Children and Young People (Safety) Act 2017 (SA)

South Australia

Children and Young People (Safety) Act 2017

An Act to protect children and young people from harm; to provide for children and young people who are in care; and for other purposes.

The Parliament of South Australia enacts as follows:

Chapter 1Preliminary1Short title

This Act may be cited as the Children and Young People (Safety) Act 2017.

3Act to bind, and impose criminal liability on, the Crown

(1)
This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
(2)
The Crown is liable for an offence against this Act.
(3)
If the Crown is guilty of an offence against this Act, the penalty that may be imposed on the Crown is the penalty that may be imposed on a body corporate.

Chapter 2Guiding principles for the purposes of this Act

Part 1The importance to the State of children and young people4Parliamentary declaration

(1)
The Parliament of South Australia recognises and acknowledges that—
(a)
children and young people are valued citizens of the State; and
(b)
the future of the State is inextricably bound to the wellbeing of all its children and young people; and
(c)
it is of vital importance to the State, and all of its citizens, that all children and young people are given the opportunity to thrive.
(2)
The Parliament of South Australia recognises that, as a State, we want each child and young person to benefit from (at least) the following outcomes:
(a)
to be safe from harm;
(b)
to do well at all levels of learning and to have skills for life;
(c)
to enjoy a healthy lifestyle;
(d)
to be active citizens who have a voice and influence,
and the Parliament of South Australia accordingly commits to promoting these outcomes.
(3)
The Parliament of South Australia acknowledges that outcomes for Aboriginal and Torres Strait Islander children and young people in care have historically been poor, and that it is unacceptable for outcomes for those children and young people to be any different to those for children and young people in care generally.
(4)
It is the intention of the Parliament of South Australia that the performance of functions in the administration and operation of this Act be done in collaboration with, and with the cooperation of, children and young people and their families rather than simply being done to or for them.

5Duty to safeguard and promote the welfare of children and young people

The Parliament of South Australia recognises that—
(a)
it is the duty of every person in the State to safeguard and promote the outcomes set out in section 4(2); and
(b)
the provisions of this Act, and compliance with its provisions, form only a small part of the way in which the State, the agencies of the State, the Commonwealth and every citizen of the State discharge that duty.

6Interaction with other Acts

(1)
This Act is to work in conjunction with all of the laws of the State, and, in particular, the Child Safety (Prohibited Persons) Act 2016 and the Children and Young People (Oversight and Advocacy Bodies) Act 2016, to further and achieve the aims set out in this Chapter.
(2)
This Act is in addition to, and does not derogate from, any other Act or law.

Part 2Priorities in the operation of this Act7Safety of children and young people paramount

The paramount consideration in the administration, operation and enforcement of this Act must always be to ensure that children and young people are protected from harm.

8Other needs of children and young people

(1)
In addition to the paramount consideration set out in section 7, and without derogating from that section, the following needs of children and young people are also to be considered in the administration, operation and enforcement of this Act:
(a)
the need to be heard and have their views considered;
(b)
the need for love and attachment;
(c)
the need for self-esteem;
(d)
the need to achieve their full potential.
(2)
To avoid doubt, the requirement under this section applies to the Court.
(3)
Without derogating from any other provision of this Act, it is desirable that the connection of children and young people with their biological family be maintained.

9Early intervention

Without limiting a provision of this or any other Act or law, State authorities whose functions and powers include matters relating to the safety and welfare of children and young people must have regard to the fact that early intervention in matters where children and young people may be at risk is a priority.

Part 3Principles to be applied in operation of this Act10Principles of intervention

(1)
The principles of intervention are as follows:
(a)
decisions and actions (if any) under this Act should be taken in a timely manner (and, in particular, should be made as early as possible in the case of young children in order to promote permanence and stability);
(b)
if a child or young person is able to form their own views on a matter concerning their care, the child or young person should be given an opportunity to express those views freely and those views are to be given due weight in the operation of this Act in accordance with the developmental capacity of the child or young person and the circumstances;
(c)
account should be taken of the culture, disability, language and religion of children or young people and, if relevant, those in whose care children and young people are placed;
(d)
in each case, consideration should be given to making arrangements for the care of a child or young person by way of a family group conference if possible and appropriate.
(2)
Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the principles of intervention.
(3)
However, this section and the principles of intervention do not displace, and cannot be used to justify the displacement of, section 7.
(4)
To avoid doubt, the requirement under this section applies to the Court.

11Placement principles

(1)
The placement principles are as follows:
(a)
all children and young people who have been removed from the care of a person under this Act should be placed in a safe, nurturing, stable and secure environment;
(b)
the preferred option in relation to such placement of a child or young person is to place the child or young person with a person with whom they have an existing relationship;
(c)
approved carers are entitled to be, and should be, involved in decision-making relating to children and young people in their care.
(2)
Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the placement principles.
(3)
However, this section and the placement principles do not displace, and cannot be used to justify the displacement of, section 7.
(4)
To avoid doubt, the requirement under this section applies to the Court.

12Aboriginal and Torres Strait Islander Child Placement Principle

(1)
Subject to the placement principles, the objects and principles set out in this section apply to the placement of Aboriginal and Torres Strait Islander children and young people under this Act.
(2)
The objects of this section include—
1. (a)
  maintaining the connection of Aboriginal and Torres Strait Islander children and young people with their family and culture; and
2. (b)
  enabling Aboriginal and Torres Strait Islander people to participate in the care and protection of their children and young people; and
3. (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.
(3)
The Aboriginal and Torres Strait Islander Child Placement Principle is as follows:
1. (a)
  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):
  1. (i)
    a member of the child or young person's family;
  2. (ii)
    a member of the child or young person's community who has a relationship of responsibility for the child or young person;
  3. (iii)
    a member of the child or young person's community;
  4. (iv)
    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);
1. (b)
  if an Aboriginal or Torres Strait Islander child or young person is unable to be placed with a person referred to in paragraph (a), 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 (determined in accordance with Aboriginal or Torres Strait Islander traditional practice or custom);
2. (c)
  before placing an Aboriginal or Torres Strait Islander child or young person under this Act, the Chief Executive or the Court (as the case requires) must, where reasonably practicable, consult with, and have regard to any submissions of, a recognised Aboriginal or Torres Strait Islander organisation.
(4)
This section and the Aboriginal and Torres Strait Islander Child Placement Principle do not displace, and cannot be used to justify the displacement of, section 7.
(5)
The Minister may, by notice in the Gazette, after consulting with the relevant community or a section of the relevant community, vary or revoke a declaration relating to a recognised Aboriginal or Torres Strait Islander organisation.
(6)
The regulations may make further provision in relation to the placement of Aboriginal children and Torres Strait Islander children under this Act.
(7)
To avoid doubt, the requirements under this section apply to the Court.
(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.

Part 4Charter of Rights for Children and Young People in Care

13Charter of Rights for Children and Young People in Care

(1)
The Guardian for Children and Young People must prepare and maintain a Charter of Rights for Children and Young People in Care.
(2)
The Guardian for Children and Young People—
1. (a)
  may vary the Charter at any time; and
2. (b)
  must review the Charter at least every 5 years.
(3)
In preparing, varying or reviewing the Charter, the Guardian for Children and Young People must invite submissions from, and consult with, to such extent as may be reasonable, interested persons (including persons who are, or have been, under the guardianship, or in the custody, of the Minister or the Chief Executive) with a view to obtaining a wide range of views in relation to the matters under consideration.
(4)
The Guardian for Children and Young People must submit the Charter or variation to the Minister for approval.
(5)
The Minister may—
1. (a)
  approve the Charter or variation; or
2. (b)
  require an alteration to the Charter or variation, after consultation with the Guardian for Children and Young People, and then approve the Charter or variation as altered.
(6)
The Charter, and any variation, has effect from the day on which it is approved by the Minister.
(7)
The Minister must cause the Charter to be published on a website determined by the Minister.
(8)
The Minister must, within 6 sitting days after approving the Charter or variation, cause a copy of the Charter, or the Charter as varied, (as the case requires) to be laid before both Houses of Parliament.
(9)
Each person or body engaged in the administration, operation or enforcement of a relevant law must, to the extent that it is consistent with section 7 to do so in a particular case, exercise their powers and perform their functions so as to give effect to the Charter.
(10)
However, the Charter does not create legally enforceable rights or entitlements.
(11)
To avoid doubt, the requirements under this section apply to the Court.
(12)
For the purposes of this section, a reference to a variation of the Charter will be taken to include a reference to the substitution of the Charter.
(13)
In this section—

relevant law means—
(a)
this Act; and
(b)
the Family and Community Services Act 1972; and
(c)
any Act relating to the detention of a youth in a training centre; and
(d)
any other Act declared by the regulations to be included in the ambit of this definition.

Part 5Additional functions of Minister14Additional functions of Minister

(1)
In addition to any other functions the Minister may have under this Act, the Minister must, in order to promote the wellbeing of children and young people and early intervention where they may be at risk of harm—
(a)
promote a partnership approach between the Government, local government, non-government agencies and families; and
(b)
promote and assist in the development of co-ordinated strategies for early intervention in cases where children and young people may be at risk of harm; and
(c)
promote, support and adequately resource evidence-based programs delivering preventative and support services directed towards strengthening and supporting families, reducing the incidence of child abuse and neglect and maximising the wellbeing of children and young people; and
(d)
promote, encourage or undertake research into matters affecting children and young people; and
(e)
generally do such other things as the Minister believes will promote the wellbeing of children and young people, and promote and support early intervention where they may be at risk of harm.
(2)
Without limiting a provision of any other Act or law, the Minister must, in relation to the operation of this Act—
(a)
collaborate with and assist Aboriginal and Torres Strait Islander communities to develop and implement strategies to ensure that Aboriginal and Torres Strait Islander children and young people are, so far as is reasonably practicable, protected from harm; and
(b)
ensure that education relating to the operation of section 31 is made available to persons who are required under that section to report a suspicion that a child or young person is, or may be, at risk; and
(c)
promote and support the provision of courses of instruction relating to the prevention of child abuse and neglect by tertiary institutions in this State; and
(d)
collect and publish statistical data in relation to the protection of children and young people in this State.
(3)
Without limiting a preceding subsection, the Minister must also ensure that—
(a)
assistance is provided to evidence‑based programs delivering services directed towards strengthening and supporting families and maximising the wellbeing of children and young people; and
(b)
those services are offered to children and young people and their families; and
(c)
genuine efforts are made to encourage children and young people and their families to avail themselves of the services.

15Additional annual reporting obligations

(1)
The Minister must, not later than 30 September in each year, prepare a report—
(a)
detailing the role of the Minister, and the extent to which the Minister has performed the Minister's functions, in respect of the operation of this Act for the financial year ending on the preceding 30 June; and
(b)
setting out the following information relating to the provision of family support services and intensive family support services to children and young people who are at risk and their families:
(i)
the extent to which such services were provided by, or on behalf of, the State (including statistical data relating to the number of times such services were provided) during the financial year ending on the preceding 30 June;
(ii)
the amount of resources allocated for the provision of such services by or on behalf of the State—
(A)
during the financial year ending on the preceding 30 June; and
(B)
during the current financial year;
(iii)
the extent to which the allocated resources were, in fact, spent on the provision of such services during the financial year ending on the preceding 30 June;
(iv)
bench‑marking the resources referred to in subparagraph (ii) and (iii) against those allocated and spent by other States and Territories in the provision of such services during the financial year ending on the preceding 30 June; and
(c)
providing any other information required by the regulations for the purposes of this paragraph.
(2)
The Minister must, as soon as is reasonably practicable after preparing 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 preparing 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 Minister.

