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CHILDREN AND YOUNG PEOPLE AMENDMENT BILL 2015 (NO 2)

2015

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Children and Young People)

Children and Young People Amendment Bill 2015 (No 2)

Contents

Page

Part 1.1Working with Vulnerable People (Background Checking) Act 201127

2015

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Minister for Children and Young People)

Children and Young People Amendment Bill 2015 (No 2)

A Bill for

An Act to amend the Children and Young People Act 2008

, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1 Name of Act

This Act is the Children and Young People Amendment Act 2015 (No 2)

.

2 Commencement

This Act commences on the day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act

, s 75 (1)).

3 Legislation amended

This Act amends the Children and Young People Act 2008

.

Note This Act also amends the Working with Vulnerable People (Background Checking) Act 2011

(see sch 1).

4 Who is a suitable entity?

Section 61, definition of suitable entity, examples

substitute

Examples—suitable entities for purposes stated in Act

1 family group conference facilitators (see s 78)

2 approved care and protection organisations (see s 352C)

3 responsible person for an approved care and protection organisation (see s 352D)

4 kinship carers (see s 516)

5 foster carers for a stated child or young person (see s 518)

6 foster carers for any child or young person (see s 519)

7 childcare service proprietors and controlling people (see s 746)

8 researchers and others having contact with children or young people for a research project (see s 809)

5 Entity may apply to be suitable entity for purpose

New section 62 (2) and (3)

after the note, insert

(2) The director-general may make guidelines about applications (the suitability approval application guidelines).

(3) A suitability approval application guideline is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

.

6 Director-general must consider suitability information, etc

New section 64 (3)

before the note, insert

(3) In deciding whether an organisation is a suitable entity for a care and protection purpose, the director-general must consider whether the organisation—

(a) complies, and is likely to continue to comply, with the care and protection organisation standards; and

(b) is likely to have at least 1 responsible person for the organisation at all times during the term of the approval.

Note 1 Care and protection organisation standards—see s 887.

Care and protection purpose, for an organisation—see s 352B.

Organisation—see s 352A.

Responsible person, for an approved care and protection organisation—see s 352D.

7 Suitable entities register

Section 72, note

substitute

Note 1 If the entity is an approved care and protection organisation (see s 352C), further details must be recorded in the approved care and protection organisations register (see s 352V).

Note 2 Power to make a statutory instrument includes power to make different provision in relation to different matters or classes of matters (see Legislation Act

, s 48).

8 New part 10.4

insert

Part 10.4 Approved care and protection organisations

Division 10.4.1 Important concepts

352A Meaning of organisation

In this Act:

organisation means—

(a) a corporation; or

(b) another body prescribed by regulation.

352B Meaning of care and protection purpose

In this Act:

care and protection purpose, for an organisation—

(a) means a purpose—

(i) that relates to the exercise of a function under the care and protection chapters; or

(ii) prescribed by regulation as a care and protection purpose; but

(b) does not include a purpose prescribed by regulation to not be a care and protection purpose.

Examples—purpose under the care and protection chapters

1 An organisation may be approved as a suitable entity for the purpose of becoming authorised as a foster care service under s 517.

2 An organisation may be approved as a suitable entity for the purpose of becoming authorised as a residential care service under s 520 (see s 511).

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

352C Meaning of approved care and protection organisation

In this Act:

approved care and protection organisation means an organisation approved by the director-general under section 63 as a suitable entity for a care and protection purpose.

Note The purpose for which an organisation is approved must be recorded in the suitable entities register (see s 72 (2) (b)).

352D Meaning of responsible person for an approved care and protection organisation

In this Act:

responsible person, for an approved care and protection organisation, means an individual approved by the director-general under section 63 as a suitable entity for the purpose of being responsible for the services provided by the organisation in the ACT.

Division 10.4.2 Approved care and protection organisations—ongoing suitability

352E Approved care and protection organisations—responsible person

An approved care and protection organisation must ensure that the organisation has at least 1 responsible person for the organisation at all times during the term of the approval.

352F Approved care and protection organisations—monitoring

(1) The director-general may monitor an approved care and protection organisation’s ongoing suitability to be an approved care and protection organisation.

(2) In monitoring an organisation’s ongoing suitability, the director-general may require the organisation to give a report to the director-general about the organisation’s suitability.

