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CLAUSE NOTES
Children, Young Persons and Their Families Amendment Act Bill 2013
The Bill reflects the Government's response to the first stage recommendations of the `Legislative
Amendment Review Reference Committee' established by the Government to advise it on the
Principal Act. The Committee provided a detailed report on the need for amendments to some 21
areas of the Act. The report provided detailed advice on the preferred policy direction to support
the proposed amendments.
Clause 1 Short Title
Provides that the Bill will be cited as the Children, Young Persons and Their Families
Amendment Act 2013
Clause 2 Commencement
Provides for the Bill to commence on a day or days to be proclaimed.
Clause 3 Principal Act
Provides that, in the Bill, the Children, Young Persons and Their Families Amendment Act
1997 is referred to as the Principal Act.
Clause 4 Section 3 amended (Interpretation)
This clause amends section 3 of the Principal Act, which contains definitions of
terms used in the Principal Act. Key amendments include inserting definitions for
new terms introduced by the Bill:
`supervision order', which will have the same meaning given by section 42A;
and
`family meetings'.
This clause also removes the definition of `advisory panel' as this term is no longer
required due to the removal of the provisions of advisory panels under the Act,
and makes statute law corrections to the definition of `information-sharing entity'.
Clause 5 Sections 7, 8 and 9 substituted
Clause 5 repeals section 7 (Object), section 8 (Principles to be observed when
dealing with children) and section 9 (Principles relating to dealing with Aboriginal
children).
The clause substitutes these sections with:
Section 7 (Object) outlines that the object of the Act is to
provide for the care and protection of children in a manner that addresses
the stated objects, and also provides the Minister is to seek to further the
object of this Act in partnership with the stated bodies.
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Section 8 (International conventions): this section clarifies that for the
purposes of section 8B of the Acts Interpretation Act 1931, certain
international conventions are relevant extrinsic materials for the
interpretation of the Principle Act. Section 8B of that Act provides for when
extrinsic materials to an Act can be used in the interpretation of that Act..
Clause 6 Part 1A is inserted (Principles to be Observed in Dealing with Children)
Clause 6 inserts a new Part 1A Principles to be Observed in Dealing with
Children. This comprises of new sections 10A, 10B, 10C, 10D, 10E, 10F and 10G.
The new part provides for more detailed principles which must be observed when
dealing with children, including:
10A: Principles
10B: The responsibility of government
10C: Role of child's family
10D: Treating child with respect
10E: Best interest of child
10F: child participating
10G: Aboriginal children.
10A. Principles
This section provides that a person exercising functions or powers under the Act
are to uphold the principles in Part 1A as far as practicable, and have regard to any
relevant national standards published by the Commonwealth Government
10B. Responsibility of Government
This section outlines that the Tasmanian Government has responsibility for
promoting and safeguarding the wellbeing of children and assisting families in
fulfilling their responsibilities for the care, upbringing and development of their
children.
10C. Role of child's family
This section provides for the principles in respect of the role that the child's family
plays as the primary caregiver of the child, providing the family is entitled to be
treated with respect, and that the family is entitled to bring up the child in
accordance with the families cultural and ethnic values. Contact with the family is
to be encouraged so as to preserve the family relationship.
10D. Treat child with respect
This section provides for the important principles of treating all children with
respect and ensuring that any decision affecting the child is done so promptly. Any
decision must be done in a way that is consistent with cultural, ethnic and religious
values relevant to the child and where possible with the participation of the child
and family.
10E. Best interests of child
This section provides for the principle that, in performing functions or exercising
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powers under the Act, the best interests of the child must be the paramount
consideration, and lists the matters that must be taken into account by the person
dealing with decisions affecting the child.
The matters that are to be taken into account will be significant for the
Department in that it allows for proper and considered decision making with any
decision to be in the best interests of the child.