Chapter 3Interpretation16Interpretation

(1)
In this Act, unless the contrary intention appears—
Aboriginal child or young person means a child or young person who—
(a)
is a descendant of the indigenous inhabitants of Australia; and
(b)
regards themself as Aboriginal or, if they are a young child, is regarded as Aboriginal by at least 1 of their parents;
approved carer means a person who is the subject of an approval under section 72 that is in force;
case plan, in respect of a child or young person—see section 28;
Chief Executive means the Chief Executive of the Department;
Child and Young Person's Visitor means the Child and Young Person's Visitor established under Chapter 9;
child or young person means a person who is under 18 years of age;
child protection officer—see section 147;
contact arrangements, in respect of a child or young person, means contact arrangements determined by the Chief Executive under section 93 in respect of the child or young person, as in force from time to time;
Court means the Youth Court of South Australia;
dentist means a person who is registered as a dental practitioner under the Health Practitioner Regulation National Law (South Australia);
Department means the administrative unit of the Public Service specified by the Minister by notice in the Gazette for the purposes of this definition;
family, in relation to a child or young person, includes—
(a)
the child or young person's extended family; and
(b)
members of the child or young person's family who are not biologically related to the child or young person; and
(c)
in relation to an Aboriginal or Torres Strait Islander child or young person—any person related to the child or young person in accordance with Aboriginal or Torres Strait Islander traditional practice or custom (as the case requires);
family group conference means a family group conference convened in accordance with section 22;
guardian, of a child or young person, means the guardian or guardians of the child or young person pursuant to an order of the Court under this Act;
instrument of guardianship means an instrument of guardianship issued under section 45;
legal practitioner has the same meaning as in the Legal Practitioners Act 1981;
legal profession rules has the same meaning as in the Legal Practitioners Act 1981;
licensed children's residential facility means a children's residential facility in respect of which a licence is in force under Chapter 7 Part 7;
licensed foster care agency means a foster care agency carried on pursuant to a licence under Chapter 7 Part 6 that is in force;

medical practitioner means a person who is registered as a medical practitioner under the Health Practitioner Regulation National Law (South Australia);
out of home care—see section 69;
parent, of a child or young person, includes—
(a)
a step-parent of the child or young person; and
(b)
a person who stands in loco parentis to the child or young person;
pharmacist means a person who is registered as a pharmacist under the Health Practitioner Regulation National Law (South Australia);
placement principles—see section 11;
principles of intervention—see section 10;
psychologist means a person who is registered as a psychologist under the Health Practitioner Regulation National Law (South Australia);
registered or enrolled nurse means a person who is registered or enrolled as a nurse under the Health Practitioner Regulation National Law (South Australia);
restraining notice means a restraining notice issued under section 46;
reunification, in relation to a child or young person, means a reunification of the child or young person and a person or persons from whom the child is removed under this Act;
State authority means—
(a)
a person who holds an office established by an Act; or
(b)
a public sector agency; or
(c)
South Australia Police; or
(d)
a local council constituted under the Local Government Act 1999; or
(e)
any incorporated or unincorporated body—
(i)
established for a public purpose by an Act; or
(ii)
established for a public purpose under an Act (other than an Act providing for the incorporation of companies or associations, co‑operatives, societies or other voluntary organisations); or
(iii)
established, or subject to control or direction, by the Governor, a Minister of the Crown or any instrumentality or agency of the Crown or a local council (whether or not established by or under an Act or an enactment); or
(f)
any other person or body declared by the regulations to be a State authority,
but does not include a person or body declared by the regulations to be excluded from the ambit of this definition;
Torres Strait Islander child or young person means a child or young person who—
(a)
is a descendant of the indigenous inhabitants of the Torres Strait Islands; and
(b)
regards themself as Torres Strait Islander or, if they are a young child, is regarded as Torres Strait Islander by at least 1 of their parents;
working with children check means a working with children check under the Child Safety (Prohibited Persons) Act 2016.
(2)
For the purposes of this Act, a reference to a person being found guilty of an offence will be taken to include a reference to—
(a)
a finding of a court under Part 8A of the Criminal Law Consolidation Act 1935 that the objective elements of an offence are established (whether or not the person was found not guilty of the offence, or was found to be mentally unfit to stand trial, pursuant to Division 2 or 3 of that Part); or
(b)
any finding of a court of another jurisdiction that corresponds to a finding referred to in paragraph (a).
(3)
For the purposes of this Act, a reference to care being residential in nature, or being provided on a residential basis, will be taken to include a reference to such care provided to a child or young person for a limited period only.
(4)
For the purposes of this Act, a reference to the Chief Executive in their capacity as guardian of a child or young person will be taken to be a reference to the person for the time being holding or acting in the office of Chief Executive.

17Meaning of harm

(1)
For the purposes of this Act, a reference to harm will be taken to be a reference to physical harm or psychological harm (whether caused by an act or omission) and, without limiting the generality of this subsection, includes such harm caused by sexual, physical, mental or emotional abuse or neglect.
(2)
In this section—
psychological harm does not include emotional reactions such as distress, grief, fear or anger that are a response to the ordinary vicissitudes of life.

18Meaning of at risk

(1)
For the purposes of this Act, a child or young person will be taken to be at risk if—
(a)
the child or young person has suffered harm (being harm of a kind against which a child or young person is ordinarily protected); or
(b)
there is a likelihood that the child or young person will suffer harm (being harm of a kind against which a child or young person is ordinarily protected); or
(c)
there is a likelihood that the child or young person will be removed from the State (whether by their parent or guardian or by some other person) for the purpose of—
(i)
being subjected to a medical or other procedure that would be unlawful if performed in this State (including, to avoid doubt, female genital mutilation); or
(ii)
taking part in a marriage ceremony (however described) that would be a void marriage, or would otherwise be an invalid marriage, under the Marriage Act 1961 of the Commonwealth; or
(iii)
enabling the child or young person to take part in an activity, or an action to be taken in respect of the child or young person, that would, if it occurred in this State, constitute an offence against the Criminal Law Consolidation Act 1935 or the Criminal Code of the Commonwealth; or
(d)
the parents or guardians of the child or young person—
(i)
are unable or unwilling to care for the child or young person; or
(ii)
have abandoned the child or young person, or cannot, after reasonable inquiry, be found; or
(iii)
are dead; or
(e)
the child or young person is of compulsory school age but has been persistently absent from school without satisfactory explanation of the absence; or
(f)
the child or young person is of no fixed address; or
(g)
any other circumstances of a kind prescribed by the regulations exist in relation to the child or young person.
(2)
It is immaterial for the purposes of this Act that any conduct referred to in subsection (1) took place wholly or partly outside this State.
(3)
In assessing whether there is a likelihood that a child or young person will suffer harm, regard must be had to not only the current circumstances of their care but also the history of their care and the likely cumulative effect on the child or young person of that history.
(4)
In this section—
female genital mutilation means—
(a)
clitoridectomy; or
(b)
excision of any other part of the female genital organs; or
(c)
a procedure to narrow or close the vaginal opening; or
(d)
any other mutilation of the female genital organs,
but does not include a sexual reassignment procedure or a medical procedure that has a genuine therapeutic purpose;
sexual reassignment procedure means a surgical procedure to give a female, or a person whose sex is ambivalent, genital characteristics, or ostensible genital characteristics, of a male.
(5)
A medical procedure has a genuine therapeutic purpose only if directed at curing or alleviating a physiological disability or physical abnormality.

19Minister may publish policies

(1)
The Minister may, by notice in the Gazette, publish policies for the purposes of this Act.
(2)
The Minister may, by subsequent notice in the Gazette, vary, substitute or revoke a policy published under subsection (1).
(3)
A policy published under subsection (1) must be kept available for public inspection, without charge and during ordinary office hours, at an office or offices specified by the Minister.
(4)
Each person or body engaged in the administration, operation or enforcement of this Act must, to the extent that it is consistent with section 7 to do so in a particular case, comply with any relevant policy published under subsection (1).

Chapter 4Managing risks without removing child or young person from their home

Part 1Child and Family Assessment and Referral Networks20Minister may establish Child and Family Assessment and Referral Networks

(1)
The Minister may, in the Minister's absolute discretion, establish such Child and Family Assessment and Referral Networks as the Minister thinks fit.
(2)
A Child and Family Assessment and Referral Network consists of such persons or bodies (whether State authorities or otherwise) as may be specified by the Minister.
(3)
A Child and Family Assessment and Referral Network has the functions assigned to it under this Act or by the Minister.
(4)
The members of a Child and Family Assessment and Referral Network may, despite any other Act or law, collaborate with each other without restriction in the course of performing its functions.
(5)
The regulations may make further provision relating to Child and Family Assessment and Referral Networks.

Part 2Family group conferences21Purpose of family group conferences

(1)
The purpose of a family group conference is to provide an opportunity for a child or young person and their family, in accordance with this Part—
(a)
to make informed decisions as to the arrangements for the care of the child or young person; and
(b)
to make voluntary arrangements for the care of the child or young person that are consistent with sections 7 and 8, as well as this Act generally; and
(c)
to review those arrangements from time to time.
(2)
To avoid doubt, a failure to hold a family group conference does not, of itself, invalidate an application for an order of the Court under this Act, nor any such order.

22Chief Executive or Court may convene family group conference

(1)
If the Chief Executive or the Court suspects that—
1. (a)
  a child or young person is at risk and that arrangements should be made in relation to their care; and
2. (b)
  it would be appropriate in all of the circumstances to make those arrangements by means of a family group conference,

then the Chief Executive or the Court (as the case requires) may convene a family group conference in respect of the child or young person.

(2)
A family group conference is to be conducted by a family group conference co-ordinator (the co‑ordinator) nominated by—
1. (a)
  if the conference is convened by the Chief Executive—the Chief Executive; or
2. (b)
  if the conference is convened by the Court—the Judge of the Court.

23Who may attend a family group conference

(1)
Subject to this Part, the following people are entitled to attend a family group conference convened in respect of a child or young person:
(a)
the child or young person;
(b)
the parents and guardians of the child or young person;
(c)
members of the child or young person's family;
(d)
persons who have a close association with the child or young person and who should, in the opinion of the co-ordinator, attend the conference;
(e)
a person who, in accordance with subsection (4)(c), is arranged to act as advocate for the child or young person at the conference;
(f)
a person authorised by the Chief Executive for the purposes of this section;
(g)
if an investigation into the child or young person's circumstances has been carried out under this Act—a person nominated by the co-ordinator who has examined, assessed, counselled or treated the child or young person in the course of the investigation;
(h)
if the child or young person is an Aboriginal or Torres Strait Islander child or young person—a person nominated by an Aboriginal organisation or Torres Strait Islander organisation (as the case requires) of a kind that is, in the opinion of the co-ordinator, relevant to the subject of the conference;
(i)
if persistent absenteeism from school is involved—
(i)
if the child or young person is enrolled at a Government school—an employee of the administrative unit of the Public Service assisting a Minister with the administration of the Education Act 1972 nominated by the Chief Executive of that administrative unit; or
(ii)
if the child or young person is enrolled at a non-Government school—a person nominated by the head teacher of the school;
(j)
any other person (not being a legal practitioner) who the child or young person, or their parents or guardians, wish to support them at the conference and who, in the opinion of the co-ordinator, would be of assistance in that role;
(k)
any other person, or person of a class, prescribed by the regulations for the purposes of this paragraph.
(2)
However, the co-ordinator of a family group conference may exclude a person referred to in subsection (1) (including, to avoid doubt, the child or young person to whom the conference relates) from attending a family group conference if the co-ordinator is satisfied that to do so would be in the best interests of the child or young person.
(3)
The co-ordinator of a family group conference must, as far as is reasonably practicable, consult with the child or young person and their parents and guardians as to the attendees at, or persons to be excluded from attending, the conference.
(4)
The co-ordinator of a family group conference must, as far as is reasonably practicable, ensure that—
(a)
the conference is held at a time and place that is suitable to the child or young person and their parents and guardians; and
(b)
a person who is entitled to be at the conference is given notice in accordance with the regulations of the time and place at which the conference is to be held; and
(c)
a suitable person (who, to avoid doubt, need not be a legal practitioner) is arranged to act as advocate for the child or young person at the conference.
(5)
However, the co-ordinator of a family group conference need not comply with subsection (4)(c) if they are satisfied that the child or young person has made an informed and independent decision to waive their right to be so represented.

