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New South Wales
Children's Guardian Amendment Bill 2022
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Children's Guardian Act 2019 No 25 3
Schedule 2 Amendment of other Acts 25
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE COUNCIL, has finally
passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW SOUTH WALES.
Clerk of the Parliaments
egislative Council
2022
New South Wales
Children's Guardian Amendment Bill 2022
Act No , 2022
An Act to amend the Children's Guardian Act 2019 in relation to the accreditation of designated
agencies and adoption service providers, the Child Safe Scheme, specialised substitute residential
care, registers and the functions of the Children's Guardian and authorised persons; and for other
purposes.
See also the Child Protection (Working with Children) Amendment Act 2022.
Children's Guardian Amendment Bill 2022 [NSW]
The Legislature of New South Wales enacts--
1 Name of Act
This Act is the Children's Guardian Amendment Act 2022.
2 Commencement
This Act commences as follows--
(a) for Schedule 1[12], [14] to the extent that it inserts proposed section 85(1C),
[15], [16], [18]-[20], [38], [39] and [46]--on 18 July 2022,
(b) otherwise--on 1 September 2022.
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Children's Guardian Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Children's Guardian Act 2019 No 25
Schedule 1 Amendment of Children's Guardian Act 2019 No
25
[1] Section 8DA
Insert after section 8D--
8DA Codes of practice
(1) The regulations may prescribe codes of practice for the purposes of ensuring
entities comply with the Child Safe Standards.
(2) A code of practice may apply only to the following entities--
(a) a designated agency,
(b) an adoption service provider,
(c) an entity providing specialised substitute residential care,
(d) an entity prescribed by the regulations.
(3) A code of practice must specify the entities to which it applies.
(4) A code of practice for entities providing specialised substitute residential care
must require each entity to complete, within the time specified in the code of
practice, a self-assessment of the entity's compliance with the Child Safe
Standards.
(5) An entity that fails, without reasonable excuse, to complete the
self-assessment within the time specified in the code of practice commits an
offence.
Maximum penalty--10 penalty units.
(6) A code of practice may include the following--
(a) the steps that must be taken to implement the Child Safe Standards,
(b) the outcomes that will indicate compliance with the Child Safe
Standards,
(c) other matters relevant to compliance with the Child Safe Standards.
(7) A code of practice that applies to a designated agency or an adoption service
provider may also include steps that must be taken to obtain and maintain
accreditation under this Act.
(8) An entity must comply with a code of practice that applies to the entity.
Note-- This provision makes the code of practice a mandatory prescriptive
requirement for compliance with the Child Safe Standards.
(9) The failure by an entity to comply with a code of practice is grounds for the
Children's Guardian to--
(a) conduct an investigation under Division 6, and
(b) following the investigation, if the Children's Guardian considers it
appropriate--issue a compliance notice to the entity under Part 9A.
[2] Part 3A, Division 7
Insert after Division 6--
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Children's Guardian Amendment Bill 2022 [NSW]
Schedule 1 Amendment of Children's Guardian Act 2019 No 25
Division 7 Children in specialised substitute residential care
8ZA Limit on time to be spent in specialised substitute residential care
(1) A child must not remain in specialised substitute residential care for more than
a total of 90 days in a period of 12 months unless the care is provided or
supervised by a designated agency.
(2) A child may remain in specialised substitute residential care for more than a
total of 180 days in a period of 12 months only if the designated agency
providing or supervising the care, or the Children's Guardian, has ensured
there is a plan that addresses the child's needs under the arrangement.
(3) A child who remains in specialised substitute residential care in contravention
of subsection (1) or (2) is taken to be at risk of significant harm for the
purposes of the Children and Young Persons (Care and Protection) Act 1998,
Chapter 3, Parts 2 and 3.
(4) In deciding whether the contravention is a significant contravention, the
Children's Guardian must have regard to any relevant guidelines issued by the
Secretary under section 175.
8ZB Notification of deaths of children in specialised substitute residential care
If a child dies while in specialised substitute residential care, the principal
officer of the entity providing the specialised substitute residential care must
immediately give notice of the death to the following persons--
(a) the parents of the child, if the parents can reasonably be located,
(b) the Children's Guardian,
(c) the Coroner.
8ZC Principal officer
(1) In this Act, the principal officer of an entity providing specialised substitute
residential care means the person who has the overall supervision of the
entity's arrangements for providing specialised substitute residential care.
(2) Anything done by, or with the approval of, the principal officer of an entity
providing specialised substitute residential care in relation to specialised
substitute residential care is, for this Act and the regulations, taken to be done
by the entity.
(3) Nothing in this section affects the personal liability of the principal officer.
8ZD Regulations
Regulations may be made about specialised substitute residential care.
[3] Section 66 Children's Guardian approval of head of relevant entity in certain
circumstances
Insert after section 66(4)--
(5) In this section--
relevant entity includes a child safe organisation.
[4] Part 5, heading
Omit "matters regulated by Children's Guardian".
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[5] Sections 71(c) and (h), 73, 164(a) and (b) and 184(2)(a)-(d)
Omit the provisions.
[6] Section 72
Omit the section. Insert instead--
72 Meaning of "designated agency"
In this Act, designated agency means an agency accredited by the Children's
Guardian under Schedule 3A.