10F. Child Participation
This section emphasises the need for children to participate in decisions that
impact on them and allows for the child be fully informed of the decisions affecting
them and must be done in such a way with regard to child's maturity and
understanding of the issues affecting them.
10G. Aboriginal Children
Under the current legislation, Principles relating to Aboriginal children are
referenced separately from other Principles. The amendments to the Act retain
this important distinction that recognises the Aboriginal Community and that
Aboriginal children have a distinct and unique cultural identity which requires
special recognition. In addition, these have been amended to formally recognise the
nationally adopted Aboriginal placement principle.
Aboriginal families, kinship groups, Aboriginal communities and organisations
representing the Aboriginal people have a major, self-determining role in
promoting the wellbeing of Aboriginal children. A kinship group, Aboriginal
community or organisation representing the Aboriginal people nominated by an
Aboriginal child's family should be allowed to contribute to, although not
necessarily as parties to proceedings, the making of a decision under this Act in
relation to the child.
Clause 7 Section 11 amended (Voluntary care agreement)
Clause 7 amends section 11 of the Principal Act to introduce longer initial and
extension periods for voluntary care agreements where they relate to a child with
disability or other special circumstances. New subsection (1A) clarifies the purpose
of voluntary care agreements. New subsection (3) clarifies that the Secretary may
not enter into the agreements where there is a risk to the child which cannot be
remedied during the term of the agreement.
These amendments are necessary to allow for increased flexibility for the Secretary
in dealing with voluntary care agreements. The current Act does not allow for the
flexibility required for efficient and timely handling of needs and issues that arise.
This is particularly apparent in relation to dealing with young people with a
disability and other special circumstances that may apply to the young person or
their guardians. The amendments facilitate negotiated agreements between the
Secretary and parents if the child has special needs arising from a disability, or
special circumstances exists and it is in the best interest of the child.
These provisions were drafted with reference to examples in corresponding West
Australian and British Columbia legislation.
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Clause 8 Section 12 amended (Termination of care agreement)
Consequential to the changes in clause 7, clause 8 amends section 12(5) by
removing `a period not exceeding 3 months' and substituting it with `the period'
(given the maximum period as amended under clause 7 varies depending on the
type of agreement).
Clause 9 Section 19 amended (Assistance by police officer)
Clause 9 inserts subsection (3A) in section 19 which provides magistrates may
issue a warrant for the purpose of subsection (3) if the magistrate is satisfied that:
(a) reasonable steps have been taken to obtain the consent of the occupier
of the premises or place to the exercise of the powers referred to in
that subsection and those steps have been unsuccessful; or
(b) there are reasonable ground for concern for the safety of the child.
The current legislation remains silent in relation to when a magistrate may issue a
warrant under subsection (3). This amendment will ensure the Court does not
grant a warrant without first being satisfied that other less intrusive steps have
been undertaken, unless there are reasonable grounds for concern for the safety of
the child.
Clause 10 Section 22 amended (Assessment order)
Clause 10 amends section 22 of the Act by omitting subsection (5) and substituting
a new subsection that provides an assessment order may be extended (once only)
for a maximum period of 8 weeks if the Court is satisfied the grounds are
reasonable and in the best interests of the child.
The current provisions of the Act allow for an Assessment Order to have effect
for a period (specified in the order) not exceeding four weeks, and for an
extension (once only) for a maximum period of 8 weeks if a Family Group
Conference is to be held or a maximum period of 4 weeks in any other case.
This amendment simplifies this approach by maintaining the current maximum
extension period of 8 weeks in total, but also requiring the Court to exercise more
discretion than is currently the case to ensure the extension is reasonable in the
circumstances and in the best interest of the child.
Clause 11 Part 5, Division 1AA inserted
Division 1AA Family Meetings
Clause 11 inserts a new Division 1AA (Family Meetings), after part 5 of the
Principal Act (Children in need of care and protection).