24Procedures at family group conference

(1)
The co-ordinator of a family group conference must ensure that information as to the child or young person's circumstances, and any grounds for suspecting the child or young person may be at risk, is presented to the conference.
(2)
The co-ordinator of a family group conference must allow the child or young person's parents, guardians and family members present at the conference, and the child or young person if the co-ordinator thinks it appropriate to do so, an opportunity to hold discussions in private for the purpose of formulating recommendations as to the arrangements for the care of the child or young person.
(3)
If a person referred to in section 23(1) is excluded from, or is unable to attend, a family group conference, the co-ordinator of the conference must take reasonable steps to ascertain the views of the person and present those views to the conference.
(4)
The following provisions relate to the making of decisions in respect of a family group conference:
(a)
decisions should, if possible, be made by consensus of the persons present at the conference (and, in particular, by that of the child or young person and their parents, guardians and family members);
(b)
a written record must be prepared of the decisions made at the conference;
(c)
a decision will only be valid for the purposes of this Act if the child or young person, their parents and guardians and the Chief Executive each accept the decision in accordance with any requirements set out in the regulations;
(d)
the making of decisions must comply with any other requirements set out in the regulations.
(5)
The co-ordinator of the family group conference—
(a)
must cause a copy of the written record of the decisions to be provided to each person present at the conference (and may provide a copy of the written record to any other person the co-ordinator thinks fit); and
(b)
must cause a copy of the written record of the decisions to be included as part of the case plan for the child or young person to whom the conference relates.
(6)
Subject to this Act, the co-ordinator of a family group conference may determine the procedures of the conference.

25Review of arrangements

A family group conference co-ordinator (whether or not they were the co-ordinator of the original family group conference) must convene a family group conference for the purpose of reviewing the arrangements made for the care of a child or young person at a previous conference if—
(a)
they are required to do so pursuant to a valid decision made at the previous conference; or
(b)
2 or more members of the child or young person's family who attended the previous conference request such a conference,
and may convene such a conference at any other time the co-ordinator thinks necessary or desirable.

26Chief Executive etc to give effect to decisions of family group conference

(1)
Subject to this Act, the Chief Executive and State authorities should, to the extent that it is consistent with section 7 to do so, exercise their powers and perform their functions so as to give effect to valid decisions made at a family group conference.
(2)
However, if valid decisions are made at a family group conference but not implemented or complied with, the Chief Executive may apply for such orders of the Court under section 53 in relation to the care of the child or young person as the Chief Executive considers appropriate.
(3)
Nothing in this section—
1. (a)
  requires or authorises the Chief Executive or any other person to do something that is unlawful; or
2. (b)
  requires or authorises the Chief Executive or any other person to not do something that is required to be done under another Act or law; or
3. (c)
  creates legally enforceable rights or obligations on the part of the Crown, the Chief Executive, the child or young person or any other person.

27Statements made at family group conference not admissible

(1)
Subject to subsection (2), evidence of any statement made at a family group conference is not admissible in any proceedings.
(2)
The written record of the decisions made at a family group conference is admissible in any proceedings for the purpose of establishing that those decisions were made.

Part 3Case planning

28Chief Executive to prepare case plan in respect of certain children and young people

(1)
The Chief Executive must cause a plan (a case plan) to be prepared and maintained in respect of each prescribed child or young person.
(2)
Without limiting the matters that may be included in a case plan, each case plan must include such of the following parts as may be relevant to the prescribed child or young person's circumstances:
(a)
a part setting out decisions made at a family group conference;
(b)
a part setting out a cultural maintenance plan;
(c)
a part setting out a reunification plan;
(d)
a part setting out contact arrangements in respect of the child or young person;
(e)
a part setting out how disputes as to the matters included in the child or young person's case plan are to be resolved;
(f)
any other part required by any other provision of this Act or the regulations.
(3)
The Chief Executive may from time to time vary, substitute or revoke a case plan.
(4)
The regulations may make further provision in relation to the preparation of case plans (including, to avoid doubt, provisions requiring the Chief Executive to take certain steps in the course of preparing a case plan).
(5)
In this section—
prescribed child or young person—each of the following is a prescribed child or young person:
(a)
a child or young person who is under the guardianship of the Chief Executive pursuant to this Act;
(b)
a child or young person who is under the guardianship of a person other than the Chief Executive pursuant to this Act (other than a child or young person in relation to whom an order contemplated by section 91 placing the child or young person into the long-term guardianship of a person has been made);
(c)
a child or young person who is in the custody of the Chief Executive or another person pursuant to this Act;
(d)
a child or young person who is in the care of an approved carer pursuant to this Act;
(e)
any other child or young person prescribed by the regulations for the purposes of this definition.

29Chief Executive etc to give effect to case plan

(1)
Each person or body engaged in the administration, operation or enforcement of this Act must, to the extent that it is consistent with section 7 to do so, exercise their powers and perform their functions so as to give effect to a prescribed child or young person's case plan.
(2)
However, a case plan does not create legally enforceable rights or obligations on the part of the Crown, the Chief Executive, a child or young person or any other person.

Chapter 5Children and young people at riskPart 1Reporting of suspicion that child or young person may be at risk30Application of Part

(1)
The requirements under this Part are in addition to the duty of every person to safeguard and promote the outcomes set out in section 4(2), and in particular the outcome that children and young people be kept safe from harm.
(2)
To avoid doubt, compliance with the requirements of this Part does not necessarily exhaust a duty of care that may be owed to a child or young person by a person to whom this Part applies.
(3)
This Part applies to the following persons:
(a)
prescribed health practitioners;
(b)
police officers;
(c)
community corrections officers under the Correctional Services Act 1982;
(d)
social workers;
(e)
ministers of religion;
(f)
employees of, or volunteers in, an organisation formed for religious or spiritual purposes;
(g)
teachers employed as such in a school (within the meaning of the Education and Early Childhood Services (Registration and Standards) Act 2011) or a pre-school or kindergarten;
(h)
employees of, or volunteers in, an organisation that provides health, welfare, education, sporting or recreational, child care or residential services wholly or partly for children and young people, being a person who—
(i)
provides such services directly to children and young people; or
(ii)
holds a management position in the organisation the duties of which include direct responsibility for, or direct supervision of, the provision of those services to children and young people;
(i)
any other person of a class prescribed by the regulations for the purposes of this subsection.
(4)
For the purposes of this Part, a reference to a person being employed will be taken to include a reference to a person who—
(a)
is a self‑employed person; or
(b)
carries out work under a contract for services; or
(c)
carries out work as a minister of religion or as part of the duties of a religious or spiritual vocation; or
(d)
undertakes practical training as part of an educational or vocational course; or
(e)
carries out work as a volunteer,
and a reference to something occurring in the course of the person's employment is to be construed accordingly.
(5)
In this section—
prescribed health practitioners means—
(a)
medical practitioners; and
(b)
pharmacists; and
(c)
registered or enrolled nurses; and
(d)
dentists; and
(e)
psychologists; and
(f)
any other person prescribed by the regulations for the purposes of this definition.

31Reporting of suspicion that child or young person may be at risk

(1)
A person to whom this Part applies must, if—
1. (a)
  the person suspects on reasonable grounds that a child or young person is, or may be, at risk; and
2. (b)
  that suspicion was formed in the course of the person's employment,

report that suspicion, in accordance with subsection (4), as soon as is reasonably practicable after forming the suspicion.
Maximum penalty: $10 000.

(2)
However, a person need not report a suspicion under subsection (1)—
1. (a)
  if the person believes on reasonable grounds that another person has reported the matter in accordance with that subsection; or
2. (b)
  if the person's suspicion was due solely to having been informed of the circumstances that gave rise to the suspicion by a police officer or child protection officer acting in the course of their official duties; or
3. (c)
  in any other circumstances prescribed by the regulations for the purposes of this subsection.
(3)
A person to whom this Part applies may (but need not), if—
1. (a)
  the person suspects on reasonable grounds that the physical or psychological development of an unborn child is at risk (whether due to an act or omission of the mother or otherwise); and
2. (b)
  that suspicion was formed in the course of the person's employment,

report that suspicion in accordance with subsection (4).

(4)
A person reports a suspicion under this section by doing 1 or more of the following:
1. (a)
  making a telephone notification to a telephone number determined by the Minister for the purposes of this subsection;
  Note—
  This telephone line is currently known as the Child Abuse Report Line or CARL.
2. (b)
  making an electronic notification on an electronic reporting system determined by the Minister for the purposes of this subsection;
3. (c)
  by reporting their suspicion to a person of a class, or occupying a position of a class, specified by the Minister by notice in the Gazette;
4. (d)
  reporting their suspicion in any other manner set out in the regulations for the purposes of this paragraph,

and, in each case, providing—
(e)
—
(i)
in the case of an unborn child—the name and address (if known) of the mother of the unborn child; or
(ii)
in any other case—the name and address (if known) of the child or young person; and
(f)
information setting out the grounds for the person's suspicion; and
(g)
such other information as the person may wish to provide in relation to their suspicion.

(5)
Nothing in this section prevents a person from also reporting or referring a matter to any other appropriate person or body under any other Act.
(6)
This section does not limit or derogate from any other provision of this or any other Act.

Part 2Responding to reports etc that child or young person may be at risk

32Chief Executive must assess each report indicating child or young person may be at risk

(1)
The Chief Executive must cause—
1. (a)
  each report under section 31; and
2. (b)
  any other report or notification made to the Department that a child or young person may be at risk (however described and whether or not received under this Act),

to be assessed in accordance with any requirements set out in the regulations.

(2)
The Chief Executive may, in the course of an assessment under this section, make use of or rely on such systems of information gathering, collating or reporting as the Chief Executive thinks fit (whether or not the system is operated or provided by a State authority).
(3)
Without limiting any other action that may be taken by the Chief Executive, the Chief Executive must, on completion of an assessment under this section, cause at least 1 of the following actions to be taken:
1. (a)
  an investigation into the circumstances of the child must be carried out under section 34;
2. (b)
  if the Chief Executive is satisfied that an investigation under section 34 is unnecessary, having regard to such of the circumstances of the child as may already be known to the Chief Executive, an alternative response that, in the opinion of the Chief Executive, more appropriately addresses the risk to the child or young person must be implemented;
3. (c)
  the matter must be referred to an appropriate State authority under section 33;
4. (d)
  if the Chief Executive is satisfied that—
  1. (i)
    the matter has previously been dealt with under this or any other Act and there is no reason to reexamine the matter; or
  2. (ii)
    the matter is trivial, vexatious or frivolous; or
  3. (iii)
    there is good reason why no action should be taken in respect of the matter,
the Chief Executive may decline to take further action.
(4)
The Chief Executive must, in accordance with any requirements set out in the regulations—
1. (a)
  cause a record of each action taken under this section, and the reasons for the action, to be kept in relation to each report or notification made to the Department; and
2. (b)
  include statistical information relating to action taken under this section to be included in the annual report of the Chief Executive under the Public Sector Act 2009.
(5)
The regulations may make further provision in relation to an assessment under this section (including provisions relating to a system referred to in subsection (2) and the disclosure and confidentiality of information gathered, collated or provided under the system).

