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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Child Protection Legislation Amendment Bill
2015
Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.
Overview of Bill
The object of this Bill is to amend the Adoption Act 2000, the Child Protection (Working with
Children) Act 2012, the Children and Young Persons (Care and Protection) Act 1998, the
Community Services (Complaints, Reviews and Monitoring) Act 1993 and the Ombudsman
Act 1974 to implement miscellaneous reforms relating to the protection of children and young
persons, including amendments with respect to:
(a) assessing a person's suitability to be an adoptive parent, guardian or carer, including by
taking into account the persons who reside with any such person, and
(b) applying the child protection provisions of the Ombudsman Act 1974 and the reporting
body provisions of the Child Protection (Working with Children) Act 2012 to adult persons
who reside on the same property as authorised carers, and
(c) ensuring that persons who carry out child-related work or who reside on certain properties
or who hold key positions in certain agencies hold working with children check clearances
or have current applications for clearances, and
(d) ensuring that employers, responsible agencies and the governing bodies of agencies verify
that those persons hold a clearance or have a current application and are notified when any
such person ceases to hold a clearance or have a current application, and
(e) requiring and permitting information to be provided and exchanged for the purposes
specified in paragraphs (a)-(d), and
(f) permitting information about investigations into reportable allegations to be provided to the
child or person with a disability who is the alleged victim of the conduct to which the
b2014-087-31.d20
Child Protection Legislation Amendment Bill 2015 [NSW]
Explanatory note
allegation relates and to certain other persons who are concerned in the welfare of the child
or person with a disability.
Outline of provisions
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act by proclamation.
Clause 3 repeals the Children and Young Persons (Care and Protection) Amendment
(Permanency Planning) Act 2001.
Schedule 1 Amendment of Adoption Act 2000 No 75
Schedule 1 [1] and [9] update references to a Department and the head of a Department.
Schedule 1 [2] provides that anything done by or with the approval of the principal officer of an
accredited adoption service provider in relation to adoption services is taken to be done by the
accredited adoption service provider.
Schedule 1 [3] inserts definitions of applicant (being a person who has made an application to
adopt that is still current) and reside on a property (which refers to the definition inserted by
Schedule 2 [2]) for the purposes of Part 3 of Chapter 4 of the Adoption Act 2000 (the Principal
Act). Schedule 1 [6] inserts similar definitions for the purposes of Part 3A of Chapter 4 of the
Principal Act. Schedule 1 [4] makes a consequential amendment.
Schedule 1 [5] inserts proposed sections 45AA and 45AB into Part 3 of Chapter 4 of the Principal
Act and Schedule 1 [8] inserts similar sections into Part 3A of Chapter 4 of the Principal Act.
Proposed section 45AA permits any person to provide information about another person to the
principal officer of an accredited adoption service provider or to the Secretary of the Department
of Family and Community Services (the Secretary) if the person reasonably believes the other
person to be an applicant or a person who resides on the same property as an applicant. The
information provided may be used to determine whether the applicant is suitable to adopt a child.
The person who provides the information is protected from civil, criminal or disciplinary action
in relation to the provision of the information.
Proposed section 45AB requires an applicant to notify the person to whom the application was
made about any person who resides on the same property as the applicant for 3 weeks or more, or
about any person residing on the same property as the applicant who attains the age of 18 years.
Schedule 1 [7] permits the Secretary or the principal officer of an accredited adoption service
provider to invite an authorised carer of a child who is in out-of-home care to submit an
application to adopt the child (currently this may only be done by the Secretary).
Schedule 1 [10] inserts savings and transitional provisions consequential on the other
amendments proposed to be made by Schedule 1.
Schedule 1 [11] inserts a definition of Secretary for the purposes of the Principal Act.
Schedule 2 Amendment of Child Protection (Working with
Children) Act 2012 No 51
Schedule 2 [1] omits definitions of interim bar and working with children check number and
inserts a number of definitions for the purposes of the Child Protection (Working with Children)
Act 2012 (the Principal Act) including notifiable person in relation to an applicant for, or a holder
of, a working with children check clearance (a clearance). Notifiable persons include any
employer or proposed employer of the applicant or holder in respect of child-related work.
Schedule 2 [3], [8]-[12], [22], [32], [33] and [36] make consequential amendments.
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Child Protection Legislation Amendment Bill 2015 [NSW]
Explanatory note
Schedule 2 [2] sets out what is meant by the term reside on a property as this term is to replace
the concept of reside at a home throughout the Principal Act.
Schedule 2 [4] provides a defence to offences of engaging in child-related work by a person who
does not have a clearance or a current application for a clearance or by a person who is subject to
an interim bar. If the offence was consequential on the person being subject to an interim bar,
having an application for a clearance refused or terminated or having a clearance cancelled and,
at the time that the offence was committed, the person did not know about the interim bar, refusal,
termination or cancellation.
Schedule 2 [5] corrects an incorrect reference.
Schedule 2 [6] inserts proposed sections 9A and 9B.
Proposed section 9A requires an employer to verify on the working with children register that
each worker who will carry out child-related work for the employer holds a clearance or has a
current application for such a clearance. The verification must occur before the worker
commences child-related work and then again when a clearance of the worker ceases to have
effect (which occurs 5 years after it is granted).
Proposed section 9B requires the governing body of an organisation to ensure that a person is not
appointed on a permanent basis to a key position in the organisation that involves child-related
work unless the person is the holder of a clearance or has a current application for a clearance.
Failure to do so is an offence with a maximum penalty of $11,000, in the case of a corporation,
and $5,500 in any other case. Key positions in an organisation are the chief executive officer, the
principal officer (in the case of a designated agency, a registered agency or an accredited adoption
service provider) and any other position prescribed by the regulations under the Principal Act.
Schedule 2 [7] re-enacts section 10 of the Principal Act. That section made it an offence if an adult
person who does not have a clearance or a current application for a clearance resides at the home
of an authorised carer or at a home where a home based education and care service or family day
care service is provided. The new section will take account of the change in terminology from
reside at a home to reside on a property. The new section will also make it clear that a person who
is subject to an interim bar is taken not to have a clearance or a current application for a clearance.
Finally, the new section will provide defences if the adult person has been residing on the property
for less than 3 weeks or if the accused person (which may be the adult person, the agency that
authorised the authorised carer or the agency that oversees the provision of the education and care
service or family day care service) did not know about certain matters that caused the adult person
to no longer have a clearance or a current application for a clearance.
Schedule 2 [13] prescribes certain agencies as the responsible agency in respect of prospective
adoptive parents, prospective guardians and adult persons who reside on the same property as any
such person or adult persons who reside on the same property as an authorised carer or carer
applicant or on a property where a home based education and care service or family day care
service is provided. A responsible agency must verify on the working with children register that
each person, for whom the agency is the responsible agency, holds a clearance or has a current
application for a clearance. The verification must occur when the agency becomes aware that it is
the responsible agency for the person and then again when a clearance of the person ceases to have
effect (which occurs 5 years after it is granted).
Schedule 2 [14] requires the Children's Guardian to ensure that each applicant for a clearance is
given an application number and provides that an applicant may withdraw an application only
with the consent of the Children's Guardian. The Children's Guardian is not to consent if of the
opinion that there would be a risk to the safety of children if the applicant were to engage in
child-related work. The Children's Guardian is required to give written notice of the withdrawal
to notifiable persons in respect of the applicant.
Schedule 2 [15] extends the embargo on a fresh application for a clearance following a refusal of
an application so that a person whose clearance is cancelled under section 23 (Cancellation of
clearances) of the Principal Act is also unable to make a further application for 5 years unless
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Child Protection Legislation Amendment Bill 2015 [NSW]
Explanatory note
certain circumstances change or the Children's Guardian permits an earlier application to be
made. Schedule 2 [24] makes a consequential amendment.
Schedule 2 [16] reduces the period within which an applicant for a clearance must provide further
information to the Children's Guardian from 6 months to 3 months. The Children's Guardian may
terminate an application if the applicant fails to provide the information within that time.
Schedule 2 [17] requires the Children's Guardian to give written notice of the termination to
notifiable persons in respect of the applicant.
Schedule 2 [18] provides that an interim bar is also a bar on residing on the same property as an
authorised carer or on a property where a home based education and care service or family day
care service is provided (currently it is only a bar on engaging in child-related work).
Schedule 2 [19] makes a consequential amendment.
Schedule 2 [20] requires the Children's Guardian to give written notice of any interim bar to
notifiable persons in respect of any applicant or holder of a clearance who is subject to the interim
bar.
Schedule 2 [21] makes it clear that an interim bar ceases in respect of an applicant for a clearance
if the application for the clearance is refused.
Schedule 2 [23] requires the Children's Guardian to give written notice of any refusal of an
application to the applicant and to notifiable persons in respect of the applicant.