The new Division establishes a procedure for `family meetings'. It precedes the
more formal requirements in the following Division of Family Group Conferences,
and is based part on similar legislative provisions, with appropriate adaptations.
Family meetings will promote child and youth centred, and family focussed,
proceedings, facilitating the objects of the administration and enforcement of the
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Act. The family meeting is less adversarial form of dispute resolution and will assist
in building trust between Government and families engaged with the child
protection system.
The sections in the Division are summarised below.
29A. Family meeting held in certain circumstances
The Secretary may cause a family meeting to be convened in respect of a child if
the Secretary is of the opinion that the child is at risk; and that a family meeting is
appropriate in the circumstances.
The Secretary must cause a family meeting to be convened if the Secretary is
required under section 53 to convene a family meeting. Section 53 provides for
when a court order requires it, the Secretary considers it desirable, or the
Secretary has been requested by the child of the family to do so.
29B. Purpose of family meeting
The purpose of a family meeting convened under section 29A(1) is to provide an
opportunity for a child's family and other persons attending the meeting
(a) to make informed recommendations as to the arrangements for best
securing the care and protection of the child; or
(b) to review those arrangements and make further recommendations in
respect of the arrangements from time to time.
The purpose of a family meeting convened under section 29A(2) (that is, required
by section 53) is to provide an opportunity for a child's family and other persons
attending the meeting to review the arrangements for care and protection of the
child implemented under a care and protection order.
29C. Convening family meeting
This section outlines the process, the persons who must be consulted, and the
persons who may attend a family conference, the use of a facilitator and their
appointment and the issues that may be taken into account in convening a family
meeting.
29D. Constitution of and attendance at family meeting
This section provides a family meeting consists of the facilitator; and those persons
who attend the meeting in response to the invitation of the facilitator.
29E. Procedure at family meeting
This section outlines that the procedure to be followed at a family meeting is the
procedure agreed to during the preliminary consultations or as agreed by the
family meeting. This section also provides that the facilitator is to conduct a family
meeting in an informal manner and if the facilitator considers it appropriate, they
may adjourn the family meeting.
29F. Finalising family meeting
This section outlines the process for finalisation of family group meeting through a
written report which must be signed by the persons named in the amendment.
This includes a follow up process after the report has been finalised.
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29G. Action by Secretary after family meeting
This section outlines what happens after a decision is made a family meeting which
is convened under section 29A (1).
Where there has been a decision, the Secretary may consider the arrangements
suitable and approve the decision, or order that a meeting is reconvened, or take
further action under Division 1 or 2 of the Act.
Where there has been failure to make a decision, the Secretary can reconvene the
meeting or take further Act under Division 1 or 2 of the Act.
29H. Publication of discussion at, and reports on, family meeting
This section restrict the publication of:
any decision of a family meeting;
the final report of a family meeting; and
anything said or done in a family meeting.
This section also provides things said at family meetings are not admissible in
proceedings, although the written record is admissible in proceedings under
Division 2 for the purpose of establishing that a decision was or was not made.
This section also provides that the Right to information Act 2009 does not apply in
relation to:
a. any report on a family meeting; or
b. the written record of the decision of a family meeting; or
c. the written report of a facilitator following the failure of a family meeting
to reach a decision.
29I. Members of immediate family whose whereabouts are unknown
This section provides that Division 1AA does not apply in relation to a member of
a child's immediate family whose whereabouts cannot, after reasonable inquiry, be
ascertained.
Clause 12 Section 30 amended (Family group conference held in certain
circumstances)
Clause 12 amends section 30 of the Principal Act by omitting the reference in
s.30(1)(c) to an `advisory panel' and by omitting subsections (2) and (3).
Subsection (2) is omitted because it refers to assessment panels this subsection
was unclear as it was originally intended to refer to advisory panels (assessment
panels not being a concept otherwise used in the Act). The subsection is now
redundant as clause 35 repeals provisions for advisory panels.
