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Children's Legislation Amendment
Bill 2008
Amended Print
EXPLANATORY MEMORANDUM
General
This Bill amends the Children's Services Act 1996 to further provide for the
licensing and regulation of children's services. The Bill also amends the
Child Wellbeing and Safety Act 2005 to provide for a kindergarten
principle for children.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill.
Clause 2 provides for Part 1 and clauses 6, 7(2), 9(1), 9(2), 9(3), 9(4),
11(1), 11(2), 12(1), 12(2), 13(1), 16, 17, 20(2), 20(3), 27, 29(6)
and 30 to come into operation on the day after the day on which
this Bill receives the Royal Assent. The remaining provisions of
this Bill come into operation on a day or days to be proclaimed
or on 25 May 2009 if not proclaimed before that day. This is to
allow sufficient time for the making of new regulations arising
from the changes made in the Bill.
PART 2--AMENDMENT TO CHILDREN'S SERVICES
ACT 1996
Clause 3 inserts new definitions into section 3(1) of the Act and amends
two existing definitions. The new definitions are necessary due
to the amendments to the licensing process, and the inclusion
of family day care services into the regulatory framework.
The definition of children's service is amended so that family
day care and outside school hours care services fall within the
definition.
561159 1 BILL LA AMENDED 8/5/2008
Clause 4 amends section 5 of the Act to ensure that the Act does not apply
in circumstances where education is being provided at
preparatory level or above at a Government or non-Government
school, but does apply to outside of school hours care. A new
subsection is added to clarify that nothing in the Act applies to
a service principally conducted to provide instruction in a
particular activity or sport, or to playgroups registered with
Playgroup Victoria Inc. New subsections (3) and (4) provide that
the Act is not to apply in certain circumstances where parents and
guardians enter into informal arrangements for the care or
education of children by an individual carer.
Clause 5 amends sections 6(1), 6(4) and 56(2)(c) to omit the words
"class or" so that the Act refers consistently to "types" of
licences.
Clause 6 increases the penalty for an offence against section 7, of carrying
on an unlicensed children's service, to 240 penalty units.
Clause 7 amends the references in section 8 to "approval in principle" to
"approval of premises"; and increases the penalty for an offence
against section 8, of advertising an unlicensed children's service,
to 120 penalty units.
Clause 8 substitutes a new Part 3 (Licensing of Children's Services) into
the Act.
Division 1--Approval of premises
Section 9 provides for approval of particular premises, premises
proposed to be constructed, or alterations or extensions to
premises, used or proposed to be used in operating a children's
service, and sets out the requirements for an application.
This replaces the previous "approval in principle" process.
Section 10 sets out the criteria for grant of approval of premises
by the Secretary.
Section 11 requires the Secretary to decide whether to grant or to
refuse to grant an approval of premises when an application is
received and sets out notice periods for notification to the
applicant of the decision. It also states that an approval of
premises may be granted subject to conditions.
Section 12 requires the Secretary to issue a certificate of approval
of premises if approval is granted.
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Section 13 states that an approval of premises remains in force
for 5 years, unless sooner cancelled.
Section 14 sets out the circumstances in which the Secretary may
cancel an approval of premises.
Division 2--Application for licence
Section 15 provides for an application for a licence to operate a
children's service, except a family day care service, at premises
for which there is a current approval of premises.
Section 16 provides for an application for a licence to operate a
family day care service.
Section 17 provides that the regulations may prescribe other
types of licence.
Section 18 sets out the requirements for an application for a
licence.
Section 19 provides that an application for a licence, except one
relating to a family day care service, must be accompanied by a
copy of the current certificate of approval of premises, and details
of any circumstances with respect to the design or location of the
premises which have changed since the approval was granted.
Section 20 sets out further information required for an application
in respect of a family day care service.
Section 21 requires an applicant to permit the Secretary or
authorised officer to inspect premises for which there is a current
approval of premises, and any family day care venue proposed to
be used, to determine whether the premises are satisfactory.
Division 3--Determination of fit and proper person
Section 22 requires the Secretary, in determining a licence
application, to consider whether certain people are fit and proper
to operate, or exercise control over, or manage or control in the
absence of a licensee, a children's service. The people who must
be considered are the applicant, any director or other officer of a
body corporate applicant who exercises or may exercise control
over the operation of the children's service, and any person
nominated by the applicant to manage or control the children's
service in the absence of the licensee.
Section 23 provides an exception where the Secretary is not
required to carry out a fit and proper person check for certain
nominees, and states that those nominees are accepted nominees
for the purposes of the Act.
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Section 24 allows the Secretary to require certain testing of a
person in respect of whom a fit and proper person check is being
carried out in order to determine the suitability of that person.
Section 25 sets out matters the Secretary may take into account in
carrying out a fit and proper person check.