Schedule 2 [25] and [26] require the Children's Guardian to give written notice of any
cancellation of a clearance to notifiable persons in respect of the holder of the clearance.
Schedule 2 [27] specifies additional matters that must be included on the working with children
register. These include the name and date of birth of the applicant for, or holder of, a clearance
and, in the case of an application for a clearance, any determination by the Children's Guardian to
refuse the application and in respect of a clearance, whether the holder of the clearance is subject
to an interim bar or has had a clearance cancelled.
Schedule 2 [28] requires the Children's Guardian to make information on the working with
children register available to a person carrying out a verification under proposed
section 9A or 11B. The amendment also permits regulations under the Principal Act to be made
for or with respect to a number of matters related to the register.
Schedule 2 [29] requires a designated agency to notify the Children's Guardian of the name and
identifying particulars of any adult person who resides for 3 weeks or more on the same property
as an authorised carer authorised by the agency if the agency has made a finding that the adult
person engaged in sexual misconduct committed against, with or in the presence of a child,
including grooming of a child or engaged in the serious physical assault of a child.
Schedule 2 [30] includes designated agencies as reporting bodies for the purposes of section 35
of the Principal Act.
Schedule 2 [31] extends the database functions of the Children's Guardian so as to require
information to be collected and maintained about persons who verify information on clearances
or applications for clearances.
Schedule 2 [34] permits the Children's Guardian to disclose information obtained or used under
the Principal Act to the Secretary for the purposes of the Secretary exercising functions under
Chapter 4 (Children and young persons in need of care and protection) of the Children and Young
Persons (Care and Protection) Act 1998. The information that may be disclosed is information
about any person who the Children's Guardian reasonably believes is or was an authorised carer,
a carer applicant, a prospective adoptive parent, a guardian or a prospective guardian, or a person
who resides or has resided on the same property as any such person. Schedule 2 [35] inserts a
definition of guardian.
Schedule 2 [37] removes a provision that has become redundant because of changes made to the
regulations under the Principal Act.
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Child Protection Legislation Amendment Bill 2015 [NSW]
Explanatory note
Schedule 2 [38] provides that certain exemptions from the requirement to have a clearance or a
current application for a clearance in the case of self-employed persons who undertake
child-related work do not apply to a disqualified person or to a person who has been subject to an
interim bar, had an application for a clearance refused or had a clearance cancelled.
Schedule 2 [39] inserts savings and transitional provisions consequential on the other
amendments proposed to be made by Schedule 2.
Schedule 3 Amendment of Children and Young Persons
(Care and Protection) Act 1998 No 157
Schedule 3 [1] updates references to the head of a Department.
Schedule 3 [2] omits the definition of Director-General and inserts a number of definitions for
the purposes of the Children and Young Persons (Care and Protection) Act 1998 (the Principal
Act). Schedule 3 [5], [15] and [18] make consequential amendments.
Schedule 3 [3] specifies who is the principal officer of a designated agency or a registered agency
and provides that anything done by, or with the approval of, the principal officer in relation to
out-of-home care is taken to be done by the designated agency or registered agency concerned.
Schedule 3 [4] prevents the Children's Court from making an order allocating any aspect of
parental responsibility for a child or young person to an organisation or the principal officer of a
designated agency (other than the Secretary).
Schedule 3 [7] prevents the Secretary from making an application for a guardianship order (or
consenting to a designated agency or other person making such an application) unless the
Secretary is satisfied that the person to whom parental responsibilty for the child or young person
is to be allocated under those orders has satisfied such suitability assessments as may be prescribed
by regulations under the Principal Act. Schedule 3 [6] makes a consequential amendment.
Schedule 3 [8] provides that a care plan prepared by an applicant for a guardianship order must
include information about the arrangements for contact between the child or young person and
parents, relatives, friends and other persons connected with the child or young person.
Schedule 3 [9] requires a prospective guardian (other than an authorised carer) to notify the
Secretary if a person resides on the same property as the prospective guardian for 3 weeks or more
or if a person residing on that property attains the age of 18 years.
Schedule 3 [10] updates a reference to a renamed Department.
Schedule 3 [11] permits regulations under the Principal Act to make provision with respect to the
authorisation of persons as authorised carers on a provisional basis.
Schedule 3 [12] permits regulations under the Principal Act to make provision with respect to
prescribing events the occurrence of which raise a presumption that an authorised carer's
authorisation will be cancelled.
Schedule 3 [13] requires an authorised carer to notify the designated agency that authorised the
authorised carer if a person resides on the same property as the authorised carer for 3 weeks or
more or if a person residing on that property attains the age of 18 years.
Schedule 3 [14], [16] and [22] update terminology as a consequence of the commencement of the
Government Sector Employment Act 2013.
Schedule 3 [17] makes it an offence with a maximum penalty of $22,000 if the principal officer
of a designated agency resides on the same property as a child or young person who is in
out-of-home care supervised by the designated agency. However, the offence does not apply if the
principal officer resides with the child or young person at a facility of the designated agency at
which out-of-home care is provided.
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Child Protection Legislation Amendment Bill 2015 [NSW]
Explanatory note
Schedule 3 [19] provides that certain decisions are not reviewable by the Civil and Administrative
Tribunal. These are decisions not to authorise a person as an authorised carer, a decision to cancel
an authorisation granted on a provisional basis and a decision to cancel a person's authorisation if
the cancellation occurs because of an event that has been prescribed by the regulation under the
Principal Act as an event, the occurrence of which raises a presumption that an authorised carer's
authorisation will be cancelled (see Schedule 3 [12]).
Schedule 3 [20] permits a person to be prescribed by the regulations under the Principal Act as a
prescribed body for the purposes of Chapter 16A (Exchange of information and co-ordination of
services) of the Principal Act.
Schedule 3 [21] permits a person (the provider of information) to provide information to a
designated agency about another person if the provider of information reasonably believes that the
other person is an authorised carer, carer applicant, guardian, prospective guardian or person who
resides on the same property as any such person. The designated agency is authorised to use
information so provided to determine whether a person is suitable to be, or to continue to be, an
authorised carer or guardian.
Schedule 3 [23] provides for the exchange of information between bodies that assess the
suitability of persons to be adoptive parents, guardians or authorised carers in this State and bodies
that arrange or provide child protection, out-of-home care, guardianship or adoption services in
other jurisdictions. An exchange may occur only if it is in accordance with protocols made by the
Minister for Family and Community Services in consultation with the Privacy Commissioner.
Schedule 3 [24] permits regulations under the Principal Act to make provision for or with respect
to officers of designated agencies and registered agencies (including principal officers) and the
register established by the Children's Guardian for the purpose of the authorisation of individuals
as authorised carers.
Schedule 3 [25] and [26] update a savings and transitional provision to make it clear that a
guardianship order that is taken to be made under that provision allocates parental responsibility
to a person who is a relative or kin and not to any other person.
Schedule 3 [27] corrects a cross-reference.
Schedule 3 [28] inserts savings and transitional provisions consequential on the other
amendments proposed to be made by Schedule 3.
Schedule 4 Amendment of Community Services (Complaints,
Reviews and Monitoring) Act 1993 No 2
Schedule 4 [1] requires an Official Community Visitor to provide the Children's Guardian with
any information that the Children's Guardian determines is relevant to the accreditation or
registration of a designated agency or a registered agency. Schedule 4 [3] inserts a transitional
provision consequential on the amendment.
Schedule 4 [2] makes it clear that a person may make a complaint to the Ombudsman about the
conduct of a designated agency in respect of the authorisation of a person as an authorised carer.
Schedule 5 Amendment of Ombudsman Act 1974 No 68
Schedule 5 [1] inserts a definition of parent for the purposes of Part 3A (Child protection) of the
Ombudsman Act 1974 (the Principal Act).
Schedule 5 [2] provides that Part 3A of the Principal Act applies to an adult who resides on the
same property as an authorised carer for 3 weeks or more in the same way as it applies to an
employee and in such a case the adult is taken to be an employee of the designated agency that
authorised the carer.
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Child Protection Legislation Amendment Bill 2015 [NSW]
Explanatory note
Schedule 5 [3] permits the Ombudsman, the head of a designated government agency or the head
of a designated non-government agency to disclose certain information concerning an
investigation into a reportable allegation. The information may be disclosed to the child who is
allegedly the subject of the reportable conduct or misconduct that forms the basis of the allegation,
a parent of the child or an authorised carer of the child.
Schedule 5 [4] permits the Ombudsman, the Secretary or the head of a funded provider to disclose
certain information concerning an investigation into a reportable allegation. The information may
be disclosed to the person with a disability who is allegedly the subject of the reportable incident
or behaviour that forms the basis of the allegation, a nominee of the person or if the person lacks
capacity, specified persons who are concerned in the welfare of the person with a disability.
Schedule 5 [5] inserts savings and transitional provisions consequential on the other amendments
proposed to be made by Schedule 5.
