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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
LEGISLATIVE ASSEMBLY
(As amended in Committee)
Child Welfare Amendment Bill 1998
A Bill for
An Act to amend the Child Welfare Act 1947 and to consequentially
amend the --
· Freedom of Information Act 1992;
· Spent Convictions Act 1988; and
· Young Offenders Act 1994.
The Parliament of Western Australia enacts as follows:
page 1
164 -- 2
Child Welfare Amendment Bill 1998
s. 1
1. Short title
This Act may be cited as the Child Welfare Amendment
Act 1998.
2. Commencement
5 This Act comes into operation on such day as is fixed by
proclamation.
3. Principal Act
In this Act the Child Welfare Act 1947* is referred to as the
principal Act.
10 [* Reprinted as at 12 July 1995.
For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, pp. 32-4.]
4. Part VIIIA inserted
After Part VIII of the principal Act the following Part is
15 inserted --
"
Part VIIIA -- Child Protection
Services Register
Division 1 -- Interpretation
20 120A. Interpretation
In this Part, unless the contrary intention appears --
"approved person", in relation to a reporting agency,
means a person who holds an office or position in
the reporting agency that is prescribed, or belongs
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Child Welfare Amendment Bill 1998
s. 4
to a class that is prescribed, for the purposes of this
definition;
"Judge" means a Judge as defined in section 3 of the
Children's Court of Western Australia Act 1988;
5 "maltreatment" means --
(a) an act or course of conduct that results, or is
likely to result, in significant physical or
psychological harm to a child;
(b) without limiting paragraph (a), an assault
10 (including a sexual assault) of a child; or
(c) neglect of a child to an extent that results, or
is likely to result, in significant physical or
psychological harm to the child,
and "maltreated" has a corresponding meaning;
15 "manager" means the person for the time being
designated as the manager of the register under
section 120B;
"register" means the register referred to in
section 120C;
20 "report" means a report made under section 120F(1);
"reporting agency" means --
(a) the Department;
(b) the Police Force of Western Australia;
(c) the department of the Public Service
25 principally assisting with the administration
of the Education Act 1928, or an Act that
replaces that Act, in relation to government
schools;
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Child Welfare Amendment Bill 1998
s. 4
(d) the department of the Public Service
principally assisting with the administration
of the Health Act 1911;
(e) the department of the Public Service
5 principally assisting with the administration
of the Young Offenders Act 1994;
(f) the Disability Services Commission
continued by the Disability Services Act
1993;
10 (g) the Western Australian Alcohol and Drug
Authority established under the Alcohol and
Drug Authority Act 1974; or
(h) a public hospital or private hospital (as those
terms are defined in the Hospitals and
15 Health Services Act 1927) that is prescribed
for the purposes of this definition.
Division 2 -- Administration
120B. The manager
(1) The Minister shall, in writing, designate an officer of
20 the Department as the manager of the register.
(2) The functions of the manager are --
(a) the functions conferred by this Part in relation
to the register;
(b) to provide advice to the Minister on matters
25 relating to the operation of the register;
(c) to ensure that reporting agencies are aware of
the requirements of this Part;
page 4
Child Welfare Amendment Bill 1998
s. 4
(d) to facilitate and coordinate the provision of
counselling, support and other services by
reporting agencies in cases of maltreatment or
suspected maltreatment; and
5 (e) to formulate guidelines for the purposes of
section 120R.
120C. Register to be kept
(1) The manager shall compile and maintain a register
containing the information described in section 120D.
10 (2) The register is to be known as the Child Protection
Services Register or by such other name as the Minister
approves.
(3) The register may be kept on computer or in such other
form or medium as the Minister approves.