33Chief Executive may refer matter

(1)
If, following an assessment of a matter under section 32, the Chief Executive determines that it is more appropriate that a State authority other than the Department deal with the matter, or with a particular aspect of the matter, the Chief Executive must refer the matter to that State authority.
(2)
To avoid doubt—
(a)
a matter may be referred to more than 1 State authority; and
(b)
a matter may be dealt with under this section even if it is referred to a State authority under another Act.
(3)
The Chief Executive may, if the Chief Executive considers it appropriate, give directions or guidance in relation to a matter to a State authority to which the matter is referred.
(4)
Without limiting this section or any other Act or law, a State authority to which a matter is referred must deal with the matter in a timely manner, having regard to the need to ensure that children and young people are protected from harm.

34Chief Executive may investigate circumstances of a child or young person

(1)
Subject to this Act, the Chief Executive may cause an investigation into the circumstances of a child or young person to be carried out—
1. (a)
  if a report is made under section 31 and the Chief Executive suspects on reasonable grounds that the child or young person may be at risk; or
2. (b)
  in any other circumstances that the Chief Executive thinks appropriate.
(2)
The Chief Executive must cause an investigation into the circumstances of a child or young person to be carried out if the Chief Executive issues an instrument of guardianship or a restraining notice in relation to a child or young person.
(3)
The regulations may make further provisions in relation to an investigation under this section.

35Chief Executive may direct that child or young person be examined and assessed

(1)
This section applies to a child or young person—
1. (a)
  who is, having been removed under section 41, in the custody of the Chief Executive; or
2. (b)
  in relation to whom an order of the Court under section 53 authorising examination or assessment is in force; or
3. (c)
  in relation to whom an instrument of guardianship or a restraining notice is in force; or
4. (d)
  in any other circumstances prescribed by the regulations.
(2)
If the Chief Executive is of the opinion that it is necessary or desirable that a child or young person to whom this section applies be professionally examined or assessed, the Chief Executive may, by notice in writing, direct the child or young person to undergo such examination or assessment as may be specified in the notice.
(3)
If the Chief Executive gives a direction under subsection (2), an employee of the Department may take the child or young person to such persons or places (including admitting the child or young person to hospital) as may be specified in the notice for the purpose of having the child or young person professionally examined, assessed or treated.
(4)
Without otherwise limiting any Act or law regulating a particular health profession, a person to whom a child or young person is taken under this section may give such treatment to the child or young person as the person thinks necessary for alleviating any immediate injury or suffering of the child or young person.
(5)
Without otherwise limiting the Consent to Medical Treatment and Palliative Care Act 1995, a person who is to examine, assess or treat a child or young person in accordance with this section may do so despite the absence or refusal of the consent of the child or young person's parents or guardians.
(6)
A person who examines, assesses or treats a child or young person in accordance with this section must, as soon as practicable after doing so, provide to the Chief Executive a written report on the examination, assessment or treatment.

Maximum penalty: $10 000.

36Chief Executive may direct person to undergo certain assessments

(1)
If the Chief Executive reasonably suspects that a child or young person is at risk as a result of the abuse of a drug or alcohol (or both) by a parent, guardian or other person, the Chief Executive may, by notice in writing, direct the parent, guardian or other person to undergo an approved drug and alcohol assessment.
(2)
If the Chief Executive reasonably suspects that a child or young person is at risk as a result of a lack of parenting capacity 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 parenting capacity assessment.
(3)
A person must not refuse or fail to comply with a direction under this section.

Maximum penalty: Imprisonment for 6 months.

(4)
A notice under this section must set out the information required by the regulations for the purposes of this subsection.
(5)
The regulations may make further provision in relation to assessments under this section (including, to avoid doubt, provisions requiring the results of an assessment to be provided to the Chief Executive or some other specified person or body).
(6)
For the purposes of this section, a reference to an approved drug and alcohol assessment will be taken to be a reference to a drug and alcohol assessment of a kind approved by the Chief Executive by notice in the Gazette.
(7)
For the purposes of this section, a reference to an approved parenting capacity assessment will be taken to be a reference to a parenting capacity assessment of a kind approved by the Chief Executive by notice in the Gazette.

37Random drug and alcohol testing

(1)
This section applies to—
(a)
a person who has, in the preceding 5 years, been directed by the Chief Executive to undergo an approved drug and alcohol assessment under section 36(1); or
(b)
a person who was, in the preceding 5 years, the subject of an application for an order under section 20(2) of the Children's Protection Act 1993 (whether or not the application was granted); or
(c)
any other person of a class declared by the regulations to be included in the ambit of this subsection.
(2)
A person to whom this section applies must, in accordance with the scheme set out in the regulations, take part in random drug and alcohol testing.
(3)
Without limiting any other regulations that may be made in relation to the scheme for random drug and alcohol testing, the regulations must include provisions—
(a)
authorising the taking of forensic material consisting of hair or blood for the purposes of this Act; and
(b)
requiring such forensic material to be tested to identify any drug or alcohol that may be present in the material; and
(c)
requiring or authorising the results of such testing to be provided to the Chief Executive or other specified person or body.
(4)
The Chief Executive may, in relation to random drug and alcohol testing under this section, by notice in writing, require a person to whom this section applies to take the action, and within the period, specified in the notice.
(5)
A person to whom this section applies must not, without reasonable excuse, refuse or fail to comply with a requirement under this section.
Maximum penalty: Imprisonment for 6 months.
(6)
A person is not entitled to refuse or fail to comply with a requirement under this section on the ground that the person would, or might, by complying with that requirement, provide evidence that could be used against the person.
(7)
To avoid doubt, for the purposes of the Criminal Law (Forensic Procedures) Act 2007, the taking of forensic material in the course of a random drug and alcohol test is authorised under this Act.

38Chief Executive may direct certain persons to undertake rehabilitation program

(1)
The Chief Executive may, by notice in writing, direct a person to whom section 37 applies to undertake an approved drug and alcohol rehabilitation program of a kind specified in the notice.
(2)
A person must not, without reasonable excuse, refuse or fail to comply with a direction under subsection (1).

Maximum penalty: Imprisonment for 6 months.

(3)
A notice under subsection (1) must set out the information required by the regulations for the purposes of this subsection.
(4)
For the purposes of this section, a reference to an approved drug and alcohol rehabilitation program will be taken to be a reference to a drug and alcohol rehabilitation program of a kind approved by the Chief Executive by notice in the Gazette.

39Forensic materials not to be used for other purposes and test results inadmissible in other proceedings

(1)
Forensic material obtained in the course of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program must not be used for a purpose other than a purpose contemplated by this Act.
(2)
The results of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program—
1. (a)
  will not be admissible in evidence against the person to whom the results relate, other than in proceedings for an order of the Court under this Act; and
2. (b)
  may not be relied on as grounds for the exercise of any search power or the obtaining of any search warrant.

40Destruction of forensic material

The Chief Executive must ensure that any forensic material obtained in the course of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program is destroyed in accordance with any requirements set out in the regulations.

Part 3Removal of child or young person41Removal of child or young person

(1)
Subject to this section, if a child protection officer believes on reasonable grounds that—
(a)
a child or young person has suffered, or there is a significant possibility that a child or young person will suffer, serious harm; and
(b)
it is necessary to remove the child or young person from that situation in order to protect them from suffering serious harm or further serious harm; and
(c)
there is no reasonably practicable alternative to removing the child or young person in the circumstances,
the child protection officer may remove the child or young person from any premises, place, vehicle or vessel using such force (including breaking into the premises, place, vehicle or vessel) as is reasonably necessary for the purpose.
(2)
Without limiting the generality of subsection (1), the regulations may set out circumstances in which 1 or more of the requirements under that subsection will be taken to have been satisfied.
(3)
A child protection officer who is a police officer below the rank of inspector may only remove a child or young person under this section with the prior approval of a police officer of or above the rank of inspector.
(4)
A child protection officer who is an employee of the Department may only remove a child or young person from the custody of a parent or guardian of the child or young person with the Chief Executive's prior approval.
(5)
Subsections (3) and (4) do not apply if the child protection officer believes on reasonable grounds that the delay involved in seeking prior approval would significantly increase the risk of serious harm, or further serious harm, being caused to the child or young person.

42Action following removal of child or young person

A child protection officer who removes a child or young person under section 41 must return them to the custody of a parent or guardian unless—
(a)
the child or young person is already under the guardianship, or in the custody, of the Chief Executive; or
(b)
the child protection officer reasonably suspects that, if they were returned to the custody of a parent or guardian, the child or young person would be at risk,
in which case the child protection officer must deliver the child or young person into the care of a person or persons determined by the Chief Executive.

43Custody of removed child or young person

(1)
If the Chief Executive does not already have custody of a child or young person who is removed under section 41, the Chief Executive, by force of this section, has custody of the child or young person until—
(a)
the child or young person is returned to the custody of a parent or guardian, or delivered into the care of a person determined by the Chief Executive, under section 42; or
(b)
the end of the fifth business day following the day on which the child or young person was removed,
(whichever is the earlier).
(2)
However, subject to the regulations, the Chief Executive may exercise a power under this Act in respect of a child or young person delivered into the care of a person determined by the Chief Executive under section 42 as if the child or young person were in the custody of the Chief Executive.

Part 4Chief Executive to assume guardianship of child or young person where parent found guilty of certain offences44Interpretation

In this Part—
guardianship period means the period commencing at the time an instrument of guardianship—
(a)
is served on the offender in accordance with section 45(4)(a); or
(b)
is lodged with the Court in accordance with section 45(4)(b),
whichever occurs first, and ending 60 days later (or such longer period as may be allowed by the Court on an application under section 47);
instrument of guardianship—see section 45(1);
parent, of a child or young person, does not include a step-parent of the child or young person;
qualifying offence means any of the following offences (whether committed before or after the commencement of this Part) where the victim was a child or young person and the offender was a parent or guardian of the child or young person:
(a)
murder;
(b)
manslaughter;
(c)
an offence against section 14 of the Criminal Law Consolidation Act 1935 (criminal neglect);
(d)
an offence against section 23 of the Criminal Law Consolidation Act 1935 (causing serious harm);
(e)
an offence against section 29(1) or (2) of the Criminal Law Consolidation Act 1935 (acts endangering life or creating risk of serious harm);
(f)
an offence constituted of an attempt to commit an offence referred to in a preceding paragraph;
(g)
an offence prescribed by the regulations for the purposes of this paragraph;
(h)
an offence under the law of another jurisdiction that corresponds to an offence referred to in a preceding paragraph;
restraining notice—see section 46(1);
restraining notice period means the period commencing at the time at which the restraining notice is served on the offender in accordance with section 46(4)(a) and ending 60 days later (or such longer period as may be allowed by the Court on an application under section 47).

