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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Children and Young People (Safety) (Miscellaneous)
Amendment Bill 2020
A BILL FOR
An Act to amend the
Children
and Young People (Safety) Act 2017
and to make a related amendment to the
Births,
Deaths and Marriages Registration Act 1996
.
Contents
Part 2—Amendment of Children and Young
People (Safety) Act 2017
4Amendment of section 8—Other needs of
children and young people
5Amendment of section 11—Placement
principles
Part 3A—Aboriginal and Torres Strait
Islander children and young people
12BAboriginal and
Torres Strait Islander Child Placement Principle paramount
12CAboriginal and
Torres Strait Islander Child Placement Principle
7Amendment of section 34—Chief Executive
may investigate circumstances of a child or young person
10Amendment of section 36—Chief Executive
may direct person to undergo certain assessments
11Amendment of section 37—Random drug and
alcohol testing
12Amendment of section 51—Parties to
proceedings
13Amendment of section 53—Orders that may
be made by Court
53ASpecial
provisions relating to certain applications and orders
15Amendment of section 54—Consent
orders
16Amendment of section
56—Adjournments
56ACourt not to
make certain orders relating to placement or contact arrangements
18Amendment of section 59—Onus on objector
to prove certain orders should not be made
21Amendment of section 86—Direction not to
communicate with etc child or young person
Chapter 7A—Adoption of children and
young people from care
113CModification of
Adoption Act 1988
113EAssessment of suitability
of prospective adoptive parents
113FEligible carer
need not be in relationship
Part 3—Orders under Adoption
Act 1988
113HCopy of
application to be served on birth parents
113IConsent of certain children and
young people required
113JConsent of birth parent not
required
113KViews of child
or young person to be heard
113LRight of birth parents etc to
be heard
113MCourt to have
regard to additional matters
113NChild or young
person to have legal representation in proceedings
113OCourt not bound
by rules of evidence
113PAdditional
annual reporting obligations
113QMinister to
review operation of Chapter
23Amendment of section 152—Sharing of
information between certain persons and bodies
24Amendment of section 157—Internal
review
25Amendment of section 158—Review of
decisions by South Australian Civil and Administrative Tribunal
161ARestrictions on
publication of names and identifying information
27Amendment of section
164—Confidentiality
28Amendment of section 167—Evidentiary
provision
29Amendment of section
168—Service
30Amendment of section
170—Regulations
Schedule 1—Related amendments and
transitional provisions
Part 1—Amendment of Births, Deaths
and Marriages Registration Act 1996
1Amendment of section 38A—Notification by
court appointed guardians
Part 2—Transitional and savings etc
provisions
2Application of certain provisions to existing
applications etc
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Children and Young People (Safety)
(Miscellaneous) Amendment Act 2020.
This Act comes into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Children and Young People (Safety)
Act 2017
4—Amendment
of section 8—Other needs of children and young people
(1) Section 8(2)—delete "requirement" and substitute:
requirements
(2) Section 8—after subsection (3) insert:
(4) Each person or body involved in the administration, operation and
enforcement of this Act must, when performing a function or exercising a power
in relation to a child or young person, act in the best interests of that child
or young person (however, this subsection does not displace, and cannot be used
to justify the displacement of, section 7).
5—Amendment
of section 11—Placement principles
Section 11(4)—delete subsection (4)
Section 12—delete the section and substitute:
Part 3A—Aboriginal and Torres Strait Islander
children and young people
12—Application of Part
Except where the contrary intention appears, this Part is in addition to,
and does not derogate from, a provision of Part 2 of this Chapter, or any
other provision of this Act.
12A—Objects of Part
The objects of this Part include—
(a) maintaining the connection of Aboriginal and Torres Strait Islander
children and young people with their family and culture; and
(b) enabling Aboriginal and Torres Strait Islander people to participate
in the care and protection of their children and young people; and
(c) achieving the objects set out in the preceding paragraphs (as well as
reducing the incidence of the removal of Aboriginal and Torres Strait Islander
children and young people) by encouraging Aboriginal and Torres Strait Islander
people, their children and young people and State authorities to act in
partnership when making decisions about the placement of Aboriginal and Torres
Strait Islander children and young people under this Act.
12B—Aboriginal and Torres Strait Islander Child
Placement Principle paramount
(1) Subject to this
section, giving effect to the Aboriginal and Torres Strait Islander Child
Placement Principle is to be the paramount consideration in the administration,
operation and enforcement of this Act as it relates to, or affects, Aboriginal
or Torres Strait Islander children and young people.