15 120D. Content of register
(1) The register is to contain --
(a) any relevant information, as determined by the
manager, held in the Department immediately
before the commencement of the Child Welfare
20 Amendment Act 1998 concerning --
(i) the maltreatment or suspected
maltreatment of a child, excluding
information that identifies or is likely to
identify a person as a person suspected
25 of being responsible for the
maltreatment or suspected
maltreatment; or
(ii) the conviction of a person for an offence
involving maltreatment of a child;
page 5
Child Welfare Amendment Bill 1998
s. 4
(b) the information contained in a report; and
(c) the following information in respect of a child
who has been the subject of a report --
(i) the name of any person convicted of an
5 offence involving the maltreatment
described in the report;
(ii) details of the offence; and
(iii) the relationship (if any) of the person to
the child.
10 (2) Subject to section 120O, information referred to in
subsection (1)(a)(i) or (b) is to remain in the register
until the child concerned reaches the age of 18 years
and is then to be removed.
(3) Subject to subsection (4)(b) and section 120O,
15 information referred to in subsection (1)(a)(ii) or (c) is
to remain in the register until the expiry of 60 years
after the date of the conviction and is then to be
removed.
(4) Where a person referred to in subsection (1)(a)(ii) or
20 (c)(i) was under the age of 18 years when the person
committed the offence, a Judge may --
(a) on the application of the person; and
(b) having regard to --
(i) the person's age when the person
25 committed the offence; and
(ii) the nature and seriousness of the
offence,
order the removal of the information relating to the
offence from the register; and the manager shall
30 comply with any such order.
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Child Welfare Amendment Bill 1998
s. 4
(5) For the purposes of subsection (1), a person is
convicted of an offence if the person is found guilty of
the offence and notwithstanding that --
(a) a spent conviction order is made under
5 section 39 of the Sentencing Act 1995 in respect
of the conviction; or
(b) having been found guilty of the offence, a
conviction is not recorded under section 55 of
the Young Offenders Act 1994.
10 120E. Register to include information in respect of spent
convictions
Information referred to in section 120D(1)(a)(ii) or (c)
in respect of a particular conviction is to remain in the
register despite the fact that the conviction becomes --
15 (a) a spent conviction under the Spent Convictions
Act 1988; or
(b) a conviction to which section 189 of the Young
Offenders Act 1994 applies.
Division 3 -- Reports and notification
20 120F. Duty of approved person to provide report of
maltreatment
(1) If an approved person in a reporting agency is satisfied,
following an assessment or investigation carried out by
that person or any other person, that a child has been
25 maltreated or is at serious risk of maltreatment, the
approved person shall make a report to the manager
containing the following information --
(a) the name, sex, date of birth and address of the
child;
page 7
Child Welfare Amendment Bill 1998
s. 4
(b) details of the maltreatment or risk of
maltreatment, excluding details that identify or
are likely to identify a person as a person
suspected of being responsible for the
5 maltreatment or of posing the risk of
maltreatment;
(c) details of counselling, support or other services
provided, or to be provided, to the child or to
members of the child's family (whether by the
10 approved person, another officer or employee
of the reporting agency or another person or
body); and
(d) such other information as may be prescribed.
(2) The making of a report as required by subsection (1) is
15 not to be regarded as a breach of any duty of
confidentiality or secrecy imposed by law or as a
breach of any professional ethics or standards.
(3) Subject to any guidelines issued under section 120R,
the report is to be made in such manner and form as the
20 manager determines.
120G. Notification of report
(1) If a report is made under section 120F(1), the manager
shall cause notification to be given to --
(a) a parent, guardian or other person responsible
25 for the day to day care, welfare and
development of the child; and
(b) the child, if the child has reached the age of
12 years,
that the report has been made and that the information
30 it contains has been recorded in the register.
page 8
Child Welfare Amendment Bill 1998
s. 4
(2) Notification under subsection (1) is to --
(a) include a summary of the contents of the report;
and
(b) be given in such manner as the manager
5 determines is appropriate to protect the interests
of the child.
(3) The manager may --
(a) defer notification under subsection (1)(a) or (b)
for such period as the manager considers
10 appropriate; or
(b) d ispense wit h not ificat io n under
subsection (1)(a) or (b),
if the manager is satisfied that it is in the best interests
of the child to do so.