Page 7
First print
New South Wales
Child Protection Legislation Amendment Bill
2015
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Repeal 2
Schedule 1 Amendment of Adoption Act 2000 No 75 3
Schedule 2 Amendment of Child Protection (Working with Children)
Act 2012 No 51 7
Schedule 3 Amendment of Children and Young Persons (Care and
Protection) Act 1998 No 157 19
Schedule 4 Amendment of Community Services (Complaints, Reviews
and Monitoring) Act 1993 No 2 26
Schedule 5 Amendment of Ombudsman Act 1974 No 68 27
b2014-087-31.d20
New South Wales
Child Protection Legislation Amendment Bill
2015
No , 2015
A Bill for
An Act to amend the Adoption Act 2000, the Child Protection (Working with Children) Act 2012,
the Children and Young Persons (Care and Protection) Act 1998 and other Acts with respect to
the suitability of persons to be carers, adoptive parents and guardians of children and young
people; and for other purposes.
Child Protection Legislation Amendment Bill 2015 [NSW]
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Child Protection Legislation Amendment Act 2015. 3
2 Commencement 4
This Act commences on a day or days to be appointed by proclamation. 5
3 Repeal 6
The Children and Young Persons (Care and Protection) Amendment (Permanency 7
Planning) Act 2001 No 91 is repealed. 8
Page 2
Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 1 Amendment of Adoption Act 2000 No 75
Schedule 1 Amendment of Adoption Act 2000 No 75 1
[1] Whole Act (other than Schedule 3) 2
Omit "Director-General" and "Director-General's" wherever occurring. 3
Insert instead "Secretary" and "Secretary's" respectively. 4
[2] Chapter 3, Part 3 5
Insert after section 13: 6
Part 3 Principal officer of accredited adoption service 7
provider 8
14 Actions of principal officer taken to be actions of provider 9
(1) This section applies to anything done by, or with the approval of, the principal 10
officer of an accredited adoption service provider in relation to adoption 11
services. 12
(2) Anything to which this section applies is, for the purposes of this Act and the 13
regulations, taken to be done by the accredited adoption service provider. 14
(3) Nothing in this section affects any personal liability of the principal officer. 15
[3] Section 41A 16
Insert after section 41: 17
41A Definitions 18
In this Part: 19
applicant means a person whose application to adopt under this Part: 20
(a) has been submitted to the Secretary or a principal officer, and 21
(b) has not been withdrawn or finally dealt with by the making of, or refusal 22
to make, an adoption order. 23
reside on a property has the same meaning as in the Child Protection 24
(Working with Children) Act 2012. 25
[4] Section 45 Assessment of suitability, and selection, of adoptive parents 26
Omit "resides with the person" from section 45 (2). 27
Insert instead "resides on the same property as the person". 28
[5] Sections 45AA and 45AB 29
Insert after section 45A: 30
45AA Provision of information 31
(1) Any person (the provider of information) may provide information to the 32
principal officer of an accredited adoption service provider or the Secretary 33
about another person if: 34
(a) the provider of information has been notified by the principal officer or 35
the Secretary that the other person is an applicant or a person who 36
resides on the same property as an applicant, or 37
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Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 1 Amendment of Adoption Act 2000 No 75
(b) the provider of information otherwise reasonably believes the other 1
person to be an applicant or a person who resides on the same property 2
as an applicant. 3
(2) Information provided under this section may be used to determine whether the 4
applicant is suitable to adopt a child. 5
(3) Information may be provided under this section regardless of whether the 6
provider of information has been requested to provide the information. 7
(4) A person who, acting in good faith, provides information under this section: 8
(a) is not liable to any civil or criminal action, or any disciplinary action, 9
for providing the information, and 10
(b) in providing the information, cannot be held to have breached any code 11
of professional etiquette or ethics or departed from any accepted 12
standards of professional conduct. 13
45AB Notification about other residents 14
An applicant must, as soon as reasonably practicable, notify the Secretary or 15
the principal officer to whom the application was submitted: 16
(a) if any person (other than the applicant or a person who submitted an 17
application to adopt jointly with the applicant) resides on the same 18
property as the applicant for 3 weeks or more, or 19
(b) if a person residing on the same property as the applicant attains the age 20
of 18 years. 21
[6] Section 45CA 22
Insert after section 45C: 23
45CA Definitions 24
In this Part: 25
applicant means a person whose application to adopt under this Part: 26
(a) has been submitted to the Secretary or a principal officer, and 27
(b) has not been withdrawn or finally dealt with by the making of, or refusal 28
to make, an adoption order. 29
reside on a property has the same meaning as in the Child Protection 30
(Working with Children) Act 2012. 31
[7] Section 45D 32
Omit the section. Insert instead: 33
45D Application to adopt 34
The Secretary or the principal officer of an accredited adoption service 35
provider may, in accordance with the regulations, invite an authorised carer of 36
a child who is in out-of-home care to submit an application to adopt the child. 37
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Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 1 Amendment of Adoption Act 2000 No 75
[8] Sections 45GA and 45GB 1
Insert after section 45G: 2
45GA Provision of information 3
(1) Any person (the provider of information) may provide information to the 4
principal officer of an accredited adoption service provider or the Secretary 5
about another person if: 6
(a) the provider of information has been notified by the principal officer or 7
the Secretary that the other person is an applicant or a person who 8
resides on the same property as an applicant, or 9
(b) the provider of information otherwise reasonably believes the other 10
person to be an applicant or a person who resides on the same property 11
as an applicant. 12
(2) Information provided under this section may be used to determine whether the 13
applicant is suitable to adopt a child. 14
(3) Information may be provided under this section regardless of whether the 15
provider of information has been requested to provide the information. 16
(4) A person who, acting in good faith, provides information under this section: 17
(a) is not liable to any civil or criminal action, or any disciplinary action, 18
for providing the information, and 19
(b) in providing the information, cannot be held to have breached any code 20
of professional etiquette or ethics or departed from any accepted 21
standards of professional conduct. 22
45GB Notification about other residents 23
An applicant must, as soon as reasonably practicable, notify the Secretary or 24
the principal officer to whom the application was submitted: 25
(a) if any person (other than the applicant or a person who submitted an 26
application to adopt jointly with the applicant) resides on the same 27
property as the applicant for 3 weeks or more, or 28
(b) if a person residing on the same property as the applicant attains the age 29
of 18 years. 30
[9] Section 124A Guardian ad litem--exclusion of personal liability 31
Omit "Department of Attorney General and Justice" from the definition of Guardian Ad 32
Litem Panel in section 124A (3). 33
Insert instead "Department of Justice". 34
[10] Schedule 3 Savings, transitional and other provisions 35
Insert after clause 26: 36
Part 8 Provisions consequent on enactment of Child 37
Protection Legislation Amendment Act 2015 38
27 Principal officer of accredited adoption service provider 39
Section 14, as inserted by the Child Protection Legislation Amendment 40
Act 2015, extends to things done by, or with the approval of, a principal officer 41
before the commencement of that section in the same way as it applies to 42
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Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 1 Amendment of Adoption Act 2000 No 75
things done by, or with the approval of, a principal officer after that 1
commencement. 2
28 Notification about other residents 3
Sections 45AB and 45GB extend to any person residing on the same property 4
as an applicant who has not been notified to the Secretary or a principal officer 5
even if that person commenced residing on the same property as the applicant, 6
or attained the age of 18 years, before the commencement of the relevant 7
section. 8
[11] Dictionary 9
Omit the definition of Director-General. Insert in alphabetical order: 10
Secretary means the Secretary of the Department. 11
Page 6
Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 2 Amendment of Child Protection (Working with Children) Act 2012 No 51
Schedule 2 Amendment of Child Protection (Working with 1
Children) Act 2012 No 51 2
[1] Section 5 Definitions 3
Omit the definitions of interim bar and working with children check number from 4
section 5 (1). 5
Insert in alphabetical order: 6
accredited adoption service provider has the same meaning as in the Adoption 7
Act 2000. 8
application number means the unique number given to an applicant for a 9
working with children check clearance under this Act. 10
carer applicant has the same meaning as in the Children and Young Persons 11
(Care and Protection) Act 1998. 12
Department means the Department of Family and Community Services. 13
interim bar means an interim bar imposed under section 17. 14
notifiable person in relation to an applicant for a clearance or the holder of a 15
clearance means each of the following: 16
(a) any employer or proposed employer of the applicant or holder in respect 17
of child-related work, 18
(b) if the applicant or holder resides on the same property as an authorised 19
carer or carer applicant--the designated agency that authorised the 20
carer or to whom the carer applicant made the application, 21
(c) if the applicant or holder resides on a property where a home based 22
education and care service or family day care service is provided--the 23
approved provider of the service, 24
(d) if the applicant or holder is a prospective adoptive parent or an adult 25
resident within the meaning of section 11--the relevant decision-maker 26
(within the meaning of that section) in relation to the prospective 27
adoptive parent, 28
(e) if the applicant or holder is a prospective guardian or an adult resident 29