(2) Each person or body
performing functions under this Act involving, or relating to, the placement of
Aboriginal or Torres Strait Islander children or young people must take active
and timely steps to give effect to the Aboriginal and Torres Strait Islander
Child Placement Principle.
(3)
Subsections (1)
and
(2)
do not displace, and cannot be used to justify the displacement of,
section 7.
(4) In the event of any inconsistency between the Aboriginal and Torres
Strait Islander Child Placement Principle and the placement principles set out
in section 11, the Aboriginal and Torres Strait Islander Child Placement
Principle prevails.
12C—Aboriginal and Torres Strait Islander Child
Placement Principle
(1) The elements set out in this section collectively constitute the
Aboriginal and Torres Strait Islander Child Placement
Principle.
(2) The following
elements apply in relation to decisions affecting Aboriginal or Torres Strait
Islander children and young people under this Act:
(a) the element (the prevention element) that an Aboriginal
or Torres Strait Islander child or young person has the right to be brought up
within their own family and community and to have access to culturally safe
services that will support families to stay together safely;
(b) the element (the partnership element) that Aboriginal or
Torres Strait Islander persons and bodies have the right to participate
in—
(i) significant decisions under this Act affecting Aboriginal or Torres
Strait Islander children and young people; and
(ii) policy development, service design and service provision in relation
to services provided to, or in relation to, Aboriginal or Torres Strait Islander
children and young people under this Act;
(c) the element (the placement element) that, if an
Aboriginal or Torres Strait Islander child or young person child is to be placed
in care, the child or young person has a right to be placed with a member of
their family group;
(d) the element (the participation element) that an
Aboriginal or Torres Strait Islander child or young person and their parents and
family members have a right to participate, and be enabled to participate, in
the making of significant decisions about the child or young person;
(e) the element (the connection element) that an Aboriginal
or Torres Strait Islander child or young person has a right to be supported to
develop and maintain a connection with their family, community, culture,
traditions and language, particularly when the child or young person is in the
care of a person who is not an Aboriginal or Torres Strait Islander
person.
(3) Without
limiting
subsection (2)
, if an Aboriginal or Torres Strait Islander child or young person is to be
placed in care under this Act, the child or young person should, if reasonably
practicable, be placed with 1 of the following persons (in order of
priority):
(a) a member of the child or young person's family;
(b) a member of the child or young person's community who has a
relationship of responsibility for the child or young person;
(c) a member of the child or young person's community;
(d) a person of Aboriginal or Torres Strait Islander cultural background
(as the case requires),
determined in accordance with Aboriginal or Torres Strait Islander
traditional practice or custom.
(4) If an Aboriginal or Torres Strait Islander child or young person is
unable to be placed with a person referred to in
subsection (3)
, or it is not in the best interests of the child or young person to do so,
the child or young person should be given the opportunity for continuing contact
with their family, community or communities and culture.
(5) Before placing an Aboriginal or Torres Strait Islander child or young
person under this Act, the Chief Executive must, where reasonably practicable,
consult with, and have regard to any submissions of, a recognised Aboriginal or
Torres Strait Islander organisation.
(6) In addition to the principles set out in sections 10 and 11, the
following additional principles apply to the administration of this Act as it
relates to Aboriginal or Torres Strait Islander children and young
people:
(a) Aboriginal and Torres Strait Islander people have the right to
self-determination;
(b) the long-term effect of a decision on a child or young person's
identity and connection with their family and community must be taken into
account.
(7) The regulations may make further provision in relation to the
placement of Aboriginal children and Torres Strait Islander children under this
Act.
(8) In this section—
recognised Aboriginal or Torres Strait Islander organisation
means—
(a) in relation to the placement of an Aboriginal child or young
person—an organisation that the Minister, after consulting with the
Aboriginal community or a section of the Aboriginal community, declares by
notice in the Gazette to be a recognised Aboriginal organisation for the
purposes of this section; or
(b) in relation to the placement of a Torres Strait Islander child or
young person—an organisation that the Minister, after consulting with the
Torres Strait Islander community or a section of the Torres Strait Islander
community, declares by notice in the Gazette to be a recognised Torres Strait
Islander organisation for the purposes of this section.