15 (4) Without limiting subsection (3), the manager may
exercise a power given by that subsection in relation to
notification of a child if the manager is satisfied that
the child does not have sufficient maturity to
understand the content of the report or the
20 circumstances to which it relates.
120H. Notification of information recorded under
s. 120D(1)(c)
(1) The manager shall, as soon as practicable after
information relating to the conviction of a person is
25 recorded in the register under section 120D(1)(c), take
all reasonable steps to notify the person that the
information has been so recorded.
(2) Notification under subsection (1) is to include a
summary of the information recorded.
page 9
Child Welfare Amendment Bill 1998
s. 4
(3) Where the person was under the age of 18 years when
the person committed the offence, notification under
subsection (1) is to include a statement of the person's
right to apply for the removal of the information under
5 section 120D(4).
Division 4 -- Access to register and related information
120I. Circumstances in which access permitted
The manager is only to permit access to information in
the register or any other information provided or
10 obtained for the purposes of this Part --
(a) in the circumstances set out in sections 120J
and 120K;
(b) if the information is required by a Judge for the
purposes of determining an appeal under
15 section 120L; or
(c) in accordance with a decision of a Judge on an
appeal under section 120L.
120J. Access for approved persons
(1) On receiving a report in respect of a child, the manager
20 shall, if the manager is satisfied that it is in the best
interests of the child to do so --
(a) notify the approved person who made the report
of the existence of any other information in the
register in respect of the child and permit the
25 approved person to have access to that
information; and
(b) permit any other approved person to have
access to --
(i) the information in the report; and
page 10
Child Welfare Amendment Bill 1998
s. 4
(ii) any other information in the register in
respect of the child.
(2) Where the manager receives an inquiry from an
approved person as to whether the name of a particular
5 person ("the suspected person") is recorded in the
register under section 120D(1)(a)(ii) or (c), the
manager shall in the best interests of the child
concerned --
(a) advise the approved person whether or not the
10 suspected person's name is so recorded; and
(b) if it is so recorded, permit the approved person
to have access to the information in the register
in respect of the suspected person.
120K. Access for children, parents, etc.
15 (1) Subject to subsection (3), the manager shall, at the
request of a parent, guardian or other person
responsible for the day to day care, welfare and
development of the child, permit the person to have
access to the information in the register in respect of
20 the child.
(2) Subject to subsections (3) and (4), the manager shall, at
the request of a child who has reached the age of
12 years, permit the child to have access to the
information in the register in respect of the child.
25 (3) The manager may refuse access under subsection (1) or
(2) if the manager is satisfied that it is in the best
interests of the child to do so.
(4) Without limiting subsection (3), the manager may
refuse access under subsection (2) if the manager is
30 satisfied that the child does not have sufficient maturity
page 11
Child Welfare Amendment Bill 1998
s. 4
to understand the information or the circumstances to
which it relates.
(5) If the manager decides to refuse access, the manager
shall give written notice of the decision to the person
5 who requested access within 14 days after the decision
is made.
(6) A notice under subsection (5) is to include a statement
of the person's right of appeal under section 120L.
120L. Appeals
10 (1) A person who is refused access under section 120K
may appeal against the decision to a Judge.
(2) An appeal is to be made by lodging a notice of appeal
within one month after the appellant receives written
notice of the decision or such further period as a Judge
15 may, in a particular case, direct.
(3) A notice of appeal is to give details of the decision
which is appealed against and set out the grounds of
appeal.
(4) The proceedings on an appeal are to be conducted in
20 the manner prescribed by the rules of court or as a
Judge otherwise directs.
(5) On an appeal, a Judge may --
(a) confirm, vary or reverse the decision the
subject of the appeal; and
25 (b) make any incidental or ancillary order.
(6) The decision of a Judge on an appeal is final and effect
is to be given to that decision.
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Child Welfare Amendment Bill 1998
s. 4
120M. Offence
A person who gains access to the register or to any
information provided or obtained for the purposes of
this Part without the permission of the manager
5 commits an offence.