45Temporary instruments of guardianship

(1)
The Chief Executive must, if the Chief Executive becomes aware that a child or young person born after the commencement of this subsection is residing with a parent of the child or young person who has been found guilty of a qualifying offence (the offender), issue an instrument under this section (an instrument of guardianship) in respect of the child or young person.
(2)
If the Chief Executive issues an instrument of guardianship, the child or young person specified in the instrument will, for all purposes, be under the guardianship of the Chief Executive during the guardianship period.
(3)
Subsection (2) applies subject to an order of the Court under this Act to the contrary.
(4)
An instrument of guardianship issued in relation to an offender—
(a)
must be served on the offender as soon as practicable after it has been issued; and
(b)
must be lodged with the Court in accordance with the rules of the Court (and may be so lodged whether or not it has been served in accordance with paragraph (a)).
(5)
Subject to subsection (6), this Act applies to an instrument of guardianship, while it remains in force, as if it were an order of the Court under section 53 and as if the parties to that order were—
(a)
the parents of the child or young person to whom the instrument relates; and
(b)
the child or young person to whom the instrument relates; and
(c)
a person who would, but for the instrument, have had custody or guardianship of the child or young person to whom the instrument relates; and
(d)
the Chief Executive.
(6)
Until the application required under section 50(1) in relation to an instrument of guardianship is made to the Court, any application to the Court under section 55 in relation to the instrument may only seek to vary arrangements for the care of the child or young person.
(7)
For the purposes of this section, a newborn child who has not yet been discharged from hospital will be taken to be residing with a person if the child is likely to reside with the person on being discharged.

46Restraining notices

(1)
The Chief Executive must, if the Chief Executive becomes aware that a child or young person is residing, or is about to reside, with a person (not being a parent of the child or young person) who has been found guilty of a qualifying offence (the offender), issue a notice under this section (a restraining notice) to the offender, unless the Chief Executive is of the opinion that it is inappropriate to do so in the circumstances.
(2)
A restraining notice may prohibit the offender from doing 1 or more of the following:
(a)
residing in the same premises as the child or young person;
(b)
coming within a specified distance of the residence of the child or young person;
(c)
having any contact with the child or young person (except in the presence of a specified person or class of person);
(d)
having any contact at all with the child or young person,
during the restraining notice period.
(3)
Subsection (2) applies subject to an order of the Court under this Act to the contrary.
(4)
A restraining notice issued in relation to an offender—
(a)
must be served on the offender as soon as practicable after it has been issued; and
(b)
must be lodged with the Court in accordance with the rules of the Court (and may be so lodged whether or not it has been served in accordance with paragraph (a)).
(5)
A person who contravenes or fails to comply with a restraining notice is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
(6)
A person does not commit an offence against subsection (5) in respect of an act or omission unless the person knew that the act or omission constituted a contravention of, or failure to comply with, the notice or was reckless as to that fact.
(7)
For the purposes of this section, a newborn child who has not yet been discharged from hospital will be taken to be residing with a person if the child is likely to reside with the person on being discharged.

47Court may extend period

The Court may, on application by the Chief Executive, extend the guardianship period or the restraining notice period if satisfied that it is appropriate to do so.

48Certain information to be provided to Chief Executive

A court that finds a person guilty of a qualifying offence must ensure that the prescribed information relating to the finding of guilt is provided to the Chief Executive as soon as practicable after the person is found guilty.

Chapter 6Court orders relating to children and young peoplePart 1Applications for Court orders49Who may make application for Court orders

An application for an order under section 53 may be made by—
(a)
the Minister; or
(b)
the Chief Executive; or
(c)
a person authorised by the Chief Executive to apply for such orders.

50When application can be made for Court orders

(1)
An application for an order under section 53 must be made if an instrument of guardianship or a restraining notice in relation to a child or young person has been issued.
(2)
An application under subsection (1) must be made as soon as is practicable after the issue of the instrument of guardianship or restraining notice (and in any case within the applicable guardianship period or restraining notice period).
(3)
An application for an order under section 53 may be made—
(a)
if the applicant—
(i)
reasonably suspects that a child or young person is at risk; and
(ii)
is of the opinion that the making of such orders is necessary or appropriate to protect the child or young person from harm, or to allow the exercise of powers or the performance of functions under this Act in respect of the child or young person; or
(b)
if the applicant is of the opinion that—
(i)
proper arrangements exist for the care and protection of a child or young person (whether pursuant to a decision of a family group conference or an exercise of administrative powers under the Family and Community Services Act 1972); and
(ii)
the child or young person would be likely to suffer psychological harm if the arrangements were to be disturbed; and
(iii)
it would be in the best interests of the child or young person for the arrangements to be the subject of such orders; or
(c)
if the applicant is acting in accordance with Chapter 7 Part 3; or
(d)
if the order is to be made with the consent of the parties to the proceeding; or
(e)
in any other circumstances with the permission of the Court.
(4)
Before applying for a prescribed Court order in relation to a child or young person removed from a person under this Act, the Chief Executive must assess the likelihood of a reunification occurring and, if reunification is likely, the period within which reunification is likely to occur.
(5)
In this section—
prescribed Court order means an order of the Court under section 53—
(a)
placing a child or young person under the guardianship of the Chief Executive; or
(b)
placing a child or young person under the guardianship of a person other than the Chief Executive; or
(c)
granting custody of a child or young person to the Chief Executive or another person; or
(d)
of a kind specified by the regulations for the purposes of this definition.

51Parties to proceedings

(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)
the applicant;
(b)
the child or young person who is the subject of the application;
(c)
each parent or guardian of the child or young person.
(2)
If the Court is satisfied in any proceedings that it should make an order under section 53 binding on a person who is not a party to the proceedings, the Court—
(a)
may join that person as a party to the proceedings; and
(b)
must allow the person a reasonable opportunity to make representations to the Court as to why such an order should not be made.
(3)
Without limiting subsection (2), the Court should, unless the Court is of the opinion that it would not be in the interests of the child to do so, allow—
(a)
in the case of an application for the placement of a child or young person under the guardianship of a person or persons other than the Chief Executive—the person or persons; or
(b)
if the child or young person is in the care of an approved carer—the approved carer,
a reasonable opportunity to make representations to the Court in any relevant proceedings.

52Copy of application to be served on parties

(1)
A copy of an application for an order under section 53, or for the variation, extension or revocation of such an order, must be served personally on—
(a)
if the child or young person who is the subject of the application is of or above the age of 10 years—the child or young person; and
(b)
each other party to the application.
(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 party, or the whereabouts of such a party 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 order under section 53 unless each party 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.

Part 2Orders that can be made by Court53Orders that may be made by Court

(1)
If, on an application under this Act, the Court is satisfied that it is appropriate to do so, the Court may make 1 or more of the following orders in relation to a child or young person:
(a)
an order requiring—
(i)
the child or young person; or
(ii)
a parent or guardian of the child or young person; or
(iii)
any other person who has the care of the child or young person,
to enter into a written undertaking (for a specified period not exceeding 12 months) to do a specified thing, or to refrain from doing a specified thing, and, if the Court thinks fit, requiring the child or young person to be under the supervision of the Chief Executive or some other specified person or body during the period of the undertaking;
(b)
an order authorising or requiring examination and assessment of the child or young person;
(c)
an order authorising or directing the assessment, by such person as the Court may specify, of a parent, guardian or other person who has, or is responsible for, the care of the child or young person to determine the capacity of that person to care for the child or young person (including, to avoid doubt, a drug and alcohol assessment);
(d)
in the case of a child or young person who is at risk of being removed from the State for a purpose referred to in section 18(1)(c)—such orders as the Court thinks necessary or appropriate to prevent the child or young person from being so removed, including (without limiting the generality of this paragraph)—
(i)
an order preventing a specified person from removing the child or young person from the State; or
(ii)
an order requiring that the child or young person's passport be held by the Court for a period specified in the order or until further order;
(e)
an order placing the child or young person, for a specified period not exceeding 12 months, under the guardianship of the Chief Executive;
(f)
an order placing the child or young person, for a specified period not exceeding 12 months, under the guardianship of a specified person or persons (not exceeding 2);
(g)
an order placing the child or young person under the guardianship of the Chief Executive until they attain 18 years of age;
(h)
an order placing the child or young person under the guardianship of a specified person or persons (not exceeding 2) until they attain 18 years of age;
(i)
an order granting custody of the child or young person, for a specified period not exceeding 12 months, to—
(i)
a parent or guardian of the child or young person; or
(ii)
a member of the child or young person's family; or
(iii)
any other person that the Court thinks appropriate in the circumstances of the case;
(j)
an order granting custody of the child or young person to the Chief Executive;
(k)
an order directing a person to do 1 or more of the following:
(i)
to cease or refrain from residing in the same premises as the child or young person;
(ii)
to refrain from coming within a specified distance of a specified place;
(iii)
to do any specified thing, or to refrain from doing any specified thing, in order to minimise the risk of harm to the child or young person;
(l)
an order revoking an instrument of guardianship or a restraining notice;
(m)
such consequential or ancillary orders as the Court thinks fit, including (without limiting the generality of this paragraph) an order—
(i)
requiring a person who has guardianship or custody of the child or young person pursuant to an order of the Court to care for the child or young person in a specified way; or
(ii)
requiring a parent, guardian or other person who has the care of a child or young person to undertake specified courses of instruction, or programmed activities, in order to increase their capacity to care for the child or young person.
(1a)
Without limiting the orders that can be made under subsection (1), the Court may make an order placing a child or young person under the guardianship of a specified parent of the child or young person.
Note—
Such an order would confer guardianship on the specified parent to the exclusion of the rights of any other parent of the child or young person—see section 68.
(1b)
Without limiting the orders that can be made under subsection (1), the Court may, if the Court makes an order placing a child or young person under the guardianship of the Chief Executive or a specified person or persons—
(a)
until the child or young person attains 18 years of age; or
(b)
such that the child or young person has been under the guardianship of the Chief Executive, or the person or persons, for a period of at least 24 continuous months,
make a declaration of the name by which the child or young person is to be known.
(1c)
However, the Court may only make a declaration under subsection (1b) if the Court is satisfied that it is in the best interests of the child or young person to do so.
(1d)
If the Court makes a declaration under subsection (1b)—
(a)
the Registrar of the Court must give notice of the declaration to the Registrar of Births, Deaths and Marriages in accordance with any requirements in the regulations; and
(b)
the Registrar of Births, Deaths and Marriages must, as soon as is reasonably practicable after receiving the notice, register the change of name under section 28(1) of the Births, Deaths and Marriages Registration Act 1996.
(1e)
Sections 26, 27 and 28(2) and (3) of the Births, Deaths and Marriages Registration Act 1996 do not apply in relation to a change of name under this section.
(1f)
Nothing in this section prevents the name of a child or young person being later changed in accordance with the law of the State.
(2)
The Court may make such interim orders in relation to an application under this Act as the Court thinks fit.
(3)
Subject to this section, an order under this section has effect for the period specified in the order.
(4)
An order under this section ceases to have effect when the child or young person to whom the order relates turns 18 years of age.

54Consent orders

(1)
The Court may, in proceedings under this Act, make an order under section 53 with the consent of the parties to the proceeding.
(2)
An order may be made without consideration of the matters that the Court must otherwise consider in the proceeding.

55Variation, revocation or discharge of orders

(1)
The Court may, on an application by a party to the proceedings, vary or revoke an order under section 53.
(2)
The Court may, on an application by the Chief Executive, discharge an order under section 53.

56Adjournments

(1)
All proceedings under this Act must be dealt with expeditiously, with due regard to the degree of urgency of each particular case.
(2)
Without limiting subsection (1), once a trial under this Act commences—
(a)
it should, as far as is practicable, continue without adjournment until all evidence has been presented; and
(b)
judgement should be delivered as soon as is practicable after all evidence has been presented.
(3)
The Court may, on an adjournment, make such of the orders it is empowered to make under section 53 as it thinks appropriate (and such an order will have effect for the period of the adjournment).
(4)
A person who, having been served personally with an order made under this section, contravenes or fails to comply with the order is guilty of an offence.
Maximum penalty: Imprisonment for 2 years.
(5)
Subsection (4) does not apply to a child or young person to whom the order relates.