7—Amendment
of section 34—Chief Executive may investigate circumstances of a child or
young person
Section 34(1)—after paragraph (a) insert:
(ab) if the Court makes an order under section 53(1)(ba);
or
After section 34 insert:
34A—Powers of Chief Executive etc in relation to
investigation of circumstances of child or young person
(1) Without limiting any other power of the Chief Executive or a child
protection officer under this Act, the Chief Executive or a child protection
officer may, in relation to the investigation of the circumstances of a child or
young person under section 34, do 1 or more of the
following:
(a) direct any person to answer, to the best of the person's knowledge,
information or belief, questions put by a child protection officer;
(b) direct any person who has examined, assessed or treated the child or
young person to provide to the Chief Executive a written report of that
examination, assessment or treatment;
(c) in the case of an investigation referred to in
section 34(1)(ab)—direct any person who has examined, assessed or
treated a person who is a party to the application for the order under
section 53(1)(ba) to provide to the Chief Executive a written report of
that examination, assessment or treatment;
(d) give such other directions as may be reasonably necessary for the
purposes of the investigation.
(2) A person must not,
without reasonable excuse, refuse or fail to comply with a direction under this
section.
Maximum penalty: Imprisonment for 6 months or $10 000.
(3)
Subsection (2)
does not apply to a child or young person to whom a direction is given
under this section.
9—Amendment
of section 35—Chief Executive may direct that child or young person be
examined and assessed
(1) Section 35(1)—after paragraph (c) insert:
(ca) if the Chief Executive determines that it is, having regard to the
operation of Chapter 2, necessary or appropriate for a child or young
person to be examined and assessed; or
(2) Section 35(2)—delete ", by notice in writing, direct the child
or young person to undergo such examination or assessment as may be specified in
the notice." and substitute:
do 1 or more of the following:
(a) direct a specified parent or guardian, or other person who has custody
or care of the child or young person, to take the child or young person to a
specified person or place for the purpose of having the child or young person
examined or assessed;
(b) in the case of a child or young person who is 16 years of age or
more—direct the child or young person to undergo an examination or
assessment of a specified kind;
(c) if the Chief Executive is of the opinion that it is reasonably
necessary to enable an examination or assessment to occur, direct a specified
person to do, or not to do, a specified thing.
(3) Section 35—after subsection (2) insert:
(2a) A direction under this section—
(a) must be in writing; and
(b) must be given to the person personally; and
(c) must specify the person by whom, or the place at which, the
examination or assessment is to be conducted; and
(d) must specify the nature of the examination or assessment that is to be
conducted; and
(e) must specify the period within which the direction is to be complied
with; and
(f) must comply with any other requirements set out in the
regulations.
(4) Section 35—after subsection (6) insert:
(7) A person must not,
without reasonable excuse, refuse or fail to comply with a direction under this
section.
Maximum penalty: Imprisonment for 6 months or $10 000.
(8)
Subsection (7)
does not apply to a child or young person to whom a direction is given
under this section.
10—Amendment
of section 36—Chief Executive may direct person to undergo certain
assessments
(1) Section 36—after subsection (2) insert:
(2a) If the Chief
Executive reasonably suspects that a child or young person is at risk as a
result of impaired mental health on the part of a parent, guardian or other
person who has, or is responsible for, the care of the child or young person,
the Chief Executive may, by notice in writing, direct the parent, guardian or
other person to undergo an approved mental health assessment.
(2) Section 36—after subsection (7) insert:
(8) For the purposes of this section, a reference to an approved
mental health assessment will be taken to be a reference to a mental
health assessment of a kind approved by the Chief Executive by notice in the
Gazette.
11—Amendment
of section 37—Random drug and alcohol testing
Section 37(3)(a)—delete "forensic material consisting of hair or
blood" and substitute:
specified forensic material
12—Amendment
of section 51—Parties to proceedings
Section 51(1)—delete subsection (1) and substitute:
(1) The following persons are parties to an application for an order under
section 53, or for the variation, extension or revocation of such an
order:
(a) in the case of an application for an order referred to in
section 53(1)(h)—each person under whose guardianship the child or
young person is to be placed;
(b) in the case of an application for revocation or discharge of an order
referred to in section 53(1)(h)—the Chief Executive;
(c) in any case—
(i) the applicant; or
(ii) the child or young person who is the subject of the application;
or
(iii) each parent or guardian of the child or young person.
