New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Child Protection Legislation
Amendment (Children's Guardian) Bill
2013
No , 2013
A Bill for
An Act to amend the Child Protection (Working with Children) Act 2012 to transfer
the functions relating to working with children check clearances to the Children's
Guardian; and for other purposes.
Clause 1 Child Protection Legislation Amendment (Children's Guardian) Bill 2013
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Child Protection Legislation Amendment (Children's 3
Guardian) Act 2013. 4
2 Commencement 5
This Act commences on the date of assent to this Act, or 15 June 2013, 6
whichever is the later. 7
Page 2
Child Protection Legislation Amendment (Children's Guardian) Bill 2013
Amendment of Child Protection (Working with Children) Act 2012 No 51 Schedule 1
Schedule 1 Amendment of Child Protection 1
(Working with Children) Act 2012 No 51 2
[1] Section 3 Object of Act 3
Omit the Note. Insert instead: 4
Note. For other legislation relating to the safety, welfare and well-being 5
of children, and the related functions of the Children's Guardian, see the 6
Children and Young Persons (Care and Protection) Act 1998. In 7
particular, see section 181 and Chapter 13 of that Act. 8
[2] Section 5 Definitions 9
Insert in alphabetical order in section 5 (1): 10
Children's Guardian means the Children's Guardian appointed 11
under section 178 of the Children and Young Persons (Care and 12
Protection) Act 1998. 13
family day care service has the same meaning as it has in the 14
Children (Education and Care Services) National Law (NSW). 15
home based education and care service has the same meaning as 16
it has in the Children (Education and Care Services) 17
Supplementary Provisions Act 2011. 18
[3] Section 5 (1), definitions of "Commission" and "Commissioner" 19
Omit the definitions. 20
[4] Sections 7 (4), 8 (1) (b), 9, 10 (1), 11, 13, 15-20, 21 (2) (d), 23-25, 27-31, 21
32 (1), 33 (1), 35-40, 44 and 52 (2) (a) 22
Omit "Commission" wherever occurring. 23
Insert instead "Children's Guardian". 24
[5] Section 10 Adult persons residing with authorised carers or persons 25
providing home care services 26
Omit "(other than an authorised carer or an approved provider of an education 27
and care service) who resides at the home of an authorised carer or an 28
approved provider of an education and care service where such a service" from 29
section 10 (1). 30
Insert instead "(other than a person who is required under another provision of 31
this Act to, or is exempt from the requirement to, hold a working with children 32
check clearance) who resides at the home of an authorised carer or at a home 33
where a home based education and care service or family day care service". 34
Page 3
Child Protection Legislation Amendment (Children's Guardian) Bill 2013
Schedule 1 Amendment of Child Protection (Working with Children) Act 2012 No 51
[6] Section 10 (2) 1
Omit "education and care service". 2
Insert instead "home based education and care service or family day care 3
service". 4
[7] Section 10 (3) 5
Omit "the home of an authorised carer or an approved provider of an education 6
or care service". 7
Insert instead "a home where care or a service referred to in that subsection 8
was provided". 9
[8] Section 17 Interim bars 10
Omit "Commissioner" from section 17 (3). 11
Insert instead "Children's Guardian". 12
[9] Sections 20 (1) and 23 (2) 13
Omit "Commission's" wherever occurring. 14
Insert instead "Children's Guardian's". 15
[10] Sections 31 and 37 16
Omit "Commission" from the headings wherever occurring. 17
Insert instead "Children's Guardian". 18
[11] Part 6 19
Omit "Commission" from the heading. 20
Insert instead "Children's Guardian". 21
[12] Section 38 Children's Guardian's public awareness and advice functions 22
Insert ", including encouraging organisations to develop their capacity to be 23
safe for children" after "child-related work". 24
[13] Section 38, note 25
Insert at the end of the section: 26
Note. For the Children's Guardian's other child-related employment 27
functions, see Chapter 13 of the Children and Young Persons (Care and 28
Protection) Act 1998. 29
Page 4
Child Protection Legislation Amendment (Children's Guardian) Bill 2013