57Court not bound by rules of evidence

Subject to this Act, in any proceedings under this Act 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.

58Standard of proof

A fact to be proved in proceedings under this Act (other than proceedings for an offence) is to be proved on the balance of probabilities.

59Onus on objector to prove order should not be made

(1)
This section applies to proceedings on an application to the Court for 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.
(1a)
However, this section does not apply to proceedings of a kind prescribed by the regulations.
(2)
If in proceedings to which this section applies a person objects to the making of an order by the Court, the onus is on the person to prove to the Court that the order should not be made.
(3)
However, subsection (2) does not apply where the person objecting to the making of the order is—
1. (a)
  the Crown; or
2. (b)
  if the Court is satisfied that the child or young person to whom the proceedings relate is not being unduly influenced by any person to object to the making of the order—the child or young person.

1. (a)
  the court or tribunal is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice; or
2. (b)
  the person who made the relevant report or notification consents to the admission of the evidence in the proceedings.
(4)
An application for permission under subsection (2)—
1. (a)
  must not, except as authorised by the court or tribunal, be heard and determined in public; and
2. (b)
  must be conducted in such a manner as to protect, so far as may be practicable, the identity of the person who made the relevant report or notification pending the determination of the application.

164Confidentiality

(1)
Subject to this Act, a person engaged or formerly engaged in the administration, operation or enforcement of this Act must not disclose personal information obtained (whether by that person or otherwise) in the course of performing functions or exercising powers under this Act except—
(a)
as required or authorised by or under this Act or any other Act or law; or
(b)
with the consent of the person to whom the information relates; or
(c)
in connection with the administration or enforcement of this or any other Act; or
(d)
for the purposes of referring the matter to a law enforcement agency, or a person or agency exercising official duties under an Act relating to the care or protection of children and young people; or
(e)
to an agency or instrumentality of this State, the Commonwealth or another State or a Territory of the Commonwealth for the purposes of the proper performance of its functions; or
(f)
if the disclosure is reasonably necessary for the protection of the lawful interests of that person.
Maximum penalty: $10 000.
(2)
Subsection (1) does not prevent disclosure of statistical or other data that could not reasonably be expected to lead to the identification of any person to whom it relates.
(3)
Information that has been disclosed under subsection (1) for a particular purpose must not be used for any other purpose by—
(a)
the person to whom the information was disclosed; or
(b)
any other person who gains access to the information (whether properly or improperly and whether directly or indirectly) as a result of that disclosure.
Maximum penalty: $10 000.
(4)
The regulations may make further provision in respect of the disclosure of information obtained in the course of the administration of this Act.

165Victimisation

(1)
A person who causes detriment to another on the ground, or substantially on the ground, that the other person or a third person has provided, or intends to provide, information under this Act commits an act of victimisation.
(2)
However, causing detriment on the ground that a person—
(a)
has made a false allegation; or
(b)
has not acted in good faith,
does not constitute an act of victimisation.
(3)
An act of victimisation under this Act may be dealt with—
(a)
as a tort; or
(b)
as if it were an act of victimisation under the Equal Opportunity Act 1984,
but, if the victim commences proceedings in a court seeking a remedy in tort, the victim cannot subsequently lodge a complaint under the Equal Opportunity Act 1984 and, conversely, if the victim lodges a complaint under that Act, the victim cannot subsequently commence proceedings in a court seeking a remedy in tort.
(4)
If a complaint alleging an act of victimisation under this Act has been lodged with the Commissioner for Equal Opportunity and the Commissioner is of the opinion that the subject matter of the complaint has already been adequately dealt with by a competent authority, the Commissioner may decline to act on the complaint or to proceed further with action on the complaint.
(5)
In proceedings against a person seeking a remedy in tort for an act of victimisation committed by an employee or agent of the person, it is a defence to prove that the person exercised all reasonable diligence to ensure that the employee or agent would not commit an act of victimisation.
(6)
A person who personally commits an act of victimisation under this Act is guilty of an offence.
Maximum penalty: $10 000.
(7)
Proceedings for an offence against subsection (6) may only be commenced by a police officer or a person approved by either the Commissioner of Police or the Director of Public Prosecutions.
(8)
In this section—
detriment includes—
(a)
injury, damage or loss; or
(b)
intimidation or harassment; or
(c)
discrimination, disadvantage or adverse treatment in relation to a person's employment; or
(d)
threats of reprisal.

166Protections, privileges and immunities

(1)
Nothing in this Act affects any rule or principle of law relating to—
(a)
legal professional privilege; or
(b)
"without prejudice" privilege; or
(c)
public interest immunity.
(2)
A person is excused from answering a question or producing a document or other material in connection with an inquiry if the person could not be compelled to answer the question or produce the document or material in proceedings in the Supreme Court.
(3)
A person who provides information or a document to an inquiry under this Act has the same protection, privileges and immunities as a witness in proceedings before the Supreme Court.
(4)
A person who does anything in accordance with this Act, or as required or authorised by or under this Act, cannot by so doing be held to have breached any code of professional etiquette or ethics, or to have departed from any acceptable form of professional conduct.

166ALimitation on tortious liability for acts of certain children and young people

No liability in tort attaches to the Crown, the Minister, the Chief Executive or any employee of the Department in respect of an act or omission of a child or young person under the guardianship of the Chief Executive, or of whom the Chief Executive has custody under any Act, unless the act or omission occurs while the child or young person—
(a)
is acting as the servant or agent of the Chief Executive or employee of the Department; and
(b)
is acting within the scope of such employment or authority.

167Evidentiary provision

(1)
In proceedings for an offence against this Act, an allegation in an information—
(a)
that a working with children check relating to a specified person had, or had not, been conducted on a specified day or within a specified period; or
(b)
that a prohibition notice had, or had not, been issued to a specified person; or
(c)
that a specified person had, or had not, been issued with a specified unique identifier; or
(d)
that a specified person was, or was not, a child protection officer at a specified time; or
(e)
that a specified person was, or was not, an approved carer at a specified time; or
(f)
that specified premises were, or were not, a licensed children's residential facility,
must be accepted as proved in the absence of evidence to the contrary.
(2)
In this section—
prohibition notice and unique identifier have the same meanings as in the Child Safety (Prohibited Persons) Act 2016.

168Service

Except where this Act requires otherwise, a notice or other document required or authorised to be given to or served on a person under this Act may—
(a)
be given to the person personally; or
(b)
be left for the person at the person's place of residence or business with someone apparently over the age of 16 years; or
(c)
be posted to the person at the person's last known place of residence or business; or
(d)
be transmitted by fax or email to a fax number or email address provided by the person (in which case the notice or other document will be taken to have been given or served at the time of transmission); or
(e)
if the person is a company or registered body within the meaning of the Corporations Act 2001 of the Commonwealth, be served in accordance with that Act.

169Review of Act

(1)
The Minister must cause a review of the operation of this Act 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.

169AIndependent inquiry into foster care and kinship care

(1)
The Minister must cause an independent inquiry into foster care and kinship care in the State to be conducted, and a report of the inquiry to be prepared, in accordance with this section.
(2)
Without limiting the matters that may be considered in the course of the inquiry, the inquiry—
1. (a)
  must review existing complaints mechanisms in the Department as they relate to foster care and kinship care, including consideration of—
  1. (i)
    how such complaints are processed by the Department; and
  2. (ii)
    the independence of the complaints process; and
  3. (iii)
    outcomes and actions arising from such complaints; and
  4. (iv)
    the extent to which outcomes and feedback relating to such complaints are communicated to foster carers and kinship carers; and
2. (b)
  must review the adequacy of existing consultation processes between the Department, other persons and bodies involved in foster care or kinship care, and foster carers and kinship carers; and
3. (c)
  must review the transparency and availability of documentation and information held by the Department and other persons and bodies involved in foster care or kinship care to foster carers and kinship carers (including care concerns and manuals of practice); and
4. (d)
  must consider the adequacy of internal procedures and arrangements within the Department and other persons and bodies involved in foster care or kinship care in ensuring that—
  1. (i)
    there is a sound partnership between the Department, those persons and bodies and foster carers and kinship carers; and
  2. (ii)
    the rights of children in foster care and kinship care (including their rights relating to safety, cultural identity, access to services and opportunities, autonomy and decision‑making) are respected, addressed and realised; and
5. (e)
  may make such recommendations for changes to matters affecting foster care or kinship care that the inquiry considers necessary or appropriate to improve outcomes for children and young people in foster care or kinship care, as well as foster carers and kinship carers (including, for example, the need for an independent, legislatively protected complaints system, changes to compliance procedures within the Department and any legislative changes needed to enable the recommendations to be implemented).
(3)
The following provisions apply in relation to the inquiry:
1. (a)
  the inquiry must be conducted by a person who is independent of the Department and not involved in the administration, operation or enforcement of this Act;
2. (b)
  the inquiry must commence not later than 1 month after this section comes into operation;
3. (c)
  the inquiry must seek submissions from foster carers and kinship carers, and must have regard to any submissions made to the inquiry by such persons;
4. (d)
  the inquiry must be completed within 6 months after this section comes into operation.
(4)
On completing the inquiry, the person conducting the inquiry must cause a report of the inquiry to be prepared, and a copy of the report provided to the Minister.
(5)
The Minister must cause a copy of the report provided under subsection (4) to be laid before both Houses of Parliament within 6 sitting days after receiving the report.

170Regulations

(1)
The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act.
(2)
Without limiting the generality of subsection (1), the regulations may provide for—
(a)
the exemption of a person, or a class of persons, from the operation of a specified provision or provisions of this Act; and
(b)
fees or charges in respect of any matter under this Act and their payment, recovery or waiver; and
(c)
fines, not exceeding $10 000, for offences against the regulations; and
(d)
facilitation of proof of the commission of offences against the regulations.
(3)
The regulations may—
(a)
be of general or limited application; and
(b)
make different provision according to the matters or circumstances to which they are expressed to apply; and
(c)
make provisions of a saving or transitional nature consequent on the enactment of this Act or on the commencement of specified provisions of this Act or on the making of regulations under this Act; and
(ca)
make provisions of a saving or transitional nature consequent on the commencement of the Child Safety (Prohibited Persons) Act 2016; and
(d)
provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister, the Chief Executive or any other specified person or body; and
(e)
apply or incorporate, wholly or partially and with or without modification, a code, standard, policy or other document prepared or published by the Minister or another specified person or body.
(4)
If a code, standard or other document is referred to or incorporated in the regulations—
(a)
a copy of the code, standard or other document must be kept available for public inspection, without charge and during ordinary office hours, at an office or offices specified in the regulations; and
(b)
evidence of the contents of the code, standard or other document may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code, standard or other document.