(3) The director-general may make guidelines for monitoring approved care and protection organisations (the monitoring guidelines).

(4) A monitoring guideline is a disallowable instrument.

Note 1 A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

.

Note 2 If a form is approved under s 886 for this provision, the form must be used.

Division 10.4.3 Approved care and protection organisations—complaints

352G Meaning of noncompliant

An approved care and protection organisation is noncompliant if the organisation is acting in a way that is inconsistent with the organisation’s approval as a suitable entity for the care and protection purpose for which it is approved.

352H Complaints—making a complaint

(1) If a person believes on reasonable grounds that an approved care and protection organisation is noncompliant, the person may make a complaint to the director-general about the noncompliance.

(2) A complaint must—

(a) be in writing; and

(b) be signed by the person (the complainant) making the complaint; and

(c) include the complainant’s name and address.

(3) However, the director-general may accept a complaint for consideration if it does not comply with subsection (2).

(4) The director-general may make arrangements for people with particular communication needs to ensure they have adequate opportunity to make a complaint.

352I Complaints—withdrawing a complaint

(1) A complainant may withdraw the complaint at any time by written notice to the director-general.

(2) If the complainant withdraws the complaint, the director-general—

(a) need not, but may, take further action on the complaint; and

(b) if the director-general takes further action—need not report to the complainant under section 352M (Complaints—action after investigation) on the results of taking the action.

352J Complaints—further information or verification

(1) The director-general may, at any time, require a complainant—

(a) to give the director-general further information about the complaint; or

(b) to verify all or part of the complaint by statutory declaration.

Note The Statutory Declarations Act 1959

(Cwlth) applies to the making of statutory declarations under ACT laws.

(2) If the director-general makes a requirement, the director-general must give the complainant a reasonable period of time to satisfy the requirement and may extend that period, whether before or after it ends.

(3) If the complainant does not comply with a requirement, the director-general need not, but may, take further action on the complaint.

352K Complaints—investigation

The director-general must take reasonable steps to investigate each complaint the director-general accepts for consideration.

352L Complaints—no further action

The director-general must not take further action on a complaint if satisfied that the complaint—

(a) lacks substance; or

(b) is frivolous, vexatious or was not made genuinely; or

(c) has been adequately dealt with.

352M Complaints—action after investigation

(1) After investigating a complaint against an approved care and protection organisation, the director-general must—

(a) if satisfied on reasonable grounds that the organisation is noncompliant—give the organisation—

(i) a noncompliance notice; or

(ii) a noncompliance direction; or

(iii) an intention to cancel notice; and

Note Noncompliance notice—see s 352N.

Noncompliance direction—see s 352O.

Intention to cancel notice—see s 352Q.

(b) if not satisfied that the organisation is noncompliant—

(i) tell the complainant, in writing, that the director-general will not take further action on the complaint; and

(ii) not take further action on the complaint.

(2) Subsection (1) (b) (ii) does not prevent the director-general from taking further action on a complaint if the director-general later becomes satisfied that the organisation is noncompliant.

Note The director-general need not notify the complainant under s (1) if the complainant has withdrawn the complaint (see s 352I).

Division 10.4.4 Approved care and protection organisations—intervention

352N Intervention—noncompliance notice

(1) This section applies if the director-general suspects on reasonable grounds that an approved care and protection organisation is noncompliant or likely to become noncompliant.

(2) The director-general may give the organisation a notice about the noncompliance (a noncompliance notice).

(3) A noncompliance notice must—

(a) be in writing; and

(b) state the action that is noncompliant; and

(c) describe how the action is noncompliant; and

(d) invite the organisation to make an oral or written submission to the director-general about the noncompliance; and

Example

a submission describing how the organisation has changed a procedure to be consistent with the approval

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(e) state the due date for responding to an invitation in paragraph (d).

Note The power to make an instrument includes the power to amend or repeal the instrument (see Legislation Act

, s 46).

352O Intervention—noncompliance direction

(1) This section applies if—

(a) the director-general—

(i) suspects on reasonable grounds that an approved care and protection organisation is noncompliant or likely to become noncompliant; and

(ii) considers that the noncompliance would be better dealt with under this section than by giving the organisation a noncompliance notice; or

(b) the director-general has given an approved care and protection organisation a noncompliance notice about the noncompliance and the organisation—

(i) has not responded by the due date; or

(ii) has responded by the due date but the director-general is satisfied that the organisation is still noncompliant or likely to become noncompliant.