Amendment of Child Protection (Working with Children) Act 2012 No 51 Schedule 1
[14] Section 39 1
Omit "Commission's" from the heading. 2
Insert instead "Children's Guardian's". 3
[15] Section 40A 4
Insert after section 40: 5
40A Power to audit declarations made by exempt workers 6
(1) This section applies to a statutory declaration provided to an 7
employer by an exempt worker that contains information relating 8
to the offences specified in Schedule 2. 9
(2) The Children's Guardian may audit the accuracy of the statutory 10
declaration, or may authorise a person to carry out such an audit. 11
(3) The Children's Guardian may authorise a person under this 12
section only if the Privacy Commissioner advises the Children's 13
Guardian, in writing, that the Privacy Commissioner is satisfied 14
that the person is able to adequately provide for the security of 15
any information obtained in the exercise of functions pursuant to 16
the authorisation. 17
(4) The Commissioner of Police is authorised to disclose (or arrange 18
for a member of the NSW Police Force to disclose) the following 19
information for the purposes of this section: 20
(a) information relating to spent convictions, despite anything 21
to the contrary in the Criminal Records Act 1991, 22
(b) information relating to offences, despite anything to the 23
contrary in section 579 of the Crimes Act 1900. 24
(5) If a person authorised under this section reasonably believes that 25
a statutory declaration is inaccurate, the person must, as soon as 26
practicable, inform the Children's Guardian and provide any 27
information relevant to that belief to the Children's Guardian. 28
(6) The Children's Guardian may disclose information obtained 29
under this section to the following persons: 30
(a) the person who made the statutory declaration, 31
(b) the employer of that person, 32
(c) a police officer of the State or of the Commonwealth or 33
another State or Territory, 34
(d) the Ombudsman, 35
(e) any other investigative agency that the Children's 36
Guardian considers appropriate, 37
Page 5
Child Protection Legislation Amendment (Children's Guardian) Bill 2013
Schedule 1 Amendment of Child Protection (Working with Children) Act 2012 No 51
(f) the Department of Family and Community Services, 1
(g) the Director of Public Prosecutions, 2
(h) a court or tribunal, 3
(i) an approved interstate screening agency, 4
(j) the Minister, 5
(k) the Privacy Commissioner, 6
(l) any other person approved by the Privacy Commissioner 7
and prescribed in the regulations. 8
(7) The Minister may give the Children's Guardian a written 9
direction on the exercise of functions under this section and the 10
Children's Guardian is to comply with the direction. 11
(8) In this section, exempt worker means a worker who is exempted 12
by the regulations from the requirement to hold a clearance. 13
[16] Section 48A 14
Insert after section 48: 15
48A Reports under Children and Young Persons (Care and Protection) 16
Act 1998 17
(1) Any information obtained by the Children's Guardian in the 18
course of exercising functions under this Act may be used for the 19
purposes of making a report to the Director-General of the 20
Department of Family and Community Services under section 24 21
(Report concerning child or young person at risk of significant 22
harm) or 27 (Mandatory reporting) of the Children and Young 23
Persons (Care and Protection) Act 1998. 24
(2) A report referred to in section 29 of the Children and Young 25
Persons (Care and Protection) Act 1998 may be provided to the 26
Children's Guardian for the purpose of the exercise of the 27
Children's Guardian's functions under this Act. Any such report 28
may not be subsequently dealt with by the Children's Guardian 29
in a manner that contravenes that section, except to the extent that 30
it is necessary for the Children's Guardian to do so in the exercise 31
of functions under this Act. 32
Page 6
Child Protection Legislation Amendment (Children's Guardian) Bill 2013
Amendment of Children and Young Persons (Care and Protection) Act 1998 Schedule 2
No 157
Schedule 2 Amendment of Children and Young 1
Persons (Care and Protection) Act 1998 2
No 157 3
[1] Section 3 Definitions 4
Omit "Minister" from the definition of employer's authority. 5
Insert instead "Children's Guardian". 6