[7] Section 74
Omit the section. Insert instead--
74 Meaning of "principal officer"
In this Act, the principal officer, of a designated agency, means the person
who has the overall supervision of the agency's arrangements for providing
statutory out-of-home care and supported out-of-home care.
[8] Section 75 Actions of principal officer
Omit "or a registered agency" from section 75(1).
[9] Section 75(1)
Omit "or registered agency".
[10] Part 5, Division 2
Omit the Division.
[11] Section 85 Registers to be kept
Omit section 85(1)(a). Insert instead--
(a) a register for carers (the carers register),
[12] Section 85(1)(b)
Omit the paragraph. Insert instead--
(b) a register for residential care workers (the residential care workers
register),
[13] Section 85(1)(c)
Omit the paragraph. Insert instead--
(c) a register for children in specialised substitute residential care (the
specialised substitute residential care register).
[14] Section 85(1B)-(1D)
Insert after section 85(1A)--
(1B) The carers register may include information about the following--
(a) a carer (a relevant authorised carer) authorised by a designated agency
to provide statutory out-of-home care or supported out-of-home care in
a private capacity,
(b) a person who was formerly a relevant authorised carer,
(c) a person who has applied to be a relevant authorised carer,
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Schedule 1 Amendment of Children's Guardian Act 2019 No 25
(d) a person, other than a child in out-of-home care, who resides for more
than 21 days on the same property as a relevant authorised carer,
(e) a person prescribed by the regulations.
(1C) The residential care workers register may include information about the
following--
(a) a residential care worker,
(b) a person who was formerly a residential care worker,
(c) a person who has applied to be a residential care worker and who
reached an advanced stage in the recruitment process,
(d) a person prescribed by the regulations.
(1D) The specialised substitute residential care register may include information
about the following--
(a) a child in specialised substitute residential care,
(b) a person prescribed by the regulations.
[15] Section 85(3)
Insert in alphabetical order--
advanced stage, in a recruitment process, means a stage prescribed by the
regulations.
[16] Section 86 General access to registers
Omit section 86(2). Insert instead--
(2) A residential care provider must have access to the information on the register
in relation to the following--
(a) residential care workers who work at places at which residential care is
provided if the provision of the residential care is arranged by the
residential care provider (residential care workers for the residential
care provider),
(b) persons who were formerly residential care workers for the residential
care provider,
(c) persons who have applied to be residential care workers for the
residential care provider,
(d) persons prescribed by the regulations.
[17] Section 86(3)(b)
Omit the paragraph. Insert instead--
(b) the Minister administering the Children and Young Persons (Care and
Protection) Act 1998,
[18] Section 87 Permission to access register
Omit section 87(2)(b). Insert instead--
(b) the residential care provider who has access to the person's information
under section 86(2).
[19] Section 87(3)
Omit "employing".
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Schedule 1 Amendment of Children's Guardian Act 2019 No 25
[20] Section 87(6)
Omit the subsection.
[21] Part 7, Division 1, heading
Omit the heading.
[22] Section 110A
Insert after section 110--
110A Meaning of "accredited adoption service provider"
In this Act, accredited adoption service provider means an organisation, or
part of an organisation, accredited by the Children's Guardian under Schedule
3B.
[23] Part 7, Division 2, heading
Omit the heading.
[24] Section 112, heading
Omit "Accreditation and review". Insert instead "Review".
[25] Section 112(1)
Omit the subsection.
[26] Section 113
Omit the section.
[27] Part 7, Division 3, heading
Omit the heading.
[28] Section 128 Functions of Children's Guardian
Omit section 128(1)(e) and (f). Insert instead--
(e) to exercise accreditation functions for designated agencies,
(f) to exercise accreditation functions for adoption service providers,
(f1) to monitor the exercise of functions under the children's care legislation
by designated agencies,
(f2) to monitor the exercise of functions under the children's care legislation
by accredited adoption service providers in relation to the provision of
adoption services,
(f3) to monitor the exercise of functions of the Secretary in relation to the
provision of adoption services under the Adoption Act 2000 and the
regulations under that Act,
(f4) to investigate compliance with the children's care legislation,
[29] Section 128(1)(k)
Omit the paragraph.
[30] Section 143 Definitions
Insert after section 143, definition of child in care, paragraph (d)--
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Schedule 1 Amendment of Children's Guardian Act 2019 No 25
(d1) who is the subject of an arrangement for specialised substitute
residential care, or
[31] Section 151 Provision of information to Children's Guardian
Omit section 151(1). Insert instead--
(1) This section applies to information of a class that the Children's Guardian has
determined is information relevant to the exercise of the functions of the
Children's Guardian in connection with--
(a) the accreditation of designated agencies, or
(b) specialised substitute residential care.
[32] Section 154 Applications to Civil and Administrative Tribunal for administrative
review
Omit section 154(1)(a). Insert instead--
(a) a decision of the Children's Guardian to do or refuse to do the following
in relation to accreditation as a designated agency or an accredited
adoption service provider--
(i) grant accreditation,
(ii) impose a condition on an accreditation or vary the conditions to
which an accreditation is subject,
(iii) transfer an accreditation,
(iv) cancel or shorten the period of an accreditation,
[33] Section 154(1)(e)
Omit section 154(1)(e)-(j). Insert instead--
(e) a decision to refuse to make a decision referred to in paragraphs (a)-(d)
that the Children's Guardian is empowered and has been asked to make,
[34] Section 175 Secretary may make guidelines
Omit section 175(2).