New subsection (2) is similar to the existing subsection (3) of the Act, although it
also now includes a reference to section 53 under which a child or family members
can request a family group conference.
Clause 13 Section 31 amended (Purpose of family group conference)
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This clause amends section 31(2) of the Principal Act by omitting reference to
section 30(3) and substituting this with section 30 (2)(a), due to the renumbering in
section 30 under clause 12.
This clause also inserts subsection (3) which outlines that the purpose of a family
group conference convened under section 30(2(b), as introduced by clause 12, is to
provide the opportunity for a child's family and other persons that have attended
the meeting to review the arrangements for care and protection of the child
implemented under the care and protection order.
Clause 14 Section 32 amended (Convening a family group conference)
Clause 14 makes corrections and additions to the provision for convening a family
group conference, to make it consistent with the new provision for family
meetings.
This section also allows for more flexibility regarding who should attend a family
group conference and, in addition to the potential attendees listed, leaves further
invitations to the facilitator's discretion.
Clause 15 Section 36 amended 9 (Finalising family group conference)
This clause amends section 36(2) (d) by removing reference to section 30(3) and
replacing this with section 30(2), due to the renumbering in section 30 under
clause 12.
Clause 16 Section 41 amended (Members of immediate family whose whereabouts
are unknown)
Similarly to the provisions for family meetings, clause 16 amends section 41 by
omitting the term `Guardian' and replacing this with `member of a child's immediate
family'. The definition of immediate family includes guardians.
Clause 17 Section 42 amended (Care and protection order)
These amendments assist to deliver a less adversarial and more contemporary child
protection system for example, requiring that a family meeting or family group
conference has been held in the first instance before a care and protection order
can be made (unless the Secretary considers it in the best interest of the child for
the application to be made without delay).
The clause omits subsection (4)(a) which refers to the order which can require a
child or guardian for a specified period to do or refrain from doing a specified
thing. This kind of order is renamed as a `supervision order' and clause 18 provides
in more detail for that kind of order.
This clause also removes reference to specified maximum periods for court orders
to allow for more flexibility and to base all decisions regarding cases on their
individual merits.
The clause also inserts new subsection (4)(c)(iii) to allow guardianship orders to
include both the Secretary and other guardians, which is not currently possible.
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The clause inserts new subsection (4A). This relates to the list of specific orders a
Court can make which ends with a provision that the Court can make any order it
considers appropriate. New subsection (4A) provides the opportunity for
regulations to be made in future to give guidance to any specific matters that
should be taken into account in making such orders.
The clause omits subsection (6) (which only applied to guardianship orders made
until the child turns 18) and replaces it with a new subsection which applies to all
care and protection orders. The new subsection provides that the Court may not
make a care and protection order unless satisfied that of the specified matters.
For consistent language through the Act, this clause replaces a reference to `living'
with `residing'.
Clause 18 Section 42A inserted (Supervision order)
Clause 18 inserts section 42A. This provides in more detail for the kind of order,
now known as a supervision order, which was previously described in s.42(4)(a) as
an order which can require a child or guardian for a specified period to do or
refrain from doing a specified thing.
The section provides that a `supervision order' is an order of the Court that,
although not affecting the guardianship or custody of a child, provides that
the Secretary is responsible for supervising a child; and
provides for the child to be placed in the day-to-day care of one or more of
the child's guardians.
This section provides for the different types of duties and responsibilities that must
or may be required under the order. The section also outlines the length of time a
supervision order can be in force which is 12 months (24 months in special
circumstances) and outlines what process must be followed if a supervision order
does exceed 12 months, which includes a review of the order and explains what
should occur as part of this process (including automatic cessation of the order
after 12 months in the specified circumstances).
Clause 19 Section 44 amended (Extension of care and protection order)
Clause 17 amends section 44 to include a reference to family meeting as well as the
existing reference to family group conference.