Section 25A requires the Secretary to determine whether or not a
person is fit and proper for the purposes of the Part, after carrying
out a fit and proper person check. A determination under this
section remains in force for a period not exceeding 5 years
specified in the determination unless sooner revoked, and may be
relied on by the Secretary in relation to any other application
under the Act while the determination remains in force.
The section also provides that, where a person is determined to
be fit and proper under this Part, the person is an approved
nominee for the purposes of the Act.
Division 4--Decision on application
Section 25B provides that the Secretary may grant or refuse to
grant a licence.
Section 25C sets out the circumstances in which the Secretary
must refuse to grant a licence.
Section 25D prevents the Secretary from granting a licence to
operate a children's service, other than a family day care service,
in respect of more than one premises.
Section 25E sets out the conditions on which all children's
services licences are granted, and provides that a licence may be
granted subject to any other conditions or restrictions set out in
the licence that are prescribed or the Secretary imposes.
Section 25F requires the Secretary to give notice in writing to the
applicant of the Secretary's decision in a certain time period.
Section 25G requires the Secretary (if a licence is granted) to
send a copy of the licence to the licensee stating certain
information.
Section 25H provides that a licence remains in force for a
maximum period of 5 years (increased from 3 years) specified in
the licence, unless sooner cancelled.
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Division 5--Nominees and venues
Section 25I requires the Secretary, on granting a licence to
operate a children's service, to notify the licensee of the persons
who are the approved nominees and the accepted nominees for
the purpose of the children's service.
Section 25J allows the Secretary on the granting of a licence to
operate a family day care service, to approve a venue as a family
day care venue, and requires the Secretary to notify the licensee
of any approved family day care venue.
Section 25K allows a licensee to apply to the Secretary for
approval of nominees, including primary nominees, during the
term of the licence. The Secretary must notify the licensee of the
result of an application under this section.
Section 25L allows the Secretary to approve new family day care
venues during the term of a licence, on the application of the
licensee of a family day care service. The Secretary must notify
the licensee of the approval of a venue under this section.
Section 25M provides that an application under section 25K
or 25L must be in writing, contain the relevant prescribed
information and be accompanied by the relevant prescribed fee.
Division 6--Renewal and variation of licence
Section 25N sets out the requirements for an application by a
licensee to renew a licence.
Section 25O provides that the Secretary may renew or refuse to
renew a licence. A licence may be renewed as in force, or with
new or varied conditions or restrictions, which must be set out in
the licence. A renewed licence remains in force for up to 5 years
(increased from 3 years) determined by the Secretary and
specified in the licence.
Section 25P provides that the Secretary may vary, revoke or
impose a condition or restriction on a licence, or vary the period
of a licence (so long as the period does not exceed 5 years).
The Secretary may act under this section on the Secretary's
own initiative after consultation with the licensee, or on the
application of the licensee. Notice of the variation and a copy of
the varied licence must be sent to the licensee within 7 days, and
the variation does not take effect until 30 days after the notice
(decreased from 60 days) unless the licensee consents to the
variation taking effect earlier.
Section 25Q sets out the criteria for renewal or variation of a
licence.
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Section 25R prohibits the transfer of a licence.
Section 25S allows for the voluntary suspension of a licence, on
the application of a licensee, where the applicant proposes to
resume the operation of the children's service at the premises at
the end of the period of suspension.
Section 25T allows for the cancellation of a licence at the request
of the licensee, or if the Secretary is satisfied that the licensee has
ceased operating the service.
Section 25U allows the Secretary to appoint a person as licensee
of a children's service where the licensee has died, become
bankrupt or incapacitated, for a period of up to 6 months.
This section only applies where there is only one licensee and
that licensee is a natural person.
Clause 9 amends section 26 so that proprietors, staff members and family
day carers must take every reasonable precaution to ensure
children are protected from any hazard or harm likely to cause
injury. The penalty for this offence has been increased to
120 penalty units. This clause also amends new section 26A to
be inserted into the Act by Act No. 3/2008 to increase the penalty
for that offence to 60 penalty units.
Clause 10 inserts a new section 26B into the Act, which requires proprietors
and family day carers to ensure that there is an educational or
recreational program made available to all children cared for or
educated by that service or carer. The program must be based
on the developmental needs, interests and experiences of each
child, be designed to take into account the individual differences
of these children, and enhance each child's development.
The maximum penalty for this offence is 60 penalty units.
The inclusion of this requirement in the Act recognises that
programming is a critical element in the quality of the care and
education provided to children.
Clause 11 amends section 27 to extend the requirement to ensure that
children are adequately supervised to family day carers, in
respect of children in their care. The maximum penalty for
offences under this section is to be 120 penalty units.