[35] Schedule 1 Schedule 1 entities
Insert after item 13--
14 an adoption service provider
15 an entity providing specialised substitute residential care
[36] Schedule 2 Power of authorised persons
Insert after clause 2(b)--
(b1) for Part 7 of the Act--to monitor and accredit organisations and persons
providing adoption services,
[37] Schedules 3A and 3B
Insert after Schedule 3--
Schedule 3A Accreditation of designated agencies
section 72
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Schedule 1 Amendment of Children's Guardian Act 2019 No 25
Part 1 Preliminary
1 Definitions
In this Schedule--
accreditation criteria--see clause 2(1).
agency means--
(a) a government agency or part of a government agency, or
(b) an organisation or part of an organisation.
grant accreditation includes grant a renewal of accreditation.
suitable to be accredited--see clause 3.
2 Accreditation criteria
(1) The Minister may, on the recommendation of the Children's Guardian,
approve criteria (accreditation criteria) to be met by designated agencies.
(2) Different criteria may be approved for different classes of agencies.
(3) The criteria must address the following--
(a) the assessment by an agency of a person's suitability to be a carer (a
relevant authorised carer) who is authorised to provide statutory
out-of-home care or supported out-of-home care in the carer's home,
(b) the provision of training by an agency to relevant authorised carers,
(c) the supervision of relevant authorised carers by an agency,
(d) the involvement of the following persons in the making of decisions that
affect a child--
(i) the child,
(ii) persons with parental responsibility for the child immediately
before the child entered out-of-home care,
(iii) the authorised carer of the child,
(e) anything else prescribed by the regulations.
(4) The Children's Guardian must publish criteria approved under this clause on
a website of the Office of the Children's Guardian.
(5) The Children's Guardian may come to the opinion that an agency meets a
particular accreditation criterion if--
(a) an entity is of the opinion that the agency meets a criterion, and
(b) the Children's Guardian is satisfied that the criterion is equivalent to the
accreditation criterion, and
(c) the Children's Guardian recognises the entity for the purposes of this
clause.
(6) The Children's Guardian must publish a notice setting out entities recognised
for the purposes of this clause on a website of the Office of the Children's
Guardian.
(7) Failure to publish criteria under subclause (4) or a notice under subclause (6)
does not affect the validity of--
(a) the criteria or the entities recognised, or
(b) a decision made in relation to the criteria or recognition.
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Schedule 1 Amendment of Children's Guardian Act 2019 No 25
3 Grounds for finding that agency is not suitable to be accredited
(1) An agency is not suitable to be accredited if--
(a) the agency is disqualified from being accredited, or
(b) the agency does not wholly or substantially meet the accreditation
criteria, or
(c) the Children's Guardian is of the opinion that the agency is not suitable
to be a designated agency.
(2) The Children's Guardian may form an opinion that an agency is not suitable
to be a designated agency in one or more of the following circumstances--
(a) the agency, or the principal officer of the agency, failed to comply with
the children's care legislation,
(b) the agency failed to comply with a condition of its accreditation,
(c) the agency, or the principal officer of the agency, made a statement or
gave information in connection with the administration of the children's
care legislation knowing the statement of information was false or
misleading in a material particular,
(d) another circumstance prescribed by the regulations.
(3) In this clause--
children's care legislation means the following Acts and the regulations
under the Acts--
(a) this Act,
(b) the Children and Young Persons (Care and Protection) Act 1998,
(c) the Child Protection (Working with Children) Act 2012.
Part 2 Application for accreditation
4 Application for grant of accreditation
(1) An agency may apply to the Children's Guardian to grant accreditation as a
designated agency.
Note-- The definition of grant of accreditation in clause 1 includes grant a renewal of
accreditation.
(2) An application must--
(a) be in a form approved by the Children's Guardian, and
(b) include or be accompanied by information or evidence the Children's
Guardian reasonably requires to assess the application, and
(c) include or be accompanied by other information prescribed by the
regulations.
(3) If the Children's Guardian considers it necessary, the Children's Guardian
may require further documents or information to be provided by the applicant.
(4) The holder of a provisional accreditation that gives a notice under clause 15 is
taken to have made an application for full accreditation 12 months after the
notice is given.
(5) If an application for the grant of accreditation is made to the Children's
Guardian before the expiry of an existing accreditation held by the applicant,
the existing accreditation continues in force until the Children's Guardian
notifies the applicant of a decision to grant or refuse the application.
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5 Withdrawal of application
(1) An applicant may withdraw an application for a grant of accreditation.
(2) The Children's Guardian may require the withdrawal not to occur until a date
decided by the Children's Guardian (the withdrawal date).
(3) The withdrawal date may be up to 6 months after the applicant applies to
withdraw the application.
(4) The applicant's accreditation remains in force until the withdrawal date.
(5) In deciding on a withdrawal date, the Children's Guardian must consider the
safety, welfare and wellbeing of children who may be affected by the decision.
6 Grant or refusal of accreditation
(1) The Children's Guardian may grant or refuse accreditation to an applicant.
(2) The Children's Guardian may refuse to grant accreditation--
(a) if the application for accreditation does not comply with a requirement
imposed by or under this Act, or
(b) on a ground prescribed by the regulations.
(3) The Children's Guardian must refuse to grant accreditation if the applicant is
not suitable to be accredited unless the Children's Guardian defers its decision
under clause 7.