(2) The director-general may give the organisation a direction to end the noncompliance (a noncompliance direction).

(3) A noncompliance direction must—

(a) be in writing; and

(b) state the action that is noncompliant; and

(c) describe how the action is noncompliant; and

(d) state the action to be taken, or not taken, to end the noncompliance; and

(e) state when the direction must be complied with.

Note The power to make an instrument includes the power to amend or repeal the instrument (see Legislation Act

, s 46).

352P Intervention—suspension if child or young person unsafe

(1) This section applies if the director-general believes on reasonable grounds that—

(a) a child or young person is receiving a service from an approved care and protection organisation; and

(b) the child or young person is unsafe; and

(c) the exercise of the director-general’s powers under this section is necessary to protect the child or young person.

Note An authorised person may, at any reasonable time, enter premises where a child or young person is living if the director-general has placed the child or young person with an out-of-home carer under s 512 and the purpose of the entry is to ensure that the child or young person is being properly cared for (see s 815).

(2) The director-general may give a written notice to the approved care and protection organisation, suspending the organisation’s approval for a period not longer than 28 days (a safety suspension notice).

Note The power to make an instrument includes the power to amend or repeal the instrument (see Legislation Act

, s 46).

(3) If a safety suspension notice is in force for an approved care and protection organisation, any of the following authorisations held by the organisation are also suspended for the period of the notice:

(a) authorisation as a foster care service under section 517 (Authorisation of foster care service);

(b) authorisation as a residential care service under section 520 (Authorisation of residential care service—general parental authority).

(4) If the director-general gives a safety suspension notice to an approved care and protection organisation, the director-general must also take reasonable steps to tell a person with daily care responsibility for each child or young person likely to be affected about the suspension.

Note Daily care responsibility—see s 19.

352Q Intervention—intention to cancel notice

(1) This section applies if—

(a) the director-general—

(i) suspects on reasonable grounds that an approved care and protection organisation is noncompliant or likely to become noncompliant; and

(ii) considers that the noncompliance would be better dealt with under this section than by giving the organisation a noncompliance notice or noncompliance direction; or

(b) the director-general has given an approved care and protection organisation a noncompliance direction about the noncompliance and the organisation has not complied with the direction.

(2) The director-general may give the organisation notice that the director-general intends to cancel the organisation’s approval (an intention to cancel notice).

(3) An intention to cancel notice must—

(a) be in writing; and

(b) state that the director-general intends to cancel the organisation’s approval because of the organisation’s failure to comply with the noncompliance direction; and

(c) state that the organisation may give a written submission to the director-general showing cause why the organisation’s approval should not be cancelled; and

(d) state that submissions may be given to the director-general only during the 28 working days after the day the intention to cancel notice is given to the organisation.

(4) If the director-general gives an intention to cancel notice to an organisation, the director-general must also take reasonable steps to tell a person with daily care responsibility for each child or young person likely to be affected about the notice.

Note Daily care responsibility—see s 19.

352R Intervention—cancellation

(1) This section applies if the director-general gives an approved care and protection organisation an intention to cancel notice under section 352Q.

(2) If the organisation makes a submission in accordance with the intention to cancel notice, the director-general—

(a) must consider the submission; and

(b) may consider any other relevant matter; and

(c) must decide to either—

(i) cancel the organisation’s approval; or

(ii) revoke the intention to cancel notice.

(3) If the organisation does not make a submission in accordance with the intention to cancel notice, the director-general must cancel the organisation’s approval.

(4) If the director-general decides to revoke the intention to cancel notice, the director-general must tell the following people about the decision:

(a) the organisation;

(b) anyone else who was told under section 352Q (4) about the intention to cancel notice.

352S Intervention—cancellation notice

(1) This section applies if the director-general decides to cancel an approved care and protection organisation’s approval under section 352R.

(2) The director-general must give a written notice (a cancellation notice) to the organisation, cancelling the approval starting on the date stated in the notice (the cancellation date).

(3) If the director-general gives a cancellation notice to the organisation, the director-general must also take reasonable steps to tell a person with daily care responsibility for each child or young person likely to be affected about the cancellation.

