the CEO, that
expenses have been or are likely to be incurred by the
Department in connection with the performance of functions
under this Part in respect of a child, the Court may order a
20 parent of the child to pay to the Department such amount in
reimbursement or anticipation of those expenses as the Court
considers appropriate.
(3) If the child concerned is the subject of a negotiated placement
agreement, an order is not to be made under subsection (2) that
25 is inconsistent with the terms of the agreement.
(4) An order is not to be made under subsection (2) in respect of a
person who is not present before the Court unless the Court is
satisfied that the person has received adequate notice of the
application.
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Children and Community Services Bill 2003
Protection and care of children Part 4
General Division 10
s. 127
(5) If an order is made under subsection (2), the Court must cause a
certified copy of the order to be sent to --
(a) the Family Court; or
(b) a court of a kind referred to in the Family Court
5 Act 1997 section 39(a) that can, under that section,
exercise the Family Court's non-federal jurisdictions,
whichever is nearest to the place at which the order was made,
for registration in accordance with the Family Court Act 1997
and the order, when so registered, is to be taken for all purposes
10 to be an order made under that Act by the Family Court or the
court referred to in paragraph (b), as the case requires.
127. Power of CEO to give consent
In any case where the consent of a parent of a child is required
or customarily sought, the CEO may, in writing signed by the
15 CEO, give that consent in relation to --
(a) a child who is the subject of a protection order
(time-limited) or protection order (until 18); or
(b) a child who is the subject of a negotiated placement
agreement if the agreement authorises the CEO to do so.
20 128. Records
(1) The CEO must ensure that records are kept in respect of every
child who is or has been in the CEO's care.
(2) The records are to contain prescribed information.
129. Protection from liability for giving information
25 (1) This section applies if a person acting in good faith --
(a) gives information to the CEO or another officer about
any aspect of the wellbeing of a child;
(b) gives information to the CEO or another officer for the
purposes of, or in connection with, an investigation
30 referred to in section 32(1)(d);
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Children and Community Services Bill 2003
Part 4 Protection and care of children
Division 10 General
s. 130
(c) gives information to the CEO or another officer for the
purposes of, or in connection with, a protection
application or any other application to the Court under
this Part; or
5 (d) gives information to the CEO under section 40(6).
(2) In giving the information the person --
(a) does not incur any civil or criminal liability;
(b) is not to be taken to have breached any duty of
confidentiality or secrecy imposed by law; and
10 (c) is not to be taken to have breached any professional
ethics or standards or to have engaged in unprofessional
conduct.
130. General powers of police officers not affected
The powers conferred by this Part on a police officer are in
15 addition to, and do not limit, the powers that a police officer
would have if this Part had not been enacted.
page 80
Children and Community Services Bill 2003
Protection proceedings Part 5
Terms used in this Part Division 1
s. 131
Part 5 -- Protection proceedings
Division 1 -- Terms used in this Part
131. Terms used in this Part
In this Part, unless the contrary intention appears --
5 "child", in relation to protection proceedings, means the child
who is the subject of those proceedings;
"parent", in relation to a child who is the subject of a
protection order other than a protection order (supervision),
includes any person who would have had parental
10 responsibility for the child if the order had not been made.
Division 2 -- Adjournment and interim orders
132. Adjournment of proceedings
The Court may at any time in the course of protection
proceedings --
15 (a) on its own initiative; or
(b) on the application of a party,
adjourn the proceedings for any period that the Court considers
appropriate.
133. Interim orders
20 (1) The Court may at any time in the course of protection
proceedings make an interim order --
(a) on its own initiative; or
(b) on the application of a party.
(2) An interim order is an order as to any one or more of the
25 following --
(a) that the child is to be returned to, placed with, or remain
with a parent of the child;
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Children and Community Services Bill 2003
Part 5 Protection proceedings
Division 2 Adjournment and interim orders
s. 134
(b) that the child is to be taken into, or remain in,
provisional protection and care;
(c) that the child is to be placed with a person approved by
the Court following a report, whether oral or written,
5 from the CEO as to the person's suitability;
(d) that the child or any other party undergo counselling;
(e) that a parent of the child or any other person specified in
the order who has been providing day-to-day care for
the child is to give to the CEO personal possessions of
10 the child that are specified in the order;
(f) contact between the child and a parent, sibling or other
relative of the child or any other person who is
significant in the child's life, including that a person
specified in the order is not to have contact (whether
15 direct or indirect) with the child;
(g) any other matter that the Court considers appropriate.
(3) If the Court makes an interim order that the child is to be taken
into provisional protection and care, the Court may issue a
warrant (provisional protection and care).
20 Note: Section 123 contains provisions about the effect of a warrant
(provisional protection and care).
134. Variation or revocation of interim order
(1) A party may apply to the Court for the variation or revocation of
an interim order.
25 (2) On an application under subsection (1) the Court may --
(a) confirm the interim order;
(b) vary the interim order;
(c) revoke the interim order; or
(d) revoke the interim order and make another interim
30 order.
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Children and Community Services Bill 2003
Protection proceedings Part 5
Adjournment and interim orders Division 2
s. 135
(3) The Court must not take action under subsection (2)(b), (c) or
(d) unless it is satisfied that --
(a) new facts or circumstances have arisen since the interim
order was made or last varied, as the case may be; or
5 (b) each party consents to the action.
(4) The reference in subsection (3) to each party does not include
the child unless --
(a) the child has legal representation; or
(b) the Court is satisfied that the child has sufficient
10 maturity and understanding to give consent.
135. Authorised officer entitled to have access to the child
(1) While an interim order as to a matter referred to in
section 133(2)(a) or (c) is in force in respect of a child, an
authorised officer may have access to the child at any
15 reasonable time.
(2) The entitlement referred to in subsection (1) includes an
entitlement to both see and talk with the child without a parent
of the child or any other person being present.
(3) An authorised officer may apply to a magistrate for a warrant
20 (access) if the officer --
(a) is denied access to a child;
(b) suspects that he or she will be denied such access; or
(c) is unable to find the child for the purposes of access.
(4) An application under subsection (3) must be made in
25 accordance with section 120.
(5) On an application under subsection (3) a magistrate may issue a
warrant (access) if the magistrate is satisfied --
(a) as to a matter referred to in subsection (3)(a) or (c); or
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Children and Community Services Bill 2003
Part 5 Protection proceedings
Division 3 Pre-hearing conferences
s. 136
(b) that there are reasonable grounds for the authorised
officer to have the suspicion referred to in
subsection (3)(b).
Note: Section 121 contains provisions about the effect of a warrant (access).
5 Division 3 -- Pre-hearing conferences
136. Court may order pre-hearing conference
(1) The Court may at any time in the course of protection
proceedings make an order referring the application the subject
of those proceedings to a conference.
10 (2) The purpose of a pre-hearing conference is to give the parties to
the proceedings an opportunity to discuss, and reach agreement
on, any matter relevant to the application.
(3) The Court must fix a day, time and place for the pre-hearing
conference.
15 (4) A pre-hearing conference must be presided over by --
(a) a magistrate; or
(b) a convenor appointed by the Court in accordance with
the regulations.
(5) At the conclusion of a pre-hearing conference the person who
20 presided over the conference must report to the Court on its
outcome unless that person is also the magistrate who ordered
the conference under subsection (1).
(6) The regulations may --
(a) provide for the appointment of convenors;
25 (b) provide for the remuneration and allowances payable to
convenors;
(c) prescribe the classes of people who may attend a
pre-hearing conference;
(d) confer power on the Court to order the attendance of
30 people at pre-hearing conferences; and
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Children and Community Services Bill 2003
Protection proceedings Part 5
Pre-hearing conferences Division 3
s. 137
(e) provide for the procedure at pre-hearing conferences.
137. Confidentiality of pre-hearing conference
(1) Subject to this section, the proceedings of a pre-hearing
conference are confidential.
5 (2) Evidence of anything said or done, or of any admission made, at
a pre-hearing conference is only admissible in proceedings
before any court (including the protection proceedings
concerned) if the court concerned grants leave or all the people
who attended the pre-hearing conference consent.
10 (3) A person who attends a pre-hearing conference must not
disclose any statement made by another person at, or
information furnished by another person to, the conference
without the leave of the Court or the consent of that other
person.
15 Penalty: $12 000 and imprisonment of one year.
(4) Subsection (3) does not apply to --
(a) the disclosure of a statement or information in
proceedings before a court in accordance with
subsection (2);
20 (b) the making of a record of proceedings at the conference
by the person presiding, a person who attended the
conference, or his or her legal representative;
(c) discussions between a child who did not attend the
conference and his or her legal representative who
25 attended the conference;
(d) discussions between a party who --
(i) has a difficulty understanding or communicating
in English; or
(ii) has a disability,
30 and any other person who attended the conference for
the purpose of providing support or assistance to that
party;
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Children and Community Services Bill 2003
Part 5 Protection proceedings
Division 4 Reports about child
s. 138
(e) discussions between a person who attended the
conference and his or her legal representative;
(f) discussions between the legal representatives of people
who attended the conference;
5 (g) discussions between officers, police officers, or officers
and police officers, about the conference;
(h) the disclosure, in connection with a review of the
operation of pre-hearing conferences generally, of
information --
10 (i) that does not identify any person who attended
the conference; or
(ii) that identifies a person who attended the
conference if the person has consented to its
disclosure;
15 (i) the disclosure of information by a person who believes
on reasonable grounds that it is necessary to do so in
order to protect the health or safety of any person or to
prevent or minimise damage to any property.
Division 4 -- Reports about child
20 138. Meaning of "report"
In this Division --
"report" means a report under section 139.
139. Court may require report
(1) The Court may at any time in the course of protection
25 proceedings require a person to give the Court a report on any
matter relevant to the wellbeing of the child.
(2) The person referred to in subsection (1) is to be a person
appointed by the Court in accordance with the regulations.
(3) The report must be in writing unless the Court otherwise directs.
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Children and Community Services Bill 2003
Protection proceedings Part 5
Reports about child Division 4
s. 140
(4) The Court may specify the particular issues that the report must
address but this subsection does not limit the issues that may be
addressed in the report.
(5) A report is admissible as evidence in protection proceedings.
5 (6) The Court may give such weight as it thinks fit to the content of
a report admitted under subsection (5).
(7) The regulations may --
(a) provide for and in relation to the appointment of persons
for the purposes of this section;
10 (b) provide for the remuneration and allowances payable to
such persons; and
(c) specify who is liable to pay the costs of a report under
this section.
140. Access to written report
15 (1) As soon as practicable after receiving a written report, the
Court, unless it makes an order under subsection (3), must take
all reasonable steps to ensure that a copy of the report is given
to each of the parties.
(2) The Court may give directions as to the manner in which a copy
20 of the report is given to a party.
(3) The Court may order that a copy of the report is not to be given
to a party or parties if the Court is satisfied that there are special
circumstances that make the release of the report to that party or
those parties inappropriate.
25 141. Confidentiality of report
(1) A person who prepares or is given a report must not, without the
leave of the Court, disclose information contained in it to
another person.
Penalty: $6 000.
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Children and Community Services Bill 2003
Part 5 Protection proceedings
Division 5 Proposals about arrangements for child
s. 142
(2) Nothing in subsection (1) prevents the CEO disclosing
information contained in a report --
(a) to --
(i) an authorised officer at any time; or
5 (ii) any other person, after the relevant protection
proceedings have concluded,
if the CEO considers that it is appropriate to do so; or
(b) to a public authority, a corresponding authority, or an
interested person under section 23.
10 (3) Nothing in subsection (1) prevents a person disclosing
information contained in a report to the person's legal
representative.
142. Protection from liability for preparing or giving report
A person who, in good faith, prepares a report or gives a report
15 to the Court --
(a) does not in doing so incur any civil or criminal liability;
(b) is not in doing so to be taken to have breached any duty
of confidentiality or secrecy imposed by law; and
(c) is not in doing so to be taken to have breached any
20 professional ethics or standards or to have engaged in
unprofessional conduct.
Division 5 -- Proposals about arrangements for child
143. CEO to provide Court with proposal for child
(1) In this section --
25 "proposal" means a document that outlines the proposed
arrangements for --
(a) the supervision of the wellbeing of the child if a
protection order (supervision) is made or extended in
respect of the child; or
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Children and Community Services Bill 2003
Protection proceedings Part 5
Proposals about arrangements for child Division 5
s. 143
(b) the wellbeing of the child if a protection order
(time-limited) or protection order (until 18) is made
or extended in respect of the child.
(2) If --
5 (a) the CEO makes a protection application in respect of a
child; and
(b) the Court finds that the child is in need of protection,
the CEO must, if the CEO has not already done so, provide the
Court with a proposal for the child as soon as practicable after
10 the finding referred to in paragraph (b).
(3) If the CEO makes --
(a) an application under section 49 for the extension of a
protection order (supervision);
(b) an application under section 56 for the extension of a
15 protection order (time-limited); or
(c) an application under section 68 for the replacement of a
protection order by another protection order (other than
a protection order (enduring parental responsibility)),
the CEO must provide the Court with a proposal for the child
20 when the application is made.
(4) For the purposes of subsection (3)(b) the proposal is to include
plans for securing long-term stability, security and safety in the
child's relationships and living arrangements.
(5) If --
25 (a) an application is made under section 67(1) for the
revocation of a protection order; and
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Children and Community Services Bill 2003
Part 5 Protection proceedings
Division 6 Procedural matters
s. 144
(b) the Court is considering making another protection order
(other than a protection order (enduring parental
responsibility)) in respect of the child under
section 67(2)(c),
5 the Court may request the CEO to provide it with a proposal for
the child.
(6) The CEO must comply with a request under subsection (5) as
soon as practicable after it is made.
(7) The CEO must give a copy of any proposal provided to the
10 Court under this section to the other parties.
144. Court to consider proposal
(1) Before making a protection order in respect of a child or
extending a protection order (supervision) or protection order
(time-limited) in respect of a child the Court must first consider
15 any proposal for the child provided under section 143.
(2) In considering a proposal that includes plans referred to in
section 143(4) the Court must have regard to the likelihood of
those plans being achieved.
Division 6 -- Procedural matters
20 145. General conduct of protection proceedings
(1) Protection proceedings are to be conducted with as little
formality and legal technicality as the circumstances of the case
permit.
(2) Without limiting subsection (1), if the child is present in court,
25 protection proceedings are to be conducted in a way that is
sensitive to the child's level of understanding.
(3) Protection proceedings are to be concluded as expeditiously as
possible in order to minimise the effect of the proceedings on
the child and the child's family.
page 90
Children and Community Services Bill 2003
Protection proceedings Part 5
Procedural matters Division 6
s. 146
146. Court not bound by rules of evidence
(1) In this section --
"representation" includes an express or implied representation,
whether oral or in writing, and a representation inferred
5 from conduct.
(2) In protection proceedings the Court is not bound by the rules of
evidence, but may inform itself on any matter in any manner it
considers appropriate.
(3) Without limiting subsection (2), evidence of a representation
10 about a matter that is relevant to the protection proceedings is
admissible despite the rule against hearsay.
(4) The Court may give such weight as it thinks fit to evidence
admitted under subsection (3).
147. Parties to the proceedings
15 In protection proceedings each of the following people is a party
to the proceedings --
(a) the child;
(b) each parent of the child;
(c) the CEO;
20 (d) if the proceedings relate to a protection order (enduring
parental responsibility) --
(i) the person or persons to whom parental
responsibility for the child is proposed to be
given under the order; or
25 (ii) the person or persons given parental
responsibility for the child under the order,
as the case may be;
(e) any other person considered by the Court to have a
direct and significant interest in the wellbeing of the
30 child.
page 91
Children and Community Services Bill 2003
Part 5 Protection proceedings
Division 6 Procedural matters
s. 148
148. Legal representation of child
(1) In this section --
"lawyer" means a person who is admitted and entitled to
practise as a barrister and solicitor of the Supreme Court.
5 (2) If, in protection proceedings, it appears to the Court that the
child ought to have separate legal representation, the Court may
order that the child be separately represented by a lawyer.
(3) The Court may make an order under subsection (2) --
(a) on its own initiative; or
10 (b) on the application of --
(i) the child;
(ii) an organisation concerned with the wellbeing of
children; or
(iii) any other person.