within the meaning of section 11A--the relevant decision-maker 30
(within the meaning of that section) in relation to the prospective 31
guardian, 32
(f) any other person prescribed by the regulations. 33
principal officer of: 34
(a) an accredited adoption service provider has the same meaning as in the 35
Adoption Act 2000, or 36
(b) a designated agency or a registered agency has the same meaning as in 37
the Children and Young Persons (Care and Protection) Act 1998. 38
prospective adoptive parent means a person who has submitted an application 39
under the Adoption Act 2000 to adopt a child and whose application has not 40
been withdrawn or finally dealt with by the making of or refusal to make an 41
adoption order. 42
prospective guardian has the same meaning as in the Children and Young 43
Persons (Care and Protection) Act 1998. 44
registered agency has the same meaning as in the Children and Young Persons 45
(Care and Protection) Act 1998. 46
reside on a property has the meaning given by section 5A. 47
Secretary means the Secretary of the Department. 48
Page 7
Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 2 Amendment of Child Protection (Working with Children) Act 2012 No 51
working day means any day that is not a Saturday, Sunday or public holiday. 1
working with children number means the number given for a working with 2
children check clearance under this Act. 3
working with children register means the register established under 4
section 25. 5
[2] Section 5A 6
Insert after section 5: 7
5A Meaning of "reside on a property" 8
(1) Subject to subsection (2), a person resides on a property if the person resides 9
(which includes sleep on a regular or frequent basis) anywhere on the property 10
(whether or not in a building, caravan, structure, vehicle or other thing). 11
(2) The regulations may prescribe circumstances in which a person is, or is not, 12
taken to reside on a property (including by prescribing circumstances in which 13
2 persons are, or are not, taken to be residing on the same property). 14
[3] Section 6 Child-related work 15
Omit "within the meaning of the Adoption Act 2000" from section 6 (3) (f). 16
[4] Section 8 Restrictions on engaging in child-related work 17
Insert at the end of section 8 (3) (b): 18
, or 19
(c) the offence was consequential on the relevant accused person being 20
subject to an interim bar, having an application for a clearance refused 21
or terminated or having a clearance cancelled and, at the time that the 22
offence was committed, the accused person did not know about the 23
interim bar, refusal, termination or cancellation. 24
[5] Section 9 Employers must require clearance or current application 25
Omit "accused person" where secondly occurring in section 9 (2) (a) and from 26
section 9 (2) (b). 27
Insert instead "worker". 28
[6] Sections 9A and 9B 29
Insert after section 9: 30
9A Employer must verify worker has clearance or current application 31
(1) An employer must verify, in accordance with this section, that each worker 32
who carries out, or is to carry out, child-related work for the employer: 33
(a) is the holder of a working with children check clearance that authorises 34
the work, or 35
(b) has made a current application to the Children's Guardian for a 36
clearance of a class applicable to that work. 37
(2) For the purposes of any such verification the employer must ensure that: 38
(a) the relevant details of the worker are obtained by the employer, being: 39
(i) the worker's full name and date of birth, and 40
(ii) the working with children number of the worker's clearance or 41
the application number of the worker's current application, and 42
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Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 2 Amendment of Child Protection (Working with Children) Act 2012 No 51
(b) the employer has access to the working with children register, and 1
Note. Employers can gain access to the working with children register by 2
registering online with the Children's Guardian. 3
(c) such of the relevant details of the worker as may be required by the 4
Children's Guardian are entered onto the working with children 5
register, and 6
(d) a record is kept of each of the following obtained from the working with 7
children register and that record is retained by the employer for 7 years: 8
(i) the working with children number of the worker, 9
(ii) the date on which each clearance of the worker ceases to have 10
effect. 11
(3) Verification in respect of a worker under this section must occur before the 12
worker commences child-related work and then again within 5 working days 13
after each clearance of the worker ceases to have effect under section 22 (1). 14
(4) This section does not apply: 15
(a) in respect of an employer if the employer is an individual who is the 16
parent of, or has the care of, a child or young person and the 17
child-related work relates to that child or young person, or 18
(b) in respect of a worker who is exempted by the regulations from the 19
requirement to hold a clearance, or 20
(c) in respect of an employer who is exempted by the regulations from this 21
section. 22
9B Governing body to ensure persons appointed to key positions hold clearance 23
(1) In this section: 24
key position, in an organisation, means each of the following: 25
(a) the chief executive of the organisation, 26
(b) the principal officer--if the organisation is a designated agency, a 27
registered agency or an accredited adoption service provider, 28
(c) any other position in the organisation that is of a kind prescribed by the 29
regulations. 30
(2) The governing body of an organisation must ensure that a person is not 31
appointed on a permanent basis to a key position in the organisation that 32
involves child-related work unless the person is the holder of a working with 33
children check clearance of a class applicable to that work. 34
Maximum penalty: 100 penalty units, in the case of a corporation, and 35
50 penalty units in any other case. 36
(3) It is a defence to proceedings for an offence against subsection (2) if the 37
governing body establishes that, at the time the offence was committed: 38
(a) the governing body had been advised by the Children's Guardian that 39
the person was the holder of a clearance, or 40
(b) the working with children register showed that the person was the 41
holder of a clearance, or 42
(c) the governing body was exempted by the regulations from the 43
requirements of this section or the person was exempted from the 44
requirement to hold a clearance. 45
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Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 2 Amendment of Child Protection (Working with Children) Act 2012 No 51
(4) The governing body of an organisation must ensure that whenever a person is 1
appointed on a permanent basis to a key position in the organisation that 2
involves child-related work: 3
(a) a record is kept of how the governing body determined that the person 4
held a working with children check clearance of a class applicable to 5
that work, and 6
(b) that record is retained by the organisation for at least 7 years. 7
Maximum penalty: 50 penalty units. 8
(5) Nothing in this section prevents a person being appointed to a key position on 9
a conditional basis, if there is a current application for a clearance of an 10
appropriate class and appointment is conditional on the person obtaining the 11
appropriate clearance as soon as is reasonably practicable and having that 12
clearance considered by the governing body. 13
[7] Section 10 14
Omit the section. Insert instead: 15
10 Adult persons residing with authorised carers or persons providing home care 16
services 17
(1) An adult person (other than an exempt person) who resides on the same 18
property as an authorised carer or on a property where a home based education 19
and care service or family day care service is provided must hold a working 20
with children check clearance (of any class) or have made a current application 21
to the Children's Guardian for a clearance. 22
Maximum penalty: 100 penalty units, or imprisonment for 2 years, or both. 23
(2) The designated agency (that authorised the authorised carer) or the approved 24
provider (of the home based education and care service or family day care 25
service) referred to in subsection (1), must ensure that the adult person 26
complies with that subsection. 27
Maximum penalty: 100 penalty units, in the case of a corporation, and 28
50 penalty units in any other case. 29
(3) For the purposes of this section, a person no longer has a clearance or a current 30
application for a clearance if an interim bar is in effect against the person. 31
(4) It is a defence to proceedings for an offence against subsection (1) if the 32
accused person establishes that the accused person did not know, at the time 33
the offence was committed, that the care or service referred to in that 34
subsection was provided on that property. 35
(5) It is a defence to proceedings for an offence under subsection (1) or (2) if the 36
accused person establishes that: 37
(a) the adult person had been residing on the property for less than 3 weeks, 38
or 39
(b) the offence was consequential on the adult person being subject to an 40
interim bar, withdrawing an application, having an application for a 41
clearance terminated or refused or having a clearance cancelled and the 42
accused person: 43
(i) did not know about the interim bar, withdrawal, termination, 44
refusal or cancellation, or 45
(ii) in the case of an adult person who resides on the same property 46
as an authorised carer, had not known about the interim bar, 47
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Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 2 Amendment of Child Protection (Working with Children) Act 2012 No 51
withdrawal, termination, refusal or cancellation for more than 1
48 hours. 2
(6) For the purposes of the application of this Act (other than section 9) to an adult 3
person required by this section to hold a clearance, the designated agency or 4
approved provider referred to in subsection (2) is to be treated as the employer 5
of the adult person. 6
(7) In this section: 7
exempt person means a person who is required under another provision of this 8
Act to, or is exempt from the requirement to, hold a working with children 9
check clearance. 10
[8] Section 11 Prospective adoptive parents and adults residing with them 11
Omit section 11 (1) (a) and (b). Insert instead: 12
(a) a prospective adoptive parent, and 13
(b) a person (an adult resident) who resides on the same property as another 14
person while that other person is a prospective adoptive parent. 15
[9] Section 11 (4) 16
