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CHILDREN, YOUTH AND FAMILIES (CONSEQUENTIAL AND OTHER AMENDMENTS) BILL 2006

  Children, Youth and Families (Consequential
         and Other Amendments) Bill

                            As Sent Print

              EXPLANATORY MEMORANDUM


                                 General
The recently enacted Children Youth and Families Act 2005 repeals the
Children and Young Persons Act 1989 and significantly amends the
Community Services Act 1970. This Bill incorporates further transitional
and saving provisions into the 2005 Act and makes further amendments to
the 2005 Act and to a number of other Acts. It also repeals the Adoption
(Amendment) Act 1991.

                              Clause Notes

                     PART 1--PRELIMINARY
Clause 1   states the purposes of the Bill which are to amend the Children,
           Youth and Families Act 2005, the Children and Young
           Persons 1989 and other Acts as a consequence of the enactment
           of the Children, Youth and Families Act 2005 and to repeal the
           Adoption (Amendment) Act 1991.

Clause 2   is the commencement provision. Part 1, Part 3 and clauses 37,
           38, 39, 40 and 41 of the Bill are to come into operation by
           1 September 2006. The remaining provisions of the Bill are to
           commence on the day on which section 601 of the Children,
           Youth and Families Act 2005 comes into operation.

 PART 2--AMENDMENT OF THE CHILDREN, YOUTH AND
               FAMILIES ACT 2005
Clause 3   amends certain definitions in section 3(1) of the Children,
           Youth and Families Act 2005.




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551427                                             BILL LA AS SENT 19/7/2006

 


 

Clause 4 amends sections 12 and 13 of the Children, Youth and Families Act 2005. Section 12 sets out the additional decision making principles for Aboriginal children. One of these principles provides that a decision in relation to an Aboriginal child should involve a meeting convened by an Aboriginal convenor. The amendments provide that a decision in relation to the placement of an Aboriginal child or other significant decision in relation to an Aboriginal child should involve such a meeting and that the meeting may be convened by an Aboriginal convenor approved by an Aboriginal agency or by an Aboriginal organisation approved by the Secretary. The amendments further provide that the requirement to consult with an Aboriginal agency does not apply to the making of a decision or the taking of an action in relation to a voluntary out of home child care agreement. Clause 5 amends the Secretary's powers of delegation in section 17(1) of the Children, Youth and Families Act 2005. Clause 6 amends section 22(b) of the Children, Youth and Families Act 2005 by substituting the term "referrals" for "reports". Clause 7 amends section 33 of the Children, Youth and Families Act 2005 by substituting the term "referral" for "report" and provides for a community-based child and family service to refer a matter to another community-based child and family service as well as a service agency. Clause 8 amends section 35 of the Children, Youth and Families Act 2005 to provide that the Secretary may consult with and disclose information to a community service, a service agency or an information holder if the Secretary receives a report of significant concern about the wellbeing of a child. Clause 9 amends sections 40 and 41 of the Children, Youth and Families Act 2005. The amendment to section 40 is a minor amendment to the heading of that section. The amendment to section 41 is intended to clarify the purposes of that section which are-- to prohibit disclosure by a community-based child and family service (which has been registered under section 47 and authorised to receive referrals under section 31 or section 32) of the identity of a person who makes a referral under section 31 or section 32, except where the community-based child and family service refers the matter to the Secretary; and 2

 


 

to prohibit disclosure by the Secretary of the identity of a person making a report under section 28 or section 29, except where the Secretary is referring the matter to a community-based child and family service. For example, if a person makes a report to the Secretary, the child protection service (as the Secretary's delegate) may form the view that the child is not in need of protection, but that the child or family may benefit from services. In these circumstances, the matter may be referred to a community-based child and family service and the identity of the reporter may also be disclosed to that service. The community-based child and family service is then prohibited from further disclosing the referrer's identity to anyone else. As another example, if a person makes a referral to a community- based child and family service, the service may assess the referral and form the view that the child may be in need of protection. If the service forms this view, the service must then report the matter to the Secretary and, when doing so, can inform the Secretary of the identity of the person who made the referral to the service. The Secretary is then prohibited from further disclosing the referrer's identity to anyone else, except where the Secretary wishes to refer the matter to another community-based child and family service, for example if the family have moved to a different location. The examples illustrate that it is intended that-- the identity of the reporter or referrer can be given due weight in any assessment of risks to the child, and the referrer or reporter can provide information to assist in completing an assessment and determining the appropriate response, and the referrer or reporter can be involved in any plan for the provision of assistance or intervention plan if appropriate. Clause 10 amends the definition of "services to children" in section 74 of the Children, Youth and Families Act 2005 to exclude prescribed services. Clause 11 amends the heading to section 80 of the Children, Youth and Families Act 2005 by insertion of the words "out of home" before "carers". 3