Clause 12 amends section 28 to extend the requirement to ensure children
are not subjected to corporal punishment or any discipline which
is unreasonable in the circumstances, to family day carers, in
respect of children in their care. The maximum penalty for
offences under this section is to be 120 penalty units.
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Clause 13 amends section 29 to extend the requirement to take reasonable
steps to ensure buildings, grounds, equipment and furnishings
are maintained and kept in good repair to family day carers, in
respect of those buildings etc which are used by the carer for the
care or education of a child. The maximum penalty for offences
under this section is to be 120 penalty units.
Clause 14 inserts new sections 29A, 29B and 29C into the Act.
The requirements in these sections were previously imposed by
the Children's Services Regulations 1998, and they have been
moved into the Act to reflect the seriousness of these
requirements.
Section 29A requires proprietors of children's services to ensure
that the prescribed child/staff ratios are met whenever children
are being cared for or educated by the service. The maximum
penalty for this offence is 120 penalty units. The Secretary may
declare that this requirement does not apply to a children's
service or a type of children's service by notice published in the
Government Gazette.
Section 29B requires proprietors and family day carers to ensure
that medication is not administered to a child in the care of the
service or the carer unless the prescribed authorisation has first
been obtained, and the medication is administered in the
prescribed manner. The maximum penalty for this offence is
120 penalty units.
Section 29C requires proprietors of children's services to notify
the Secretary in the prescribed manner if one of a number of
serious incidents occurs. The maximum penalty for this offence
is 120 penalty units.
Clause 15 substitutes a new section 30 into the Act. The requirement for
the licensee or a nominee to be present at the premises where
the children's service is operating at all times when any child is
being cared for or educated at the premises has been clarified,
and the maximum penalty increased to 120 penalty units.
The requirement does not apply to the licensee of a family day
care service.
Clause 16 increases the penalty for the offence of contravening a condition
etc. of a licence to 120 penalty units.
Clause 17 increases the penalty for the offence of failing to notify the
Secretary of a change of directors etc to 60 penalty units.
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Clause 18 inserts new sections 32A and 32B into the Act. Section 32A
requires proprietors of family day care services to provide the
Secretary with information about their family day carers.
Section 32B requires proprietors of children's services to keep
the relevant prescribed documents available for inspection by an
authorised officer. Documents which relate to the operation of
the service or any staff member employed by the service, or any
child cared for or educated at the premises in the previous
12 months must be kept at the premises. A family day carer
must also keep the relevant prescribed documents available for
inspection by authorised officers.
Clause 19 substitutes a new section 33 into the Act, to add the requirement
that a licensee of a family day care service must ensure that a
copy of the licence is displayed conspicuously at the service's
principal office.
Clause 20 makes a consequential amendment to section 34(1) of the Act
and increases the penalty for the offence of failing to notify
clients of certain changes to 60 penalty units.
Clause 21 amends the heading to Part 5 of the Act to "Monitoring and
Enforcement" to better reflect the scope of the Part.
Clause 22 amends section 36 of the Act to make it clear that the powers of
entry of authorised officers can be used for the purpose of
monitoring whether the Act or regulations are being or have been
complied with. The powers of entry are also extended, due to the
inclusion of family day care, to any part of a family day carer's
residence that the authorised officer believes on reasonable
grounds is being used to provide care or education, during the
hours that the care or education is being provided.
Clause 23 inserts a new section 36A into the Act, giving authorised officers
the power to obtain information, documents and evidence by
notice in writing from a person who is or has been a licensee, a
nominee or a staff member of a children's service or a family day
carer, for the purpose of monitoring whether the Act or the
regulations are being or have been complied with.
Clause 24 amends section 38 of the Act. The amendment extends the
offence related search and seizure power of an authorised officer
to apply to premises in respect of which approval of premises has
been granted, any part of a family day carer's residence that is
used to provide care or education to children, family day care
venues, and the principal office of a family day care service.
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Clause 25 amends section 41 to make it consistent with section 35(6)(b).
Clause 26 amends section 42 of the Act to clarify that the protection against
self-incrimination applies to natural persons only.
Clause 27 inserts a new section 42A into the Act. This provision gives the
Secretary the power to obtain information, documents and
evidence relating to a contravention of a serious offence from any
person who is or has been a licensee, nominee or a staff member
of a children's service. Evidence may be required to be given on
oath or affirmation. It is an offence to refuse or fail to comply
with a notice under this section to the extent the person is capable
of complying with it or to knowingly provide false or misleading
information or evidence, or to obstruct or hinder the Secretary in
exercising a power under this section. A person is not excused
from answering a question, providing information or producing
or permitting the inspection of a document on the grounds of
self-incrimination; however, in the case of a natural person, the
information is not admissible in evidence against that person in
any criminal proceedings other than proceedings under this
section, or in the case of a body corporate, in criminal
proceedings other than proceedings under this Act.