13—Amendment
of section 53—Orders that may be made by Court
(1) Section 53(1)—after paragraph (b) insert:
(ba) subject to section 53A, an order granting custody of the child
or young person to the Chief Executive for a specified period not exceeding
8 weeks while an investigation of the circumstances of the child or young
person is carried out;
(2) Section 53(2)—delete "The" and substitute:
Subject to section 53A, the
After section 53 insert:
53A—Special provisions relating to certain
applications and orders
(1) An order under section 53(1)(ba) may only be made in relation to
a particular child or young person once in any 6 month period.
(2) Despite section 56, but without limiting this section, an
application for an order under section 53(1)(ba) may only be adjourned once
(and the period of the adjournment cannot exceed 7 days).
(3) Despite section 56, the Court must determine an application for
an order under section 53(1)(ba) within 2 weeks after the application
is made.
(4) The Court may, on
an application by the Chief Executive, extend the period that an order under
section 53(1)(ba) remains in force for a period not exceeding
4 weeks.
(5) The Court must not make interim orders under section 53(2) that
are inconsistent with this section.
(6) No appeal lies against an order made on an application for an order
under section 53(1)(ba), or an application under
subsection (4)
.
15—Amendment
of section 54—Consent orders
(1) Section 54(1)—delete "the parties to the proceeding" and
substitute:
such of the parties to the proceedings who participated in the
proceedings
(2) Section 54(2)—after "An order" insert:
referred to in subsection (1)
16—Amendment
of section 56—Adjournments
Section 56—after subsection (1) insert:
(1a) The Court cannot
exercise its general power of adjournment in relation to an application under
this Act so that the period between the lodging of the application and the
commencement of the hearing to determine a contested application exceeds
10 weeks.
After section 56 insert:
56A—Court not to make certain orders relating to
placement or contact arrangements
Nothing in this Part authorises the Court to make orders of the following
kinds:
(a) an order relating to a child or young person who is in the custody, or
under the guardianship, of the Chief Executive (being an order that relates to a
matter set out in section 84(1));
(b) an order making contact arrangements (however described) in respect of
a child or young person;
(c) an order varying or revoking contact arrangements determined by the
Chief Executive or the Contact Arrangements Review Panel under Chapter 7
Part 4,
(and to the extent that an order of the Court purports to make, vary or
revoke such arrangements, the order will be void and of no effect).
18—Amendment
of section 59—Onus on objector to prove certain orders should not be
made
(1) Section 59(1)—delete "orders relating to a child or young person
who is, pursuant to an order of the Court, under the guardianship, or in the
custody, of the Chief Executive or another person or persons" and
substitute:
an order referred to in section 53(1)(h)
(2) Section 59(1a)—delete subsection (1a)
19—Amendment
of section 77—Temporary placement of child or young person where approved
carer not available
(1) Section 77—after subsection (1) insert:
(1a) The Chief Executive may place a child or young person with a person
under subsection (1) despite it being reasonably practicable to place the
child or young person in the care of a particular approved carer if the Chief
Executive is satisfied that to place the child or young person under subsection
(1) is (having regard to the operation of Chapter 2 of the Act as well as
the circumstances relating to the child or young person) preferable to placing
the child or young person with the approved carer.
(2) Section 77(2)(b)—after "must" insert:
, other than a placement referred to in subsection (1a),
20—Amendment
of section 85—Review of circumstances of child or young person under
long-term guardianship of Chief Executive
Section 85(1)(a)—delete "Minister" and substitute:
Chief Executive
21—Amendment
of section 86—Direction not to communicate with etc child or young
person
(1) Section 86—after subsection (1) insert:
(1a) The Chief Executive may, by notice in writing, direct a specified
person not to be in the company of, or otherwise associate with, a specified
child or young person who is in the custody, or under the guardianship, of the
Chief Executive during the period specified in the notice.
(2) Section 86—after subsection (4) insert:
(4a) Despite section 267 of the
Criminal
Law Consolidation Act 1935
or any other Act or law, a child or young person with whom a person
communicates or attempts to communicate in contravention of a direction under
this section commits no offence in relation to the communication or attempted
communication.
(3) Section 86—after subsection (5) insert:
(6) Despite a provision of the
Evidence
Act 1929
or any other Act or law, a child or young person to whom a direction under
this section relates is competent, but is not compellable, to give evidence in
proceedings relating to a charge of an offence against this section.