Omit the definition of accredited adoption service provider. 17
[10] Section 11 (4), definition of "relevant decision-maker" 18
Omit "the Director-General of the Department of Family and Community Services--the 19
Director-General" from paragraph (a). 20
Insert instead "the Secretary--the Secretary". 21
[11] Section 11A Prospective guardians and adults residing with them 22
Omit section 11A (1) (a) and (b). Insert instead: 23
(a) a prospective guardian, and 24
(b) a person (an adult resident) who resides on the same property as the 25
prospective guardian during the period beginning when the application 26
for a guardianship order relating to that prospective guardian is made 27
under section 79A of the Children and Young Persons (Care and 28
Protection) Act 1998 and ending when it is finally dealt with. 29
[12] Section 11A (4), definition of "relevant decision-maker" 30
Omit "the Director-General of the Department of Family and Community Services--the 31
Director-General" from paragraph (a). 32
Insert instead "the Secretary--the Secretary". 33
[13] Section 11B 34
Insert after section 11A: 35
11B Responsible agency must verify person has clearance or current application 36
(1) For the purposes of this section, the responsible agency is: 37
(a) for any adult person who resides on the same property as an authorised 38
carer who is authorised by a designated agency--the designated agency, 39
or 40
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Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 2 Amendment of Child Protection (Working with Children) Act 2012 No 51
(b) for any adult person who resides on the same property as a carer 1
applicant whose application was made to a designated agency--the 2
designated agency, or 3
(c) for any adult person who resides on a property where a home based 4
education and care service or a family day care service is provided--the 5
approved provider of the service, or 6
(d) for any adult person in respect of whom a relevant decision-maker 7
(within the meaning of section 11 or 11A) is to be treated as an 8
employer under either of those sections--the relevant decision-maker. 9
(2) A responsible agency must verify, in accordance with this section, that each 10
adult person for whom the agency is the responsible agency: 11
(a) is the holder of a working with children check clearance, or 12
(b) has made a current application to the Children's Guardian for a 13
clearance. 14
(3) For the purposes of any such verification, the responsible agency must ensure 15
that: 16
(a) the relevant details of the person are obtained by the agency, being: 17
(i) the person's full name and date of birth, and 18
(ii) the working with children number of the person's clearance or 19
the application number of the person's current application, and 20
(b) the agency has access to the working with children register, and 21
Note. Responsible agencies can gain access to the register by registering 22
online with the Children's Guardian. 23
(c) such of the relevant details of the person as may be required by the 24
Children's Guardian are entered onto the working with children 25
register, and 26
(d) a record is kept of any of the following obtained from the working with 27
children register and that record is retained by the agency for 7 years: 28
(i) the working with children number of the person, 29
(ii) the expiry date of any clearance of the person. 30
(4) Verification in respect of an adult person under this section must occur as soon 31
as practicable after the responsible agency becomes aware that it is the 32
responsible agency for the person and then again within 5 working days after 33
each clearance of the person ceases to have effect under section 22 (1). 34
(5) This section does not apply: 35
(a) in respect of a person who is exempted by the regulations from the 36
requirement to hold a clearance, or 37
(b) in respect of a responsible agency that is exempted by the regulations 38
from this section. 39
[14] Section 13 Applications for clearances 40
Omit section 13 (5). Insert instead: 41
(5) The Children's Guardian must ensure that each applicant is given an 42
application number and that the applicant is notified of that number. 43
(6) An applicant may, with the consent of the Children's Guardian, withdraw an 44
application at any time. 45
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Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 2 Amendment of Child Protection (Working with Children) Act 2012 No 51
(7) The Children's Guardian must not consent to the withdrawal of an application 1
if the Children's Guardian is of the opinion that it is likely that there is a risk 2
to the safety of children if the applicant were to engage in child-related work. 3
(8) The Children's Guardian must, as soon as practicable after an application is 4
withdrawn by an applicant, give written notice of that withdrawal to each 5
person that the Children's Guardian reasonably believes to be a notifiable 6
person in relation to the applicant. 7
[15] Section 13A 8
Insert after section 13: 9
13A Embargo after refusal of application or cancellation of clearance 10
(1) A person who is refused a working with children check clearance, or whose 11
clearance is cancelled under section 23, is not entitled to make a further 12
application for a clearance: 13
(a) until 5 years after the date notice of the refusal or cancellation was given 14
to the person, or 15
(b) unless there has been a change of circumstances under which a further 16
early application is permitted under this section. 17
(2) A further early application is permitted if any of the following occurs after the 18
date of the refusal or cancellation: 19
(a) proceedings that were pending at the date of the refusal or cancellation 20
are withdrawn or dealt with without the person being found guilty of the 21
offence, 22
(b) a finding of guilt is quashed or set aside, 23
(c) a finding the subject of an assessment requirement is quashed or set 24
aside or otherwise expressly or impliedly ceases to have effect, 25
(d) the Children's Guardian permits a person to make such an application. 26
[16] Section 16 Request for further information 27
Omit "6 months" from section 16 (2). Insert instead "3 months". 28
[17] Section 16 (3) 29
Insert after section 16 (2): 30
(3) The Children's Guardian must as soon as practicable after terminating an 31
application, give written notice of that termination to the applicant and to each 32
person that the Children's Guardian reasonably believes to be a notifiable 33
person in relation to the applicant. 34
[18] Section 17 Interim bars 35
Omit section 17 (1). Insert instead: 36
(1) The Children's Guardian may, at any time after receiving an application for a 37
working with children check clearance or commencing an assessment of an 38
applicant for or holder of a clearance, determine that the applicant or holder is 39
subject to an interim bar, being a bar on the applicant or holder doing any of 40
the following: 41
(a) engaging in child-related work, 42
(b) residing on the same property as an authorised carer, 43
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Schedule 2 Amendment of Child Protection (Working with Children) Act 2012 No 51
(c) residing on a property where a home based education and care service 1
or family day care service is provided. 2
[19] Section 17 (2) 3
Insert "or resides on a property referred to in subsection (1) (b) or (c)" after "child-related 4
work". 5
[20] Section 17 (3) 6
Omit the subsection. Insert instead: 7
(3) The Children's Guardian must as soon as practicable after determining that an 8
applicant or holder is subject to an interim bar, give written notice of that 9
determination to the applicant or holder and to each person that the Children's 10
Guardian reasonably believes to be a notifiable person in relation to the 11
applicant or holder. 12
[21] Section 17 (4) (b) 13
Insert "or refused" after "granted". 14
[22] Section 20 Notice of final decision granting or refusing clearance 15
Omit "working with children check number" from section 20 (2). 16
Insert instead "working with children number". 17
[23] Section 20 (4) 18
Omit the subsection. Insert instead: 19
(4) The Children's Guardian must as soon as practicable after refusing an 20
application, give written notice of that refusal to the applicant and to each 21
person that the Children's Guardian reasonably believes to be a notifiable 22
person in relation to the applicant. 23
[24] Section 21 Embargo on further applications after refusal 24
Omit the section. 25
[25] Section 23 Cancellation of clearances 26
Omit section 23 (4). Insert instead: 27
(4) The Children's Guardian must as soon as practicable after cancelling a 28
clearance, give written notice of that cancellation to each person that the 29
Children's Guardian reasonably believes to be a notifiable person in relation 30
to the holder of the clearance. 31
[26] Section 24 Surrender of clearances 32
Omit section 24 (3). Insert instead: 33
(3) The Children's Guardian must as soon as practicable after cancelling a 34
clearance, give written notice of that cancellation to each person that the 35
Children's Guardian reasonably believes to be a notifiable person in relation 36
to the holder of the clearance. 37
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Schedule 2 Amendment of Child Protection (Working with Children) Act 2012 No 51
[27] Section 25 Working with children register 1
Omit section 25 (2). Insert instead: 2
(2) The register must contain the following: 3
(a) particulars of applications for working with children check clearances, 4
including the applicant's name and date of birth, the application 5
number, the status of the application (including whether the applicant is 6
subject to an interim bar) and any determination to refuse the 7
application, 8
(b) particulars of clearances, including the clearance holder's name and 9
date of birth, the working with children number, the class and expiry 10
date of the clearance and whether the clearance holder is subject to an 11
interim bar or has had a clearance cancelled. 12
[28] Section 25 (5) and (6) 13
Omit section 25 (5). Insert instead: 14
(5) The Children's Guardian must make information on the register available to 15
an employer or responsible agency carrying out a verification in respect of a 16
person under section 9A or 11B to the extent that the Children's Guardian 17
considers the information to be relevant for the purposes of the verification or 18
for informing the employer or responsible agency of any interim bar, refusal 19
of an application or cancellation of a clearance. 20
(6) The regulations may make provision for or with respect to the following: 21
(a) any additional information that may be contained on the register, 22