[2] Section 137 Authorised carers 7
Omit section 137 (3) and (4). Insert instead: 8
(3) In the case of an authorised carer who is authorised by a 9
designated agency, it is a condition of the authorisation that the 10
carer must, as soon as practicable, notify the designated agency if 11
any person (other than the carer) who is of or above the age of 12
18 years commences to reside at the carer's home and will 13
continue to do so on a regular basis. 14
Note. See section 10 of the Child Protection (Working with Children) Act 15
2012 which requires that an adult person residing at the home of an 16
authorised carer hold a working with children check clearance. 17
(4) Without limiting subsection (3), the requirement to notify the 18
designated agency also applies when a minor residing at the 19
carer's home attains the age of 18 years. 20
[3] Section 181 Principal functions of Children's Guardian 21
Omit section 181 (1). Insert instead: 22
(1) The principal functions of the Children's Guardian are as 23
follows: 24
(a) to exercise functions relating to persons engaged in 25
child-related work, including working with children check 26
clearances, under the Child Protection (Working with 27
Children) Act 2012, 28
(b) to promote the best interests of all children and young 29
persons in out-of-home care, 30
(c) to ensure that the rights of all children and young persons 31
in out-of-home care are safeguarded and promoted, 32
(d) to establish a register for the purpose of the authorisation 33
of individuals as authorised carers, and to maintain that 34
register, in accordance with the regulations, 35
(e) to accredit designated agencies and to monitor their 36
responsibilities under this Act and the regulations, 37
Page 7
Child Protection Legislation Amendment (Children's Guardian) Bill 2013
Schedule 2 Amendment of Children and Young Persons (Care and Protection) Act 1998
No 157
(f) to register organisations that provide or arrange voluntary 1
out-of-home care and to monitor their responsibilities 2
under this Act and the regulations, 3
(g) to exercise functions relating to the employment of 4
children, including the making and revocation of 5
exemptions from the requirement to hold an employer's 6
authority, 7
(h) to develop and administer a voluntary accreditation 8
scheme for persons working with persons who have 9
committed sexual offences against children, 10
(i) to develop and administer a voluntary accreditation 11
scheme for programs for persons who have committed 12
sexual offences against children. 13
[4] Section 183 14
Insert after section 182: 15
183 Appointment of advisory committees 16
(1) The Children's Guardian may appoint such advisory committees 17
as the Children's Guardian considers appropriate to assist the 18
Children's Guardian in the exercise of the Children's Guardian's 19
functions. The Children's Guardian may disband any such 20
advisory committee at any time. 21
(2) The procedure of such an advisory committee is to be determined 22
by the Children's Guardian or (subject to any determination of 23
the Children's Guardian) by the committee. 24
(3) A member of such an advisory committee is entitled to such 25
allowances in connection with the work of the committee as the 26
Minister approves in respect of the member. 27
[5] Sections 186A and 186B 28
Insert after section 186: 29
186A Referral of matters to police and other investigative agencies 30
(1) This section applies to any information obtained by the 31
Children's Guardian in the course of exercising any functions 32
(other than information obtained in the course of exercising 33
functions under section 40A of the Child Protection (Working 34
with Children) Act 2012), being information relating to a possible 35
criminal offence under any law or to grounds for possible 36
disciplinary action under any law. 37
Page 8
Child Protection Legislation Amendment (Children's Guardian) Bill 2013
Amendment of Children and Young Persons (Care and Protection) Act 1998 Schedule 2
No 157
(2) The Children's Guardian may refer any such information to the 1
Commissioner of Police, the Ombudsman, the Director-General 2
of the Department of Family and Community Services or any 3
other investigative or government agency that the Children's 4
Guardian considers appropriate. 5