After section 113 insert:
Chapter 7A—Adoption of children and young people
from care
Part 1—Preliminary
113A—Interpretation
(1) In this Chapter—
adoptive parent has the same meaning as in the
Adoption
Act 1988
;
birth parent has the same meaning as in the
Adoption
Act 1988
;
eligible carer—see
section 113D
;
eligible child or young person means a child or young person
(not being an Aboriginal or Torres Strait Islander child or young person)
who—
(a) is, pursuant to an order of the Court under this Act or the repealed
Act, under the guardianship of the Chief Executive, or another person or
persons, until they attain 18 years of age; and
(b) has been in the guardianship of the Chief Executive or the other
person or persons for not less than the prescribed qualifying period;
prescribed qualifying period means—
(a) if the regulations prescribe a period for the purposes of this
paragraph—that period; or
(b) if the regulations do not prescribe such a period—a period of
not less than 2 years;
qualifying relationship has the same meaning as in the
Adoption
Act 1988
;
repealed Act means the
Children's
Protection Act 1993
.
(2) For the purposes of this Chapter, a reference to an order of the
Court, or other thing done, under the repealed Act will be taken to include a
reference to such an order or thing as modified or otherwise affected by the
operation of the
Children's
Protection Law Reform (Transitional Arrangements and Related Amendments)
Act 2017
.
113B—Application of Chapter
(1) Except where the contrary intention appears, nothing in this Chapter
limits a provision of Chapter 2 or any other provision of this
Act.
(2) This Chapter does not apply to, or in relation to, an Aboriginal or
Torres Strait Islander child or young person.
113C—Modification of Adoption
Act 1988
(1) The operation
of the
Adoption
Act 1988
in relation to an adoption contemplated by this Chapter is modified as
follows:
(a) the objects of the
Adoption
Act 1988
will be taken to include promoting the use of adoption, where appropriate,
as an option to support permanency and stability for children and young people
in care and in furthering the objects of this Act;
(b) a reference in that Act to a party to an adoption will be taken not to
include a reference to the birth parents of a child;
(c) a reference in that Act to a guardian will be taken to be a reference
to an eligible carer (and a reference to guardianship is to be construed
accordingly);
(d) section 8A of that Act does not apply;
(e) section 10(1) of that Act is modified such that, in considering
whether adoption is preferable to any alternative order that may be made under
the laws of the State or the Commonwealth, the Court—
(i) must disregard any order that may be made under this Act;
and
(ii) must have regard to the operation of Part 2 of Chapter 2 of
this Act;
(f) section 12 of that Act does not apply;
(g) an adoption order may only be made in favour of 2 persons if each
person is, at the time the order is made, an eligible carer;
(h) Part 2 Division 2 of that Act does not apply;
(i) the consent of the child or young person has, if relevant, been
obtained in accordance with
section 113I
;
(j) a reference in section 22 of that Act to a report prepared by or
on behalf of the Chief Executive will be taken to be a reference to a report
prepared under
section 113E
;
(k) section 25 of that Act does not apply;
(l) section 26A of that Act does not apply;
(m) section 28 of that Act does not apply in relation to
consideration of a kind approved by the Chief Executive under this
Act;
(n) section 29 of that Act does not apply in relation to negotiations
of a kind approved by the Chief Executive under this Act;
(o) the Chief Executive is entitled to intervene in any proceedings under
the
Adoption
Act 1988
in relation to an adoption contemplated by this Chapter;
(p) Part 4 of the
Adoption
Regulations 2004
does not apply in relation to an adoption contemplated by this
Chapter;
(q) the fees and charges payable under that Act do not apply in relation
to an adoption contemplated by this Chapter;
(r) any other provision of that Act will be taken to be modified to the
extent necessary to give effect to a preceding paragraph.
(2) Without limiting
subsection (1)
, the provisions of this Chapter apply to an adoption under the
Adoption
Act 1988
contemplated by this Chapter.
(3) Except as referred to in a preceding subsection, nothing in this
Chapter limits a provision of
Adoption
Act 1988
.
Part 2—Eligible carers
113D—Eligible carers
(1) For the purposes of this Act, the following persons are eligible
carers in respect of a child or young person:
(a) a person under whose guardianship (whether solely or with another
person) a child or young person is placed until they attain 18 years of age by
order of the Court under this Act or the repealed Act;
(b) an approved carer in whose care an eligible child or young person
(being an eligible child who is under the guardianship of the Chief Executive
until they attain 18 years of age) has been for the prescribed qualifying
period;
(c) an approved carer, or an approved carer of a class, prescribed by the
regulations,
in each case being a person who has been assessed in accordance with
section 113E
as being a suitable adoptive parent in respect of the child or young
person and who satisfies any other requirements set out in the regulations for
the purposes of this subsection.