Legislative history

Notes

•
Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.
•
Earlier versions of this Act (historical versions) are listed at the end of the legislative history.
•
For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or repealed by principal Act
The Children and Young People (Safety) Act 2017 repealed the following:
Children's Protection Act 1993
Legislation amended by principal Act
The Children and Young People (Safety) Act 2017 amended the following:
Children's Protection Act 1993
Criminal Law Consolidation Act 1935
Principal Act and amendments
New entries appear in bold.
Year
No
Title
Assent
Commencement
2017
25
Children and Young People (Safety) Act 2017
18.7.2017
26.2.2018 immediately after s 60 of 64/2017 except ss 17, 18, 21 to 58, 60, 61, 67 to 77, 84 to 95, 97 to 110, 111, 112A, 113 to 115, 120 to 144, 147 to 152, 161, 163 & Sch 1 Pt 2 (cll 2(b) to (e), 2A (as enacted by s 60 of 64/2017)), Pt 3 (cll 3, 4)—22.10.2018 (Gazette 19.12.2017 p5118 as varied by Gazette 13.2.2018 p731)
2017
64
Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017
12.12.2017
Pt 4 (s 34) & Pt 10 (ss 49 to 57, 59)—19.12.2017; Pt 4 (ss 22, 23, 26) & Pt 10 (s 60)—26.2.2018; Pt 4 (ss 24, 25, 27 to 33, 35 to 38) & Pt 10 (s 58)—22.10.2018 (Gazette 19.12.2017 p5119)
2018
17
Children and Young People (Safety) (Miscellaneous) Amendment Act 2018
18.10.2018
Pt 2 (ss 4 to 14) & Sch 1 (cl 7)—22.10.2018 (Gazette 18.10.2018 p3821)
2021
14
Statutes Amendment (Recommendations of Independent Inquiry into Child Protection) Act 2021
13.5.2021
Pt 3 (s 5)—2.8.2021 (Gazette 22.7.2021 p2857)
2021
35
Children and Young People (Oversight and Advocacy Bodies) (Commissioner for Aboriginal Children and Young People) Amendment Act 2021
30.9.2021
Sch 1 (cl 1)—21.10.2021 (Gazette 21.10.2021 p3788)
2021
55
Children and Young People (Safety) (Inquiry into Foster and Kinship Care) Amendment Act 2021
9.12.2021
9.12.2021
2023
4
Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Act 2023
23.2.2023
Pt 3 (s 6)—22.6.2023 (Gazette 15.6.2023 p1774)
2023
39
Public Holidays Act 2023
7.12.2023
Sch 1 (cl 6)—1.1.2024: s 2
Provisions amended
New entries appear in bold.
Entries that relate to provisions that have been deleted appear in italics.
Provision
How varied
Commencement
Ch 1
s 2
omitted under Legislation Revision and Publication Act 2002
21.10.2021
Ch 3
s 16
s 16(1)
business day
deleted by 39/2023 Sch 1 cl 6
1.1.2024
s 18
s 18(1)
amended by 17/2018 s 4
22.10.2018
Ch 4
Ch 4 Pt 3
s 28
s 28(5)
prescribed child or young person
amended by 64/2017 s 49
19.12.2017
Ch 5
Ch 5 Pt 2
s 32
s 32(5)
inserted by 64/2017 s 50
19.12.2017
s 33
s 33(5)
deleted by 64/2017 s 51
19.12.2017
Ch 5 Pt 3
s 43
s 43(1)
s 43 redesignated as s 43(1) by 17/2018 s 5
22.10.2018
s 43(2)
inserted by 17/2018 s 5
22.10.2018
Ch 6
Ch 6 Pt 2
s 53
s 53(1a)—(1f)
inserted by 64/2017 s 52
19.12.2017
s 59
s 59(1a)
inserted by 17/2018 s 6
22.10.2018
Ch 7
Ch 7 Pt 2
s 86
heading
amended by 4/2023 s 6(1)
22.6.2023
s 86(1a)
inserted by 4/2023 s 6(2)
22.6.2023
s 86(4)
amended by 14/2021 s 5
2.8.2021
s 86(4a)
inserted by 4/2023 s 6(3)
22.6.2023
s 86(6)
inserted by 4/2023 s 6(4)
22.6.2023
Ch 7 Pt 3
s 90
s 90(3)
substituted by 64/2017 s 53
19.12.2017
deleted by 17/2018 s 7
22.10.2018
s 91
s 91(2a)
inserted by 17/2018 s 8
22.10.2018
Ch 7 Pt 4
s 92
s 92(1)
s 92 redesignated as s 92(1) by 17/2018 s 9
22.10.2018
s 92(2)
inserted by 17/2018 s 9
22.10.2018
s 95
s 95(1)
substituted by 17/2018 s 10
22.10.2018
Ch 7 Pt 7
s 103
children's residential facility
amended by 64/2017 s 54(1), (2)
19.12.2017
Ch 7 Pt 7A
inserted by 64/2017 s 55
19.12.2017
Ch 7 Pt 9
s 112A
inserted by 64/2017 s 56
19.12.2017
Ch 10
Ch 10 Pt 1
s 121
s 121(1)
child welfare law
amended by 17/2018 s 11
22.10.2018
Ch 10 Pt 6
s 142
amended by 17/2018 s 12(1)
22.10.2018
s 142(1)
s 142 redesignated as s 142(1) by 17/2018 s 12(2)
22.10.2018
s 142(2)
inserted by 17/2018 s 12(2)
22.10.2018
Ch 11
Ch 11 Pt 3
s 152
s 152(1)
amended by 35/2021 Sch 1 cl 1
21.10.2021
Ch 13
s 161
s 161(2) and (3)
substituted by 17/2018 s 13
22.10.2018
s 161(4)
deleted by 17/2018 s 13
22.10.2018
s 163
s 163(1)
amended by 64/2017 s 57(1), (2)
19.12.2017
s 166A
inserted by 64/2017 s 58
22.10.2018
s 169A
inserted by 55/2021 s 3
9.12.2021
s 170
s 170(3)
amended by 64/2017 s 59
19.12.2017
Sch 1 before omission
Pt 2
substituted by 64/2017 s 60
26.2.2018
cl 2
amended by 17/2018 s 14
22.10.2018
Sch 1
omitted under Legislation Revision and Publication Act 2002
21.10.2021
Transitional etc provisions associated with Act or amendments
Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017, Pt 4—Transitional provisions relating to Children and Young People (Safety) Act 2017
22Interpretation
(1)
Subject to this Part, and unless the contrary intention appears, a term or phrase used in this Part that is defined in the Children and Young People (Safety) Act 2017 has the same meaning as in that Act.
(2)
In this Part—
repealed Act means the Children's Protection Act 1993.
23References to working with children checks and the Child Safety (Prohibited Persons) Act 2016 etc
(1)
For the purposes of the Children and Young People (Safety) Act 2017, a reference in that Act to a working with children check will be taken to include a reference to an assessment of relevant history.
(2)
For the purposes of section 72(3)(b)(i) of the Children and Young People (Safety) Act 2017, a reference in that subparagraph to having regard to the operation of the Child Safety (Prohibited Persons) Act 2016 will, to the extent that it includes having regard to the working with children check scheme, will be taken to include a reference to having regard to the operation of sections 8B and 8BA of the Children's Protection Act 1993 (as in force immediately before the commencement of this section).

(3)
For the purposes of paragraph (b) of the definition of prescribed organisation in section 114(7) of the Children and Young People (Safety) Act 2017, a reference in that paragraph to persons or bodies who provide a service or undertake an activity that constitutes child‑related work under the Child Safety (Prohibited Persons) Act 2016 will be taken to include a reference to organisations to which section 8C of the Children's Protection Act 1993 applied immediately before the commencement of this section.

24Chief Executive to be guardian of certain children and young people

(1)
This section applies to a child or young person who was, immediately before the commencement of this section, under the guardianship of the Minister pursuant to an order of the Court under the repealed Act.
(2)
On the commencement of this section a child or young person to whom this section applies will, by force of this subsection, be taken to be under the guardianship of the Chief Executive.
(3)
A placement of a child or young person to whom this section applies pursuant to the repealed Act will be taken to continue in effect as if the child or young person were so placed by the Chief Executive under section 84 of the Children and Young People (Safety) Act 2017 (and the placement will, for the purposes of that Act, be taken to be a placement under that section).
(4)
On the commencement of this section, a reference in any order or other document or instrument to the Minister in the Minister's capacity as guardian of a child or young person to whom this section applies will be taken to be a reference to the Chief Executive in that capacity.

25Chief Executive to have custody of certain children and young people

(1)
This section applies to a child or young person who was, immediately before the commencement of this section, in the custody of the Minister pursuant to an order of the Court under the repealed Act.
(2)
Subject to this section, on the commencement of this section a child or young person to whom this section applies will, by force of this subsection, be taken to be in the custody of the Chief Executive.
(3)
A placement of a child or young person to whom this section applies pursuant to the repealed Act will be taken to continue in effect as if the child or young person were so placed by the Chief Executive under section 84 the Children and Young People (Safety) Act 2017 (and the placement will, for the purposes of that Act, be taken to be a placement under that section).
(4)
On the commencement of this section, a reference in any order or other document or instrument to the Minister in the Minister's capacity as custodian of a child or young person to whom this section applies will be taken to be a reference to the Chief Executive in that capacity.

26Continuation of voluntary custody agreements

(1)
Subject to this section and the Children and Young People (Safety) Act 2017, a voluntary custody agreement under section 9 of the repealed Act in force immediately before the commencement of this section will continue in accordance with its terms (and the agreement will, for the purposes of the Children and Young People (Safety) Act 2017, be taken to be a voluntary custody agreement under section 96 of that Act).
(2)
A reference in a voluntary custody agreement continued under this section to the Minister will be taken to be a reference to the Chief Executive.

27Continuation of approved foster parents as approved carers

(1)
Subject to this section, a person who was, immediately before the commencement of this section, an approved foster parent under section 43 of the Family and Community Services Act 1972 will be taken to be an approved carer under the Children and Young People (Safety) Act 2017 (and the approval of the person will be taken to have been granted under section 72 of that Act).
(2)
A permission of the Chief Executive Officer under section 43(3) of the Family and Community Services Act 1972 relating to the number of foster children that a foster parent referred to in subsection (1) is permitted to have in their care will be taken to continue to apply to the approved carer according to its terms.
(3)
The approval of a person as an approved carer under subsection (1) will, subject to the Children and Young People (Safety) Act 2017, be taken to be subject to the same conditions applying to the person's approval immediately before the commencement of this section.

28Continuation of licensed foster care agencies

(1)
A licence of a person as a foster care agency granted under section 48 of the Family and Community Services Act 1972 and in force immediately before the commencement of this section—
(a)
will, subject to the Children and Young People (Safety) Act 2017, continue in force as a licence to carry on a foster care agency under that Act; and
(b)
will be taken to have been granted under section 99 of that Act.
(2)
A licence continued under subsection (1) will, subject to the Children and Young People (Safety) Act 2017, be taken to be subject to the same conditions applying to the licence immediately before the commencement of this section.
(3)
A record that was, pursuant to section 50 of the Family and Community Services Act 1972, required to be kept by the holder of a licence continued under subsection (1) will, for the purposes of section 101(2) of the Children and Young People (Safety) Act 2017, be taken to be records required to be kept under that subsection.

29Continuation of licence to maintain children's residential facilities

(1)
A licence to maintain a children's residential facility granted under section 51 of the Family and Community Services Act 1972 (being a licence in force immediately before the commencement of this section)—
1. (a)
  will, subject to the Children and Young People (Safety) Act 2017, continue in force as a licence to operate a children's residential facility under that Act; and
2. (b)
  will be taken to have been granted under section 105 of that Act.
(2)
A licence continued under subsection (1) will, subject to the Children and Young People (Safety) Act 2017, be taken to be subject to the same conditions applying to the licence immediately before the commencement of this section.
(3)
A register that was, pursuant to section 53 of the Family and Community Services Act 1972, required to be kept by the holder of a licence continued under subsection (1) will, for the purposes of section 108(2) of the Children and Young People (Safety) Act 2017, be taken to be a record required to be kept under that subsection.