15 (4) A lawyer who represents a child in protection proceedings must
act on the instructions of the child if the child --
(a) has sufficient maturity and understanding to give
instructions; and
(b) wishes to give instructions,
20 and in any other case must act in the best interests of the child.
(5) Any question as to whether a child has sufficient maturity and
understanding to give instructions is to be determined by the
Court.
149. Presence of child in court
25 (1) In protection proceedings the child may be present in court if
the child so wishes.
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Children and Community Services Bill 2003
Protection proceedings Part 5
Procedural matters Division 6
s. 150
(2) Subsection (1) is subject to any order made in respect of the
child under --
(a) the Children's Court of Western Australia Act 1988
section 31; or
5 (b) the Evidence Act 1906 section 106K.
(3) The CEO must ensure that the child --
(a) is made aware of the child's right to be present in court
under subsection (1); and
(b) is provided with any support services that the CEO
10 considers appropriate to enable the child to participate in
the proceedings.
150. Evidence of child
(1) In this section --
"child" includes a child who is not the subject of the protection
15 proceedings.
(2) In protection proceedings a child may only be compelled to give
evidence or be cross-examined with the leave of the Court.
(3) The Court must not grant leave for the purposes of
subsection (2) unless the Court is satisfied that the child is
20 unlikely --
(a) to suffer emotional trauma as a result of giving evidence
or being cross-examined; or
(b) to be so intimidated or distressed as to be unable --
(i) to give evidence or be cross-examined; or
25 (ii) to give evidence or be cross-examined
satisfactorily.
151. Standard of proof
The standard of proof in protection proceedings is proof on the
balance of probabilities.
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Children and Community Services Bill 2003
Part 5 Protection proceedings
Division 6 Procedural matters
s. 152
152. Intervention by Attorney General
(1) The Attorney General may intervene in protection proceedings.
(2) If the Attorney General intervenes in protection proceedings, the
Attorney General is to be treated as a party with all the rights,
5 duties, and liabilities of a party.
153. Court to facilitate party's participation in proceedings
(1) In protection proceedings the Court must, as far as is
practicable, ensure that each party understands the nature,
purpose and legal implications of the proceedings and of any
10 order or decision of the Court.
(2) If the Court is satisfied that a party --
(a) has difficulty understanding or communicating in
English; or
(b) has a disability,
15 that prevents or restricts the party's understanding of, or
participation in, protection proceedings, the Court must take
reasonable steps to ensure that the services of an interpreter or
other appropriate person are made available to the party during
the proceedings to facilitate the party's understanding of, or
20 participation in, the proceedings.
(3) Nothing in this section is to be taken to affect the operation of
the Children's Court of Western Australia Act 1988
section 34(1).
154. Court may dispense with requirement for service
25 The Court may make an order dispensing with a requirement in
this Part for a party to give a document to another person if the
Court is satisfied, on the application of the party, that, after
reasonable inquiries, the other person cannot be found.
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Protection proceedings Part 5
Procedural matters Division 6
s. 155
155. Frivolous or vexatious proceedings
(1) At any time in the course of protection proceedings the Court
may, if it is satisfied that the proceedings are frivolous or
vexatious --
5 (a) dismiss the proceedings;
(b) make any order as to costs that it considers appropriate;
and
(c) on the application of a party, order that the person who
instituted the proceedings cannot, without the leave of
10 the Court, institute protection proceedings of the kind or
kinds specified in the order.
(2) An order made under subsection (1)(c) has effect despite any
other provision of this Part.
(3) The Court may vary or discharge an order made under
15 subsection (1)(c).
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Part 6 Transfer of child protection orders and proceedings
Division 1 Introductory matters
s. 156
Part 6 -- Transfer of child protection orders
and proceedings
Division 1 -- Introductory matters
156. Purpose of Part
5 The purpose of this Part is to provide for the transfer of child
protection orders and proceedings between this State and
another State --
(a) so that children who are in need of protection may be
protected despite moving from one jurisdiction to
10 another; and
(b) so as to facilitate the timely and expeditious
determination of court proceedings relating to the
protection of a child.
157. Terms used in this Part
15 (1) In this Part, unless the contrary intention appears --
"child protection order", in relation to a child, means a final
order made under a child welfare law in respect of the child
that gives --
(a) a Minister of the Crown in right of a State;
20 (b) a government department or statutory authority;
(c) a person who is the chief executive officer (however
described) of a government department or statutory
authority or otherwise holds an office or position in,
or is employed in, a government department or
25 statutory authority; or
(d) an organisation or the chief executive officer
(however described) of an organisation,
responsibility in relation to the guardianship, custody or
supervision of the child, however that responsibility is
30 described;
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Introductory matters Division 1
s. 157
"child protection proceeding" means a proceeding brought in
a court under a child welfare law for --
(a) the making of a finding that a child is in need of
protection or any other finding (however described)
5 the making of which is a prerequisite under the child
welfare law to the exercise by the court of a power to
make a child protection order; or
(b) the making of a child protection order or an interim
order or for the variation or revocation, or the
10 extension of the period, of such an order;
"child welfare law" means --
(a) Part 4;
(b) a law of another State that, under an order in force
under subsection (2), is declared to be a child welfare
15 law for the purposes of this Part; or
(c) a law of another State that substantially corresponds
to Part 4;
"Children's Court" means --
(a) in relation to this State, the Court; and
20 (b) in relation to another State, the court with jurisdiction
to hear and determine a child protection proceeding at
first instance;
"home order" means --
(a) a protection order; or
25 (b) a child protection order taken, by operation of
section 178(1), to be a protection order;
"interim order" means --
(a) an order made under section 173(1); or
(b) an equivalent order made under an interstate law;
30 "interstate law" means --
(a) a law of another State that, under an order in force
under subsection (3), is declared to be an interstate
law for the purposes of this Part; or
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Division 1 Introductory matters
s. 157
(b) a law of another State that substantially corresponds
to this Part;
"interstate officer", in relation to another State, means --
(a) the person holding the office or position to which
5 there is given by or under the child welfare law of
that State principal responsibility for the protection of
children in that State; or
(b) the holder of an office or position that, under an order
in force under subsection (4), is declared to be an
10 office or position the holder of which is the interstate
officer in relation to that State for the purposes of this
Part;
"parent" has the meaning given to that term in section 42;
"participating State" means a State in which an interstate law
15 is in force;
"registrar of the Court" means --
(a) in relation to an application made to the Court, the
registrar of the Court at the place where the
application was made;
20 (b) in relation to a document filed in the Court, the
registrar of the Court at the place where the document
was filed; and
(c) in relation to the revocation by the Court of the
registration of an order, the registrar of the Court at
25 the place where the registration was revoked;
"sending State" means the State from which a child protection
order or proceeding is transferred under this Part or an
interstate law;
"State" means --
30 (a) a State or a Territory; or
(b) New Zealand;
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Transfer of child protection orders Division 2
s. 158
"working day" means --
(a) in relation to a court, a day on which the offices of
the court are open; and
(b) in relation to the CEO, a day on which the principal
5 office of the Department is open.
(2) The Minister may, by order published in the Gazette, declare a
law of another State to be a child welfare law for the purposes
of this Part if satisfied that the law substantially corresponds to
Part 4.
10 (3) The Minister may, by order published in the Gazette, declare a
law of another State to be an interstate law for the purposes of
this Part if satisfied that the law substantially corresponds to this
Part.
(4) The Minister may, by order published in the Gazette, declare an
15 office or position in another State to be an office or position the
holder of which is the interstate officer in relation to that State
for the purposes of this Part.
(5) The Minister may, by order published in the Gazette, amend or
revoke an order under subsection (2), (3) or (4).
20 Division 2 -- Transfer of child protection orders
Subdivision 1 -- Administrative transfers
158. When CEO may transfer order
(1) The CEO may transfer a home order to a participating State
if --
25 (a) in his or her opinion a child protection order to the same
or a similar effect as the home order could be made
under the child welfare law of that State;
(b) the home order is not subject to an appeal and the time
for instituting an appeal has expired;
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Division 2 Transfer of child protection orders
s. 159
(c) the relevant interstate officer has consented in writing to
the transfer and to the proposed terms of the order to be
transferred (the "proposed interstate order"); and
(d) any person whose consent to the transfer is required
5 under section 159 has so consented.
(2) The CEO may include in the proposed interstate order any
conditions that could be included in a child protection order of
that type made in the relevant participating State.
(3) In determining whether a child protection order to the same or a
10 similar effect as the home order could be made under the child
welfare law of a participating State, the CEO must not take into
account the period for which it is possible to make such an order
in that State.
(4) The CEO must determine, and specify in the proposed interstate
15 order, the period for which it is to remain in force.
(5) The period must be the lesser of --
(a) the period for which the home order would have
remained in force if it were not transferred to the
relevant participating State; and
20 (b) the maximum period for which a child protection order
of that type made in the relevant participating State
could remain in force.
159. Persons whose consent is required
(1) For the purposes of section 158(1)(d), if the home order is a
25 protection order (supervision), consent to the transfer is
required --
(a) from the child unless, in the opinion of the CEO, the
child does not have sufficient maturity and
understanding to give consent; and
30 (b) subject to subsection (2), from the child's parents.
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Transfer of child protection orders Division 2
s. 160
(2) Consent to the transfer is not required --
(a) from a parent of the child if, after reasonable inquiries,
that parent cannot be found;
(b) from a parent of the child if, in the opinion of the CEO,
5 that parent is unable to give consent; or
(c) from a parent of the child who is residing in, or is
intending to reside in, the relevant participating State.
160. CEO to have regard to certain matters
In determining whether to transfer a home order to a
10 participating State, the CEO must have regard to --
(a) whether the CEO or an interstate officer is in the better
position to exercise powers and responsibilities under a
child protection order relating to the child; and
(b) the desirability of a child protection order being an order
15 under the child welfare law of the State where the child
resides.
161. Notification of decision to transfer
(1) If the CEO has decided to transfer a home order to a
participating State, the CEO must cause notice of the decision to
20 be given to --
(a) the child unless the CEO considers that the child does
not have sufficient maturity to understand the transfer
and its consequences;
(b) the child's parents; and
25 (c) any other person considered by the CEO to have a direct
and significant interest in the wellbeing of the child,
as soon as practicable but in any event no later than 3 working
days after the decision was made.
(2) A notice under subsection (1) must --
30 (a) state the date of the decision;
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Division 2 Transfer of child protection orders
s. 162
(b) state that a person who wishes to apply to the Supreme
Court for judicial review of the decision must institute
the proceeding, and give written notice of it to the CEO,
within 21 working days after the date of the decision;
5 and
(c) state that a person who wishes to apply to the State
Administrative Tribunal for a review of the decision
must institute the proceeding within 21 days after the
date of the decision.
10 (3) Notice is not required to be given to a person under
subsection (1) if it cannot be given after all reasonable efforts.
162. Limited period in which to apply for judicial review of
decision
(1) A proceeding in the Supreme Court for judicial review of a
15 decision of the CEO to transfer a home order to a participating
State must be instituted, and written notice of it must be given to
the CEO, within 21 working days after the date of the decision.
(2) The Supreme Court cannot extend the time fixed by
subsection (1).
20 (3) Subject to subsections (1) and (2), a proceeding referred to in
subsection (1) must be brought in accordance with the Supreme
Court's rules of court.
(4) The institution of a proceeding referred to in subsection (1) and
the giving of written notice of it to the CEO stays the operation
25 of the decision pending the determination of the proceeding.
163. Review by State Administrative Tribunal
(1) A person who is aggrieved by a decision of the CEO to transfer
a home order to a participating State may apply to the State
Administrative Tribunal for a review of the decision within
30 21 working days after the date of the decision.
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Transfer of child protection orders and proceedings Part 6
Transfer of child protection orders Division 2
s. 164
(2) The State Administrative Tribunal cannot extend the time fixed
by subsection (1).
(3) The institution of a proceeding for the review of a decision
under subsection (1) stays the operation of the decision pending
5 the determination of the proceeding.
Subdivision 2 -- Judicial transfers
164. When Court may transfer order
The Court may make an order transferring a home order to a
participating State if --
10 (a) an application for the making of the order is made by the
CEO;
(b) the home order is not subject to an appeal and the time
for instituting an appeal has expired; and
(c) the relevant interstate officer has consented in writing to
15 the transfer and to the proposed terms of the order to be
transferred.
165. Service of application
The CEO must as soon as possible after making an application
for an order under section 164 cause a copy of it to be given
20 to --
(a) any person who was a party to the proceedings in which
the home order to be transferred was made; and
(b) any other person considered by the CEO to have a direct
and significant interest in the wellbeing of the child.
25 166. Court to have regard to certain matters
In determining whether to make an order under section 164 the
Court must have regard to --
(a) whether the CEO or an interstate officer is in the better
position to exercise powers and responsibilities under a
30 child protection order relating to the child; and
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Division 2 Transfer of child protection orders
s. 167
(b) the desirability of a child protection order being an order
under the child welfare law of the State where the child
resides.
167. Type of order
5 (1) If the Court determines to transfer a home order to a
participating State, the proposed terms of the order to be
transferred (the "proposed interstate order") must be terms
that could be the terms of a child protection order made under
the child welfare law of the participating State and that the
10 Court believes to be --
(a) to the same or a similar effect as the terms of the home
order; or
(b) otherwise in the best interests of the child.
(2) The Court may include in the proposed interstate order any
15 conditions that could be included in a child protection order of
that type made in the relevant participating State.
(3) In determining whether an order to the same or a similar effect
as the home order could be made under the child welfare law of
a participating State, the Court must not take into account the
20 period for which it is possible to make such an order in that
State.
(4) The Court must determine, and specify in the proposed
interstate order, the period for which it is to remain in force.
(5) The period must not be longer than the maximum period for
25 which a child protection order of that type made in the relevant
participating State could remain in force.
168. Court must consider report from the CEO
The Court must not make an order under section 164 unless it
has received and considered a report from the CEO regarding
30 the child.
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Transfer of child protection orders and proceedings Part 6
Transfer of child protection orders Division 2
s. 169
169. Appeals
(1) A party to an application for an order under section 164 may
appeal to the Supreme Court, on a question of law, from a final
order made in that proceeding transferring, or refusing to
5 transfer, a home order to a participating State.
(2) An appeal under subsection (1) --
(a) must be instituted, and (except where instituted by the
CEO) written notice of it must be given to the CEO,
within 10 working days after the day on which the order
10 appealed from was made; and
(b) operates as a stay of the order.
(3) The Supreme Court cannot extend the time fixed by
subsection (2)(a).
(4) Subject to subsections (2) and (3), an appeal under
15 subsection (1) must be brought in accordance with the rules of
the Supreme Court.
(5) The Supreme Court must hear and determine the appeal as
expeditiously as possible.
(6) Pending the determination of the appeal, the Supreme Court
20 may make any interim order that the Children's Court can make
under section 133.
(7) On determining the appeal, the Supreme Court may make such
order as it thinks appropriate, including an order remitting the
case for rehearing to the Court with or without any direction in
25 law.
(8) An order made by the Supreme Court on an appeal under
subsection (1), other than an order remitting the case for
rehearing to the Court, may be enforced as an order of the
Supreme Court.
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Part 6 Transfer of child protection orders and proceedings
Division 3 Transfer of child protection proceedings
s. 170
Division 3 -- Transfer of child protection proceedings
170. When Court may transfer child protection proceeding
(1) The Court may make an order transferring a child protection
proceeding pending in the Court to the Children's Court in a
5 participating State if --
(a) an application for the making of the order is made by the
CEO; and
(b) the relevant interstate officer has consented in writing to
the transfer.
10 (2) The proceeding is discontinued in the Court on the registration
in the Children's Court in the participating State in accordance
with the interstate law of an order referred to in subsection (1).
171. Service of application
The CEO must, as soon as possible after making an application
15 for an order under section 170(1), cause a copy of it to be given
to --
(a) each party to the child protection proceeding the subject
of the application; and
(b) any other person considered by the CEO to have a direct
20 and significant interest in the wellbeing of the child.