(4) The Children's Guardian must give the applicant written notice of a decision
to grant or refuse accreditation.
(5) The notice must include any matter prescribed by the regulations.
7 Deferral of decision to grant or refuse accreditation
(1) The Children's Guardian may defer its decision on whether to grant or refuse
accreditation to an applicant if--
(a) the applicant does not meet the accreditation criteria, and
(b) the applicant has submitted an action plan to the Children's Guardian,
and
(c) the Children's Guardian is satisfied the applicant will meet the
accreditation criteria if the applicant implements the action plan.
(2) The Children's Guardian must give the applicant written notice of the deferral
that sets out the period for which the decision is to be deferred.
(3) A deferral period must not be more than 12 months.
(4) More than one deferral may occur under this clause but the total period of the
deferrals must not be more than 24 months.
(5) If a decision to grant or refuse accreditation to an applicant is not made by the
end of the period of the deferrals, the application is taken to have been refused.
8 Action plans
(1) An action plan submitted under clause 7 must set out the steps the applicant
proposes to take to ensure the applicant satisfies the accreditation criteria.
(2) An applicant that submits an action plan must undertake to implement the
action plan.
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(3) An applicant may, with the agreement of the Children's Guardian, amend an
action plan.
9 Review of decision to refuse accreditation
(1) The Children's Guardian may review its decision to refuse accreditation to an
applicant.
(2) The Children's Guardian may obtain additional information from the applicant
as part of the review.
(3) The Children's Guardian must conduct the review as if it were an application
for a grant of accreditation.
(4) The Children's Guardian is not required to conduct a review under this clause.
10 Full or provisional accreditation
If the Children's Guardian decides to grant accreditation, the accreditation
is--
(a) if the applicant has provided out-of-home care in accordance with this
Act and the regulations within 12 months before the decision--full
accreditation, or
(b) otherwise--provisional accreditation.
11 Duration of accreditation
(1) Accreditation remains in force for the period specified by the Children's
Guardian in the notice by which the accreditation is granted, unless sooner
cancelled or shortened.
(2) The maximum period that may be specified is--
(a) for full accreditation granted immediately after the holder previously
held full accreditation--5 years, or
(b) otherwise--3 years.
(3) If the applicant is also an adoption service provider accredited under Schedule
3B, the period of accreditation may be adjusted by the Children's Guardian so
that each accreditation period ends at the same time.
(4) The Children's Guardian may, despite any other provision of this Schedule,
extend the period of an accreditation in circumstances prescribed by the
regulations.
Part 3 Conditions of accreditation
12 Conditions of accreditation
(1) An accreditation is subject to the following conditions--
(a) conditions prescribed by this Act or the regulations,
(b) conditions imposed by the Children's Guardian.
(2) The Children's Guardian may impose conditions on an accreditation--
(a) at the time of the grant of accreditation, or
(b) at another time by varying the conditions of the accreditation under
clause 13.
(3) A provision of this Act that authorises a type of condition to be imposed on an
accreditation does not prevent other types of conditions being imposed, or
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Schedule 1 Amendment of Children's Guardian Act 2019 No 25
limit the matters that may be provided for by conditions, unless expressly
provided for by this Act.
(4) The Children's Guardian must not impose a condition on the accreditation of
a government agency or part of a government agency unless the Children's
Guardian has first notified the Minister about why the condition is considered
necessary.
13 Variation of conditions of accreditation
(1) The Children's Guardian may, at any time, by written notice to an
accreditation holder, vary the conditions of the accreditation imposed by the
Children's Guardian.
(2) A variation includes the following--
(a) the imposition of a new condition,
(b) the substitution of a condition,
(c) the removal of a condition,
(d) the amendment of a condition.
14 Condition requiring compliance with accreditation criteria
The Children's Guardian must impose a condition on accreditation requiring
the holder of the accreditation to wholly meet the accreditation criteria within
12 months if--
(a) the Children's Guardian grants accreditation to the holder, and
(b) the Children's Guardian is of the opinion the holder substantially meets
the accreditation criteria but does not wholly meet the criteria.
15 Condition of provisional accreditation
It is a condition of a provisional accreditation that the holder of the
accreditation give written notice to the Children's Guardian as soon as
practicable after the holder first makes arrangements for the provision of
out-of-home care under the accreditation.
Part 4 Transfer and surrender of accreditation
16 Transfer of accreditation
The Children's Guardian may transfer the accreditation of an agency (the
former agency) to another agency (the new agency) if satisfied that--
(a) because of a restructure involving the former agency, the new agency
will be exercising the designated agency functions previously exercised
by the former agency, or
(b) the former agency has been merged with, or acquired by, the new
agency, or
(c) the accreditation should be transferred because of circumstances
prescribed by the regulations.
17 Surrender of accreditation
(1) The holder of an accreditation may surrender the accreditation.
(2) The Children's Guardian may require the surrender not to occur until a date
decided by the Children's Guardian not more than 6 months after the holder
applies to surrender the accreditation.
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(3) In deciding on a date, the Children's Guardian must consider the safety,
welfare and wellbeing of children who may be affected by the decision.
(4) A failure by the holder to apply to renew accreditation is taken to be an
application to surrender an accreditation except as provided by the regulations.
(5) An accreditation remains in force until the date decided by the Children's
Guardian under subclause (2).