 


 

Clause 12 amends section 162(2) of the Children, Youth and Families Act 2005. Section 162 sets out the grounds for a belief and a finding that a child is in need of protection. The amendment clarifies that cumulative harm to a child may occur by way of a single act or omission or accumulate through a series of acts, omissions or circumstances. Clause 13 amends section 191 of the Children, Youth and Families Act 2005 to specify the circumstances when a reporter's identity may be disclosed to a community-based child and family service. Clause 14 inserts new sub-sections (2A) and (3A) into section 196 of the Children, Youth and Families Act 2005. New sub-section (2A) requires an authorised officer to provide certain advice when directing an information holder to disclose information. New sub-section (3A) clarifies that the Secretary may use and disclose information or a document for a purpose relating to the protection or development of a child. Clause 15 amends sections 227(3) and 227(4) of the Children, Youth and Families Act to make it clear that the Attorney-General is the responsible Minister for the appointment and removal of dispute resolution convenors. Clause 16 amends section 232(1)(f) of the Children, Youth and Families Act 2005 by omitting words that are seen as an unnecessary repetition in this provision relating to a temporary assessment order. Clause 17 amends section 272(1) of the Children, Youth and Families Act 2005 to make it clear that the Court may make an order under Part 4.8 of the Act requiring an undertaking in a proceeding on a protection application or an irreconcilable difference application. Clause 18 amends sections 289 and 290 of the Children, Youth and Families Act 2005 to allow for the lapsing of a guardianship to Secretary order and long term guardianship to Secretary order in exactly the same terms as the lapsing of custody to Secretary order in section 288 of the Act. It also amends section 290(3) to ensure consistency with section 290(2). Clause 19 amends section 318(1)(a) of the Children, Youth and Families Act 2005 to provide for the same interim accommodation restriction as in section 318(1)(d) of the Act in respect of breach of an interim protection order. 4

 


 

Clause 20 amends section 362(4) of the Children, Youth and Families Act 2005 to make it clear that in sentencing a child where sentencing has been deferred for the purposes of a group conference and the child has failed to participate in the group conference, the Court should sentence the child as it would have done had sentencing not been deferred. Clause 21 amends section 378 and 379 of the Children, Youth and Families Act 2005 to clarify that these sections are intended to apply to children (as defined by section 3) and to people on whom the Court has imposed a fine but who are of or above the age of 19. Clause 22 amends section 431(1) of the Children, Youth and Families Act 2005 to provide for the continuation of the Youth Residential Board. Clause 23 amends section 442(1) of the Children, Youth and Families Act 2005 to provide for the continuation of the Youth Parole Board. Clause 24 inserts into the Children, Youth and Families Act 2005 a new Division 4 of Part 5.8 titled "Change of Name Applications by Detainees". That Division contains provisions that are equivalent to sections 47F-47L of the Corrections Act 1986 to provide for applications by detainees to change their own names or the names of their children. The provisions are as follows-- Section 488H provides that the Division applies despite anything to the contrary in the Birth, Deaths and Marriages Registration Act 1996. Section 488I defines certain words or expressions used in the Division. Section 488J specifies that written approval of the Secretary is required in relation to applications for change of name by or on behalf of a detainee. Section 488K specifies when the Secretary may approve a change of name application. Section 488L specifies when and to whom the Secretary must give notice of or a copy of a written approval of a change of name application. Section 488M specifies the circumstances when the Victorian Registrar of Births, Death and Marriages must not register a change of name made by or on behalf of a detainee. 5

 


 