172. Court to have regard to certain matters
In determining whether to make an order under section 170(1)
the Court must have regard to --
(a) whether any other proceedings relating to the child are
25 pending, or have previously been heard and determined,
under the child welfare law in the participating State;
(b) the place where any of the matters giving rise to the
proceeding in the Court arose;
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Transfer of child protection orders and proceedings Part 6
Transfer of child protection proceedings Division 3
s. 173
(c) the place of residence, or likely place of residence, of
the child, the child's parents and any other people who
are significant to the child;
(d) whether the CEO or an interstate officer is in the better
5 position to exercise powers and responsibilities under a
child protection order relating to the child;
(e) the desirability of a child protection order being an order
under the child welfare law of the State where the child
resides; and
10 (f) any information given to the Court under subsection (2).
(2) If the CEO is aware that --
(a) a sentence or order imposed under the Sentencing
Act 1995 or the Young Offenders Act 1994, other than a
fine, is in force in respect of the child who is the subject
15 of the proceeding to which an application referred to in
section 170(1)(a) relates; or
(b) a criminal proceeding is pending against that child in
any court,
the CEO must, as soon as possible, inform the Court of that fact
20 and of the details of the sentence, order or pending criminal
proceeding.
173. Interim order
(1) If the Court makes an order under section 170(1) the Court may
also make an interim order.
25 (2) An interim order --
(a) may give responsibility for an aspect of parental
responsibility for the child to a person, subject to any
conditions that the Court considers to be appropriate;
and
30 (b) may give responsibility for the supervision of the child
to the interstate officer in the participating State or any
other person in that State to whom responsibility for the
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Division 3 Transfer of child protection proceedings
s. 174
supervision of a child could be given under the child
welfare law of that State.
(3) An interim order remains in force for the period (not exceeding
30 days) specified in the order.
5 (4) The Children's Court in the participating State may vary or
revoke, or extend the period of, an interim order in accordance
with the relevant interstate law.
174. Appeals
(1) A party to an application for an order under section 170(1) may
10 appeal to the Supreme Court, on a question of law, from a final
order made in that proceeding transferring, or refusing to
transfer, a child protection proceeding to a participating State.
(2) An appeal under subsection (1) --
(a) must be instituted, and (except where instituted by the
15 CEO) written notice of it must be given to the CEO,
within 10 working days after the day on which the order
appealed from was made; and
(b) operates as a stay of the order but not of any interim
order made at the same time as the order.
20 (3) The Supreme Court cannot extend the time fixed by
subsection (2)(a).
(4) Subject to subsections (2) and (3), an appeal under
subsection (1) must be brought in accordance with the rules of
the Supreme Court.
25 (5) The Supreme Court must hear and determine the appeal as
expeditiously as possible.
(6) On determining the appeal, the Supreme Court may make such
order as it thinks appropriate, including an order remitting the
case for rehearing to the Children's Court with or without any
30 direction in law.
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Transfer of child protection orders and proceedings Part 6
Registration Division 4
s. 175
(7) An order made by the Supreme Court on an appeal under
subsection (1), other than an order remitting the case for
rehearing to the Children's Court, may be enforced as an order
of the Supreme Court.
5 (8) The Supreme Court may --
(a) if an interim order was made at the same time as the
order appealed from, make an order --
(i) staying the operation of the interim order;
(ii) varying or revoking the interim order; or
10 (iii) extending the period of the interim order;
and
(b) make any interim order pending the determination of the
appeal that the Children's Court can make under
section 133.
15 Division 4 -- Registration
175. Filing of interstate orders in the Court
(1) Subject to subsection (3), the CEO must, as soon as possible,
file in the Court a copy of a child protection order transferred to
this State under an interstate law.
20 (2) Subject to subsection (3), the CEO must, as soon as possible,
file in the Court a copy of an order under an interstate law to
transfer a child protection proceeding to this State, together with
a copy of any interim order made at the same time.
(3) The CEO must not file in the Court a copy of a child protection
25 order or of an order to transfer a child protection proceeding if,
under the interstate law --
(a) the decision or order to transfer the child protection
order or the order to transfer the child protection
proceeding (as the case requires) is subject to appeal or
30 review or a stay; or
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Part 6 Transfer of child protection orders and proceedings
Division 4 Registration
s. 176
(b) the time for instituting an appeal or seeking a review has
not expired.
176. Registration of interstate orders
If the CEO files a copy of an order in the Court under
5 section 175, the registrar of the Court must register the order.
177. Notification by registrar of Court
The registrar of the Court must immediately notify the
appropriate officer of the Children's Court in the sending State
and the interstate officer in that State of --
10 (a) the registration of an order under section 176; or
(b) the revocation under section 179 of the registration of an
order.
178. Effect of registration
(1) A child protection order registered in the Court under
15 section 176 --
(a) is to be taken for all purposes (except for the purposes of
appeal) to be a protection order of the relevant type
made by the Court on the day on which it is registered;
and
20 (b) may be varied or revoked, or the period for which it is in
force extended, under Part 4.
(2) An interim order registered in the Court under section 176 --
(a) is to be taken for all purposes (except for the purposes of
appeal) to be an order made by the Court under
25 section 133 on the day on which it is registered; and
(b) may be varied or revoked, or the period for which it is in
force extended, under Part 4.
(3) If an order under an interstate law to transfer a child protection
proceeding to this State is registered under section 176, the
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Transfer of child protection orders and proceedings Part 6
Registration Division 4
s. 179
proceeding is to be taken to have been commenced in the Court,
under Part 4, on the day on which the order is registered.
179. Revocation of registration
(1) An application for the revocation of the registration of an order
5 under section 176 may be made to the Court by --
(a) the CEO;
(b) the child concerned;
(c) a parent of the child concerned; or
(d) a party to the proceeding in the Children's Court in the
10 sending State in which the decision to transfer the order
or proceeding (as the case requires) was made.
(2) The registrar of the Court must cause a copy of an application
made under subsection (1) to be given as soon as possible to --
(a) the relevant interstate officer; and
15 (b) any person by whom the application could have been
made.
(3) The Court may only revoke the registration of an order if
satisfied that it was inappropriately registered because, under
the interstate law --
20 (a) the decision or order to transfer the child protection
order or the order to transfer the child protection
proceeding (as the case requires) was at the time of
registration subject to appeal or review or a stay; or
(b) the time for instituting an appeal or seeking a review had
25 not expired.
(4) If the registration of an order is revoked, the registrar of the
Court must cause the copy of the order filed under section 175
to be sent to the Children's Court in the sending State.
(5) The revocation of the registration of an order does not prevent
30 the later re-registration of that order.
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Division 5 General
s. 180
Division 5 -- General
180. Legal representation of child
Section 148 applies in relation to proceedings on an application
for an order under section 164 or 170(1) as if those proceedings
5 were protection proceedings.
181. Effect of registration of transferred order
(1) In this section --
"transferred order" means a child protection order transferred
to a participating State under section 158(1) or 164.
10 (2) A home order ceases to have effect on the registration of the
transferred order under an interstate law of the participating
State.
(3) A home order that has ceased to have effect under
subsection (2) is revived if the registration of the transferred
15 order is revoked under an interstate law of the participating
State.
(4) The period for which a home order is revived is the balance of
the period for which it would have remained in force but for the
registration of the transferred order.
20 182. Transfer of Court file
The registrar of the Court must cause all documents filed in the
Court in connection with a child protection proceeding, and an
extract from any part of the register that relates to a child
protection proceeding, to be sent to the Children's Court in a
25 participating State if, under this Part --
(a) the child protection order or proceeding is transferred to
the participating State;
(b) the decision or order to transfer the child protection
order or the order to transfer the child protection
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Transfer of child protection orders and proceedings Part 6
General Division 5
s. 183
proceeding (as the case requires) is not subject to appeal
or review or a stay; and
(c) the time for instituting an appeal or seeking a review has
expired.
5 183. Hearing and determination of transferred proceeding
In hearing and determining a child protection proceeding
transferred to the Court under an interstate law, the Court --
(a) is not bound by any finding of fact made in the
proceeding in the Children's Court in the sending State
10 before its transfer; and
(b) may have regard to the transcript of, or any evidence
adduced in, the proceeding referred to in paragraph (a).
184. Disclosure of information
(1) Despite anything to the contrary in this Act, the CEO may
15 disclose to an interstate officer any information that has come to
his or her notice in the performance of duties or exercise of
powers under this Act if the CEO considers that it is necessary
to do so to enable the interstate officer to perform duties or
exercise powers under a child welfare law or an interstate law.
20 (2) Any information disclosed to the CEO under a provision of a
child welfare law or an interstate law that substantially
corresponds to subsection (1) is to be taken for the purposes of
any provision of this Act relating to the disclosure of
information to have been information given directly to the CEO
25 instead of to an interstate officer.
185. Discretion of CEO to consent to transfer
(1) If, under an interstate law, there is a proposal to transfer a child
protection order to this State, the CEO may consent or refuse to
consent to the transfer and the proposed terms of the child
30 protection order to be transferred.
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Part 6 Transfer of child protection orders and proceedings
Division 5 General
s. 186
(2) If, under an interstate law, there is a proposal to transfer a child
protection proceeding to the Court, the CEO may consent or
refuse to consent to the transfer.
186. Evidence of consent of relevant interstate officer
5 A document or copy of a document --
(a) purporting to be the written consent of the relevant
interstate officer to --
(i) the transfer of a child protection order to a
participating State and to the proposed terms of
10 the child protection order to be transferred; or
(ii) the transfer of a child protection proceeding
pending in the Court to the Children's Court in a
participating State;
and
15 (b) purporting to be signed by the relevant interstate officer
or his or her delegate,
is admissible in evidence in any proceeding under this Part and,
in the absence of evidence to the contrary, is proof that consent
in the terms appearing in the document was duly given by the
20 relevant interstate officer.
187. Offence to remove child
(1) A person must not, by any conduct carried out within the State,
without lawful authority, remove a child from the place where
the child lives under --
25 (a) a child protection order, other than a protection order
under Part 4; or
(b) an interim order.
Penalty: $24 000 and imprisonment for 2 years.
(2) If conduct constitutes an offence under subsection (1) and under
30 a law of another State, a person who is convicted, found guilty
or acquitted of the offence under that other law is not liable to
be prosecuted for the offence under that subsection.
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Children and Community Services Bill 2003
Employment of children Part 7
s. 188
Part 7 -- Employment of children
188. Terms used in this Part
In this Part, unless the contrary intention appears --
"delivery work" means work that involves delivering
5 newspapers, pamphlets or advertising material;
"employ" in relation to a child, means to engage the child to
carry out work --
(a) whether or not the child receives payment or other
reward for the work; and
10 (b) whether or not the child is engaged under a contract
of service, a contract for services or any other
arrangement;
"family business", in relation to a child, means a business,
trade or occupation carried on by a parent or other relative
15 of the child.
189. School Education Act 1999 not affected
Nothing in this Part is to be taken to limit or otherwise affect the
operation of the School Education Act 1999 section 29.
Note: Section 29 of the School Education Act 1999 relates to the
20 employment of children during school hours.
190. Prohibition on employment of child under 15
(1) A person must not employ a child under 15 years of age in a
business, trade or occupation carried on for profit.
Penalty: $24 000.
25 (2) It is a defence to a charge under subsection (1) for a person to
prove that the person believed on reasonable grounds, at the
time the offence is alleged to have been committed, that the
child had reached 15 years of age.
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(3) A parent of a child under 15 years of age must not permit the
child to be employed in a business, trade or occupation carried
on for profit.
Penalty: $24 000.
5 191. Exceptions to section 190
(1) Section 190(1) and (3) do not apply if the child is employed in a
family business.
(2) Section 190(1) and (3) do not apply if the child is employed in a
dramatic or musical performance or other form of entertainment
10 or in the making of an advertisement.
(3) Section 190(1) and (3) do not apply in relation to a child who
has reached 10 years of age but is under 13 years of age if --
(a) the child is employed to carry out delivery work
between 6 a.m. and 7 p.m.; and
15 (b) while carrying out the delivery work, the child is
accompanied by --
(i) a parent of the child; or
(ii) an adult authorised in writing by a parent of the
child to accompany the child.
20 (4) Section 190(1) and (3) do not apply in relation to a child who
has reached 13 years of age if the child is employed to carry
out --
(a) delivery work;
(b) work in a shop, other retail outlet or restaurant; or
25 (c) any other work of a kind prescribed for the purposes of
this subsection,
between 6 a.m. and 10 p.m. with the written permission of a
parent of the child.
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Employment of children Part 7
s. 192
(5) Section 190(1) and (3) do not apply if --
(a) the child is exempted under the School Education
Act 1999 section 11(1) and the conditions (if any) of the
exemption are being complied with; or
5 (b) the employment of the child is included in the
educational programme (as defined in the School
Education Act 1999 section 4) applicable to the child
and is consistent with the terms and conditions of the
programme.
10 192. Prohibition on employment of child to perform in indecent
manner
(1) A person who employs a child to perform in an indecent,
obscene or pornographic manner in the course of participating
in an entertainment or exhibition or in the making of an
15 advertisement is guilty of a crime, and is liable to imprisonment
for 10 years.
(2) A parent of a child who permits the child to be employed to
perform in an indecent, obscene or pornographic manner in the
course of participating in an entertainment or exhibition or in
20 the making of an advertisement is guilty of a crime, and is liable
to imprisonment for 10 years.
(3) For the purposes of this section but without limiting its
application --
(a) a child is employed to perform in an indecent, obscene
25 or pornographic manner if, in the course of the child's
employment, the child --
(i) is engaged in an activity of a sexual nature;
(ii) is in the presence of another person who is
engaged in an activity of a sexual nature; or
30 (iii) is required to pose or move in a manner
calculated to give prominence to sexual organs,
the anus or, in the case of a female, her breasts;
and
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Part 7 Employment of children
s. 193
(b) a child's performance is in the course of participating in
an entertainment or exhibition if the performance --
(i) consists in whole or in part of modelling or
posing of any kind;
5 (ii) is only for the person employing the child or for
some other particular person or a class of people;
(iii) is communicated in any way to an audience of
one or more people;
(iv) is recorded in any way for later visual or audible
10 presentation to an audience of one or more
people; or
(v) can be viewed on the Internet or in any other
way.
(4) Without limiting the definition of "employ" in section 188, if a
15 child participates in an entertainment or exhibition carried on
for profit or in the making of an advertisement for commercial
purposes, then for the purposes of this section the person who
carries on the entertainment or exhibition or makes the
advertisement employs the child.
20 193. Power of CEO to prohibit or limit employment of child
(1) In this section --
"notice" means a notice under subsection (2).
(2) If the CEO is of the opinion that the wellbeing of a particular
child is likely to be jeopardised by the fact that the child is
25 employed, or the nature or extent of the work that the child is
employed to carry out, the CEO may, by written notice given to
a parent of the child --
(a) prohibit the employment of the child; or
(b) impose limitations on the employment of the child.
30 (3) A notice may be expressed to apply to employment generally, to
specified employment, or to employment of a specified kind.
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Employment of children Part 7
s. 194
(4) The CEO must give a copy of a notice to --
(a) the child; and
(b) the employer of the child.
(5) A person must not employ a child in contravention of a notice.
5 Penalty: $36 000 and imprisonment for 3 years.
(6) A parent of a child must not permit the child to be employed in
contravention of a notice.
Penalty: $36 000 and imprisonment for 3 years.
(7) It is a defence to a charge under subsection (5) or (6) for a
10 person to prove that, at the time the offence is alleged to have
been committed, the person --
(a) had not been given the notice or a copy of the notice in
respect of the child; and
(b) was otherwise unaware of the contents of that notice.
15 194. False information
A child or a parent of a child must not give false or misleading
information to an employer or prospective employer of the child
about --
(a) the age of the child;
20 (b) the matter of whether or not there is a notice in respect
of the child under section 193(2);
(c) the matter of whether or not there is an exemption in
respect of the child under the School Education
Act 1999 section 11(1).
25 Penalty: $6 000.
195. Powers of authorised officers
(1) In this section --
"authorised officer" includes an industrial inspector appointed
under the Industrial Relations Act 1979.
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Part 7 Employment of children
s. 196
(2) An authorised officer may, at any reasonable time, enter a place
in which a child is employed, or in which the authorised officer
believes on reasonable grounds a child is employed, for the
purpose of inspecting the place and making such inquiries in
5 relation to the employment of a child in the place as the
authorised officer considers appropriate.
(3) Without limiting subsection (2), an authorised officer may
require any person in the place to answer any question put to
that person in relation to the employment of a child in the place.