(2) The regulations may make further provision in relation to eligible
carers (including provisions prohibiting or limiting a specified person or class
of persons from being an eligible carer).
113E—Assessment of suitability of prospective
adoptive parents
Before making an adoption order contemplated by this Chapter, the Court
must be provided with the results of an assessment of the suitability of each
prospective adoptive parent conducted in accordance with any requirements set
out in the regulations.
113F—Eligible carer need not be in
relationship
An adoption order contemplated by this Chapter may be made in favour of
1 person (who may, but need not, be in a qualifying relationship or a
relationship of any kind).
Part 3—Orders under Adoption
Act 1988
113G—Applications for adoption
Despite a provision of the
Adoption
Act 1988
or any rules of court, an application for an adoption order contemplated
by this Chapter may only be made—
(a) in the case of an eligible child who is under the guardianship of the
Chief Executive—by the Chief Executive; or
(b) in any other case—by an eligible carer in respect of the child
or young person with the written consent of the Chief Executive.
113H—Copy of application to be served on birth
parents
(1) A copy of an application for an adoption order contemplated by this
Chapter must be served personally on each birth parent of the child or young
person.
(2) A copy of an application must be endorsed with a notification of the
place, date and time for the hearing of the application.
(3) If it is not
reasonably practicable to serve a copy of an application personally on a birth
parent, or the whereabouts of a birth parent cannot, after reasonable enquiries,
be ascertained, the copy of the application may be served on that person in
accordance with section 168 or in any other manner authorised by the
Court.
(4) The Court must not proceed to hear an application for an adoption
order contemplated by this Chapter unless each birth parent served with the
application has had at least 3 business days of notice of the
hearing.
(5) The Court may, for any proper reason, dispense with service under this
section, or reduce the period between service and the time for the hearing of
the application.
113I—Consent of certain children and young people
required
(1) Subject to this section, an adoption order contemplated by this
Chapter will not be made in relation to a child or young person over the age of
12 years unless—
(a) the child or young person has consented to the adoption; and
(b) the Court is satisfied, after interviewing the child or young person
in private, that the child or young person's consent is genuine and the child or
young person does not wish to revoke it.
(2) The consent of a child or young person—
(a) must be in writing; and
(b) must be witnessed in a manner determined by the Chief Executive;
and
(c) must be endorsed by a person authorised by the Chief Executive to make
such an endorsement with a statement to the effect that the child or young
person has been counselled by that person.
(3) The Court may dispense with the consent of a child or young person in
relation to an adoption order contemplated by this Chapter where it appears to
the Court—
(a) that the child or young person is not capable of properly considering
the question of consent, or giving such consent; or
(b) that it is in the best interests of the child or young person that the
adoption order be made despite the lack of, or refusal, of such
consent.
(4) Despite a provision of the
Adoption
Act 1988
or any other Act or law, an adoption order contemplated by this Chapter in
relation to a child or young person who is not more than 12 years of age
does not require the consent of the child or young person (and such an order may
be made where the child or young person refuses consent or otherwise objects to
the making of the order).
113J—Consent of birth parent not
required
Despite a provision of the
Adoption
Act 1988
or any other Act or law, an adoption order contemplated by this Chapter
may be made in the absence of the consent of either or both of the birth parents
of the child or young person, or where either or both of the birth parents
refuse such consent.
113K—Views of child or young person to be
heard
(1) In proceedings
on an application for an adoption order contemplated by this chapter, a child or
young person to whom the application relates must be given a reasonable
opportunity to personally present to the Court their views related to the
proposed adoption.
(2) However,
subsection (1)
does not apply if the Court is satisfied that—
(a) the child or young person is not capable of doing so; or
(b) to do so would not be in the best interests of the child or young
person.
(3)
Subsection (1)
applies whether or not the child or young person is represented by a legal
practitioner in the proceedings.
113L—Right of birth parents etc to be
heard
(1) In proceedings on
an application for an adoption order contemplated by this Chapter, the Court
may, on the application of a birth parent or birth parents, or a sibling or
siblings, of the child or young person, hear submissions the applicant wishes to
make in respect of the child or young person, despite the fact that the
applicant is not a party to the proceedings.
(2) However,
subsection (1)
does not apply if the Court is satisfied that to allow the applicant to do
so would not be in the best interests of the child or young person.