This clause also omits subsection (2) and substitutes this with a new subsection (2)
so that there is no longer a three year maximum period for a care and protection
order. The new provision provides that a care and protection order may be
extended for the period the Court considers appropriate in the best interest of the
child.
Clause 20 Section 45 amended (Limited adjournment only)
Clause 20 amends section 45 of the Act by removing `exceptional circumstances'
and replacing it with `reasonable grounds to do so'. This reflects that in practice it
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is not exceptional to have to adjourn proceedings for sufficient periods to have
assessment and other matters attended to.
Clause 21 Section 46 amended (Interim care and protection order on
adjournment)
As with a preceding amendment, this clause replaces the term `living' with
`residing', for consistency through the Act.
Clause 22 Section 48 amended (Variation, revocation, suspension and end of care
and protection order or interim care and protection order)
Clause 22 amends section 48 of the Act by removing subsection (2) and replacing it
with a similar provision, with two differences:
a care and protection order granting guardianship of a child to a person
until the child attains 18 years of age will now cease to have effect on the
making of a parenting order, rather than the application for the order,
under Part VII of the Family Law Act 1975 of the Commonwealth in respect
of the child. This is to avoid a lapse in protective arrangements between the
application for the parenting order and the time that it is made.
it omits the current reference to registration of parenting plans under the
Commonwealth Act, as the Commonwealth Act no longer provides for that
process.
Clause 23 Section 49 amended (Effect of and limitations on care and protection
order or interim care and protection order)
Clause 23 amends section 49 (5) of the Principle Act by omitting `settled and
permanent' and substituting it with `stable' which better reflects the objects of care
and protection orders. This clause also omits `section 42(4)(d)' and replaces this
with `section 42(4)(c)', as 42(4)(d) has been repealed by an earlier clause. Section
42(4)(c) has been amended so it can serve both its original purpose and the orders
that are currently made under (d).
Clause 24 Section 53 amended (Review of arrangements for care and protection of
child)
This clause amends section 53 of the Principle Act by including references to family
meetings.
Clause 25 Section 54 amended (Matters Court must consider)
This clause amends section 54 (b) of the Principle Act by removing sections 8 and 9
and replacing these with `Part 1A', as Part 1A now provides for the principles
rather than those sections.
Clause 26 Section 55 repealed
This clause repeals section 55, as the amendment in clause 25 to section 54 now
refers the court to the expanded principles in the Act, including the best interest
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test. Section 55 is therefore redundant and is repealed by the Bill.
Clause 27 Section 57 amended (How views of child are expressed)
This clause replaces the term `wishes' with `views'. Similar to other references to
`views' in the Bill, this amendment is to provide more contemporary and consistent
language in the legislation.
Clause 28 Section 58 amended (Children not required to express views)
Similarly to clause 27, this clause replaces the term `wishes' with `views'.
Clause 29 Section 63 substituted (Evidence)
This clause repeals section 63 and substitutes it with a new section 63 (Evidence).
The current section 63(1) provides the Court is bound by the rules of evidence
except where the Court determines otherwise.
This new section removes the need for the Court to make that determination,
provides that in any proceedings under this Act, the Court
(a) is to conduct proceedings before it in an informal manner; and
(b) is not bound by the rules of evidence; and
(c) is to consider evidence on the balance of probabilities; and
(d) may inform itself in any way it considers appropriate.
These amendments reflect a similar approach to the majority of other jurisdictions
across Australia.
Section 69 amended (Powers and duties of Secretary in relation to
Clause 30
children under guardianship or in custody of Secretary generally)
Similarly to other provisions in the Bill, this clause omits references to `settled and
permanent' and substitutes this with `stable' and updates references to sections 8
and 9 to Part 1A.
The reference to `stable' makes the language of the Act align with current
practices. It is more important for a young person to have `stable' care than
`settled and permanent' care.