10 (4) If under subsection (3) an authorised officer requires a person to
answer a question, the officer must inform that person that the
person is required under this Act to answer the question.
(5) A person must not --
(a) refuse or fail to answer a question when required to do
15 so under subsection (3); or
(b) in purporting to comply with a requirement under
subsection (3), give an answer that the person knows is
false or misleading.
Penalty: $6 000.
20 (6) A person is not excused from answering a question, when
required to do so under subsection (3), on the ground that the
answer might incriminate the person or render the person liable
to a penalty, but that answer is not admissible in evidence
against the person in any civil or criminal proceedings other
25 than proceedings for an offence under subsection (5)(b).
196. Proceedings against employers may be taken by industrial
inspectors
(1) The powers of an industrial inspector appointed under the
Industrial Relations Act 1979 extend to the prosecution of a
30 complaint against a person for an offence under
section 190(1), 193(5) or 195(5).
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Employment of children Part 7
s. 196
(2) An industrial magistrate's court established under the
Industrial Relations Act 1979 Part III has jurisdiction to hear
and determine complaints prosecuted by industrial inspectors
under subsection (1).
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Children and Community Services Bill 2003
Part 8 Child care services
Division 1 Introductory matters
s. 197
Part 8 -- Child care services
Division 1 -- Introductory matters
197. Terms used in this Part
In this Part, unless the contrary intention appears --
5 "applicant" means --
(a) if a licence is applied for on behalf of a public
authority, the public authority; or
(b) otherwise, a person who applies for a licence;
"application" means an application for a licence;
10 "child care service" has the meaning given to that term in
section 198;
"corporate applicant" means an applicant that is a body
corporate other than a public authority;
"criminal record check" means a document issued by the
15 Australian Federal Police or another body or agency
approved by the CEO that sets out the criminal convictions
of an individual for offences under the law of Western
Australia, the Commonwealth, another State or a Territory;
"equivalent authority" means --
20 (a) a licence or permit issued under the Community
Services Act 1972 section 17B before its repeal by
this Act; or
(b) a licence, permit or other authority (however
described) relating to the provision of a child care
25 service or similar service in another State or a
Territory;
"family day care service" means a child care service provided
at a place where --
(a) the person providing the service lives; and
30 (b) none of the children to whom the service is provided
live;
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Child care services Part 8
Introductory matters Division 1
s. 197
"individual applicant" means an applicant who is an
individual;
"licence" means a licence under this Part;
"licensee" means a person who holds a licence;
5 "managerial officer", in relation to a corporate applicant,
means --
(a) a director or secretary of the body;
(b) if the applicant is an incorporated association as
defined in the Associations Incorporation Act 1987
10 section 3, a member of the committee of the
association;
(c) a person who holds 50% or more of the issued shares
of the body; and
(d) any other person who, in the opinion of the CEO,
15 exercises or exerts control or influence over the body,
or is in a position to do so;
"nominated supervising officer" means the person nominated
in an application made by a corporate applicant or a public
authority as the person who will be responsible for the
20 day-to-day supervision and control of the child care service
to which the application relates;
"prescribed offence" means an offence prescribed, or of a class
prescribed, in the regulations;
"supervising officer" for a child care service means --
25 (a) if a licence in respect of the service is granted to an
individual --
(i) the licensee; or
(ii) a person appointed under the regulations to
act in place of the licensee;
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Part 8 Child care services
Division 1 Introductory matters
s. 198
(b) if a licence in respect of the service is granted to a
corporate applicant or a public authority --
(i) the person specified in the licence document
relating to the service as the person
5 responsible for the day-to-day supervision and
control of the service; or
(ii) a person appointed under the regulations to
act in place of the person referred to in
subparagraph (i);
10 "suspension notice" means a notice under section 220(1);
"usual occupant", in relation to an application that relates to a
family day care service, means --
(a) a person other than the applicant who usually lives at
the place where the service will be provided; or
15 (b) any other person who is likely to be present at that
place at the times when the service will be provided.
198. Meaning of "child care service"
(1) A "child care service" is a service for the casual, part-time or
day-to-day care of a child or children under 13 years of age, or
20 such other age as may be prescribed for the purposes of this
subsection, that is provided --
(a) for payment or reward, whether directly or indirectly
through payment or reward for some other service;
(b) as a benefit of employment; or
25 (c) as an ancillary service to a commercial or recreational
activity.
(2) The term "child care service" does not include --
(a) care provided to a child by a parent or other relative of
the child or a carer of the child;
30 (b) care provided to a child by a person having contact with
the child in accordance with a contact order under the
Family Court Act 1997;
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Introductory matters Division 1
s. 199
(c) care provided to a child in accordance with an approval
under section 104(3);
(d) care provided to a child --
(i) at the place where the child lives; or
5 (ii) substantially at that place;
(e) care provided to a child enrolled at a school if --
(i) the child has reached 3 years of age; and
(ii) the care is provided in the course of the child's
participation in an educational programme under
10 the School Education Act 1999;
(f) care provided to a child at a hospital or similar place
while the child is a patient at that hospital or place; or
(g) care of a kind that is excluded by the regulations from
the application of subsection (1).
15 199. Guiding principles
(1) In the administration of this Part and regulations referred to in
section 232 the following principles must be observed --
(a) the principle that a child care service should be provided
to a child in a way that --
20 (i) protects the child from harm;
(ii) respects the child's dignity and privacy;
(iii) safeguards and promotes the child's wellbeing;
(iv) provides positive experiences for the child; and
(v) stimulates and develops the child's creative,
25 emotional, intellectual, physical, recreational and
social potential;
(b) the principle that child care services should be provided
in a way that --
(i) involves parents of the children to whom the
30 services are provided and other members of the
community; and
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Part 8 Child care services
Division 2 Licensing requirement
s. 200
(ii) reflects the diverse nature of the community.
(2) The principles set out in subsection (1) are in addition to, and do
not derogate from, the principles set out in Part 2 Divisions 2
and 3.
5 200. Crown bound
This Part binds the Crown in right of the State and, so far as the
legislative power of Parliament permits, the Crown in all its
other capacities.
Division 2 -- Licensing requirement
10 201. Requirement for licence
A person must not provide a child care service at a place except
under and in accordance with a licence authorising the provision
of the service at that place.
Penalty:
15 (a) for a first offence, $12 000 and imprisonment for
one year, and a daily penalty of $600;
(b) for a subsequent offence, $24 000 and imprisonment
for 2 years, and a daily penalty of $1 200.
Division 3 -- Application for and grant of licence
20 202. Who may apply for licence
An application for a licence may be made to the CEO by --
(a) an individual;
(b) a body corporate; or
(c) in the case of a public authority that is not a body
25 corporate, the chief executive officer (however
described) of the public authority on behalf of the
authority.
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Child care services Part 8
Application for and grant of licence Division 3
s. 203
203. Application for licence
An application must be --
(a) in writing in a form approved by the CEO;
(b) accompanied by any document or information that is
5 prescribed; and
(c) accompanied by the prescribed fee (if any).
204. Further information relevant to application
(1) The CEO may ask an applicant for any additional document or
information that the CEO considers is or could be relevant to
10 making a decision on the application.
(2) Without limiting subsection (1), for the purpose of deciding
whether or not an individual applicant or a nominated
supervising officer is a fit and proper person to provide or be
involved in the provision of a child care service, the CEO may
15 ask the applicant or nominated supervising officer to do any or
all of the following --
(a) undergo an oral or written assessment as to his or her
knowledge and understanding of --
(i) the operation of this Part and the regulations; and
20 (ii) the field of child development;
(b) undergo a medical, psychiatric or psychological test or
examination specified by the CEO;
(c) provide a reference or report specified by the CEO.
(3) If the CEO makes a request under subsection (1) or (2), the
25 CEO does not have to consider the application, or consider it
further, until the request is complied with.
(4) Any costs incurred in complying with a request under
subsection (1) or (2) are to be paid by the applicant unless the
CEO determines otherwise.
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Part 8 Child care services
Division 3 Application for and grant of licence
s. 205
205. Grant of licence
(1) The CEO may grant a licence to a person authorising the person
to provide a specified type of child care service at a specified
place.
5 (2) In subsection (1) --
"specified" means specified in the licence document.
(3) A licence cannot be granted in respect of more than one child
care service.
(4) A licence cannot be granted to 2 or more persons.
10 (5) A person may be granted 2 or more licences whether for the
same type of child care service or for different types of child
care service.
206. General restrictions on grant of licence
(1) The CEO must not grant a licence if there are reasonable
15 grounds for believing that the provision of the child care service
to which the application relates would constitute an
unacceptable risk to the wellbeing of children for whom the
service would be provided.
(2) The CEO must not grant a licence unless the CEO is satisfied
20 that --
(a) the applicant is capable of providing a child care service
in accordance with the regulations and the terms and
conditions of the licence;
(b) the place at which the child care service is, or child care
25 services are, to be provided is suitable for that purpose;
(c) a licence or equivalent authority granted or issued to the
applicant has not been cancelled in the period of 5 years
before the application is made;
(d) the applicant is of sound financial reputation and stable
30 financial background; and
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Application for and grant of licence Division 3
s. 207
(e) if the application relates to the provision of a family day
care service, each usual occupant is a fit and proper
person to associate with children.
207. Restrictions on grant of licence: individual applicant
5 (1) The CEO must not grant a licence to an individual applicant if
the applicant has been found guilty of a prescribed offence
unless the CEO is satisfied that there are exceptional reasons for
doing so.
(2) The CEO must not grant a licence to an individual applicant
10 unless the CEO is satisfied that the applicant --
(a) has the ability to supervise and control on a day-to-day
basis the provision of the child care service to which the
application relates; and
(b) is otherwise a fit and proper person to provide a child
15 care service.
208. Restrictions on grant of licence: corporate applicant
(1) The CEO must not grant a licence to a corporate applicant if the
nominated supervising officer or a managerial officer has been
found guilty of a prescribed offence unless the CEO is satisfied
20 that there are exceptional reasons for doing so.
(2) The CEO must not grant a licence to a corporate applicant
unless the CEO is satisfied that --
(a) a licence or equivalent authority granted or issued to the
nominated supervising officer or a managerial officer
25 has not been cancelled in the period of 5 years before
the application is made;
(b) the nominated supervising officer is not the supervising
officer for another child care service that is or will be
provided at a time when the child care service to which
30 the application relates will be provided;
(c) the nominated supervising officer has the ability to
supervise and control on a day-to-day basis the
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Part 8 Child care services
Division 3 Application for and grant of licence
s. 209
provision of the child care service to which the
application relates; and
(d) the nominated supervising officer and each managerial
officer are otherwise fit and proper people to be
5 involved in the provision of a child care service.
209. Restrictions on grant of licence: public authority
(1) The CEO must not grant a licence to a public authority if the
nominated supervising officer has been found guilty of a
prescribed offence unless the CEO is satisfied that there are
10 exceptional reasons for doing so.
(2) The CEO must not grant a licence to a public authority unless
the CEO is satisfied that --
(a) a licence or equivalent authority granted or issued to the
nominated supervising officer has not been cancelled in
15 the period of 5 years before the application is made;
(b) the nominated supervising officer is not the supervising
officer for another child care service that is or will be
provided at a time when the child care service to which
the application relates will be provided;
20 (c) the nominated supervising officer has the ability to
supervise and control on a day-to-day basis the
provision of the child care service to which the
application relates; and
(d) the nominated supervising officer is otherwise a fit and
25 proper person to be involved in the provision of a child
care service.
210. Licence document
If the CEO grants a licence to a person the CEO must issue to
the person a licence document that contains the prescribed
30 details.
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Child care services Part 8
Licence conditions and amendment Division 4
s. 211
211. Licence not transferable
A licence is not transferable.
Division 4 -- Licence conditions and amendment
212. Condition as to supervision and control
5 It is a condition of every licence that the supervising officer for
the child care service is present at the place where the service is
provided at the times when the service is provided except to the
extent (if any) that the regulations otherwise provide.
213. Other conditions
10 (1) The CEO may grant a licence subject to any conditions that the
CEO considers appropriate.
(2) The regulations may prescribe conditions that are taken to be
attached to --
(a) all licences; or
15 (b) all licences relating to a particular type of child care
service,
unless otherwise specified in the licence.
214. Contravention of conditions
A licensee who contravenes a condition of the licence commits
20 an offence.
Penalty: $12 000.
215. Amendment of licence
(1) The CEO may, by written notice given to the licensee, amend a
licence.
25 (2) An amendment may be made on application made by the
licensee or on the CEO's own initiative.
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Part 8 Child care services
Division 5 Duration and renewal
s. 216
(3) For the purposes of this section --
"amend" includes --
(a) impose any new condition; and
(b) change or remove any existing condition (other than
5 the condition referred to in section 212).
Division 5 -- Duration and renewal
216. Duration of licence
(1) A licence has effect for the period specified in the licence
document unless --
10 (a) section 217(3) applies;
(b) it is suspended under section 220;
(c) it is cancelled under section 224; or
(d) it is surrendered in accordance with the regulations.
(2) The period specified in the licence document must not exceed
15 3 years from the day on which the licence is granted or renewed.
217. Application for renewal of licence
(1) A licensee may apply to the CEO for the renewal of a licence.
(2) An application for renewal must be --
(a) in writing in a form approved by the CEO;
20 (b) lodged with the CEO within the prescribed time or any
further time that the CEO in a particular case allows;
(c) accompanied by any document or information that is
prescribed; and
(d) accompanied by the prescribed fee (if any).
25 (3) If an application for renewal is made in accordance with this
section the licence continues to have effect until the application
is determined unless the licence is suspended under section 220
or cancelled under section 224.
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Child care services Part 8
Suspension and cancellation Division 6
s. 218
(4) Section 204 applies as if the application for renewal were an
application for a licence.
218. Restrictions on renewal of licence
The CEO must not renew a licence if --
5 (a) the CEO is no longer satisfied as to any matter referred
to in section 206(2), 207, 208 or 209 that was relevant to
the decision to grant the licence;
(b) the CEO is satisfied that the licensee has persistently or
frequently contravened the regulations or a term or
10 condition of the licence; or
(c) there are reasonable grounds for believing that the
continued provision of the child care service to which
the application relates would constitute an unacceptable
risk to the wellbeing of children for whom the service is
15 provided.
219. Renewal of licence
If the CEO renews a licence the CEO may --
(a) renew it subject to any existing condition;
(b) impose any new condition; or
20 (c) change or remove any existing condition (other than the
condition referred to in section 212).
Division 6 -- Suspension and cancellation
220. Suspension of licence
(1) The CEO may, subject to section 221, by written notice given to
25 the licensee, suspend a licence if there are reasonable grounds
for believing that --
(a) the licensee has contravened a term or condition of the
licence;
(b) the licensee has contravened a provision of the
30 regulations; or
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Division 6 Suspension and cancellation
s. 221
(c) the continued provision of the child care service
constitutes or would constitute an unacceptable risk to
the wellbeing of the children for whom the service is
provided.
5 (2) The suspension notice must --
(a) state the day, or the day and time, on or at which the
suspension takes effect;
(b) state the reasons for the CEO's decision to suspend the
licence;
10 (c) where appropriate, indicate what steps need to be taken
to ensure that there is compliance with the relevant
provision, term or condition or that there is no longer a
risk as described in subsection (1)(c); and
(d) inform the licensee that the licensee has a right to apply
15 under section 225 for a review of the CEO's decision to
suspend the licence.
221. Notice of proposed suspension
(1) If the CEO proposes to suspend a licence for a reason other than
the reason mentioned in section 220(1)(c), the CEO must give
20 written notice to the licensee of the proposed suspension.
(2) The notice must --
(a) state that the CEO proposes to suspend the licence;
(b) state the reasons for the proposed suspension; and
(c) inform the licensee that the licensee is entitled to make
25 representations to the CEO in respect of the proposed
suspension within 21 days after the day on which the
licensee is given the notice.
(3) In considering whether to suspend the licence the CEO must
have regard to any representations made by the licensee within
30 the period referred to in subsection (2)(c).
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Child care services Part 8
Suspension and cancellation Division 6
s. 222
222. Revocation of suspension
(1) The CEO must, by written notice given to the licensee, revoke
the suspension of a licence if the CEO is satisfied that the steps
specified in the suspension notice have been taken.