Part 5 Cancelling or shortening period of accreditation
18 Grounds for cancelling or shortening period of accreditation
Each of the following constitutes grounds for cancelling or shortening the
period of an accreditation--
(a) the holder of the accreditation is not suitable to be accredited,
(b) the accreditation was granted in error,
(c) a ground prescribed by the regulations.
19 How accreditation is cancelled or shortened
(1) The Children's Guardian may, by written notice given to the holder of an
accreditation, cancel or shorten the period of the accreditation if the Children's
Guardian is satisfied there are grounds for the cancellation or shortening.
(2) A notice cancelling an accreditation must specify--
(a) the date or time from which cancellation takes effect, and
(b) the grounds for the cancellation.
(3) A notice shortening the period of an accreditation must specify--
(a) the date on which the shortened accreditation will cease to have effect,
and
(b) the grounds for the shortening of the period of accreditation.
(4) The Children's Guardian may, by further written notice given to the holder of
an accreditation while the accreditation is in force, amend or revoke a notice
cancelling or shortening the period of the accreditation.
(5) The Children's Guardian must not cancel the accreditation of a government
agency or part of a government agency unless the Children's Guardian has
first notified the Minister about why the cancellation is considered necessary.
20 Disqualification if cancelled
If an accreditation is cancelled, the holder of the accreditation is disqualified
from being accredited for 2 years after the cancellation takes effect.
Part 6 Regulations
21 Regulations about accreditation
Regulations may be made about accreditation, including the following--
(a) applications for accreditation,
(b) the withdrawal of applications,
(c) the deferral of decisions and the obligations the Children's Guardian
may impose on an applicant during the period of the deferral,
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(d) conditions of accreditation and applications for variation of conditions
of accreditation,
(e) transfers of accreditation,
(f) surrenders of accreditation.
Schedule 3B Accreditation of adoption service providers
section 110A
Part 1 Preliminary
1 Definitions
In this Schedule--
accreditation criteria--see clause 2(1).
grant accreditation includes grant a renewal of accreditation.
organisation means a charitable organisation within the meaning of the
Adoption Act 2000, or part of a charitable organisation.
suitable to be accredited--see clause 3.
2 Accreditation criteria
(1) The Minister may, on the recommendation of the Children's Guardian,
approve criteria (accreditation criteria) to be met by accredited adoption
service providers.
(2) Different criteria may be approved for different classes of providers.
(3) The Children's Guardian must publish criteria approved under this clause on
a website of the Office of the Children's Guardian.
(4) The Children's Guardian may come to the opinion that an organisation meets
a particular accreditation criterion if--
(a) an entity is of the opinion that the organisation meets a criterion, and
(b) the Children's Guardian is satisfied that the criterion is equivalent to the
accreditation criterion, and
(c) the Children's Guardian recognises the entity for the purposes of this
clause.
(5) The Children's Guardian must publish a notice setting out entities recognised
for the purposes of this clause on a website of the Office of the Children's
Guardian.
(6) Failure to publish criteria under subclause (3) or a notice under subclause (5)
does not affect the validity of--
(a) the criteria or the entities recognised, or
(b) a decision made in relation to the criteria or recognition.
(7) The accreditation criteria must, as far as is reasonably practicable, be
consistent with the accreditation criteria under Schedule 3A, clause 2.
3 Grounds for finding that organisation is not suitable to be accredited
(1) An organisation is not suitable to be accredited if--
(a) the organisation is disqualified from being accredited, or
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(b) the organisation does not wholly or substantially meet the accreditation
criteria, or
(c) the Children's Guardian is of the opinion that the organisation is not
suitable to be an accredited adoption service provider.
(2) The Children's Guardian may form an opinion that an organisation is not
suitable to be an accredited adoption service provider in one or more of the
following circumstances--
(a) the organisation, or the principal officer of the organisation, failed to
comply with the children's care legislation,
(b) the organisation failed to comply with a condition of its accreditation,
(c) the organisation, or the principal officer of the organisation, made a
statement or gave information in connection with the administration of
the children's care legislation knowing the statement of information
was false or misleading in a material particular,
(d) another circumstance prescribed by the regulations.
Part 2 Application for accreditation
4 Application for grant of accreditation
(1) An organisation may apply to the Children's Guardian to grant accreditation
as an accredited adoption service provider.
Note-- The definition of grant of accreditation in clause 1 includes grant a renewal of
accreditation.
(2) An application must--
(a) be in a form approved by the Children's Guardian, and
(b) include or be accompanied by information or evidence the Children's
Guardian reasonably requires to assess the application, and
(c) include or be accompanied by other information prescribed by the
regulations.
(3) If the Children's Guardian considers it necessary, the Children's Guardian
may require further documents or information to be provided by the applicant.
(4) The holder of a provisional accreditation that gives a notice under clause 16 is
taken to have made an application for full accreditation 12 months after the
notice is given.
(5) If an application for the grant of accreditation is made to the Children's
Guardian before the expiry of an existing accreditation held by the applicant,
the existing accreditation continues in force until the Children's Guardian
notifies the applicant of a decision to grant or refuse the application.
5 Withdrawal of application
(1) An applicant may withdraw an application for a grant of accreditation.
(2) The Children's Guardian may require the withdrawal not to occur until a date
decided by the Children's Guardian (the withdrawal date).
(3) The withdrawal date may be up to 6 months after the applicant applies to
withdraw the application.