113M—Court to have regard to additional
matters
(1) Before making an
adoption order contemplated by this Chapter, the Court must have regard to the
following matters:
(a) the extent to which the child or young person has formed an attachment
to the prospective adoptive parents and any members of their family;
(b) any submissions made in accordance with
section 113L
;
(c) any other matter prescribed by the regulations.
(2) To avoid doubt, nothing in this section requires the Court to seek to
give effect to a submission made in accordance with
section 113L
.
(3) The requirements under this section are in addition to, and do not
derogate from, any other matter to which the Court must have regard.
113N—Child or young person to have legal
representation in proceedings
(1) Subject to this
section, the Court must not hear an application for an adoption order
contemplated by this Chapter unless—
(a) the child or young person to whom the application relates is
represented in the proceedings by a legal practitioner; or
(b) the Court is satisfied that the child or young person has made an
informed and independent decision not to be so represented.
(2) In acting for a child or young person in relation to an adoption order
contemplated by this Chapter, a legal practitioner must, to the extent that it
is consistent with the legal practitioner's duty to the court to do so, comply
with the following provisions:
(a) the legal practitioner must, as far as is reasonably practicable, act
in accordance with any instructions given by the child or young
person;
(b) to the extent that the child or young person has not given, or is not
capable of giving, instructions, the legal practitioner must act in accordance
with the legal practitioner's own view of the best interests of the child or
young person;
(c) the legal practitioner must, in a manner appropriate to the capacity
of the child or young person to understand, explain to the child or young person
the nature of the legal practitioner's role in relation to the child or young
person (including any limitations on the legal practitioner's ability to act in
accordance with their instructions);
(d) in any proceedings before the Court, the legal practitioner must
explain to the Court the basis on which submissions are made, having regard to
the preceding paragraphs.
(3) A legal practitioner cannot, in complying with this section, be held
to have breached any code of professional etiquette or ethics, or to have
departed from any accepted form of professional conduct.
113O—Court not bound by rules of
evidence
Subject to this Chapter, in any proceedings under this Chapter the
Court—
(a) is not bound by the rules of evidence but may inform itself as it
thinks fit; and
(b) must act according to equity, good conscience and the substantial
merits of the case without regard to technicalities and legal forms.
Part 4—Miscellaneous
113P—Additional annual reporting
obligations
(1) The Chief Executive must, not later than 30 September in each
year, submit to the Minister a report setting out—
(a) the number, and general nature, of adoptions of children and young
people under this Chapter; and
(b) any other matter prescribed by the regulations for the purposes of
this paragraph.
(2) The Minister must, as soon as is reasonably practicable after receipt
of a report under this section, cause a copy of the report to be published on a
website determined by the Minister.
(3) The Minister must, within 6 sitting days after receipt of a
report under this section, cause a copy of the report to be laid before each
House of Parliament.
(4) The requirements of this section are in addition to any other
reporting obligation of the Chief Executive (however, a report under this
section may be included in the annual report of the Chief Executive under the
Public
Sector Act 2009
).
113Q—Minister to review operation of
Chapter
(1) The Minister
must cause a review of the operation of this Chapter to be conducted and a
report on the review to be prepared and submitted to the Minister.
(2) The review and the report must be completed after the fourth, but
before the fifth, anniversary of the commencement of this Act.
(3) The Minister must cause a copy of the report submitted under
subsection (1)
to be laid before both Houses of Parliament within 6 sitting days
after receiving the report.
23—Amendment
of section 152—Sharing of information between certain persons and
bodies
Section 152(1)(d)—after "Injury" insert:
Review
24—Amendment
of section 157—Internal review
Section 157(1)—after "Act" insert:
(other than a decision under section 112A or any other decision of a
prescribed kind)
25—Amendment
of section 158—Review of decisions by South Australian Civil and
Administrative Tribunal
(1) Section 158(1)(a)—after "Chapter" insert:
, section 112A or any other decision of a prescribed kind
(2) Section 158—after subsection (5) insert:
(6) Despite a provision of the
South
Australian Civil and Administrative Tribunal Act 2013
—
(a) the South Australian Civil and Administrative Tribunal must not
require parties in an application under this section to attend a compulsory
conference (whether under section 50 of that Act or otherwise);
and
(b) section 42 of that Act does not apply in relation to an
application under this section.