Clause 28 amends new section 42A to include family day carers as persons
from whom the Secretary may obtain information, documents
and evidence. This amendment is contained in its own clause
because clause 27 (which inserts new section 42A into the Act)
comes into operation on the day after Royal Assent. Clause 28
will amend new section 42A and will come into operation on a
day to be proclaimed or on 25 May 2009 if not proclaimed before
that date.
Clause 29 amends section 43 of the Act. If a notice to enforce issued under
this provision is not complied with, the Secretary may vary or
impose any condition or restriction on the children's services
licence, suspend the licence, direct the proprietor of a family day
care service to suspend the provision of care or education of
children by a family day carer or direct the proprietor to cease
operating the children's service and to suspend the care or
education of children by the service. The internal review
mechanism has been strengthened by requiring the Secretary to
consider submissions made by a family day carer affected by the
notice, as well as the proprietor. The penalty for breach of
section 43 is increased to 120 penalty units.
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Clause 30 inserts new section 43A into the Act, which allows the Secretary
to issue a notice to take emergency action, if the Secretary is
satisfied that a children's service is operating in a manner that
poses a risk to the health, welfare or safety of a child being cared
for or educated by the service. A proprietor must comply with a
direction made under this section. The penalty for breach of
section 43A is 120 penalty units.
Clause 31 amends section 46 of the Act to include the requirement to
provide information into the offence relating to enforcement.
The penalty for breach of section 46 is increased to 120 penalty
units.
Clause 32 amends section 52A of the Act to provide that the Secretary
cannot delegate the power under section 29A(2) to declare that
the requirement to comply with child/staff ratios does not apply
to a children's service or any type of children's service.
Clause 33 inserts new sections 53A, 53B and 53C into the Act.
Section 53A requires the Secretary to keep a register of family
day carers. The register will not be publicly available, to protect
the privacy of family day carers.
Section 53B allows the Secretary to publish information
about children's services on the Department's Internet site.
The information may include compliance information, and
enforcement actions taken under the Act or the regulations;
however the Secretary must first notify the licensee of the
Secretary's proposal to publish that information and that the
licensee may seek review of the proposal under section 54A.
Section 53C allows the Secretary to provide statistical,
compliance and enforcement information to a Government
Department, public authority or municipal council for a purpose
relating to the health, safety and wellbeing of children or the
operation of children's services. The provision also allows the
Secretary to provide any information believed to show a
contravention of another Act by a children's service to a
Government Department or public authority, for a purpose
relating to the health, safety and wellbeing of children.
To protect privacy, information provided or published under
section 53B or 53C must not include identifying information of
any person except a licensee.
Clause 34 inserts new section 54A into the Act. This section provides an
internal review mechanism to licensees in respect of a proposal
by the Secretary to publish information relating to the children's
service on the Internet under section 53B(1).
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Clause 35 makes amendments to section 55 of the Act as a result of the
change to approval of premises and the prohibition on transferral
licenses.
Clause 36 amends section 56 of the Act to give the Governor in Council the
power to make regulations relating to the recruitment (including
the conduct of police or other security checks) of staff, and
records to be kept by family day carers. It also provides that the
regulations may differ according to the type of children's service.
Clause 37 substitutes the heading to Part 7 of the Act so that the heading
better reflects the nature of the provisions contained in the Part.
Clause 38 is a statute law revision clause. The clause repeals sections 57,
58, 59 and 60 of the Act as they are spent provisions.
Clause 39 inserts new section 62 into the Act, which gives effect to the
Schedule.
Clause 40 inserts a schedule into the Act. The Schedule contains savings
and transitional provisions to allow for a transitional period in
respect of the licensing of family day care and outside school
hours care services which are in operation at commencement.
These services may apply for either a provisional or a full licence
during the three months following commencement, and only
some sections of the Act apply during the application and
determination periods. The Schedule permits the making of
transitional and saving regulations that are retrospective to the
date this Bill receives the Royal Assent. This is to ensure the
effective transition to the new licensing scheme contained in this
Bill.
PART 3--AMENDMENT OF CHILD WELLBEING AND
SAFETY ACT 2005
Clause 41 amends section 5(1) of the Child Wellbeing and Safety Act
2005 by inserting a kindergarten principle, that every child
should be able to enrol in a kindergarten program at an early
childhood education and care centre.
PART 4--REPEAL OF AMENDING ACT
Clause 42 provides that the Children's Legislation Amendment Bill 2008
is repealed on 25 May 2010. The repeal of this Bill does not
affect in any way the operation of the amendments made by this
Bill (see section 15(1) of the Interpretation of Legislation Act
1984).
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