(4) The applicant's accreditation remains in force until the withdrawal date.
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(5) In deciding on a withdrawal date, the Children's Guardian must consider the
safety, welfare and wellbeing of children who may be affected by the decision.
6 Grant or refusal of accreditation
(1) The Children's Guardian may grant or refuse accreditation to an applicant.
(2) The Children's Guardian may refuse to grant accreditation--
(a) if the application for accreditation does not comply with a requirement
imposed by or under this Act, or
(b) on a ground prescribed by the regulations.
(3) The Children's Guardian must refuse to grant accreditation if the applicant is
not suitable to be accredited unless the Children's Guardian defers its decision
under clause 7.
(4) The Children's Guardian must give the applicant written notice of a decision
to grant or refuse accreditation.
(5) The notice must include any matter prescribed by the regulations.
7 Deferral of decision to grant or refuse accreditation
(1) The Children's Guardian may defer its decision on whether to grant or refuse
accreditation to an applicant if--
(a) the applicant does not meet the accreditation criteria, and
(b) the applicant has submitted an action plan to the Children's Guardian,
and
(c) the Children's Guardian is satisfied the applicant will meet the
accreditation criteria if the applicant implements the action plan.
(2) The Children's Guardian must give the applicant written notice of the deferral
that sets out the period for which the decision is to be deferred.
(3) A deferral period must not be more than 12 months.
(4) More than one deferral may occur under this clause but the total period of the
deferrals must not be more than 24 months.
(5) If a decision to grant or refuse accreditation to an applicant is not made by the
end of the period of the deferrals, the application is taken to have been refused.
8 Action plans
(1) An action plan submitted under clause 7 must set out the steps the applicant
proposes to take to ensure the applicant satisfies the accreditation criteria.
(2) An applicant that submits an action plan must undertake to implement the
action plan.
(3) An applicant may, with the agreement of the Children's Guardian, amend an
action plan.
9 Review of decision to refuse accreditation
(1) The Children's Guardian may review its decision to refuse accreditation to an
applicant.
(2) The Children's Guardian may obtain additional information from the applicant
as part of the review.
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(3) The Children's Guardian must conduct the review as if it were an application
for a grant of accreditation.
(4) The Children's Guardian is not required to conduct a review under this clause.
10 Full or provisional accreditation
If the Children's Guardian decides to grant accreditation, the accreditation
is--
(a) if the applicant has provided adoption services in accordance with this
Act and the regulations within 12 months before the decision--full
accreditation, or
(b) otherwise--provisional accreditation.
11 Duration of accreditation
(1) Accreditation remains in force for the period specified by the Children's
Guardian in the notice by which the accreditation is granted, unless sooner
cancelled or shortened.
(2) The maximum period that may be specified is--
(a) for full accreditation granted immediately after the holder previously
held full accreditation--5 years, or
(b) otherwise--3 years.
(3) If the applicant is also a designated agency accredited under Schedule 3A, the
period of accreditation may be adjusted by the Children's Guardian so that
each accreditation period ends at the same time.
(4) The Children's Guardian may, despite any other provision of this Schedule,
extend the period of an accreditation in circumstances prescribed by the
regulations.
Part 3 Conditions of accreditation
12 Conditions of accreditation
(1) An accreditation is subject to the following conditions--
(a) conditions prescribed by this Act or the regulations,
(b) conditions imposed by the Children's Guardian.
(2) The Children's Guardian may impose conditions on an accreditation--
(a) at the time of the grant of accreditation, or
(b) at another time by varying the conditions of the accreditation under
clause 13.
(3) A provision of this Act that authorises a type of condition to be imposed on an
accreditation does not prevent other types of conditions being imposed, or
limit the matters that may be provided for by conditions, unless expressly
provided for by this Act.
13 Variation of conditions of accreditation
(1) The Children's Guardian may, at any time, by written notice to an
accreditation holder, vary the conditions of the accreditation imposed by the
Children's Guardian.
(2) A variation includes the following--
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(a) the imposition of a new condition,
(b) the substitution of a condition,
(c) the removal of a condition,
(d) the amendment of a condition.
14 Condition limiting adoption services that may be provided
The Children's Guardian may impose a condition on an accreditation limiting
the adoption services that may be provided under the accreditation.
15 Condition requiring compliance with accreditation criteria
The Children's Guardian must impose a condition on accreditation requiring
the holder of the accreditation to wholly meet the accreditation criteria within
12 months if--
(a) the Children's Guardian grants accreditation to the holder, and
(b) the Children's Guardian is of the opinion the holder substantially meets
the accreditation criteria but does not wholly meet the criteria.
16 Condition of provisional accreditation
It is a condition of a provisional accreditation that the holder of the
accreditation give written notice to the Children's Guardian as soon as
practicable after the holder first provides adoption services under the
accreditation.
Part 4 Transfer and surrender of accreditation
17 Transfer of accreditation
The Children's Guardian may transfer the accreditation of an organisation (the
former organisation) to another organisation (the new organisation) if
satisfied that--
(a) because of a restructure involving the former organisation, the new
organisation will be exercising the accredited adoption service provider
functions previously exercised by the former organisation, or
(b) the former organisation has been merged with, or acquired by, the new
organisation, or
(c) the accreditation should be transferred because of circumstances
prescribed by the regulations.
18 Surrender of accreditation
(1) The holder of an accreditation may surrender the accreditation.