(3) Nothing in this section limits or affects the operation of 6
Chapter 16A. 7
186B Protection from liability 8
A matter or thing done or omitted to be done by the Children's 9
Guardian, an advisory committee of the Children's Guardian, a 10
member of any such advisory committee or any person acting 11
under the direction of the Children's Guardian or the advisory 12
committee does not, if the matter or thing was done or omitted in 13
good faith for the purposes of executing this or any other Act, 14
subject the Children's Guardian, member of the advisory 15
committee or a person so acting personally to any action, 16
liability, claim or demand. 17
[6] Sections 221 (2) (b), 224 (other than section 224 (5) (a)) and 245 (1) (d)-(f) 18
Omit "Minister" wherever occurring. Insert instead "Children's Guardian". 19
[7] Section 236 Entry without warrant into premises--places of employment 20
Omit "Director-General" from section 236 (1). 21
Insert instead "Children's Guardian". 22
[8] Section 245 Decisions that are reviewable by Administrative Decisions 23
Tribunal 24
Insert ", the Children's Guardian" after "the Minister" in section 245 (1) (g). 25
[9] Schedule 2 Provisions relating to employers' authorities 26
Omit "Minister" wherever occurring in clauses 1 (1), 2 (b), 5 (b), 6 (1) and 7. 27
Insert instead "Children's Guardian". 28
[10] Schedule 2, clause 2 Grant or refusal of authority 29
Insert at the end of the clause: 30
(2) When a person applies to the Children's Guardian for an 31
employer's authority, the Children's Guardian must within 32
14 days: 33
(a) grant the authority to the applicant, or 34
Page 9
Child Protection Legislation Amendment (Children's Guardian) Bill 2013
Schedule 2 Amendment of Children and Young Persons (Care and Protection) Act 1998
No 157
(b) refuse the authority and cause to be served on the applicant 1
a notice stating the ground on which the authority has been 2
refused. 3
(3) The period of 14 days referred to in this clause may be varied or 4
waived by agreement between the Children's Guardian and the 5
applicant. 6
[11] Schedule 2, clause 3 7
Omit the clause. 8
[12] Schedule 2, clause 7 (3) 9
Omit "Minister's". Insert instead "Children's Guardian's". 10
Page 10
Child Protection Legislation Amendment (Children's Guardian) Bill 2013
Amendment of other Acts Schedule 3
Schedule 3 Amendment of other Acts 1
3.1 Administrative Decisions Tribunal Act 1997 No 76 2
Schedule 2 Composition and functions of Divisions 3
Omit "Commission for Children and Young People Act 1998" from clause 2 4
of Part 1. 5
Insert in alphabetical order "Child Protection (Working with Children) Act 6
2012". 7
3.2 Child Protection (Offenders Registration) Act 2000 No 42 8
[1] Section 9 Relevant personal information to be reported 9
Omit section 9 (1) (f). Insert instead: 10
(f) if the person is a worker: 11
(i) the nature of the person's work, and 12
(ii) the name of the person's employer (if any), and 13
(iii) the address of each of the premises at which the 14
person generally works or, if the person does not 15
generally work at any particular premises, the name 16
of each of the localities in which the person 17
generally works, 18
[2] Section 9 (3) 19
Omit the subsection. Insert instead: 20
(3) In this section, employer and worker have the same meanings as 21
they have in the Child Protection (Working with Children) Act 22
2012. 23
[3] Section 16 ADT may exempt persons from compliance with reporting 24
obligations 25
Omit "The Commission for Children and Young People" from section 16 (6). 26
Insert instead "The Children's Guardian". 27
[4] Section 16 (6) 28
Omit "The Commission". Insert instead "The Children's Guardian". 29
Page 11
Child Protection Legislation Amendment (Children's Guardian) Bill 2013
Schedule 3 Amendment of other Acts
[5] Section 16 (7) 1
Omit "the Commissioner for the Commission for Children and Young 2
People". 3
Insert instead "the Children's Guardian". 4
[6] Section 16 (12) 5
Insert after section 16 (11): 6
(12) In this section, Children's Guardian means the Children's 7
Guardian appointed under section 178 of the Children and Young 8
Persons (Care and Protection) Act 1998. 9
3.3 Children (Education and Care Services National Law 10
Application) Act 2010 No 104 11