5 (2) The CEO may, by written notice given to the licensee, revoke
the suspension of a licence if it is appropriate to do so in the
circumstances of the particular case.
223. Duration of suspension
The suspension of a licence has effect on and from the day, or
10 the day and time, specified in the suspension notice until one of
the following happens --
(a) the suspension is revoked under section 222;
(b) the licence is cancelled under section 224 or expires; or
(c) the licence is surrendered in accordance with the
15 regulations.
224. Cancellation of licence
(1) Grounds for the cancellation of a licence exist if --
(a) the licence was obtained improperly;
(b) the CEO can no longer be satisfied as to a matter
20 referred to in section 206(2), 207, 208 or 209 that was
relevant to the decision to grant the licence;
(c) the licensee has persistently or frequently contravened a
term or condition of the licence or a provision of the
regulations, whether or not the licence is or has been
25 suspended on the grounds of that contravention; or
(d) there are reasonable grounds for believing that the
continued provision of the child care service constitutes
or would constitute an unacceptable risk to the
wellbeing of the children for whom the service is
30 provided, whether or not the licence has been suspended
on the grounds of that risk.
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Part 8 Child care services
Division 7 Review
s. 225
(2) If the CEO considers that grounds for the cancellation of a
licence exist the CEO may refer the matter to the State
Administrative Tribunal.
(3) The CEO must give written notice of a referral under
5 subsection (2) to the licensee as soon as practicable after the
referral is made.
(4) In proceedings commenced by a referral under subsection (2)
the State Administrative Tribunal may, if it is satisfied that
grounds for the cancellation of the licence exist, cancel the
10 licence.
Division 7 -- Review
225. Review by State Administrative Tribunal
(1) A person who is aggrieved by a reviewable decision may apply
to the State Administrative Tribunal for a review of the
15 decision.
(2) In subsection (1) --
"person aggrieved" means --
(a) a person upon whose application a reviewable
decision is made; or
20 (b) the holder of the licence to which a reviewable
decision relates;
"reviewable decision" means a decision of the CEO --
(a) to refuse to grant or renew a licence;
(b) as to the period for which a licence is granted or
25 renewed;
(c) to grant or renew a licence subject to a particular
condition;
(d) to amend a licence under section 215; or
(e) to suspend a licence under section 220.
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Child care services Part 8
General Division 8
s. 226
Division 8 -- General
226. Advertising
A person must not advertise, or otherwise hold out in any way,
that the person provides a child care service unless the person
5 holds a licence authorising the provision of the service.
Penalty: $6 000.
227. Production of licence document for amendment
If the CEO amends or renews a licence, the licensee must, if
required by the CEO, produce the licence document to the CEO
10 for amendment within the period specified by the CEO.
Penalty: $6 000.
228. Return of licence document if licence no longer in effect
If a licence --
(a) has expired and has not been renewed;
15 (b) has been suspended or cancelled; or
(c) has been surrendered in accordance with the regulations,
the person who was the licensee must, as soon as practicable
after the expiry, suspension, cancellation or surrender, return the
licence document to the CEO.
20 Penalty: $6 000.
229. Power to exempt
(1) The Minister may, by order published in the Gazette, exempt a
specified child care service or a child care service of a specified
type from the application of --
25 (a) section 201;
(b) the regulations; or
(c) a specified provision of the regulations.
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Part 8 Child care services
Division 8 General
s. 230
(2) In subsection (1) --
"specified" means specified in the order.
(3) The Minister may, by order published in the Gazette, amend or
revoke an order made under subsection (1).
5 (4) In the exercise of the powers conferred by subsections (1) and
(2), the Minister must have regard to --
(a) the best interests of the children for whom the child care
service is proposed to be provided and any special needs
or interests of those children;
10 (b) the views of parents of children for whom the service is
intended;
(c) the needs of the locality in which a child care service is
proposed or the children for whom the child care service
is proposed and the extent to which those needs are
15 being met; and
(d) the desirability of or need for short-term, special,
innovative, experimental, culturally appropriate and
culturally specific child care services.
230. Evidentiary certificate
20 (1) In proceedings for an offence under this Part production of a
certificate containing a statement described in subsection (2)
and purporting to be signed by the CEO is, without proof of any
appointment or signature, evidence of the facts stated in the
certificate.
25 (2) The certificate may state any of the following --
(a) that a person has or had, or does not or did not have, a
licence in relation to a particular child care service;
(b) that a licence did or did not specify a particular place;
(c) the conditions to which a licence is or was subject;
30 (d) the day, days or period on or during which anything
referred to in any of paragraphs (a) to (c) applied.
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Children and Community Services Bill 2003
Child care services Part 8
General Division 8
s. 231
231. Powers of entry and inspection
(1) In this section --
"licensing officer" means an officer appointed under section 25
for the purposes of this Part.
5 (2) A licensing officer may --
(a) enter at any reasonable time any place specified in a
licence as a place at which a child care service may be
provided and inspect that place and any equipment or
other thing at that place;
10 (b) require any person who is at a place entered in
accordance with this section to provide any information
that is necessary for the purpose of investigating
compliance with the licence or the regulations; and
(c) inspect and for that purpose require the production of,
15 any register, record or other document that any person is
required by the regulations to keep and copy or take
extracts from any such register, record or other
document.
(3) A person must not, without lawful excuse, fail to comply with a
20 requirement under subsection (2)(b) or (c).
Penalty: $6 000.
(4) If a magistrate is satisfied by evidence on oath that there are
reasonable grounds to suspect that a child care service is being
provided at a place other than a place at which such a service
25 may be provided under a licence, the magistrate may issue a
warrant to a licensing officer or a police officer authorising the
officer to enter and inspect that place.
232. Regulations
Without limiting section 248(1), the regulations may --
30 (a) prescribe types of child care service and make different
provisions for or in respect of each of those types;
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Part 8 Child care services
Division 8 General
s. 232
(b) regulate applications for licences, objections to the grant
of licences, the amendment of licences, and the
surrender of licences;
(c) confer power on the CEO to conduct any check
5 (including a criminal record check) that the CEO
considers appropriate as to the character and background
of a person for the purpose of determining whether the
person is a fit and proper person to provide or be
involved in the provision of a child care service or to
10 associate with children, as the case requires;
(d) prescribe matters to which the CEO must have regard in
determining whether a particular person is a fit and
proper person to provide or be involved in the provision
of a child care service or to associate with children, as
15 the case requires;
(e) without limiting section 203(b), prescribe the documents
(including a criminal record check) and information to
be provided by an applicant or licensee in connection
with an application or the provision of a child care
20 service, as the case requires;
(f) require a licensee to notify the CEO of changes in
circumstances relating to or affecting the provision of a
child care service including, without limitation, a change
of supervising officer or managerial officer;
25 (g) provide for and in relation to the appointment of
supervising officers and persons to act in their place;
(h) provide for the powers and duties of licensing officers;
(i) regulate the staffing requirements for the provision of
child care services;
30 (j) confer power on the CEO to conduct a criminal record
check of any member of the staff of a child care service;
(k) prescribe requirements as to the health and safety of
children during the provision of child care services;
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General Division 8
s. 232
(l) require a licensee or a member of the staff of a child
care service from time to time to undergo medical
examinations or to provide any documents (including a
criminal record check) or information relevant to the
5 health and safety of children during the provision of the
child care service;
(m) regulate the building and other physical environment
requirements for the provision of child care services;
(n) regulate programmes of activities and equipment to be
10 provided for child care services;
(o) regulate the administration of child care services, the
records to be maintained and the returns to be made;
(p) provide for the continued operation of a child care service
in an emergency situation or in circumstances where the
15 licence relating to the service is suspended or cancelled;
(q) confer power on the CEO in special circumstances in
particular cases to grant exemptions from provisions of the
regulations for periods specified in the exemptions and to
impose conditions subject to which an exemption applies;
20 (r) confer power on, or require, the CEO to notify the
parents of children for whom a child care service is
provided of any prescribed matter relating to or affecting
the provision of the service;
(s) prescribe fees payable --
25 (i) in respect of applications for the grant or renewal
of licences, including fees by way of penalty for
late lodgment of applications; and
(ii) for the grant or renewal of licences;
(t) require any document or information provided by an
30 applicant or a licensee to be verified by statutory
declaration;
(u) provide for transitional matters; and
(v) establish a mechanism for the review of the regulations.
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Children and Community Services Bill 2003
Part 9 Provision of financial or other assistance
s. 233
Part 9 -- Provision of financial or other assistance
233. Power to provide financial or other assistance
(1) The CEO may provide a person with financial or other
assistance if the CEO is satisfied that the person is in need of
5 such assistance.
(2) Assistance may be provided under subsection (1) in such form,
and on such terms and conditions, as the CEO considers
appropriate.
(3) Without limiting subsection (2), in the case of financial
10 assistance, the terms and conditions may include provisions as
to repayment and the recovery of outstanding amounts.
234. Power to assist with funeral expenses
(1) Without limiting section 233(1), the CEO may pay, or assist in
the payment of, funeral expenses if the CEO is satisfied that in
15 the circumstances of a particular case it is appropriate to do so.
(2) Payment may be made, or assistance provided, under
subsection (1) on such terms and conditions as the CEO
considers appropriate.
(3) Without limiting subsection (2), the terms and conditions may
20 include provisions as to repayment and the recovery of
outstanding amounts.
235. Application for assistance
(1) In this section and section 236 --
"application for assistance" means --
25 (a) an application for assistance under section 233; or
(b) an application for payment, or assistance in payment,
of funeral expenses under section 234.
(2) An application for assistance must be made in the form, and in
accordance with the procedure, approved by the CEO.
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Provision of financial or other assistance Part 9
s. 236
(3) The CEO may require the applicant to provide any information
that the CEO considers necessary for the purposes of
determining an application for assistance.
236. Recovery of overpayments in certain circumstances
5 Where as a consequence of --
(a) a false or misleading statement in an application for
assistance referred to in section 235; or
(b) the provision of false or misleading information,
money is paid to a person under this Part that would not have
10 been paid but for the false or misleading statement or
information, the CEO may recover from that person the amount
paid in a court of competent jurisdiction as a debt due to the
State.
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Children and Community Services Bill 2003
Part 10 Confidentiality provisions
s. 237
Part 10 -- Confidentiality provisions
237. Restriction on publication of certain information or material
(1) In this section --
"old order" means an order under the repealed Child Welfare
5 Act 1947 committing a child to the care of the Department
or placing a child under the control of the Department;
"publish" means to bring to the notice of the public or a section
of the public by means of newspaper, television, radio, the
Internet or any other form of communication.
10 (2) A person must not, except in accordance with a written
authorisation given under this section, publish information or
material that identifies, or is likely to lead to the identification
of, another person (the "identified person") as --
(a) a person who is or was a child the subject of an
15 investigation referred to in section 32(1)(d);
(b) a person who is or was a child the subject of a protection
application or an application for an old order; or
(c) a person who is or was a child the subject of a protection
order or an old order.
20 Penalty: $12 000 and imprisonment for one year.
(3) If the identified person is under 18 years of age, written
authorisation for the publication of information or material to
which subsection (2) applies may be given by the CEO.
(4) If the identified person has reached 18 years of age, written
25 authorisation for the publication of information or material to
which subsection (2) applies may be given --
(a) by the identified person; or
(b) if the identified person is dead or cannot be found after
reasonable inquiries, by the CEO.
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s. 238
(5) Subsection (2) does not apply to information or material
contained in a report of proceedings to which the Children's
Court of Western Australia Act 1988 section 35(1) applies.
238. Production of departmental records
5 (1) In this section --
"departmental record" means a document in the records of the
Department that relates to a child, a child's parent or a
child's carer.
(2) This section applies if a party to any legal proceedings lawfully
10 requires --
(a) the CEO or another officer to produce to the party, or
the court or tribunal concerned, a departmental record;
or
(b) an officer or employee of a public authority to produce
15 to the party, or the court or tribunal concerned, a
departmental record to which that public authority has
been given access.
(3) The party requiring production of the departmental record must
describe the record --
20 (a) by reference to the person or people to whom it relates;
(b) by reference to the period to which it relates; and
(c) by general reference to the circumstances to which it
relates.
(4) The party requiring production of the departmental record must
25 show that the circumstances to which the departmental record
relates are relevant to the proceedings.
(5) A person must not, directly or indirectly, record, disclose or
make use of information in a departmental record produced in
response to a requirement referred to in subsection (2) other
30 than for a purpose connected with the proceedings.
Penalty: $12 000.
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Part 10 Confidentiality provisions
s. 239
(6) If a departmental record is produced to a court or tribunal in
response to a requirement referred to in subsection (2), the court
or tribunal must take reasonable steps to ensure that access to
the record is limited to one or more of the following people --
5 (a) a party to the proceedings;
(b) a legal representative of a party to the proceedings;
(c) an expert witness in the proceedings;
(d) if the proceedings are in the Family Court --
(i) a family and child counsellor as defined in the
10 Family Court Act 1997;
(ii) a welfare officer as defined in that Act; or
(iii) any other person required or directed under that
Act to prepare a report on matters relevant to the
proceedings;
15 (e) a person who can show that the CEO has authorised his
or her access to the record;
(f) a person considered by the court or tribunal to have a
direct interest in the proceedings.
(7) A person referred to in subsection (6) who has been given
20 access to a departmental record by a court or tribunal must not,
without the approval of the court or tribunal, make a copy of, or
otherwise reproduce, the record.
Penalty: $6 000.
(8) For the purposes of subsection (7), the court or tribunal may
25 give approval on such conditions, including conditions about the
return or destruction of copies or reproductions made, as the
court or tribunal thinks fit.
239. Objection to disclosure of certain information during
proceedings
30 (1) A person may, in any legal proceedings, object to disclosing
information obtained by, or made available to, the person in the
performance of functions under this Act, or in the provision of
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Children and Community Services Bill 2003
Confidentiality provisions Part 10
s. 240
social services under an agreement referred to in section 15(1),
on the grounds that --
(a) its disclosure endangers, or is likely to endanger, a
person's safety or psychological health;
5 (b) it is a record of confidential counselling with a child or a
child's relative; or
(c) it is information personal to a child, a child's relative or
a child's carer and the person reasonably believes that it
is not materially relevant to the proceedings.
10 (2) If an objection is made under subsection (1), the court or
tribunal concerned must consider the objection and may order
the disclosure of the information if satisfied that --
(a) it is materially relevant to the proceedings; and
(b) there is compelling reason in the public interest for its
15 disclosure.
(3) For the purpose of enabling the court or tribunal to decide
whether to make an order under subsection (2), the court or
tribunal may direct the person to disclose the information to the
court or tribunal in private and may give directions as to who
20 may be present when the information is disclosed.
(4) The court or tribunal must deal with information disclosed
under this section in a way that prevents, as far as practicable,
its further disclosure.
240. Confidentiality of notifier's identity
25 (1) In this section --
"identifying information", in relation to a notifier, means
information --
(a) that identifies the notifier;
(b) that is likely to lead to the identification of the
30 notifier; or
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Children and Community Services Bill 2003
Part 10 Confidentiality provisions
s. 240
(c) from which the identity of the notifier could be
deduced;
"notifier" means a person who in good faith gives information,
or causes information to be given, to the CEO or another
5 officer that raises concerns about the wellbeing of a child.
(2) A person who, in the course of duty, becomes aware of the
identity of a notifier, must not disclose identifying information
to another person unless --
(a) the disclosure is made --
10 (i) for the purpose of, or in connection with,
performing functions under this Act;
(ii) with the written consent of the notifier; or
(iii) in legal proceedings with the leave of the court
or tribunal concerned;
15 or
(b) the identifying information has already been disclosed in
legal proceedings and the court or tribunal concerned
has not made an order prohibiting further disclosure.
Penalty: $24 000 and imprisonment for 2 years.
20 (3) In any legal proceedings a person must not disclose, or be asked
to disclose, identifying information in respect of a notifier
unless leave of the court or tribunal concerned has first been
obtained.
(4) The court or tribunal must not grant leave unless --
25 (a) it is satisfied that --
(i) the identifying information is of critical
importance in the proceedings; and
(ii) there is compelling reason in the public interest
for disclosure of the identifying information;
30 or
(b) the notifier consents to the disclosure of the identifying
information.