Section 70 amended (Power of Secretary to consent to adoption of
Clause 31
child)
Similarly to other provisions in the Bill, this clause omits references to `settled and
permanent' and substitutes this with `stable', updates references to sections 8 and
9 to Part 1A, and updates the reference to s.42(4)(d) to s.42(4)(c).
Section 71 amended (Review of circumstances of child under long-term
Clause 32
guardianship of Secretary)
Clause 32 amends section 71 of the Principal Act by removing subsection (1) and
replacing it with a new subsection (1). Section 71(1) currently provides for reviews
of s.42(4)(d) orders, which place the child in a guardianship arrangement until they
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are 18. The new subsection provides for reviews of similar orders, although they
may no be any orders longer than 12 months, and provide for a less intrusive and
less frequent review regime; unless more frequent reviews are requested by the
child or guardian.
Section 77O amended (Service of application)
Clause 33
Similarly to other amendments in the Bill, this clause amends section 77O(b) of the
Principal Act by removing the word `living' and replacing this with `residing'.
Part 9: Heading amended
Clause 34
Clause 34 amends the heading in part 9 of the Principal Act by removing
"COMMISSIONER FOR CHILDREN, ADVISORY PANELS AND
FACILITATORS" and replacing this with "COMMISSIONER FOR
CHILDREN AND FACILITATORS".
This amendment is required because clause 35 repeals the Act's provisions for
advisory panels.
Part 9, Division 2 repealed
Clause 35
Clause 35 repeals Division 2 of Part 9 of the Principal Act, which provides for
advisory panels. In practice, this mechanism wasn't utilised and has become
redundant.
Section 87 amended (Functions of facilitator)
Clause 36
This clause amends section 87(a) of the Principal Act by including a reference to
family meetings.
Section 88 amended (Guidelines for facilitator)
Clause 37
Clause 31 amends section 88(1) of the Principal Act by including a reference to
family meetings.
Section 97 amended (Circumstances in which child may be taken into
Clause 38
safe custody)
Similarly to an earlier amendment in the Bill, section 97 is amended to ensure that
the Court does not grant a warrant without first being satisfied that other least
intrusive steps have been exhausted, unless there are reasonable grounds for
concern for the safety of the child.
Section 103 amended (Duty to maintain confidentiality)
Clause 39
Clause 33 amends section 103(2) of the Principal Act by including references to
family meetings.
Section 104 substituted
Clause 40
Similarly to an earlier amendment in the Bill, section 104 is amended to ensure that
the Court does not grant a warrant without first being satisfied that other least
intrusive steps have been exhausted, unless there are reasonable grounds for
concern for the safety of the child.
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Section 111A amended (Access to information under Right to
Clause 41
Information Act 2009)
This clause amends section 111A of the Principal Act by removing `Freedom of
Information Act 1991' and replacing this with `Right to Information Act 2009'.
This amendment is required as the Right to Information Act 2009 has replaced the
Freedom of Information Act 1991. The reference to the former Act was introduced
to the Principal Act at approximately the same time the later Act became law, and
the reference was intended to be corrected at that time.
Schedule 3 repealed
Clause 42
This clause repeals Schedule 3 to the Principal Act, which is no longer required as
it relates to advisory panels which had become redundant.
Schedule 4 amended (Warrants)
Clause 43
Clause 43 amends Schedule 4 of the Act by inserting clause 3A after clause 3, this
new clause is titled `Revocation of warrant before execution' and provides for
applications for the revocation of warrants issued under section 97 and 104 in
certain circumstances. This is designed to accommodate scenarios such as where a
warrant is issued but not yet executed, and a guardian wishes to bring new
information before the Court so that the warrant may be revoked. Where a
warrant is executed, a guardian can use the existing provisions of the Act to seek
appropriate orders in relation to the child.
Clause 44 Repeal of Act
This clause repeals the amending Act on the three hundred and sixty fifth day from
the day on which all of the provisions commence, as the amendments will be
incorporated into the Principal Act.
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