Section 15 Working with children law 12
Omit "the Commission for Children and Young People Act 1998". 13
Insert instead "the Child Protection (Working with Children) Act 2012". 14
3.4 Children (Education and Care Services) Supplementary 15
Provisions Act 2011 No 70 16
Section 34 Home based education and care services--adult residents 17
Omit the Note to section 34 (1). Insert instead: 18
Note. See section 10 of the Child Protection (Working with Children) Act 19
2012 which requires that an adult person residing at a home where a 20
home based education and care service is provided hold a working with 21
children check clearance. 22
3.5 Commission for Children and Young People Act 1998 No 146 23
[1] Section 11 Principal functions of Commission 24
Omit section 11 (i), (j), (l) and (m). 25
[2] Section 15 Referral of matters to police and other investigative agencies 26
Omit "Department of Human Services" from section 15 (2). 27
Insert instead "Department of Family and Community Services". 28
Page 12
Child Protection Legislation Amendment (Children's Guardian) Bill 2013
Amendment of other Acts Schedule 3
[3] Section 28 Functions of Committee 1
Insert after section 28 (1) (a): 2
(a1) to monitor and review the exercise by the Children's 3
Guardian of functions under the Child Protection 4
(Working with Children) Act 2012, 5
[4] Section 28 (1) (b) 6
Insert ", or on any matter appertaining to the exercise of the Children's 7
Guardian's functions under the Child Protection (Working with Children) Act 8
2012," after "functions". 9
3.6 Crimes (Sentencing Procedure) Act 1999 No 92 10
Section 24A Mandatory requirements for supervision and other 11
prohibitions to be disregarded in sentencing 12
Omit section 24A (1) (c). Insert instead: 13
(c) as a consequence of being convicted of the offence, has 14
become a disqualified person within the meaning of the 15
Child Protection (Working with Children) Act 2012, or 16
3.7 Criminal Records Act 1991 No 8 17
Section 13 Unlawful disclosure of information concerning spent 18
convictions 19
Omit "section 38 or 38A of the Commission for Children and Young People 20
Act 1998" from section 13 (4A). 21
Insert instead "section 33, 34 or 40A of the Child Protection (Working with 22
Children) Act 2012". 23
3.8 Ombudsman Act 1974 No 68 24
[1] Section 25DA Disclosures to Children's Guardian 25
Omit "Commission for Children and Young People". 26
Insert instead "Children's Guardian for the purpose of the exercise of 27
functions under the Child Protection (Working with Children) Act 2012". 28
Page 13
Child Protection Legislation Amendment (Children's Guardian) Bill 2013
Schedule 3 Amendment of other Acts
[2] Section 25DA (2) 1
Insert at the end of the section: 2
(2) Nothing in this section limits the information that the 3
Ombudsman may otherwise disclose to the Children's Guardian 4
under this or any other Act or law. 5
3.9 Parliamentary Electorates and Elections Act 1912 No 41 6
[1] Section 81K Definitions 7
Omit the definition of CYP Commission from section 81K (1). 8
Insert in alphabetical order: 9
Children's Guardian means the Children's Guardian appointed 10
under section 178 of the Children and Young Persons (Care and 11
Protection) Act 1998. 12
[2] Section 81M Duties of Electoral Commissioner with respect to 13
child-related conduct declarations 14
Omit "Commission for Children and Young People (the CYP Commission)" 15
from section 81M (2). 16
Insert instead "Children's Guardian". 17
[3] Section 81N Duties of Children's Guardian with respect to child-related 18
conduct declarations 19
Omit "CYP Commission" wherever occurring. 20
Insert instead "Children's Guardian". 21
[4] Section 81N (2) (b), (3) and (5) 22
Omit "the Commission" wherever occurring. 23
Insert instead "the Children's Guardian". 24
[5] Section 81NA Duty of persons to assist the Children's Guardian 25
Omit "CYP Commission" wherever occurring in section 81NA (1) and (3). 26
Insert instead "Children's Guardian". 27
Page 14
Child Protection Legislation Amendment (Children's Guardian) Bill 2013
Amendment of other Acts Schedule 3
[6] Section 81P Reports presented to Presiding Officer of House of 1
Parliament 2
Omit "CYP Commission" from section 81P (1). 3
Insert instead "Children's Guardian". 4
Page 15
[Index] [Search] [Download] [Related Items] [Help]