(b) the entry of information on the register by employers or other persons, 23
(c) making information on the register publicly available or available to 24
particular classes of persons. 25
[29] Section 35 Notification by reporting bodies of conduct constituting assessment 26
requirement trigger 27
Insert after section 35 (1): 28
(1A) It is the duty of a reporting body that is a designated agency that has authorised 29
a person as an authorised carer, to notify the Children's Guardian of the name 30
and other identifying particulars of each adult person: 31
(a) who resides for 3 weeks or more on the same property as the authorised 32
carer, and 33
(b) against whom the reporting body has made a finding that the adult 34
person has engaged in conduct specified in clause 2 of Schedule 1. 35
[30] Section 35 (4), definition of "reporting body" 36
Insert after paragraph (c): 37
(c1) a designated agency, 38
[31] Section 37 Database functions of Children's Guardian 39
Omit section 37 (c). Insert instead: 40
(c) collecting and maintaining a database of employers and other persons 41
who verify information about working with children check clearances 42
and applications for clearances, including updating, correcting or 43
removing entries on the database. 44
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Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 2 Amendment of Child Protection (Working with Children) Act 2012 No 51
[32] Section 40A Power to audit declarations made by exempt workers 1
Omit "the Department of Family and Community Services" from section 40A (6) (f). 2
Insert instead "the Department". 3
[33] Section 48A Reports under Children and Young Persons (Care and Protection) 4
Act 1998 5
Omit "the Director-General of the Department of Family and Community Services" from 6
section 48A (1). 7
Insert instead "the Secretary". 8
[34] Section 48A (1A) 9
Insert after section 48A (1): 10
(1A) Any information about or in connection with a person (who the Children's 11
Guardian reasonably believes to be any one or more of the following) that has 12
been obtained or used by the Children's Guardian in the course of exercising 13
functions under this Act, may be disclosed to the Secretary for the purposes of 14
the Secretary exercising functions under Chapter 4 of the Children and Young 15
Persons (Care and Protection) Act 1998: 16
(a) a person who is or has been an authorised carer, a carer applicant, a 17
prospective adoptive parent, a guardian or a prospective guardian, 18
(b) a person who resides or has resided on the same property as another 19
person while that other person is or was an authorised carer, a carer 20
applicant, a prospective adoptive parent, a guardian or a prospective 21
guardian. 22
[35] Section 48A (3) 23
Insert after section 48A (2): 24
(3) In this section: 25
guardian has the same meaning as in section 79A of the Children and Young 26
Persons (Care and Protection) Act 1998. 27
[36] Section 51 Service of documents 28
Omit "working with children check number" from section 51 (2). 29
Insert instead "working with children number". 30
[37] Schedule 3 Savings, transitional and other provisions 31
Omit clause 3. 32
[38] Schedule 3, clause 4 (4) 33
Omit the subclause. Insert instead: 34
(4) This clause does not apply to a person who: 35
(a) is a disqualified person, or 36
(b) is or has been subject to an interim bar, or 37
(c) has had an application for a working with children check clearance 38
refused, or 39
(d) has had a working with children check clearance cancelled. 40
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Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 2 Amendment of Child Protection (Working with Children) Act 2012 No 51
[39] Schedule 3, Part 4 1
Insert after clause 8: 2
Part 4 Provisions consequent on enactment of Child 3
Protection Legislation Amendment Act 2015 4
9 Definition 5
In this Part: 6
amending Act means the Child Protection Legislation Amendment Act 2015. 7
10 Restrictions on engaging in child-related work 8
Section 8 (3) (c) extends to offences occurring before the commencement of 9
that paragraph, but not if the person charged with the offence has been 10
convicted or found guilty of the offence before that commencement. 11
11 Employers must verify worker has clearance or current application 12
Section 9A extends to a worker who was employed before the commencement 13
of that section and in such a case the requirement in that section that 14
verification occur in respect of the worker before the worker commences 15
child-related work is taken to be a requirement that verification occur within 16
3 months after the commencement of that section. 17
12 Governing body to ensure persons appointed to key positions hold clearance 18
Section 9B does not apply in respect of the appointment of a person to a key 19
position before the commencement of that section. 20
13 Adult persons residing with authorised carers or home care service providers 21
(1) Section 10 (5), as substituted by the amending Act, extends to offences 22
occurring before that substitution, but not if the person charged with the 23
offence has been convicted or found guilty of the offence before that 24
substitution. 25
(2) The period of 48 hours referred to in section 10 (5) (b) (ii) commences from 26
the commencement of section 10 (3) in the case of an interim bar imposed 27
before that commencement. 28
14 Responsible agency must verify person has clearance or current application 29
An agency that becomes the responsible agency for an adult person on the 30
commencement of section 11B is not required to carry out a verification under 31
that section in respect of the person until 3 months after that commencement. 32
15 Withdrawal of application for clearance 33
Section 13, as amended by the amending Act, extends to an application that 34
was made before that amendment. 35
16 Request for further information 36
Section 16 (2), as amended by the amending Act, does not apply is respect of 37
a request made by the Children's Guardian before that amendment. 38
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Schedule 2 Amendment of Child Protection (Working with Children) Act 2012 No 51
17 Interim bars 1
Section 17, as amended by the amending Act, extends to an application 2
received, or an assessment commenced, before the commencement of those 3
amendments. 4
18 Notification by reporting bodies 5
Subject to the regulations, section 35 (1A) extends to findings made before the 6
commencement of that subsection. 7
19 Disclosure of information to Secretary 8
Section 48A (1A) extends to information obtained or used by the Children's 9
Guardian before the commencement of that subsection. 10
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Schedule 3 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
Schedule 3 Amendment of Children and Young Persons 1
(Care and Protection) Act 1998 No 157 2
[1] Whole Act (other than Schedule 3) 3
Omit "Director-General" and "Director-General's" wherever occurring. 4
Insert instead "Secretary" and "Secretary's" respectively. 5
[2] Section 3 Definitions 6
Omit the definition of Director-General from section 3 (1). 7
Insert in alphabetical order: 8
accredited adoption service provider has the same meaning as in the Adoption 9
Act 2000. 10
carer applicant means a person who has applied to a designated agency to be 11
authorised as an authorised carer and whose application has not been 12
withdrawn or finally determined. 13
guardian--see section 79A. 14
principal officer--see section 5A. 15
prospective guardian means a person whose suitability to have parental 16
responsibility for a child or young person allocated to the person under a 17
guardianship order is being considered (whether by the Secretary, a designated 18
agency or the Children's Court) and who has agreed to an assessment of the 19
person's suitability under section 79B (1A). 20
registered agency means any of the following that is registered for the time 21
being by the Children's Guardian in accordance with section 181 (1) (f): 22
(a) a Public Service agency (or part of a Public Service agency), 23
(b) an organisation (or part of an organisation) that provides or arranges 24
voluntary out-of-home care. 25
Secretary means the Secretary of the Department. 26
[3] Section 5A 27
Insert after section 5: 28
5A Meaning of "principal officer" 29
(1) In this Act, the principal officer of a designated agency means: 30
(a) in the case of a designated agency that does not provide or arrange 31
voluntary out-of-home care--the person who has the overall 32
supervision of the agency's arrangements for providing statutory 33
out-of-home care and supported out-of-home care, or 34
(b) in the case of any other designated agency: 35
(i) the person who has the overall supervision of the agency's 36
arrangements for providing statutory out-of-home care and 37
supported out-of-home care, and 38
(ii) if a different person has the overall supervision of the agency's 39
arrangements for providing and arranging voluntary out-of-home 40
care--that other person. 41
(2) In this Act, the principal officer of a registered agency means the person who 42
has the overall supervision of the agency's arrangements for providing and 43
arranging voluntary out-of-home care. 44
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Schedule 3 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
(3) If more than one person is the principal officer of a designated agency under 1
subsection (1) (b), any reference in this or any other Act to the principal officer 2
of the designated agency is a reference to each of those persons, unless the 3
reference: 4
(a) relates only to statutory out-of-home care or supported out-of-home 5
care (or both), in which case it is a reference to the person referred to in 6
subsection (1) (b) (i), or 7
(b) relates only to voluntary out-of-home care, in which case it is a 8
reference to the person referred to in subsection (1) (b) (ii). 9
(4) Anything done by, or with the approval of, the principal officer of a designated 10
agency or a registered agency in relation to out-of-home care is, for the 11
purposes of this Act and the regulations, taken to be done by the designated 12
agency or registered agency concerned. 13
(5) Nothing in subsection (4) affects any personal liability of the principal officer. 14
[4] Section 79 Order (other than guardianship order) allocating parental responsibility 15
Insert after section 79 (4): 16
(4A) The Children's Court must not make an order under this section allocating any 17
aspect of parental responsibility to an organisation or to the principal officer 18
of a designated agency (other than the Secretary). 19
[5] Section 79A Allocation of parental responsibility by guardianship order 20