Note Daily care responsibility—see s 19.

(4) The cancellation notice must be given to the organisation at least 10 working days before the cancellation date.

352T Intervention—guidelines

(1) The director-general may make guidelines for this division (the intervention guidelines).

(2) An intervention guideline is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act

.

Division 10.4.5 Approved care and protection organisations—surrendering approval

352U Surrendering approval

(1) An approved care and protection organisation may surrender the approval by giving written notice of the surrender to the director-general.

Note If a form is approved under s 886 for this provision, the form must be used.

(2) The surrender takes effect only after the director-general notifies the organisation that the surrender has been accepted.

Division 10.4.6 Approved care and protection organisations register

352V Approved care and protection organisations register

(1) The director-general must keep a record of organisations that are approved care and protection organisations (the organisations register).

(2) The organisations register must include the following details for each approved care and protection organisation:

(a) the name of the organisation;

(b) the organisation’s ABN (if any);

(c) if the organisation is a corporation—the corporation’s ACN;

(d) a unique approval number;

(e) the name of the responsible person for the organisation;

(f) the care and protection purpose for which the organisation is approved;

(g) any of the following given to the organisation:

(i) a noncompliance notice;

(ii) a noncompliance direction;

(iii) a safety suspension notice;

(iv) an intention to cancel notice;

(v) a cancellation notice;

(h) if the organisation’s approval has been cancelled at any time—details of the cancellation;

(i) anything else prescribed by regulation.

(3) The organisations register may include anything else the director-general considers relevant.

(4) The organisations register may be kept in any form, including electronically, that the director-general decides.

(5) The director-general must make the organisations register publicly accessible.

Example—publicly accessible

published on the directorate website

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

9 Definitions—Act

Section 502, definition of foster care service

substitute

foster care service—see section 510.

10 Section 502, definition of out-of-home carer authorisation

omit

11 Sections 510 and 511

substitute

510 Meaning of approved foster care organisation, foster care service and foster carer

In this Act:

approved foster care organisation means an approved care and protection organisation approved as a suitable entity for the purpose of becoming a foster care service.

Note Approved care and protection organisation—see s 352C.

foster carer, for a child or young person, means a person authorised by the director-general under—

(a) section 518 (Authorisation of foster carer—specific parental authority); or

(b) section 519 (Authorisation of foster carer—general parental authority).

foster care service means an approved foster care organisation authorised by the director-general under section 517 (Authorisation of foster care service).

511 Meaning of approved residential care organisation and residential care service

In this Act:

approved residential care organisation means an approved care and protection organisation approved as a suitable entity for the purpose of becoming a residential care service for a child or young person.

Note Approved care and protection organisation—see s 352C.

residential care service, for a child or young person, means an approved residential care organisation authorised by the director-general under section 520 (Authorisation of residential care service—general parental authority).

12 Definitions—Act

Section 515, definitions of foster care service and out-of-home carer authorisation

omit

13 Section 517

substitute

517 Authorisation of foster care service

The director-general may authorise an approved foster care organisation to—

(a) recruit people to become foster carers; and

(b) provide support for foster carers.

Note 1 Approved foster care organisation—see s 510.

Note 2 An authorisation under this section is suspended if the organisation’s approval is suspended under s 352P.

14 Section 520

substitute

520 Authorisation of residential care service—general parental authority

(1) The director-general may authorise an approved residential care organisation to exercise—

(a) daily care responsibility for any child or young person for whom the director-general has daily care responsibility; or

(b) long-term care responsibility for any child or young person for whom the director-general has long-term care responsibility.

(2) However, the director-general may authorise an organisation only if the organisation agrees to exercise the responsibility for the director-general for any child or young person.

(3) The organisation must exercise the responsibility subject to any directions of the director-general.

Note An authorisation under this section is suspended if the organisation’s approval is suspended under s 352P.

15 Revocation of foster care service’s authorisation

Section 522 (1) and (2)

substitute

(1) The director-general must revoke an organisation’s authorisation under section 517 as a foster care service if the organisation is no longer an approved foster care organisation.

Note The authorisation is suspended if the organisation’s approval is suspended under s 352P.

(2) The director-general may also revoke an approved foster care organisation’s authorisation if the organisation asks the director-general to revoke the authorisation.