After section 161 insert:
161A—Restrictions on publication of names and
identifying information
(1) This section
applies to a child or young person—
(a) who is the subject of, or appears in, or is likely to be the subject
of or appear in, proceedings before the Court or the South Australian Civil and
Administrative Tribunal under this Act; or
(b) who is the subject of, or otherwise takes part in, or is likely to be
the subject of or take part in, a family group conference or other action taken
under this Act (other than Court or Tribunal proceedings); or
(c) who is, or is likely to be, mentioned or otherwise involved in a
matter referred to in a preceding paragraph; or
(d) who is, or has ever been, under the guardianship or in the custody of
the Minister or the Chief Executive under this Act or the
Children's
Protection Act 1993
; or
(e) who is the subject of, or is mentioned in, a report prepared or
authorised under this Act.
(2) However, this section ceases to apply to a child or young person
when—
(a) the child or young person attains 25 years of age; or
(b) the child or young person dies,
whichever occurs first.
(3) A person who,
in any form that may be accessible by a person in the State, publishes or
broadcasts information that expressly states or implies—
(a) that a particular child or young person is a child or young person to
whom this section applies; or
(b) that a matter referred to in
subsection (1)
applies, or applied, to a particular child or young person,
is guilty of an offence.
Maximum penalty:
(a) in the case of a natural person—$50 000; or
(b) in the case of a body corporate—$120 000.
(4) However,
subsection (3)
does not apply to—
(a) the publication or broadcasting of an official report of the
proceedings of the Court or of the South Australian Civil and Administrative
Tribunal that includes the name of a child or young person in relation to whom
this section applies; or
(b) the publication by the Coroner's Court of its findings in an inquest
concerning the suspected death of a child or young person (whether or not the
inquest relates to a child or young person in relation to whom this section
applies); or
(c) the publication or broadcasting of the name of a child or young
person, or other information from which the identity of a child or young person
in relation to whom this section applies can be ascertained, with the consent
of—
(i) the Court or the South Australian Civil and Administrative Tribunal;
or
(ii) in the case of a child or young person who is 16 years of age or
more—the child or young person; or
(iii) in the case of a child or young person who is under the guardianship
of, or in the custody of, the Chief Executive—the Chief Executive;
or
(iv) in the case of a child or young person whose suspected death is the
subject of an inquest by the Coroner's Court and the Coroner's Court considers
that the publication or broadcasting would be in the public interest—the
Coroner's Court.
(5) For the purposes of this section, the publication of information to a
website that provides the opportunity for, or facilitates or enables,
dissemination of information to the public or a section of the public (whether
or not the particular publication results in the dissemination of information to
the public or a section of the public) constitutes the publication of
information to the public or a section of the public.
27—Amendment
of section 164—Confidentiality
Section 164(1)—after paragraph (f) insert:
or
(g) if the disclosure is reasonably required to lessen or prevent a
serious threat to the life, health or safety of a person or persons.
28—Amendment
of section 167—Evidentiary provision
Section 167(1)—after paragraph (f) insert:
or
(g) that a specified person was, or was not, a child or young person to
whom section 161A applied at a specified time.
29—Amendment
of section 168—Service
(1) Section 168—after paragraph (a) insert:
(ab) in the case to be given to or served on a child or young
person—be left with a parent, guardian, approved carer or other person
over 18 years of age in whose care the child or young person is
placed;
(2) Section 168(b)—delete "16" and substitute:
18
30—Amendment
of section 170—Regulations
Section 170(3)(c) and (ca)—delete paragraphs (c) and (ca) and
substitute:
(c) make provisions of a saving or transitional nature; and
Schedule 1—Related
amendments and transitional provisions
Part 1—Amendment of Births, Deaths and
Marriages Registration Act 1996
1—Amendment
of section 38A—Notification by court appointed
guardians
Section 38A(4), definition of court appointed
guardian—after "Executive)" insert:
appointed as guardian of a person
Part 2—Transitional and savings etc
provisions
2—Application
of certain provisions to existing applications etc
(1) The following provisions of the
Children
and Young People (Safety) Act 2017
(as amended or enacted by this Act) apply only to, or in relation to, an
application or placement made after the commencement of this clause:
(a) section 8(4);
(b) Part 3A;
(c) section 56(1a);
(d) section 157 and 158, to the extent that those provisions relate
to a review of a decision under section 112A of the
Children
and Young People (Safety) Act 2017
;
(e) section 158(6).
(2) Section 59 of the
Children
and Young People (Safety) Act 2017
(as amended by this Act) applies to—
(a) applications made but not finally determined before the commencement
of this clause; and
(b) applications made after the commencement of this clause.