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Children and Community Services Bill 2003
Confidentiality provisions Part 10
s. 241
(5) An application for leave to disclose, or to ask a person to
disclose, identifying information --
(a) must not, except as authorised by the court or tribunal,
be heard in public; and
5 (b) must be dealt with in a way that protects, as far as
practicable, the identity of the notifier pending a
decision on the application.
241. Confidentiality of information
(1) This section applies to a person who is or has been engaged
10 in --
(a) the performance of functions under this Act; or
(b) the provision of social services under an agreement
referred to in section 15(1).
(2) A person to whom this section applies must not, directly or
15 indirectly, record, disclose or make use of information obtained
in the course of duty, except --
(a) for the purpose of, or in connection with, performing
functions under this Act;
(b) for the purpose of, or in connection with, providing
20 social services under an agreement referred to in
section 15(1);
(c) for the purpose of the investigation of any suspected
offence under this Act or the conduct of proceedings
against any person for an offence under this Act;
25 (d) for the purpose of protection proceedings;
(e) as required or allowed under this Act or another written
law;
(f) with the written consent of the Minister or person to
whom the information relates; or
30 (g) in prescribed circumstances.
Penalty: $12 000 and imprisonment for one year.
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Part 10 Confidentiality provisions
s. 241
(3) Subsection (2) is not to be taken to permit the disclosure of
identifying information as defined in section 240 if its
disclosure is prohibited under that section.
(4) Subsection (2) is not to be taken to prevent the disclosure of
5 statistical or other information that could not reasonably be
expected to lead to the identification of any person to whom it
relates.
(5) If information is lawfully disclosed under this section, this
section does not prevent the further disclosure of the
10 information, or the recording or use of the information, for the
purpose for which the disclosure was made.
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Children and Community Services Bill 2003
Other matters Part 11
s. 242
Part 11 -- Other matters
242. Obstruction
A person must not obstruct or hinder a person who is
performing or attempting to perform a function under this Act.
5 Penalty: $12 000 and imprisonment for one year.
243. Impersonating an officer
A person must not falsely represent, by words or conduct, that a
person is an authorised officer.
Penalty: $12 000 and imprisonment for one year.
10 244. False information
A person must not give information orally or in writing in, or in
relation to, an application, report or other document prepared for
the purposes of this Act that the person knows to be false or
misleading in a material respect.
15 Penalty: $6 000.
245. Legal proceedings
(1) Proceedings under this Act for an offence (other than an offence
under section 101(1), 102 or 192(1) or (2)) or in respect of any
other matter may be taken in the name of the CEO by the CEO
20 or a person authorised to do so by the CEO.
(2) In any proceedings no proof is required of --
(a) the appointment of the CEO; or
(b) the authorisation of a person under subsection (1),
but an averment in a complaint that the person is so appointed
25 or authorised is to be taken to be proved unless the contrary is
proved.
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Part 11 Other matters
s. 246
(3) Subsection (1) does not limit the ability of a person to make a
complaint or conduct the prosecution of an offence if the person
has authority at law to do so.
246. Protection from liability for wrongdoing
5 (1) An action in tort does not lie against a person for anything that
the person has done, in good faith, in the performance or
purported performance of a function under this Act.
(2) The protection given by subsection (1) applies even though the
thing done as described in that subsection may have been
10 capable of being done whether or not this Act had been enacted.
(3) Despite subsection (1), the State is not relieved of any liability
that it might have for another person having done anything as
described in that subsection.
(4) A person who, at the request of a police officer or an authorised
15 officer, assists the officer in the exercise of a power under this
Act is to be taken, for the purposes of this section, to be
performing a function under this Act.
(5) In this section, a reference to the doing of anything includes a
reference to the omission to do anything.
20 247. Effect of provision requiring document to be given to
particular person or child
(1) A person is not required to comply with a provision of this Act
that requires the person to give a document to another person, or
to ensure that a document is given to another person, if, after
25 reasonable inquiries, the other person cannot be found.
(2) Subsection (1) does not apply if the document is to be given to a
party to protection proceedings.
Note: Section 154 gives the Children's Court power to dispense with service in
protection proceedings.
30 (3) Without limiting subsection (1), a person is not required to
comply with a provision of this Act that requires the person to
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Children and Community Services Bill 2003
Other matters Part 11
s. 248
give a document to a child, or to ensure that a document is given
to a child, if the person considers that the child does not have
sufficient maturity to understand the document or the matter to
which the document relates.
5 248. Regulations
(1) The Governor may make regulations prescribing all matters that
are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed for giving effect to the
purposes of this Act.
10 (2) Without limiting subsection (1) the regulations may create
offences and provide, in respect of an offence so created, for the
imposition of a penalty not exceeding $6 000.
249. Review of Act
(1) The Minister must carry out a review of the operation and
15 effectiveness of this Act as soon as is practicable after --
(a) the fifth anniversary of its commencement; and
(b) the expiry of each 5 yearly interval after that
anniversary.
(2) The Minister must prepare a report based on each review under
20 subsection (1) and, as soon as is practicable after the report is
prepared (and in any event not more than 12 months after the
relevant anniversary or expiry), must cause it to be laid before
each House of Parliament.
250. Repeal, transitional and savings provisions
25 (1) The following Acts are repealed --
(a) the Child Welfare Act 1947;
(b) the Community Services Act 1972;
(c) the Welfare and Assistance Act 1961.
(2) The following regulations are repealed --
30 (a) the Child Welfare Regulations 1977;
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Children and Community Services Bill 2003
Part 11 Other matters
s. 251
(b) the Community Services (Child Care) Regulations 1988;
(c) the Community Services (Outside School Hours Care)
Regulations 2002;
(d) the Community Welfare Organizations
5 Regulations 1980;
(e) the Welfare and Assistance Act Regulations 1962.
(3) Schedule 1 has effect in relation to the repeals effected by
subsection (1).
251. Other Acts amended
10 Other Acts are amended as set out in Schedule 2.
page 154
Children and Community Services Bill 2003
Transitional and savings provisions Schedule 1
Schedule 1 -- Transitional and savings provisions
[s. 250(3)]
Division 1 -- Introductory matters
1. Meaning of terms used in this Schedule
5 In this Schedule, unless the contrary intention appears --
"authorisation" means --
(a) an approval under the Child Welfare Act 1947 section 111;
or
(b) a licence under the Child Welfare Act 1947 section 112;
10 "commencement day" means the day on which section 250 comes
into operation;
"existing appeal" means an appeal under the Children's Court of
Western Australia Act 1988 section 42(1) or 43(4) that has not
been finally determined before commencement day;
15 "existing order" means an order made under the Child Welfare
Act 1947 section 30 that is in force immediately before
commencement day;
"existing proceedings" means proceedings under the Child Welfare
Act 1947 section 30 that have not been finally determined before
20 commencement day;
"extended order" means an existing order that applies to a child after
the child reaches 18 years of age because of an extension under
the Child Welfare Act 1947 section 49(1);
"repealed Act" means an Act repealed by section 250.
25 2. Interpretation Act 1984 not affected
The provisions of this Schedule do not affect the application of the
Interpretation Act 1984 to and in relation to the repeals effected by
section 250.
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Children and Community Services Bill 2003
Schedule 1 Transitional and savings provisions
Division 2 -- Provisions related to repeal of Child Welfare Act 1947
3. Existing orders
(1) On and after commencement day an existing order that applies to a
child until the child reaches 18 years of age has effect as if it were a
5 protection order (until 18).
(2) On and after commencement day an existing order, other than an
existing order referred to in subclause (1) or an extended order, has
effect as if it were a protection order (time-limited).
(3) An order to which subclause (2) applies has effect --
10 (a) if the period until the order is due to expire is less than
2 years, for that period; or
(b) in any other case, for a period of 2 years from
commencement day.
4. Extended orders
15 On and after commencement day the Child Welfare Act 1947
continues to apply to and in respect of an extended order as if that Act
had not been repealed.
5. Existing proceedings
(1) Existing proceedings are to be dealt with and determined under the
20 Child Welfare Act 1947 as if that Act had not been repealed.
(2) If, at the conclusion of existing proceedings, an order commits a child
to the care of the Department or places the child under the control of
the Department, the order has effect --
(a) if the order applies to the child until the child reaches
25 18 years of age, as if it were a protection order (until 18); or
(b) in any other case, as if it were a protection order
(time-limited).
(3) An order to which subclause (2)(b) applies has effect --
(a) if a period of less than 2 years is specified in the order, for
30 that period; or
(b) in any other case, for a period of 2 years from the day on
which the order is made.
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Children and Community Services Bill 2003
Transitional and savings provisions Schedule 1
(4) An order made under the Child Welfare Act 1947 section 29(3aa) that
is in force immediately before commencement day has effect on and
after that day as if that Act had not been repealed.
6. Existing appeals
5 (1) An existing appeal is to be dealt with and determined as if --
(a) the Children's Court of Western Australia Act 1988 had not
been amended by this Act; and
(b) the Child Welfare Act 1947 had not been repealed.
(2) If, at the conclusion of an existing appeal, an order commits a child to
10 the care of the Department or places a child under the control of the
Department, the order has effect --
(a) if the order applies to the child until the child reaches
18 years of age, as if it were a protection order (until 18); or
(b) in any other case, as if it were a protection order
15 (time-limited).
(3) An order to which subclause (2)(b) applies has effect --
(a) if a period of less than 2 years is specified in the order, for
that period; or
(b) in any other case, for a period of 2 years from the day on
20 which the order is made.
7. Records under s. 11
On and after commencement day records kept under the Child
Welfare Act 1947 section 11 in respect of wards and children placed
under the control of the Department are to be taken to be records kept
25 by the CEO for the purposes of section 128.
8. Operation of orders under s. 13 or 14
An order made under the Child Welfare Act 1947 section 13 or 14 that
is in force immediately before commencement day ceases to have
effect on that day.
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Children and Community Services Bill 2003
Schedule 1 Transitional and savings provisions
9. Children detained under s. 29(3a)
(1) A child who immediately before commencement day is detained in a
hospital under the Child Welfare Act 1947 section 29(3a) is to be
taken on and after that day to be kept in the hospital under
5 section 40(2).
(2) If subclause (2) applies to a child the period for which the child was
detained in the hospital before commencement day is to be taken into
account for the purposes of section 40(7).
10. Orders under s. 40A
10 An order made under the Child Welfare Act 1947 section 40A that is
in force immediately before commencement day has effect on and
after that day as if it were an order under section 73.
11. Applications under s. 47
An application made to the Minister or the Court under the Child
15 Welfare Act 1947 section 47(2) that has not been finally determined
immediately before commencement day is to be dealt with and
determined under that Act as if it had not been repealed.
12. Notices under s. 107A or 107B
A notice under the Child Welfare Act 1947 section 107A(4) or
20 107B(4) that is in force immediately before commencement day has
effect on and after that day as if it were a notice under section 193(2).
13. Warrants
A warrant issued under the Child Welfare Act 1947 section 67 that is
in force immediately before commencement day has effect on and
25 after that day as if it had been issued under this Act.
14. Authorisations under s. 111 or 112
(1) An authorisation that is in force immediately before commencement
day has effect on and after that day as if it were an approval under
section 104(3).
30 (2) Despite section 104(4)(b), an authorisation referred to in subclause (1)
has effect, under and subject to this Act, for the remainder of the
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Transitional and savings provisions Schedule 1
period for which it would have had effect if the Child Welfare
Act 1947 had not been repealed.
15. Orders and proceedings under Part VIIIA
(1) An application under the Child Welfare Act 1947 Part VIIIA that has
5 not been finally determined immediately before commencement day
is to be dealt with and determined under the corresponding provision
of Part 6.
(2) An interim order made under the Child Welfare Act 1947
section 120P that is in force immediately before commencement day
10 has effect on and after that day as if it were an interim order under the
corresponding provision of Part 6.
(3) An appeal under the Child Welfare Act 1947 section 120L or 120Q
that has not been finally determined immediately before
commencement day is to be dealt with and determined as if it were an
15 appeal under the corresponding provision of Part 6.
16. Orders under s. 146A
An order made under the Child Welfare Act 1947 section 146A that is
in force immediately before commencement day has effect on and
after that day as if that Act had not been repealed.
20 Division 3 -- Provisions related to repeal of Community Services
Act 1972
17. Status of Ministerial Body
The Community Development Ministerial Body established by
section 18 is a continuation of, and the same legal person, as the body
25 corporate established by the Community Services Act 1972 section 6
as in force before commencement day.
18. Licences and permits under s. 17B
(1) A licence or permit issued under the Community Services Act 1972
section 17B that is in force immediately before commencement day
30 has effect on and after that day as if it were a licence issued under
Part 8.
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(2) A licence or permit referred to in subclause (1) has effect, under and
subject to this Act, for the remainder of the period specified in the
licence or permit.
19. Existing applications
5 An application for a licence or permit under the Community Services
Act 1972 section 17B that has not been finally determined
immediately before commencement day is to be dealt with and
determined as if it were an application for a licence under Part 8.
20. Appeals under s. 17C
10 An appeal under the Community Services Act 1972 section 17C that
has not been finally determined immediately before commencement
day is to be dealt with and determined as if that Act had not been
repealed.
21. Bodies established under s. 22
15 (1) A board, committee or council established under the Community
Services Act 1972 section 22 that is in existence immediately before
commencement day continues on and after that day as an advisory
body under section 27.
(2) A person who is a member of a board, committee or council referred
20 to in subclause (1) immediately before commencement day continues
in office on and after that day for the remainder of the term of his or
her appointment.
(3) An order under the Community Services Act 1972 section 22(1) that is
in force immediately before commencement day has effect on and
25 after that day as if it were an instrument made by the Minister under
section 27(5).
Division 4 -- Provisions related to repeal of Welfare and Assistance
Act 1961
22. Advances and grants of assistance
30 (1) An advance or grant of assistance under the Welfare and Assistance
Act 1961 that is in force immediately before commencement day has
effect on and after that day as if it were assistance provided under
Part 9.
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Transitional and savings provisions Schedule 1
(2) An advance or grant of assistance referred to in subclause (1) is
subject to the same terms and conditions (if any) as applied to it
immediately before commencement day.
23. Applications for assistance
5 An application for assistance under the Welfare and Assistance
Act 1961 that has not been finally determined immediately before
commencement day is to be dealt with and determined as if it were an
application for assistance under section 233.
Division 5 -- General
10 24. References to repealed Acts
If in a written law or other document or instrument there is a reference
to a repealed Act, the reference is to be read, unless the context
otherwise requires, as if it had been amended to be a reference to this
Act.
15 25. Powers in relation to transitional matters
(1) If there is no sufficient provision in this Schedule for dealing with a
transitional matter the Governor may make regulations prescribing all
matters that are required, necessary or convenient to be prescribed in
relation to that matter.
20 (2) Regulations made under subclause (1) may provide that specific
provisions of this Act --
(a) do not apply; or
(b) apply with specific modifications,
to or in relation to any matter.
25 (3) Regulations made under subclause (1) must be made within
12 months after commencement day.
(4) If regulations made under subclause (1) provide that a specified state
of affairs is to be taken to have existed, or not to have existed, on and
from a day that is earlier than the day on which the regulations are
30 published in the Gazette but not earlier than commencement day, the
regulations have effect according to their terms.
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Schedule 1 Transitional and savings provisions
(5) In subclause (4) --
"specified" means specified or described in the regulations.
(6) If regulations contain a provision referred to in subclause (4), the
provision does not operate so as --
5 (a) to affect in a manner prejudicial to any person (other than the
State), the rights of that person existing before the day of
publication of those regulations; or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted
10 to be done before the day of publication of those regulations.
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Amendments to other Acts Schedule 2
Schedule 2 -- Amendments to other Acts
[s. 251]
1. Aboriginal Affairs Planning Authority Act 1972 amended
(1) The amendments in this clause are to the Aboriginal Affairs Planning
5 Authority Act 1972*.
[* Reprinted as at 5 February 1999.].
(2) Section 19(1)(c) is amended by deleting "for Community Services"
and inserting instead --
"
10 as defined in section 3 of the Children and
Community Services Act 2003
".
(3) Section 35(4) is repealed.
(4) Section 35(5) is amended by deleting ", the Director-General of the
15 department established under section 4 of the Community Services
Act 1972".
(5) Section 48 is amended by deleting "officer of the department
established under section 4 of the Community Services Act 1972, or
any".