(2) The Children's Guardian may require the surrender not to occur until a date
decided by the Children's Guardian not more than 6 months after the holder
applies to surrender the accreditation.
(3) In deciding on a date, the Children's Guardian must consider the safety,
welfare and wellbeing of children who may be affected by the decision.
(4) A failure by the holder to apply to renew accreditation is taken to be an
application to surrender an accreditation except as provided by the regulations.
(5) An accreditation remains in force until the date decided by the Children's
Guardian under subclause (2).
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Part 5 Cancelling or shortening period of accreditation
19 Grounds for cancelling or shortening period of accreditation
Each of the following constitutes grounds for cancelling or shortening the
period of an accreditation--
(a) the holder of the accreditation is not suitable to be accredited,
(b) the accreditation was granted in error,
(c) a ground prescribed by the regulations.
20 How accreditation is cancelled or shortened
(1) The Children's Guardian may, by written notice given to the holder of an
accreditation, cancel or shorten the period of the accreditation if the Children's
Guardian is satisfied there are grounds for the cancellation or shortening.
(2) A notice cancelling an accreditation must specify--
(a) the date or time from which cancellation takes effect, and
(b) the grounds for the cancellation.
(3) A notice shortening the period of an accreditation must specify--
(a) the date on which the shortened accreditation will cease to have effect,
and
(b) the grounds for the shortening of the period of accreditation.
(4) The Children's Guardian may, by further written notice given to the holder of
an accreditation while the accreditation is in force, amend or revoke a notice
cancelling or shortening the period of the accreditation.
21 Disqualification if cancelled
If an accreditation is cancelled, the holder of the accreditation is disqualified
from being accredited for 2 years after the cancellation takes effect.
Part 6 Regulations
22 Regulations about accreditation
Regulations may be made about accreditation, including the following--
(a) applications for accreditation,
(b) the withdrawal of applications,
(c) the deferral of decisions and the obligations the Children's Guardian
may impose on an applicant during the period of the deferral,
(d) conditions of accreditation and applications for variation of conditions
of accreditation,
(e) transfers of accreditation,
(f) surrenders of accreditation.
[38] Schedule 4 Savings, transitional and other provisions
Omit clause 1. Insert instead--
1 Regulations
(1) The regulations may contain provisions of a savings or transitional nature
consequent on the commencement of--
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Schedule 1 Amendment of Children's Guardian Act 2019 No 25
(a) a provision of this Act, or
(b) a provision amending this Act.
(2) A savings or transitional provision consequent on the commencement of a
provision must not be made more than 2 years after the commencement.
(3) A savings or transitional provision made consequent on the commencement of
a provision is repealed 2 years after the commencement.
(4) A savings or transitional provision made consequent on the commencement of
a provision may take effect before the commencement but not before--
(a) for a provision of this Act--the date of assent to this Act, or
(b) for a provision amending this Act--the date of assent to the amending
Act.
(5) A savings or transitional provision taking effect before its publication on the
NSW legislation website does not--
(a) affect the rights of a person existing before the publication in a way
prejudicial to the person, or
(b) impose liabilities on a person for anything done or omitted to be done
before the publication.
(6) In this clause--
person does not include the State or an authority of the State.
[39] Schedule 4
Insert at the end of the Schedule, with appropriate Part and clause numbering--
Part Provisions consequent on enactment of Children's
Guardian Amendment Act 2022
Definitions
In this Part--
amending Act means the Children's Guardian Amendment Act 2022.
commencement day means 1 September 2022.
existing accreditation means accreditation, in force immediately before the
commencement day, as--
(a) a designated agency under the Children and Young Persons (Care and
Protection) Regulation 2012, or
(b) an adoption service provider under this Act.
Existing accreditations
(1) An amendment made to this Act by the amending Act does not affect an
existing accreditation and the accreditation continues in force in the same form
and for the same period as if the amending Act had not commenced.
(2) Despite subclause (1)--
(a) Schedule 3A, including relevant provisions, applies to an existing
accreditation of a designated agency as if the accreditation had been
granted under that Schedule, and
(b) Schedule 3B, including relevant provisions, applies to an existing
accreditation of an adoption service provider as if the accreditation had
been granted under that Schedule.
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Schedule 1 Amendment of Children's Guardian Act 2019 No 25
(3) In this clause--
relevant provisions means provisions enabling the Children's Guardian to
vary the conditions of accreditation or cancel or shorten the period of
accreditation.
Accreditation criteria
(1) The standards and criteria approved by the Minister under the Children and
Young Persons (Care and Protection) Regulation 2012, clause 48 are taken to
be the accreditation criteria for designated agencies approved by the Minister
under Schedule 3A, clause 2.
(2) Subclause (1) ceases to apply when the Minister approves accreditation
criteria for designated agencies under Schedule 3A, clause 2.
(3) The standards and criteria approved by the Minister under this Act, section 113
are taken to be the accreditation criteria for accredited adoption service
providers approved by the Minister under Schedule 3B, clause 2.
(4) Subclause (3) ceases to apply when the Minister approves accreditation
criteria for accredited adoption service providers under Schedule 3B, clause 2.
Accreditation criteria must be wholly satisfied
The Children and Young Persons (Care and Protection) Regulation 2012,
clause 54 as in force immediately before the commencement day continues to
apply to an existing accreditation of a designated agency as if that clause were
a provision of this Act.