Omit the definition of prospective guardian from section 79A (1). 21
[6] Section 79B Applications for guardianship orders 22
Omit section 79B (1) (c). Insert instead: 23
(c) with the written consent of the Secretary--a person who is seeking to 24
be allocated all aspects of parental responsibility for the child or young 25
person. 26
Note. An authorised carer may be such a person. 27
[7] Section 79B (1A) 28
Insert after section 79B (1): 29
(1A) The Secretary must not make an application, or give consent to the making of 30
an application, under subsection (1) unless satisfied that the person to whom 31
parental responsibilty for the child or young person is to be allocated has 32
agreed to undergo, and has satisfied, such suitability assessments as may be 33
prescribed by the regulations. 34
[8] Section 79B (9) (b) 35
Omit the paragraph. Insert instead: 36
(b) the arrangements for contact between the child or young person and his 37
or her parents, relatives and friends and other persons connected with 38
the child or young person (including where relevant, any contact order 39
made under section 86 by the Children's Court or contact variation 40
agreement made under section 86A), 41
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Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 3 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[9] Section 79D 1
Insert after section 79C: 2
79D Prospective guardian must notify Secretary of resident 3
(1) A prospective guardian must, as soon as reasonably practicable, notify the 4
Secretary: 5
(a) if any person (other than the prospective guardian and any other 6
prospective guardian of the child or young person) resides on the same 7
property as the prospective guardian for 3 weeks or more, or 8
(b) if a person residing on the same property as the prospective guardian 9
attains the age of 18 years. 10
(2) This section does not apply to a prospective guardian who is authorised as an 11
authorised carer by a designated agency if the designated agency is also 12
responsible for supervising the placement of the child or young person for 13
whom parental responsibility is being sought by the prospective guardian. 14
Note. See section 137 (3) in the case of authorised carers authorised by a designated 15
agency. 16
(3) For the purposes of this section: 17
reside on a property has the same meaning as in the Child Protection 18
(Working with Children) Act 2012. 19
[10] Section 101A Guardian ad litem--exclusion of personal liability 20
Omit "Department of Attorney General and Justice" from the definition of Guardian Ad 21
Litem Panel in section 101A (3). 22
Insert instead "Department of Justice". 23
[11] Section 137 Authorised carers 24
Insert after section 137 (2) (b): 25
(b1) the authorisation of persons, by designated agencies, as authorised 26
carers on a provisional basis, 27
[12] Section 137 (2) (e) 28
Insert ", including prescribing events, the occurrence of which, raise a presumption that an 29
authorisation is to be cancelled" after "authorisation". 30
[13] Section 137 (3) and (4) 31
Omit the subsections. Insert instead: 32
(3) In the case of an authorised carer who is authorised by a designated agency, it 33
is a condition of the authorisation that the carer must, as soon as reasonably 34
practicable, notify the designated agency: 35
(a) if any person (other than the carer) resides on the same property as the 36
carer for 3 weeks or more, or 37
(b) if a person residing on the same property as the carer attains the age of 38
18 years. 39
Note. See section 10 of the Child Protection (Working with Children) Act 2012 which 40
requires that an adult person who resides on the same property as an authorised carer 41
for more than 3 weeks must hold a working with children check clearance. 42
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Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 3 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
(4) For the purposes of this section: 1
reside on a property has the same meaning as in the Child Protection 2
(Working with Children) Act 2012. 3
[14] Section 139 Designated agencies 4
Omit section 139 (1). Insert instead: 5
(1) In this Act, designated agency means: 6
(a) a Public Service agency (or part of a Public Service agency), or 7
(b) an organisation (or part of an organisation) that arranges the provision 8
of out-of-home care, 9
if the agency or organisation (or part of the agency or organisation) is 10
accredited for the time being in accordance with the regulations. 11
[15] Section 156 Preliminary 12
Omit the definition of relevant agency from section 156 (1). Insert instead: 13
relevant agency means a designated agency or a registered agency. 14
[16] Section 156 (2) (b) 15
Omit the paragraph. Insert instead: 16
(b) the registration of a Public Service agency or an organisation (or part of 17
any such agency or organisation) as a registered agency for the purposes 18
of this Part. 19
[17] Section 171A 20
Insert after section 171: 21
171A Principal officer of designated agency must not reside with children under 22
agency's care 23
(1) The principal officer of a designated agency must not reside on the same 24
property as a child or young person who is in out-of-home care supervised by 25
the designated agency. 26
Maximum penalty: 200 penalty units. 27
(2) Subsection (1) does not apply if the principal officer resides with the child or 28
young person at a facility of the designated agency at which out-of-home care 29
is provided. 30
(3) In this section: 31
reside on a property has the same meaning as in the Child Protection 32
(Working with Children) Act 2012. 33
[18] Section 186A Referral of matters to police and other investigative agencies 34
Omit "of the Department of Family and Community Services" from section 186A (2). 35
[19] Section 245 Decisions that are administratively reviewable by Civil and 36
Administrative Tribunal 37
Omit section 245 (1) (a) and (b). Insert instead: 38
(a) a decision of the relevant decision-maker to suspend a person's 39
authorisation as an authorised carer or to impose conditions on a 40
person's authorisation, 41
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Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 3 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
(a1) a decision of the relevant decision-maker to cancel a person's 1
authorisation as an authorised carer, other than a decision to cancel an 2
authorisation granted on a provisional basis or a decision to cancel an 3
authorisation on the occurrence of an event prescribed under 4
section 137 (2) (e), 5
(b) a decision of the relevant decision-maker to accredit or not to accredit a 6
Public Service agency or an organisation (or part of a Public Service 7
agency or organisation) as a designated agency, 8
[20] Section 245B Interpretation 9
Omit "or organisation" from paragraph (b) of the definition of prescribed body in 10
section 245B (1). 11
Insert instead ", organisation or person". 12
[21] Section 245CA 13
Insert after section 245C: 14
245CA Provision of information by any person 15
(1) This section applies to the following persons: 16
(a) an authorised carer or a carer applicant, 17
(b) a guardian or a prospective guardian, 18
(c) a person who resides on the same property as a person referred to in 19
paragraph (a) or (b). 20
(2) Any person (the provider of information) may provide information to a 21
designated agency about another person if the provider of information: 22
(a) has been notified by the designated agency, the Children's Guardian or 23
the Secretary that the other person is a person to whom this section 24
applies, or 25
(b) otherwise reasonably believes the other person to be a person to whom 26
this section applies. 27
(3) A designated agency may use any such information to determine whether a 28
person is suitable to be, or to continue to be, an authorised carer or guardian. 29
(4) Information may be provided under this section regardless of whether the 30
provider has been requested to provide the information. 31
(5) For the purposes of this section: 32
reside on a property has the same meaning as in the Child Protection 33
(Working with Children) Act 2012. 34
[22] Section 248 Provision and exchange of information 35
Omit "Division of the Government Service" from paragraph (a) of the definition of 36
prescribed body in section 248 (6). 37
Insert instead "Public Service agency". 38
Page 23
Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 3 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
[23] Section 248B 1
Insert after section 248A: 2
248B Disclosure of information to bodies in other jurisdictions 3
(1) In this section: 4
assessment information means information relevant to assessing the 5
suitability of a person to be an adoptive parent (within the meaning of the 6
Adoption Act 2000), an authorised carer or a guardian or the equivalent of any 7
of these in another jurisdiction and may include information about the person 8
and any other person who resides on the same property as the person. 9
reside on a property has the same meaning as in the Child Protection 10
(Working with Children) Act 2012. 11
State child protection body means the following: 12
(a) the Department, 13
(b) the Children's Guardian, 14
(c) each designated agency, 15
(d) each accredited adoption service provider. 16
(2) The object of this section is to provide for the exchange of assessment 17
information between State child protection bodies and bodies that arrange or 18
provide child protection, out-of-home care, guardianship or adoption services 19
in other jurisdictions. 20
(3) The Minister may, by order published in the Gazette, make protocols setting 21
out the circumstances under which assessment information may be exchanged 22
under this section. 23
(4) The protocols may contain recommended privacy standards for bodies in other 24
jurisdictions and may prohibit the disclosure of information under this section 25
to bodies that do not adopt those standards. 26
(5) The Minister is to consult with the Privacy Commissioner in the preparation 27
of the protocols. 28
(6) A State child protection body may exchange assessment information with 29
bodies that arrange or provide child protection, out-of-home care, 30
guardianship or adoption services in other jurisdictions, but only if the 31
exchange is in accordance with the protocols. 32
(7) Section 245G applies to a person who, acting in good faith, exchanges 33
information in accordance with this section in the same way as it applies to a 34
person who, acting in good faith, provides information under Chapter 16A. 35
(8) Nothing in this section limits an exchange of assessment information that is 36
otherwise permitted under any Act or law. 37