Penalty: $20 000 and imprisonment for 2 years.
Division 5 -- General
120N. Commissioner of Police to provide assistance
(1) The Commissioner is to provide such assistance to the
10 manager, including access to criminal records, as is
reasonably required for the purpose of obtaining the
information referred to in section 120D(1)(c).
(2) In subsection (1) --
"Commissioner" means the Commissioner of Police
15 appointed under the Police Act 1892.
120O. Alteration of register
(1) The manager shall cause such amendments, alterations
or corrections to the register to be made as are
necessary to ensure that it is and continues to be an
20 accurate record.
(2) Without limiting subsection (1), the manager shall
cause to be removed from the register information
referred to in section 120D(1)(a)(ii) or (c) if the
conviction is set aside or quashed on appeal.
25 120P. Manager to report annually to Minister
The Manager, on or before 30 September in each year,
is to prepare and present to the Minister a report on the
page 13
Child Welfare Amendment Bill 1998
s. 4
operation and effectiveness of this Part during the
period of 12 months ending on the preceding 30 June,
containing such information as is prescribed.
120Q. Confidentiality
5 (1) A person to whom this section applies shall not,
directly or indirectly, record, disclose, or make use of
any information in the register or any other information
provided or obtained for the purposes of this Part
except --
10 (a) for the purpose of performing functions under
this Act or another written law;
(b) as required or allowed by this Act or under
another written law; or
(c) in prescribed circumstances.
15 Penalty: $20 000 and imprisonment for 2 years.
(2) This section applies to any person who is or has
been --
(a) the manager;
(b) any other officer of the Department; or
20 (c) an officer or employee of a reporting agency.
(3) Nothing in this section prevents the disclosure of
statistical or other information in a form that could not
reasonably be expected to lead to the identification of
any person to whom it relates.
page 14
Child Welfare Amendment Bill 1998
s. 5
120R. Guidelines
(1) The manager may, after consultation with the reporting
agencies, issue guidelines to those agencies
concerning --
5 (a) the procedures to be followed, and criteria to be
applied, by an approved person in assessing
whether a report is required to be made under
section 120F;
(b) the manner and form in which a report is to be
10 made for the purposes of section 120F;
(c) the ways in which access is to be given to an
approved person under section 120J; and
(d) any other matter relating to the operation of the
register in respect of which the manager
15 considers guidelines to be necessary or
desirable.
(2) To the extent that a provision of the guidelines
conflicts or is inconsistent with a provision of this Part,
it is of no effect.
20 ".
5. Section 142 amended
Section 142 (1) of the principal Act is amended by deleting "the
provisions of this Act, other than section 107A (1), (2) or (4) or
section 107B (2) or (4)," and inserting the following --
25 " section 60, 61, 66B (1) or (2) or 117 (1), (2) or (3) ".
page 15
Child Welfare Amendment Bill 1998
s. 6
6. Consequential amendments
(1) Schedule 1 to the Freedom of Information Act 1992* is
amended in clause 14(1) by inserting before paragraph (a) the
following paragraph --
5 " (aa) section 120P(1) of the Child Welfare Act 1947; ".
[* Reprinted as at 8 July 1997.
For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, pp. 89-90.]
(2) After section 15 of the Spent Convictions Act 1988* the
10 following section is inserted --
"
15A. Part VIIIA of the Child Welfare Act 1947
Section 25(1) and (2) do not apply to Part VIIIA of the
Child Welfare Act 1947.
15 ".
[* Reprinted as at 19 November 1996.
For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, p. 217 and Act No. 10 of 1998.]
(3) Section 190(2) of the Young Offenders Act 1994* is amended by
20 inserting after "this Act" the following --
" or Part VIIIA of the Child Welfare Act 1947 ".
[* Reprinted as at 26 November 1996.
For subsequent amendments see 1997 Index to Legislation of
Western Australia, Table 1, p. 259.]
page 16
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