Applications for accreditation
(1) An application for accreditation as a designated agency or an adoption service
provider made before the commencement day, including an application for
which a decision is deferred, must be dealt with as if the amending Act had not
commenced.
(2) If the application is granted, it is taken to have been granted under this Act as
amended by the amending Act.
Applications for transfer of accreditation
(1) An application to transfer the accreditation as a designated agency or an
adoption service provider must be dealt with as if the amending Act had not
commenced.
(2) However, the application must be dealt with as if the amending Act had
commenced if the applicant elects to have it dealt with in this way.
Children in specialised substitute residential care
Time spent in specialised substitute residential care before the commencement
of section 8ZA is to be taken into account for the purposes of that section.
Residential care workers register
Section 85(1C)(b) does not extend to include a person who ceased to be a
residential care worker before the commencement of that paragraph.
Specialised substitute residential care register
(1) The specialised substitute residential care register in section 85(1)(c) (the new
register) is taken to be a continuation of the register for organisations that
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Schedule 1 Amendment of Children's Guardian Act 2019 No 25
provide or arrange voluntary out-of-home care (the former register) that was
referred to in that paragraph before the commencement day.
(2) Information on the former register may be kept on the new register.
[40] Schedule 6 Dictionary
Omit the definition of accredited adoption service provider. Insert instead--
accredited adoption service provider--see section 110A.
[41] Schedule 6, definition of "child safe organisation", paragraph (a)
Omit the paragraph. Insert instead--
(a) an entity mentioned in Schedule 1,
[42] Schedule 6, definition of "children's care legislation"
Insert in alphabetical order--
children's care legislation means the following Acts and the regulations
under the Acts--
(a) this Act,
(b) the Children and Young Persons (Care and Protection) Act 1998,
(c) the Child Protection (Working with Children) Act 2012,
(d) the Adoption Act 2000.
[43] Schedule 6, definition of "designated agency"
Omit "section 72(1)". Insert instead "section 72".
[44] Schedule 6, definition of "function"
Insert in alphabetical order--
function includes a power, authority or duty, and exercise a function includes
perform a duty.
[45] Schedule 6, definition of "principal officer"
Omit the definition. Insert instead--
principal officer--
(a) for an adoption service provider--see section 110, or
(b) for a designated agency--see section 74, or
(c) for an entity providing specialised substitute residential care--see
section 8ZC.
[46] Schedule 6, definitions of "registered agency" and "voluntary out-of-home care"
Omit the definitions.
[47] Schedule 6, definitions of "residential care", "residential care provider" and
"residential care worker"
Insert in alphabetical order--
residential care means statutory out-of-home care or supported out-of-home
care that is provided--
(a) under an arrangement by a designated agency, and
(b) at--
(i) a home, managed by a designated agency, or
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Schedule 1 Amendment of Children's Guardian Act 2019 No 25
(ii) a place where accommodation is provided on a temporary basis.
residential care provider means a designated agency that arranges the
provision of residential care.
residential care worker means--
(a) a person who provides residential care, or
(b) a person prescribed by the regulations.
[48] Schedule 6, definition of "specialised substitute residential care"
Insert in alphabetical order--
specialised substitute residential care means substitute residential care for a
child--
(a) funded by the National Disability Insurance Scheme under the National
Disability Insurance Scheme Act 2013 of the Commonwealth, or
(b) provided for the purposes of respite services or behaviour support.
[49] Schedule 6, definition of "substitute residential care", paragraph (b)
Insert "in any period of 7 days" after "2 nights".
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Children's Guardian Amendment Bill 2022 [NSW]
Schedule 2 Amendment of other Acts
Schedule 2 Amendment of other Acts
2.1 Adoption Act 2000 No 75
Section 14 Actions of principal officer taken to be actions of provider
Omit the section.
2.2 Children and Young Persons (Care and Protection) Act 1998 No 157
[1] Section 3 Definitions
Omit section 3(1), definition of voluntary out-of-home care.
[2] Section 135 Definition and types of "out-of-home care"
Omit "3 types" from section 135(2). Insert instead "2 types".
[3] Section 135(2)(c)
Omit the paragraph.
[4] Section 136 Restriction on who may provide statutory out-of-home care
Omit section 136(2), notes. Insert instead--
Note 1-- The provision of supported out-of-home care is regulated by this Chapter,
Part 3.
Note 2-- An offence against subsection (2) committed by a corporation is an executive
liability offence attracting executive liability for a director or other person involved in the
management of the corporation--see section 258.
[5] Section 158 Physical restraint of child or young person
Omit "or" from the end of section 158(6)(b) and omit section 158(6)(c).
2.3 Coroners Act 2009 No 41
Section 24 Jurisdiction concerning deaths of children and disabled persons
Insert after section 24(3), definition of child in care, paragraph (d)--
(d1) who is in specialised substitute residential care within the meaning of
the Children's Guardian Act 2019, or
2.4 Stronger Communities Legislation Amendment (Courts and Civil) Act
2020 No 24
Schedule 1 Amendments
Omit Schedule 1.1[11], [13] and [18]-[20].
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Children's Guardian Amendment Bill 2022 [NSW]
Schedule 2 Amendment of other Acts
2.5 Stronger Communities Legislation Amendment (Miscellaneous) Act
2020 No 31
Schedule 2 Miscellaneous amendments
Omit Schedule 2.2[1].
Page 26
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