20 2. Adoption Act 1994 amended
(1) The amendments in this clause are to the Adoption Act 1994*.
[* Reprinted as at 2 January 2001.
For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 6 and Act No. 8 of 2003.]
25 (2) Section 4 is amended as follows:
(a) by deleting the definitions of "Department" and
"Director-General";
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Schedule 2 Amendments to other Acts
(b) by inserting in the appropriate alphabetical positions the
following definitions --
"
"CEO" means the chief executive officer of the
5 Department;
"Department" means the department of the Public
Service principally assisting the Minister in the
administration of this Act;
".
10 (3) Section 27(6) is amended as follows:
(a) by deleting paragraph (a) and "or" after it and inserting
instead --
"
(a) the child is the subject of a protection order
15 (time-limited) or protection order (until 18)
under the Children and Community Services
Act 2003; or
";
(b) in paragraph (b) by deleting "the Child Welfare Act 1947 in
20 relation to wardship," and inserting instead --
"
Part 4 of the Children and Community Services
Act 2003,
";
25 (c) by deleting "by reason of the child's wardship status".
(4) Section 28 is repealed and the following section is inserted instead --
"
28. Guardianship of children awaiting adoption where
not all consents finalised
30 (1) This section applies to a child if the child --
(a) has been relinquished for adoption but where
not all the consents to the child's adoption
required by section 17(1) have been --
(i) delivered under section 18(1)(e); or
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Amendments to other Acts Schedule 2
(ii) dispensed with under section 24(2);
or
(b) is in the care and control of a birth parent who
has consented to the child's adoption and then
5 revoked the consent for such number of times
as to jeopardise, or be likely to jeopardise, the
child's welfare.
(2) The CEO may make a protection application under the
Children and Community Services Act 2003 for a
10 protection order (time-limited) or protection order
(until 18) in respect of a child to whom this section
applies.
(3) For the purposes of Part 4 of the Children and
Community Services Act 2003, but without limiting
15 section 28(2) of that Act, a child is in need of
protection if the child is a child to whom this section
applies.
".
(5) Section 36(2)(c) is deleted and the following paragraph is inserted
20 instead --
"
(c) if the Court finds that the child is in need of
protection as defined in section 28(2) of the
Children and Community Services Act 2003,
25 make a protection order (time-limited) or
protection order (until 18) under that Act in
respect of the child;
".
(6) After section 36(2) the following subsection is inserted --
30 "
(3) If the Court makes an order referred to in
subsection (2)(c), the Court has, in relation to that
order, the powers conferred on the Children's Court by
the Children and Community Services Act 2003.
35 ".
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Schedule 2 Amendments to other Acts
(7) The heading to Part 5 Division 1 is amended by deleting
"Director-General" and inserting instead --
" CEO ".
(8) Each provision listed in the Table to this subclause is amended by
5 deleting "Director-General" in each place where it occurs and
inserting instead --
" CEO ".
Table
s. 4 (definition of s. 46(3)(a) s. 108(1)
"adoption
certificate")
s. 6(1) s. 47(1) s. 108(2)
s. 6(2) s. 47(2) s. 108(3)
s. 8(2)(a) s. 48(1) s. 109(1)
s. 10(1) s. 49 s. 109(2)
s. 12 s. 50(1) s. 110(1)
s. 13(1)(a) s. 51 s. 111(1)
s. 14(2) s. 52(1) s. 111(2)
s. 16(1) s. 53 s. 112(1)
s. 16(2) s. 54 s. 112(2)
s. 16A(1) s. 55(1)(c) s. 113(1)
s. 16A(2) s. 56 s. 113(2)
s. 18(1) s. 58(1) s. 113(4)
s. 18(3) s. 58(2) s. 114(1)
s. 18(7)(b) s. 61(1) s. 116
s. 21(1) s. 63(2) s. 122(2)
s. 21(2b) s. 69(2) s. 122(4)
s. 21(3) s. 69(3) s. 123(2)
s. 23(1) s. 76(2) s. 124(2)(a)
s. 23(2) s. 77(1) s. 127(2)(ba)
s. 23(3) s. 79(1) s. 128(1)(a)(ii)
s. 24(1) s. 79(2) s. 129(1)
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Amendments to other Acts Schedule 2
s. 25(1) s. 79(3) s. 129(2)
s. 26C(1)(c) s. 80(1) s. 130
s. 27(5) s. 80(2) s. 130A
s. 29(1)(c) s. 80(3) s. 131(1)(b)
s. 30 s. 82(1) s. 134(1)
s. 31 s. 82(2) s. 134(1a)
s. 33(1) s. 82(3) s. 134(1b)
s. 33(2) s. 83(1) s. 134(2)
s. 33(3) s. 83(3) s. 134(4)
s. 33(4) s. 88 s. 138(1)(b)(ii)
s. 33(5) s. 90(1) s. 138(4)
s. 34(1) s. 90(4) s. 138(6)
s. 34(2) s. 91 s. 138D
s. 34(3) s. 92(1) s. 139(1)
s. 37(1) s. 92(2) s. 140(1)
s. 37(2) s. 93(1) s. 140(2)
s. 37(3) s. 93(2) s. 141(1)
s. 38(1) s. 94(2) s. 141(2)
s. 38(3) s. 94(3) s. 141(3)
s. 39(2) s. 94(4) Sch. 1 cl. 1(1)
s. 40(1) s. 99 Sch. 1 cl. 1(2)
s. 43 s. 100(3)(b) Sch. 1 cl. 2(3)(b)
s. 44(1) s. 102(1) Sch. 1 cl. 3
s. 44(2) s. 102(2) Sch. 3 cl. 7
s. 44(3) s. 102(3) Sch. 3 cl. 13(1)
s. 44(4) s. 103 Sch. 3 cl. 13(2)
s. 44(5) s. 104(3)
s. 45(a) s. 105(1)
s. 45(b) s. 106
s. 46(1)(c) s. 107
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Schedule 2 Amendments to other Acts
(9) Each provision listed in the Table to this subclause is amended by
deleting "Director-General's" in each place where it occurs and
inserting instead --
" CEO's ".
5 Table
s. 18(3) s. 130
s. 79(1)(j) s. 134(1)
s. 82(3) s. 134(1a)
s. 82(4) s. 134(1b)
s. 107(d)
3. Bail Act 1982 amended
(1) The amendments in this clause are to the Bail Act 1982*.
[* Reprinted as at 27 August 1999.
For subsequent amendments see Western Australian Legislation
10 Information Tables for 2002, Table 1, p. 28 and Act No. 50 of
2003.]
(2) Section 3(1) is amended in the definition of "authorized community
services officer" in paragraph (d) by deleting "or departmental facility
under the Child Welfare Act 1947".
15 (3) Schedule 1 Part C is amended in clause 2(3) as follows:
(a) after paragraph (a) by inserting "and";
(b) by deleting paragraph (b) and "and" after it.
4. Children's Court of Western Australia Act 1988 amended
(1) The amendments in this clause are to the Children's Court of Western
20 Australia Act 1988*.
[* Reprinted as at 27 August 2000.
For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 54.]
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Amendments to other Acts Schedule 2
(2) Section 3 is amended by deleting the definition of "CEO (Justice)"
and inserting in the appropriate alphabetical positions the following
definitions --
"
5 "CEO" means the chief executive officer of the
Department;
"Department" means the department of the Public
Service principally assisting in the administration
of this Act;
10 ".
(3) Section 7(1) is amended by deleting "Community Services Act 1972"
and inserting instead --
" Children and Community Services Act 2003 ".
(4) Section 20(a) is amended by deleting "Child Welfare Act 1947" and
15 inserting instead --
" Children and Community Services Act 2003 ".
(5) Section 28(1) is amended by deleting "Child Welfare Act 1947" and
inserting instead --
" Children and Community Services Act 2003 ".
20 (6) Section 28(2)(a) is deleted and the following paragraph is inserted
instead --
"
(a) the CEO or the CEO as defined in section 3 of
the Children and Community Services
25 Act 2003;
".
(7) Section 33 is repealed and the following section is inserted instead --
"
33. CEOs or officers may take part in proceedings
30 (1) In this section --
"prescribed officer" means --
(a) the CEO or an officer of the Department who
is authorised by that CEO; or
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Schedule 2 Amendments to other Acts
(b) the CEO as defined in section 3 of the
Children and Community Services Act 2003
or an officer as defined in that section who is
authorised by that CEO.
5 (2) A prescribed officer may be present at the hearing in
the Court of any complaint against, or application or
other proceeding concerning, a child and, if present, is
entitled to examine and cross-examine witnesses and to
be heard concerning the remand, punishment or
10 disposal of the child.
".
(8) Section 36(1) is amended as follows:
(a) by deleting "; or" after paragraph (b) and inserting a comma
instead;
15 (b) by deleting paragraph (c).
(9) Section 37(2) is amended by inserting after "this Act" --
" and the Children and Community Services Act 2003 ".
(10) Section 40(2)(b) is amended by deleting "CEO (Justice)" and
inserting instead --
20 " CEO ".
(11) Section 42(1) is amended as follows:
(a) by deleting "decision -- " and paragraphs (a), (b) and (c) and
inserting instead --
"
25 decision on the hearing of an application under Part 4
or 5 of the Children and Community Services Act 2003
";
(b) by deleting paragraph (aa) and inserting the following
paragraph instead --
30 "
(a) the CEO as defined in section 3 of the Children
and Community Services Act 2003;
";
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Amendments to other Acts Schedule 2
(c) by redesignating paragraphs (bb), (cc) and (dd) as
paragraphs (b), (c) and (d) respectively.
(12) Section 42(2) is amended by deleting the passage beginning "notice
to" and ending "the applicant)" and inserting instead --
5 "
notice to the CEO as defined in section 3 of the
Children and Community Services Act 2003 (if that
CEO is not the applicant)
".
10 (13) Section 43(4) is amended as follows:
(a) by deleting "decision -- " and paragraphs (a), (b) and (c) and
inserting instead --
"
decision on the hearing of an application under Part 4
15 or 5 of the Children and Community Services Act 2003
";
(b) by deleting paragraph (aa) and inserting the following
paragraph instead --
"
20 (a) the CEO as defined in section 3 of the Children
and Community Services Act 2003;
";
(c) by redesignating paragraphs (bb), (cc) and (dd) as
paragraphs (b), (c) and (d) respectively.
25 5. Constitution Acts Amendment Act 1899 amended
(1) The amendments in this clause are to the Constitution Acts
Amendment Act 1899*.
[* Reprint 12 as at 3 October 2003.]
(2) Schedule V Part 3 is amended as follows:
30 (a) by deleting "Any board, committee or council constituted
under section 22 of the Community Services Act 1972.";
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Schedule 2 Amendments to other Acts
(b) after the item relating to the Advisory Committee appointed
under section 435 of the Local Government (Miscellaneous
Provisions) Act 1960 by inserting the following item --
"
5 Any advisory body established or continued under the Children
and Community Services Act 2003.
".
6. Coroners Act 1996 amended
(1) The amendments in this clause are to the Coroners Act 1996*.
10 [* Reprinted as at 3 August 2001.
For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 81 and Acts Nos. 15 and
28 of 2003.]
(2) Section 3 is amended in the definition of "person held in care" by
15 deleting paragraph (a)(i) and inserting the following subparagraph
instead --
"
(i) the CEO as defined in section 3 of the
Children and Community Services
20 Act 2003;
".
7. Disability Services Act 1993 amended
(1) The amendments in this clause are to the Disability Services
Act 1993*.
25 [* Reprinted as at 26 May 2000.
For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 105.]
(2) Section 52(1)(bc) and (bd) are deleted and the following paragraphs
are inserted instead --
30 "
(bc) for the purpose of enabling or facilitating the
investigation by the CEO as defined in
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Amendments to other Acts Schedule 2
section 3 of the Children and Community
Services Act 2003, or an officer as defined in
that section, of whether or not a child is in need
of protection under that Act;
5 (bd) for the purpose of protection proceedings under
the Children and Community Services
Act 2003;
".
(3) Section 52(3) is repealed.
10 8. Electoral Act 1907 amended
(1) The amendment in this clause is to the Electoral Act 1907*.
[* Reprinted as at15 December 2000.
For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 115.]
15 (2) Section 18(c) is amended by deleting "or the Child Welfare
Act 1947".
9. Evidence Act 1906 amended
(1) The amendments in this clause are to the Evidence Act 1906*.
[* Reprint 12 as at 10 October 2003.]
20 (2) Section 106A is amended in the definition of "defendant" by deleting
paragraph (a)(i) and inserting the following subparagraph instead --
"
(i) means any party to the proceeding,
other than the affected child and an
25 applicant who is an officer as defined in
section 3 of the Children and
Community Services Act 2003;
".
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Children and Community Services Bill 2003
Schedule 2 Amendments to other Acts
(3) The Second Schedule Part 4 is repealed and the following Part is
inserted instead --
"
Part 4 -- Offences under the Children and
5 Community Services Act 2003
Provision Description of offence
s. 101(1) and (2) Failing to protect child from
significant harm
s. 102 Leaving child unsupervised
in vehicle
".
(4) Schedule 7 Part A is amended by deleting clause 2 and inserting the
following clause instead --
"
10 2. A proceeding also comes within the provisions of the
Schedule if it is an application under Part 4 or 5 of the
Children and Community Services Act 2003.
".
10. Family Court Act 1997 amended
15 (1) The amendments in this clause are to the Family Court Act 1997.
[* Reprint 1 as at 15 August 2003.]
(2) Section 5 is amended as follows:
(a) by inserting in the appropriate alphabetical position the
following definition --
20 "
"CEO" means the CEO as defined in section 3 of the
Children and Community Services Act 2003;
";
(b) in the definition of "child welfare law" by deleting "Child
25 Welfare Act 1947" and inserting instead --
" Children and Community Services Act 2003 ";
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Children and Community Services Bill 2003
Amendments to other Acts Schedule 2
(c) by deleting the definitions of "Department" and
"Director-General".
(3) Section 36(2) is amended by deleting "Child Welfare Act 1947" and
inserting instead --
5 " Children and Community Services Act 2003 ".
(4) Section 36(6) is amended as follows:
(a) by deleting "care and";
(b) by deleting "Child Welfare Act 1947" and inserting instead --
" Children and Community Services Act 2003 ".
10 (5) Section 36(7) is repealed.
(6) Section 207(2) is amended as follows:
(a) by deleting "care and";
(b) by deleting "Child Welfare Act 1947" and inserting instead --
" Children and Community Services Act 2003 ".
15 (7) Each provision listed in the Table to this subclause is amended by
deleting "Director-General" in each place where it occurs and
inserting instead --
" CEO ".
Table
s. 159(2) s. 160(6)
s. 159(3) s. 161(1)
s. 160(2) s. 207(1)
s. 160(3) s. 207(2)
s. 160(4) s. 207(3)
s. 160(5) s. 209(2)(f)
20 11. Guardianship and Administration Act 1990 amended
(1) The amendments in this clause are to the Guardianship and
Administration Act 1990*.
[* Reprinted as at 22 November 2002.]
page 175
Children and Community Services Bill 2003
Schedule 2 Amendments to other Acts
(2) Section 64(3) is amended as follows:
(a) by deleting "; and" after paragraph (b) and inserting a full
stop instead;
(b) by deleting paragraph (c).
5 12. Health Act 1911 amended
(1) The amendments in this clause are to the Health Act 1911*.
[* Reprinted as at 31 March 2000.
For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 168 and Act No. 28 of
10 2003.]
(2) Section 308 is repealed.
(3) Section 309(1) is amended as follows:
(a) by deleting "definitions" and inserting instead --
" definition ";
15 (b) by deleting the definition of "Industrial School";
(c) in the definition of "Prisoner" by deleting "or subject to
detention in an industrial school".
(4) Section 309(2) is amended by deleting "or industrial school".
(5) Section 312 is amended by deleting ", 308".
20 13. Hire-Purchase Act 1959 amended
(1) The amendments in this clause are to the Hire-Purchase Act 1959*.
[* Reprinted as at12 May 2000.
For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 171.]
25 (2) Section 18(9)(c) is deleted and the following paragraph is inserted
instead --
"
(c) if there is no parent or legal guardian of the
hirer, a person approved by the CEO as defined
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Children and Community Services Bill 2003
Amendments to other Acts Schedule 2
in section 3 of the Children and Community
Services Act 2003,
".