Note. See for example section 231V. 38
[24] Section 264 Regulations 39
Omit section 264 (1A) (k). Insert instead: 40
(j) the appointment of principal officers and other officers by designated 41
agencies and registered agencies and the licensing of those principal 42
officers, 43
(k) the register under section 181 (1) (d), including the information that is 44
to be included on the register, the circumstances in which persons are 45
required to enter information on the register, access to, and disclosure 46
Page 24
Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 3 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
of, information on the register and any requirements for consultation 1
with the Ombudsman in relation to the register or information held on 2
the register. 3
[25] Schedule 3 Savings, transitional and other provisions 4
Omit "that authorised person and his or her spouse" from clause 35 (1). 5
Insert instead "that relative or kin". 6
[26] Schedule 3, clause 35 (1A) 7
Insert after clause 35 (1): 8
(1A) A guardianship order that is taken to have been made under subclause (1) is 9
taken to have allocated aspects of parental responsibility to the relevant 10
relative or kin referred to in that subclause only and not to any other person. 11
[27] Schedule 3, clause 36 12
Omit "clause 34". Insert instead "clause 35". 13
[28] Schedule 3, Part 11 14
Insert after clause 39: 15
Part 11 Provisions consequent on enactment of Child 16
Protection Legislation Amendment Act 2015 17
40 Definition 18
In this Part: 19
amending Act means the Child Protection Legislation Amendment Act 2015. 20
41 Principal officer 21
Section 5A (4) extends to things done by, or with the approval of, a principal 22
officer before the commencement of that subsection in the same way as it 23
applies to things done by, or with the approval of, a principal officer after that 24
commencement. 25
42 Notification of other residents 26
(1) Section 79D extends to any person residing on the same property as the 27
prospective guardian who has not been notified to the designated agency even 28
if that person commenced residing on the property, or attained the age of 29
18 years, before the commencement of that section. 30
(2) Section 137 (3), as substituted by the amending Act, extends to any person 31
residing on the same property as the authorised carer who has not been notified 32
to the designated agency even if that person commenced residing on the 33
property, or attained the age of 18 years, before that substitution. 34
43 Reviews by NCAT 35
Section 245 (1), as in force immediately before it was amended by the 36
amending Act, continues to apply in respect of any decision made before that 37
amendment. 38
Page 25
Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 4 Amendment of Community Services (Complaints, Reviews and Monitoring) Act 1993 No 2
Schedule 4 Amendment of Community Services (Complaints, 1
Reviews and Monitoring) Act 1993 No 2 2
[1] Section 8A Provision of information to Children's Guardian 3
Omit section 8A (1). Insert instead: 4
(1) This section applies to information of a class that the Children's Guardian has 5
determined is information that is relevant to the exercise of the functions of the 6
Children's Guardian in connection with the accreditation or registration of a 7
designated agency or registered agency under the Children and Young Persons 8
(Care and Protection) Act 1998. 9
(1A) An Official Community Visitor is required to provide to the Children's 10
Guardian, and the Children's Guardian is authorised to collect and use, any 11
information belonging to a class referred to in subsection (1), but only if the 12
Children's Guardian has notified the Official Community Visitor that the 13
information belongs to such a class. 14
[2] Section 22 Complaints about service providers 15
Insert at the end of the section: 16
(6) For the avoidance of doubt, subsection (1) extends to a complaint about any 17
decision of a designated agency in respect of the authorisation of a person as 18
an authorised carer under the Children and Young Persons (Care and 19
Protection) Act 1998. 20
[3] Schedule 1 Savings and transitional provisions 21
Insert after clause 18: 22
Part 6 Child Protection Legislation Amendment Act 2015 23
19 Provision of information to Children's Guardian 24
Section 8A (1A) extends to information obtained by an Official Community 25
Visitor before the commencement of that subsection. 26
Page 26
Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 5 Amendment of Ombudsman Act 1974 No 68
Schedule 5 Amendment of Ombudsman Act 1974 No 68 1
[1] Section 25A Definitions 2
Insert in alphabetical order in section 25A (1): 3
parent of a child means a person having parental responsibility (within the 4
meaning of the Children and Young Persons (Care and Protection) Act 1998) 5
for the child. 6
[2] Section 25AAA 7
Insert after section 25A: 8
25AAA Part extends to persons who reside with authorised carers 9
(1) This Part applies to an individual (other than a child) who resides for 3 weeks 10
or more on the same property as an authorised carer in the same way as this 11
Part applies to an employee and in any such case the individual is, for the 12
purposes of this Part, taken to be an employee of the designated agency that 13
authorised the authorised carer. 14
(2) In this section: 15
authorised carer means a person who is authorised as an authorised carer by 16
a designated agency under section 137 of the Children and Young Persons 17
(Care and Protection) Act 1998 and who cares for children or young persons 18
in his or her private capacity. 19
reside on a property has the same meaning as in the Child Protection 20
(Working with Children) Act 2012. 21
[3] Section 25GA 22
Insert after section 25G: 23
25GA Disclosure of information about investigations to children, parents and carers 24
(1) This section applies to the following information in relation to an investigation 25
by the Ombudsman, a designated government agency or a designated 26
non-government agency concerning a reportable allegation: 27
(a) information about the progress of the investigation, 28
(b) the findings of the investigation, 29
(c) any action taken in response to those findings. 30
(2) The Ombudsman, the head of a designated government agency or the head of 31
a designated non-government agency may disclose information to which this 32
section applies to any one or more of the following persons: 33
(a) the child who was allegedly the subject of the reportable conduct or 34
misconduct forming the basis of the reportable allegation, 35
(b) any parent of the child, 36
(c) if the child is in out-of-home care (within the meaning of the Children 37
and Young Persons (Care and Protection) Act 1998)--any authorised 38
carer (within the meaning of that Act) that provides that out-of-home 39
care. 40
(3) Nothing in this section limits any disclosure that may otherwise be made under 41
any Act or law. 42
Note. See Chapter 16A of the Children and Young Persons (Care and Protection) Act 43
1998, which authorises agencies to exchange information to facilitate the provision of 44
services to children and young persons. 45
Page 27
Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 5 Amendment of Ombudsman Act 1974 No 68
(4) In this section: 1
reportable allegation includes an allegation of conduct or misconduct that 2
may involve any of the following conduct: 3
(a) conduct that is reasonable for the purposes of the discipline, 4
management or care of children, having regard to the age, maturity, 5
health or other characteristics of the children and to any relevant codes 6
of conduct or professional standards, 7
(b) the use of physical force that, in all the circumstances, is trivial or 8
negligible, but only if the matter is to be investigated and the result of 9
the investigation recorded under workplace employment procedures, 10
(c) conduct of a class or kind exempted from being reportable conduct by 11
the Ombudsman under section 25CA. 12
[4] Section 25WA 13
Insert after section 25W: 14
25WA Disclosure of information about investigations to persons with disability 15
(1) This section applies to the following information in relation to an investigation 16
by the Ombudsman, the Department or a funded provider concerning a 17
reportable allegation: 18
(a) information about the progress of the investigation, 19
(b) the findings of the investigation, 20
(c) any action taken in response to those findings. 21
(2) The Ombudsman, the Secretary or the head of a funded provider may disclose 22
information to which this section applies to any one or more of the following 23
persons: 24
(a) the person with a disability who was allegedly the subject of the 25
reportable incident or behaviour forming the basis of the reportable 26
allegation, 27
(b) any person nominated by the person with a disability to receive the 28
information, 29
(c) if the Ombudsman, the Secretary or the head of a funded provider has a 30
reasonable belief that the person with the disability does not have the 31
capacity to understand the information or to nominate a person under 32
paragraph (b): 33
(i) a guardian (within the meaning of the Guardianship Act 1987) of 34
the person with a disability, or 35
(ii) a person who holds an enduring power of attorney in respect of 36
the person with a disability, or 37
(iii) a person who is authorised to make legal or financial decisions on 38
behalf of the person with a disability, or 39
(iv) a close friend or relative of the person with a disability (being a 40
friend or relative of the person who maintains both a close 41
personal relationship with the person through frequent personal 42
contact and a personal interest in the person's welfare and who 43
does not provide support to the person wholly or substantially on 44
a commercial basis). 45
(3) Nothing in this section limits any disclosure that may otherwise be made under 46
any other Act or law. 47
Page 28
Child Protection Legislation Amendment Bill 2015 [NSW]
Schedule 5 Amendment of Ombudsman Act 1974 No 68
(4) In this section: 1
reportable allegation includes an allegation against a person of an incident 2
that is exempt under section 25S from being a reportable incident or an 3
allegation of behaviour that may involve such an incident. 4
[5] Schedule 2 Savings and transitional provisions 5
Insert after clause 5: 6
6 Child Protection Legislation Amendment Act 2015 7
(1) Section 25GA extends to information in relation to an investigation that 8
commenced before the commencement of that section. 9
(2) Section 25WA extends to information in relation to an investigation that 10
commenced before the commencement of that section. 11
Page 29
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