16 Section 522 (3)

omit

entity’s

substitute

organisation’s

17 Section 522 (3)

omit

entity

substitute

organisation

18 Revocation of residential care service’s authorisation

Section 524 (1) and (2)

substitute

(1) The director-general may revoke an organisation’s authorisation under section 520 as a residential care service if satisfied that the organisation—

(a) is not an approved residential care organisation; or

(b) has not acted as a residential care service in the previous 12 months; or

(c) is no longer available to act as a residential care service.

Example—par (c)

an entity closes its places of care in the ACT

Note 1 The authorisation is suspended if the organisation’s approval is suspended under s 352P.

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act

, s 126 and s 132).

(2) The director-general may also revoke an approved residential care organisation’s authorisation if the organisation asks the director-general to revoke the authorisation.

19 Section 524 (3)

omit

entity’s

substitute

organisation’s

20 Section 524 (3)

omit

entity

substitute

organisation

21 Approval of places of care

Section 525 (1) and notes

substitute

(1) The Minister may approve a place operated by an approved residential care organisation as a place of care if satisfied that the place complies with, and is likely to continue to comply with, the care and protection organisation standards.

Note Care and protection organisation standards—see s 887.

22 Meaning of reviewable decision—div 24.1.3

Section 839, definition of reviewable decision

substitute

In this division:

reviewable decision means a decision mentioned in table 839.1, 839.1A, 839.2 or 839.3, column 3 under a provision of this Act mentioned in column 2 in relation to the decision.

23 Section 839, table 839.1

substitute

Table 839.1 Review of decisions—ch 2 (Administration)

Table 839.1A Review of decisions—ch 15 (Care and protection—director-general has aspect of parental responsibility)

24 Who is an information sharing entity?

Section 859 (1), definition of information sharing entity, paragraph (d), note

substitute

Note Foster care service—see s 510.

25 Standard-making power

New section 887 (2) (ab)

after the note, insert

(ab) the operation of approved care and protection organisations (care and protection organisation standards);

Note Approved care and protection organisations are dealt with in pt 10.4.

26 Dictionary, note 2

insert

• children and young people commissioner

27 Dictionary, new definitions

insert

approved care and protection organisation—see section 352C.

approved foster care organisation—see section 510.

approved residential care organisation—see section 511.

care and protection organisation standards—see section 887 (2) (ab).

care and protection purpose, for an organisation—see section 352B.

complainant, for division 10.4.3 (Approved care and protection organisations—complaints)—see section 352H.

28 Dictionary, definitions of foster care service and intention to cancel notice

substitute

foster care service—see section 510.

intention to cancel notice—

(a) for division 10.4.4 (Approved care and protection organisations—intervention)—see section 352Q; and

(b) for chapter 20 (Childcare services)—see section 764 (2).

29 Dictionary, new definitions

insert

noncompliance direction, for division 10.4.4 (Approved care and protection organisations—intervention)—see section 352O.

noncompliance notice, for division 10.4.4 (Approved care and protection organisations—intervention)—see section 352N.

noncompliant, for an approved care and protection organisation, for division 10.4.3 (Approved care and protection organisations—complaints)—see section 352G.

organisation—see section 352A.

30 Dictionary, definition of out-of-home carer authorisation

omit

31 Dictionary, definition of responsible person

substitute

responsible person—

(a) for an approved care and protection organisation, for part 10.4 (Approved care and protection organisations)—see section 352D; and

(b) for a childcare service, for chapter 20 (Childcare services)—see section 738.

Schedule 1 Consequential amendments

(see s 3)

Part 1.1 Working with Vulnerable People (Background Checking) Act 2011

[1.1] Schedule 1, part 1.1, section 1.1, note

omit

• s 510 (Who is a foster carer?);

• s 511 (What is a residential care service?);

substitute

• s 510 (Meaning of approved foster care organisation, foster care service and foster carer);

• s 511 (Meaning of approved residential care organisation and residential care service);

Endnotes

1 Presentation speech

Presentation speech made in the Legislative Assembly on 7 May 2015.

2 Notification

Notified under the Legislation Act

on 2015.

3 Republications of amended laws

For the latest republication of amended laws, see www.legislation.act.gov.au

.

© Australian Capital Territory 2015

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