(3) Section 18(10) is repealed and the following subsection is inserted
5 instead --
"
(10) The CEO as defined in section 3 of the Children and
Community Services Act 2003 (the "CEO") may in
writing signed by the CEO delegate the power
10 conferred by subsection (9)(c) to any other officer as
defined in section 3 of that Act, and an officer to whom
that power is delegated --
(a) may exercise the power in the same manner and
with the same effect as if the power were
15 directly conferred on the officer by this Act and
not by delegation; and
(b) is presumed to exercise the power in
accordance with the terms of the delegation in
the absence of proof to the contrary,
20 but any such delegation may be revoked wholly or
partly by the CEO at any time and does not prevent the
CEO from exercising the power.
".
14. Human Reproductive Technology Act 1991 amended
25 (1) The amendments in this clause are to the Human Reproductive
Technology Act 1991*.
[* Reprinted as at 12 July 2002.
For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 177.]
page 177
Children and Community Services Bill 2003
Schedule 2 Amendments to other Acts
(2) Section 3(1) is amended as follows:
(a) in the definition of "authorised officer" by deleting
paragraph (c) and inserting the following paragraph
instead --
5 "
(c) in relation to the powers referred to in
section 44(3)(c) or 49(4)(b), includes a
reference to the CEO as defined in section 3
of the Children and Community Services
10 Act 2003 or an officer as defined in that
section authorised in writing by that CEO;
";
(b) by deleting the definition of "Director-General".
(3) Section 8(2)(a)(i)(E) is amended by deleting "Community Services
15 Act 1972" and inserting instead --
" Children and Community Services Act 2003 ".
15. Industrial Relations Act 1979 amended
(1) The amendments in this clause are to the Industrial Relations
Act 1979*.
20 [* Reprinted as at 8 November 2002.
For subsequent amendments see Acts Nos. 7, 20, 28 and 31 of 2003
and Gazette 15 August 2003 p. 3685-92.]
(2) Section 81AA(bc) is deleted and the following paragraph is inserted
instead --
25 "
(bc) section 196(2) of the Children and Community
Services Act 2003;
".
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Children and Community Services Bill 2003
Amendments to other Acts Schedule 2
(3) Section 81CA(1) is amended in the definition of "prosecution
jurisdiction" by deleting paragraph (d) and "or" after it and inserting
instead --
"
5 (d) section 196(2) of the Children and
Community Services Act 2003; or
".
16. Juries Act 1957 amended
(1) The amendments in this clause are to the Juries Act 1957*.
10 [* Reprinted as at 3 July 2000.
For subsequent amendments see Acts Nos. 25 and 50 of 2003.]
(2) The Second Schedule Part I is amended by inserting after item 1(e)
the following paragraph --
"
15 (ea) Magistrate of the Children's Court;
".
(3) The Second Schedule Part I is amended in item 2 as follows:
(a) by deleting paragraph (c) and inserting the following
paragraph instead --
20 "
(c) Member of the Children's Court;
";
(b) by deleting paragraph (k) and inserting the following
paragraph instead --
25 "
(k) Officer as defined in section 3 of the Children and
Community Services Act 2003;
".
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Schedule 2 Amendments to other Acts
17. Legal Aid Commission Act 1976 amended
(1) The amendments in this clause are to the Legal Aid Commission
Act 1976*.
[* Reprinted as at 5 March 1999.
5 For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 211.]
(2) Section 37(3a)(a) is deleted and the following paragraph is inserted
instead --
"
10 (a) where the person is a child for whom the CEO
has parental responsibility under the Children
and Community Services Act 2003, to the
resources of the Department that are capable of
being applied for the provision of legal aid to
15 the person;
".
(3) Section 37(3b) is repealed and the following subsection is inserted
instead --
"
20 (3b) In subsection (3a)(a) --
"CEO", "child" and "Department" have the meaning
given to those terms in section 3 of the Children
and Community Services Act 2003.
".
25 18. Legal Representation of Infants Act 1977 amended
(1) The amendments in this clause are to the Legal Representation of
Infants Act 1977*.
[* Reprint 1 as at 16 May 2003.]
(2) Section 3(1)(d) is amended by deleting "Child Welfare Act 1947" and
30 inserting instead --
" Children and Community Services Act 2003 ".
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Children and Community Services Bill 2003
Amendments to other Acts Schedule 2
(3) Section 5(5) is amended by deleting the passage beginning "under the
guardianship" and ending "given him" and inserting instead --
"
under the guardianship of the CEO as defined in
5 section 3 of the Children and Community Services
Act 2003, the court shall not make an appointment
under this section unless and until the court has caused
notice to be served on the CEO and given the CEO
".
10 19. Parks and Reserves Act 1895 amended
(1) The amendments in this clause are to the Parks and Reserves
Act 1895*.
[* Reprinted as at 5 March 1999.
For subsequent amendments see Western Australian Legislation
15 Information Tables for 2002, Table 1, p. 274.]
(2) Section 12A(2) is amended by deleting the definition of "parent" and
inserting the following definition instead --
"
"parent" has the meaning given to that term in
20 section 3 of the Children and Community Services
Act 2003.
".
(3) Section 12A(3) is repealed.
20. Prostitution Act 2000 amended
25 (1) The amendments in this clause are to the Prostitution Act 2000*.
[* Act No. 17 of 2000.
For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 312 and Act No. 33 of
2003.]
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Schedule 2 Amendments to other Acts
(2) Section 57(4)(c) is amended by deleting "Child Welfare Act 1947"
and inserting instead --
" Children and Community Services Act 2003 ".
(3) Schedule 1 is amended as follows:
5 (a) by deleting "Child Welfare Act 1947" and inserting instead --
" Children and Community Services Act 2003 ";
(b) by deleting "s. 108(1)" and inserting instead --
" s. 192(1) or (2) ".
21. Protective Custody Act 2000 amended
10 (1) The amendments in this clause are to the Protective Custody
Act 2000*.
[* Act No. 50 of 2000.
For subsequent amendments see Act No. 31 of 2003.]
(2) Section 4(1) is amended by deleting "section 138B of the Child
15 Welfare Act 1947." and inserting instead --
"
the operation of section 41 of the Children and
Community Services Act 2003.
".
20 (3) Section 11(6) is repealed.
22. Rates and Charges (Rebates and Deferments) Act 1992 amended
(1) The amendments in this clause are to the Rates and Charges (Rebates
and Deferments) Act 1992*.
[* Reprinted as at19 May 2000 .
25 For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 327 and Act No. 28 of
2003.]
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Children and Community Services Bill 2003
Amendments to other Acts Schedule 2
(2) Section 3(1) is amended by deleting the definition of "State
concession card" and inserting the following definition instead --
"
"State concession card" means a currently valid card
5 which bears that designation and is issued under
section 6 by the CEO as defined in section 3 of the
Children and Community Services Act 2003;
".
(3) Section 6(1) is amended by deleting "Director-General of the
10 department established under section 4 of the Community Services
Act 1972" and inserting instead --
"
CEO as defined in section 3 of the Children and
Community Services Act 2003
15 ".
(4) Section 6(2) is amended by deleting "Director-General" in both places
where it occurs and inserting instead --
" CEO ".
(5) Section 6(3) is amended by deleting "Director-General" and inserting
20 instead --
" CEO ".
23. Restraining Orders Act 1997 amended
(1) The amendments in this clause are to the Restraining Orders
Act 1997*.
25 [* Reprinted as at 6 October 2000.]
(2) Section 3 is amended by deleting the definition of "child welfare
officer" and inserting instead --
"
"child welfare officer" means --
30 (a) the CEO as defined in section 3 of the
Children and Community Services Act 2003;
or
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Children and Community Services Bill 2003
Schedule 2 Amendments to other Acts
(b) a person who is an authorised officer for the
purposes of section 37 of that Act;
".
(3) Section 63(3) is amended by deleting "an application under the Child
5 Welfare Act 1947 to declare a child in need of care and protection"
and inserting instead --
"
protection proceedings under the Children and
Community Services Act 2003
10 ".
24. School Education Act 1999 amended
(1) The amendments in this clause are to the School Education Act 1999*.
[* Act No. 36 of 1999.
For subsequent amendments see Western Australian Legislation
15 Information Tables for 2002, Table 1, p. 350 and Gazette
15 August 2003 p. 3685-92.]
(2) Section 42(3) is amended by deleting "If a child is a ward for the
purposes of the Child Welfare Act 1947" and inserting instead --
"
20 If the CEO as defined in section 3 of the Children and
Community Services Act 2003 has parental
responsibility for a child under that Act
".
25. Spent Convictions Act 1988 amended
25 (1) The amendments in this clause are to the Spent Convictions
Act 1988*.
[* Reprinted as at 1 September 2000.
For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 362 and Act No. 50 of
30 2003.]
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Amendments to other Acts Schedule 2
(2) Schedule 3 is amended in the Table to clause 2(1) as follows:
(a) in item 3 by deleting "or permit to provide a child care
service under the Community Services Act 1972." and
inserting instead --
5 "
to provide a child care service under Part 8 of the
Children and Community Services Act 2003.
";
(b) in item 5 by deleting "for licensing as a foster parent under
10 the Child Welfare Act 1947." and inserting instead --
"
for approval in relation to the placement of a child
under the Children and Community Services
Act 2003.
15 ".
26. Tobacco Control Act 1990 amended
(1) The amendments in this clause are to the Tobacco Control Act 1990*.
[* Reprinted as at 2 November 2001.]
(2) Section 17(1)(k) is deleted and the following paragraph is inserted
20 instead --
"
(k) one shall be the chief executive officer of the
Department as defined in section 3 of the
Children and Community Services Act 2003 or
25 the nominee of that chief executive officer.
".
27. Young Offenders Act 1994 amended
(1) The amendments in this clause are to the Young Offenders Act 1994*.
[* Reprinted as at 8 December 2000.
30 For subsequent amendments see Western Australian Legislation
Information Tables for 2002, Table 1, p. 442 and Act No. 50 of
2003.]
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Children and Community Services Bill 2003
Schedule 2 Amendments to other Acts
(2) Section 3 is amended in the definition of "exempt responsible adult"
by deleting paragraphs (b) and (c), and "or" after paragraph (c), and
inserting instead --
"
5 (b) the CEO as defined in section 3 of the
Children and Community Services Act 2003
who, under that Act, has parental
responsibility for the young person;
(c) an officer as defined in section 3 of the
10 Children and Community Services Act 2003;
or
".
page 186
Children and Community Services Bill 2003
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
Aboriginal child ............................................................................................... 3
Aboriginal person............................................................................................. 3
adult................................................................................................................. 3
advisory body.............................................................................................27(1)
amend ......................................................................................................215(3)
another law...............................................................................................107(1)
applicant ................................................................................................ 91, 197
application ................................................................................................... 197
application for assistance ..........................................................................235(1)
authorisation ....................................................................................Sch. 1, cl. 1
authorised officer .................................................................................3, 195(1)
care plan ....................................................................................10(4), 89(1), 91
carer................................................................................................................. 3
case planning decision .................................................................................... 91
case review panel ........................................................................................... 91
CEO................................................................................................................. 3
child................................................3, 42, 74, 79(1), 105(1), 126(1), 131, 150(1)
child care service.................................................................. 197, 198(1), 198(2)
child protection order ...............................................................................157(1)
child protection proceeding.......................................................................157(1)
child welfare law......................................................................................157(1)
Children's Court.......................................................................................157(1)
commencement day..........................................................................Sch. 1, cl. 1
condition ......................................................................................... 51(1), 64(1)
corporate applicant ....................................................................................... 197
corresponding authority..............................................................................23(1)
Court................................................................................................................ 3
criminal record check ................................................................................... 197
delivery work ............................................................................................... 188
Department ...................................................................................................... 3
departmental record..................................................................................238(1)
disability .......................................................................................................... 3
disposable article.......................................................................................... 112
employ......................................................................................................... 188
enduring parental carer ................................................................................... 42
engage in conduct.....................................................................................101(3)
equivalent authority...................................................................................... 197
existing appeal .................................................................................Sch. 1, cl. 1
existing order ...................................................................................Sch. 1, cl. 1
page 187
Children and Community Services Bill 2003
Defined Terms
existing proceedings .........................................................................Sch. 1, cl. 1
extended order..................................................................................Sch. 1, cl. 1
family business............................................................................................. 188
family day care service ................................................................................. 197
firearm ......................................................................................................... 112
first listing date ................................................................................................ 3
guidelines...................................................................................................80(1)
harm ....................................................................................................3, 101(3)
home order...............................................................................................157(1)
identified person.......................................................................................237(2)
identifying information.............................................................................240(1)
in need of protection...............................................................................3, 28(2)
in the CEO's care ....................................................................................... 3, 30
individual applicant ...................................................................................... 197
interested person ........................................................................................23(1)
interim order ........................................................................................3, 157(1)
interstate law............................................................................................157(1)
interstate officer .......................................................................................157(1)
intervention action......................................................................................32(2)
intoxicant ..................................................................................................... 112
lawyer ......................................................................................................148(1)
licence.......................................................................................................... 197
licensee ........................................................................................................ 197
licensing officer........................................................................................231(1)
magistrate ........................................................................................................ 3
managerial officer ........................................................................................ 197
Ministerial Body............................................................................................. 17
neglect .......................................................................................................28(1)
negotiated placement agreement ....................................................................... 3
nominated supervising officer....................................................................... 197
notice .......................................................................................................193(1)
notifier .....................................................................................................240(1)
officer ........................................................................ 3, 37(1), 41(1), 87(1), 112
officer in charge .........................................................................................40(1)
old order ..................................................................................................237(1)
parent............................................................................................ 3, 42, 88, 131
parental responsibility....................................................................................... 3
participating State.....................................................................................157(1)
party................................................................................................................. 3
party to the initial proceedings........................................................................ 42
person aggrieved ......................................................................................225(2)
personal material ........................................................................................97(1)
place ................................................................................................................ 3
place of residence.....................................................................................105(1)
placed .............................................................................................................. 3
page 188
Children and Community Services Bill 2003
Defined Terms
placement......................................................................................................... 3
placement arrangement..................................................................................... 3
police officer .................................................................................................... 3
pre-hearing conference ..................................................................................... 3
prescribed offence ........................................................................................ 197
prescribed period......................................................................................104(1)
prohibited article .......................................................................................... 112
proposal ...................................................................................................143(1)
proposed carer............................................................................................61(1)
proposed interstate order...............................................................158(1), 167(1)
protection application ....................................................................................... 3
protection order ................................................................................................ 3
protection order (enduring parental responsibility) ............................................ 3
protection order (supervision) ........................................................................... 3
protection order (time-limited).......................................................................... 3
protection order (until 18)................................................................................. 3
protection proceedings...................................................................................... 3
provide care .............................................................................................104(1)
provisional care plan ....................................................................... 10(4), 39(1)
provisional protection and care ......................................................................... 3
public authority ................................................................................................ 3
publish .....................................................................................................237(1)
registrar of the Court ................................................................................157(1)
relative............................................................................................................. 3
relevant information ...................................................................................23(1)
relevant person ...........................................................................................73(1)
remote communication .............................................................................120(1)
repealed Act .....................................................................................Sch. 1, cl. 1
report ........................................................................................................... 138
representation...........................................................................................146(1)
residence order .........................................................................................104(1)
responsible person ......................................................................................41(1)
reviewable decision ..................................................................................225(2)
seized.......................................................................................................117(1)
sending State............................................................................................157(1)
service provider................................................................................................ 3
social services .................................................................................................. 3
specific issues order .................................................................................104(1)
specified.............................................................205(2), 229(2), Sch. 1, cl. 25(5)
State.........................................................................................................157(1)
supervising officer........................................................................................ 197
suspension notice ......................................................................................... 197
Torres Strait Islander ........................................................................................ 3
Torres Strait Islander child ............................................................................... 3
transferred order.......................................................................................181(1)
page 189
Children and Community Services Bill 2003
Defined Terms
usual occupant.............................................................................................. 197
warrant (access)........................................................................................121(1)
warrant (apprehension) .............................................................................122(1)
warrant (provisional protection and care) ..................................................123(1)
weapon ........................................................................................................ 112
wellbeing ......................................................................................................... 3
working day .........................................................................................3, 157(1)
young child ..............................................................................................104(1)
page 190
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