Section 488N provides for when the Victorian Registrar may correct the Register under the Births, Deaths and Marriages Registration Act 1996. Clause 25 makes a minor amendment to the recall and cancellation of warrant provisions in section 529(1)(b)(ii) of the Children, Youth and Families Act 2005. Clause 26 makes a minor amendment by insertion of the word "to" in section 534(5) of the Children, Youth and Families Act 2005. Clause 27 substitutes a new section 581 of the Children, Youth and Families Act 2005 in respect of the CAYPINS procedure. Clause 28 amends sections 597(1)(c) and 597(4)(a) of the Children, Youth and Families Act 2005 in relation to orders for the medical examination, medical treatment, performance of surgical or other operations or admission to hospital of children who have been placed with a declared hospital or a declared parent and baby unit as a result of an interim accommodation order. Clause 29 substitutes a new Schedule 3 to the Children, Youth and Families Act 2005 in respect of the "Children and Young Persons Infringement Notice System" ("CAYPINS"). CAYPINS is a new process that commenced operation on 1 July 2005. Schedule 3 of the Children, Youth and Families Act 2005 sets out the procedures that may be used for the enforcement of infringement penalties and penalties imposed by penalty notices. Clause 30 substitutes a new Schedule 4 to the Children, Youth and Families Act 2005 in respect of transitional and saving provisions to the Act. The effect of the transitional and savings provisions in conjunction with the Interpretation of Legislation Act 1984 is to continue the majority of those persons and bodies that are provided for in the Children and Young Persons Act 1989 and to continue and preserve proceedings, actions and orders commenced or made under the Children and Young Persons Act 1989. 6

 


 

PART 3--AMENDMENT OF THE CHILDREN AND YOUNG PERSONS ACT 1989 Clause 31 amends the delegation provisions in section 7(1) of the Children and Young Persons Act 1989. Clause 32 amends sections 155 and 157 of the Children and Young Persons Act 1989 by substituting the word "person" for "child" (wherever occurring). Clause 33 inserts a new Division 12A into Part 4 of the Children and Young Persons Act 1989 to provide for equivalent provisions to sections 47F-47L of the Corrections Act 1986 to cover applications by detainees to change their own names or the names of their children. Clause 34 substitutes a new Schedule 2A to the Children, Youth and Families Act 2005 in relation to the CAYPINS procedure. PART 4--AMENDMENT OF OTHER ACTS AND REPEAL Clause 35 amends Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 by substituting provisions referring to the Children, Youth and Families Act 2005. Clause 36 substitutes item 2 in the Schedule to the Commonwealth Powers (Family Law-Children) Act 1986. This is an Act that refers to the Commonwealth certain powers relating to family law including the maintenance of children, the custody and guardianship of and access to children and matters relating to the parentage of children. The Schedule in this Act sets out specific provisions of the Children and Young Persons Act 1989 that relate to the custody, guardianship, care or control of children that are not included in the referral of powers to the Commonwealth. These powers have been amended to refer to the corresponding provisions in the Children, Youth and Families Act 2005 and to incorporate some changes made by that Act such as the new long-term guardianship to Secretary orders. Clause 37 amends sections 17 and 18 of the Terrorism (Community Protection) (Amendment) Act 2006 by changing references to those used in the Children, Youth and Families Act 2005 including changing of references from juvenile justice facility to youth justice facility. Clause 38 makes a consequential amendment to section 87A(5) of the Melbourne City Link Act 1995. 7

 


 

Clause 39 makes consequential amendments to sections 67(5) and 89F(1) of the Road Safety Act 1986. Clause 40 makes consequential amendments to the Infringements Act 2006. Clause 41 repeals the Adoption (Amendment) Act 1991. This Act was prepared to clarify issues around the delegation of powers by the Commonwealth Government of guardianship over non-citizen children brought into Australia for the purposes of adoption. Subsequent resolution of the issues including ratification of the Hague Convention on the Protection of Children and Cooperation in respect of Intercountry Adoption and amendment of relevant provisions of the Adoption Act 1984 by Act No. 46 of 1998 means that this Act does not need to be proclaimed and can be repealed. Clause 42 makes consequential amendments to other Acts that are listed in the Schedule to the Bill. 8

 


 

 


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