30Notifications of abuse or neglect and investigations etc under repealed Act to continue

(1)
A notification made under section 11 of the repealed Act that a person suspects that a child has been or is being abused or neglected will, for the purposes of the Children and Young People (Safety) Act 2017, be taken to be a report made by the person under section 31 of that Act.
(2)
An investigation under section 19 of the repealed Act that was commenced but not completed before the commencement of this section will be taken to continue as an investigation of the relevant kind under Chapter 5 Part 2 of the Children and Young People (Safety) Act 2017 (and, to avoid doubt, the Chief Executive may exercise the powers of investigation or direction under that Part accordingly).

31Continuation of family care meetings under repealed Act

(1)
Subject to this section, a family care meeting convened under Part 5 of the repealed Act before the commencement of this section will continue as a family group conference convened under Chapter 4 Part 2 of the Children and Young People (Safety) Act 2017.
(2)
A family group conference as continued under this section will, subject to the Children and Young People (Safety) Act 2017, consist of the same persons as the original family care meeting.
(3)
The procedures applicable to a family care meeting continued under this section will, subject to the Children and Young People (Safety) Act 2017, be taken to apply to the family group conference.

32Orders relating to access to child or young person to continue as determination of Chief Executive

(1)
An order of the Court under section 38 of the repealed Act in force immediately before the commencement of this section (being an order relating to access to a specified child (however described)) is, by force of this section, revoked.
(2)
The Chief Executive will, in respect of each child or young person to whom an order revoked under subsection (1) relates, be taken to have made a determination under section 93 of the Children and Young People (Safety) Act 2017 in such terms as to give continuing effect to the terms of the revoked order (and the determination will, for the purposes of that Act, be taken to be a determination under section 93 of that Act).

33Continuation of certain delegations under Family and Community Services Act 1972

(1)
A delegation by the Minister or the Chief Executive under section 8 of the Family and Community Services Act 1972 relating to a matter that is the subject of the Children and Young People (Safety) Act 2017 and that is in force immediately before the commencement of this section will, subject to the Children and Young People (Safety) Act 2017, continue in accordance with its terms (and will, for the purposes of the Children and Young People (Safety) Act 2017, be taken to be a delegation by the Minister or Chief Executive (as the case requires) of the relevant powers under section 146 of that Act).
(2)
A delegation by the Minister under section 80 of the Family and Community Services Act 1972 in force immediately before the commencement of this section will, subject to the Children and Young People (Safety) Act 2017, continue in accordance with its terms (and will, for the purposes of the Children and Young People (Safety) Act 2017, be taken to be a delegation by the Chief Executive of the relevant powers under section 76 of that Act).

34References to Families SA

On the commencement of this section, a reference in any Act, or any order or other instrument or document, to Families SA will, for all purposes, be taken to be a reference to the Department.

35Application of Chapter 7 Part 8 of Children and Young People (Safety) Act 2017 to certain children and young people

For the purposes of Chapter 7 Part 8 of the Children and Young People (Safety) Act 2017, a child or young person whose guardianship or custody arrangements are continued under this Part will be taken to be a child or young person placed in the guardianship or custody of a person under that Act.

36Certain policies and procedures taken to satisfy Chapter 8 of Children and Young People (Safety) Act 2017

(1)
This section applies to in relation to prescribed policies and procedures of an organisation to which section 8C of the repealed Act applied immediately before the commencement of this section.
(2)
The prescribed policies and procedures of an organisation to which section 8C of the repealed Act applied immediately before the commencement of this section will, for the purposes of Chapter 8 of the Children and Young People (Safety) Act 2017, be taken to be a policy or policies prepared or adopted by the organisation in accordance with section 114(1) of that Act.
(3)
An organisation to which section 8C of the repealed Act applied immediately before the commencement of this section (being an organisation that has complied with the requirements under section 8C(3) of the repealed Act) will, for the purposes of Chapter 8 of the Children and Young People (Safety) Act 2017, be taken to have complied with the requirements of section 114(3) of that Act.
(4)
In this section—

prescribed policies and procedures means policies and procedures put in place by an organisation in accordance with section 8C of the repealed Act and in force immediately before the commencement of this section.

37Certain persons the subject of interim registration taken to be approved carers under Children and Young People (Safety) Act 2017

(1)
This section applies to a person who was, immediately before the commencement of this section—
1. (a)
  caring for a child or young person who is under the guardianship or in the custody of the Minister (whether under an order of the Court, a voluntary custody agreement under section 9 of the Children's Protection Act 1993 or any other provision of that Act or any other Act); and
2. (b)
  the subject of a provisional or initial registration by the Department, or an approval for temporary placement granted by the Department, in relation to the care of children.
(2)
A person to whom this section applies will, for the purposes of the Children and Young People (Safety) Act 2017, be taken to be approved as an approved carer under section 72 of that Act.
(3)
It is a condition of each approval under this section that the person comply with any directions of the Chief Executive relating to the care of a specified child or young person (including, to avoid doubt, a direction requiring the person to submit to a working with children check).
(4)
The Chief Executive may, by notice in writing, impose such conditions on an approval under this section as the Chief Executive thinks fit.
(5)
The Chief Executive may, by notice in writing, vary or revoke a condition of an approval under this section.
(6)
An approval under this section will remain in force until—
1. (a)
  the end of the transitional period; or
2. (b)
  the approval is cancelled under subsection (7),

whichever occurs first.

(7)
However, the approval of a person under this section is, by force of this section, cancelled if—
1. (a)
  the person becomes a prohibited person; or
2. (b)
  the approval of the person as an approved carer is cancelled under section 74 of the Children and Young People (Safety) Act 2017; or
3. (c)
  the person refuses or fails to comply with a direction under subsection (3); or
4. (d)
  the person contravenes a condition under subsection (4).
(8)
For the purposes of this section, a reference to the Department will be taken to include a reference to an administrative unit of the Public Service that was, at the relevant time, assisting a Minister in the administration of the repealed Act.

38Certain persons taken to be approved carers under Children and Young People (Safety) Act 2017

(1)
This section applies to a person or body, or a person or body of a class, prescribed by the Chief Executive by notice in the Gazette.
(2)
A person to whom this section applies will, for the purposes of the Children and Young People (Safety) Act 2017, be taken to be approved as an approved carer under section 72 of that Act.
(3)
It is a condition of each approval under this section that the person comply with any directions of the Chief Executive relating to the care of children or young people (including, to avoid doubt, a direction requiring the person to submit to a working with children check).
(4)
The Chief Executive may, by notice in writing, impose such conditions on an approval under this section as the Chief Executive thinks fit.
(5)
The Chief Executive may, by notice in writing, vary or revoke a condition of an approval under this section.
(6)
An approval under this section will remain in force until—
1. (a)
  the end of the transitional period; or
2. (b)
  the approval is cancelled under subsection (7),

whichever occurs first.

(7)
However, the approval of a person under this section is, by force of this section, cancelled if—
1. (a)
  the person becomes a prohibited person; or
2. (b)
  the approval of the person as an approved carer is cancelled under section 74 of the Children and Young People (Safety) Act 2017; or
3. (c)
  the person refuses or fails to comply with a direction under subsection (3); or
4. (d)
  the person contravenes a condition under subsection (4).

Children and Young People (Safety) (Miscellaneous) Amendment Act 2018, Sch 1 Pt 2—Transitional provisions etc

7Moneys held on behalf of child or young person

(1)
This clause applies to money received pursuant to section 84 of the Family and Community Services Act 1972, or section 161 of the Children and Young People (Safety) Act 2017 (as in force before the commencement of section 13 of this Act), that is being held on behalf of a child or young person, regardless of where the money is being held.
(2)
Any money to which this clause applies will, on the commencement of this clause, be taken to be money received by the Chief Executive pursuant to section 161 of the Children and Young People (Safety) Act 2017 (as amended by section 13 of this Act) and is to be dealt with in accordance with that section.
(3)
In this clause—
Chief Executive has the same meaning as in the Children and Young People (Safety) Act 2017.

Historical versions

19.12.2017

26.2.2018

22.10.2018

2.8.2021

21.10.2021

9.12.2021

22.6.2023

Year	No	Title	Assent	Commencement
2017	25	Children and Young People (Safety) Act 2017	18.7.2017	26.2.2018 immediately after s 60 of 64/2017 except ss 17, 18, 21 to 58, 60, 61, 67 to 77, 84 to 95, 97 to 110, 111, 112A, 113 to 115, 120 to 144, 147 to 152, 161, 163 & Sch 1 Pt 2 (cll 2(b) to (e), 2A (as enacted by s 60 of 64/2017)), Pt 3 (cll 3, 4)—22.10.2018 (Gazette 19.12.2017 p5118 as varied by Gazette 13.2.2018 p731)
2017	64	Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017	12.12.2017	Pt 4 (s 34) & Pt 10 (ss 49 to 57, 59)—19.12.2017; Pt 4 (ss 22, 23, 26) & Pt 10 (s 60)—26.2.2018; Pt 4 (ss 24, 25, 27 to 33, 35 to 38) & Pt 10 (s 58)—22.10.2018 (Gazette 19.12.2017 p5119)
2018	17	Children and Young People (Safety) (Miscellaneous) Amendment Act 2018	18.10.2018	Pt 2 (ss 4 to 14) & Sch 1 (cl 7)—22.10.2018 (Gazette 18.10.2018 p3821)
2021	14	Statutes Amendment (Recommendations of Independent Inquiry into Child Protection) Act 2021	13.5.2021	Pt 3 (s 5)—2.8.2021 (Gazette 22.7.2021 p2857)
2021	35	Children and Young People (Oversight and Advocacy Bodies) (Commissioner for Aboriginal Children and Young People) Amendment Act 2021	30.9.2021	Sch 1 (cl 1)—21.10.2021 (Gazette 21.10.2021 p3788)
2021	55	Children and Young People (Safety) (Inquiry into Foster and Kinship Care) Amendment Act 2021	9.12.2021	9.12.2021
2023	4	Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Act 2023	23.2.2023	Pt 3 (s 6)—22.6.2023 (Gazette 15.6.2023 p1774)
2023	39	Public Holidays Act 2023	7.12.2023	Sch 1 (cl 6)—1.1.2024: s 2

Provision	How varied	Commencement
Ch 1
s 2	omitted under Legislation Revision and Publication Act 2002	21.10.2021
Ch 3
s 16
s 16(1)
business day	deleted by 39/2023 Sch 1 cl 6	1.1.2024
s 18
s 18(1)	amended by 17/2018 s 4	22.10.2018
Ch 4
Ch 4 Pt 3
s 28
s 28(5)
prescribed child or young person	amended by 64/2017 s 49	19.12.2017
Ch 5
Ch 5 Pt 2
s 32
s 32(5)	inserted by 64/2017 s 50	19.12.2017
s 33
s 33(5)	deleted by 64/2017 s 51	19.12.2017
Ch 5 Pt 3
s 43
s 43(1)	s 43 redesignated as s 43(1) by 17/2018 s 5	22.10.2018
s 43(2)	inserted by 17/2018 s 5	22.10.2018
Ch 6
Ch 6 Pt 2
s 53
s 53(1a)—(1f)	inserted by 64/2017 s 52	19.12.2017
s 59
s 59(1a)	inserted by 17/2018 s 6	22.10.2018
Ch 7
Ch 7 Pt 2
s 86
heading	amended by 4/2023 s 6(1)	22.6.2023
s 86(1a)	inserted by 4/2023 s 6(2)	22.6.2023
s 86(4)	amended by 14/2021 s 5	2.8.2021
s 86(4a)	inserted by 4/2023 s 6(3)	22.6.2023
s 86(6)	inserted by 4/2023 s 6(4)	22.6.2023
Ch 7 Pt 3
s 90
s 90(3)	substituted by 64/2017 s 53	19.12.2017
deleted by 17/2018 s 7	22.10.2018
s 91
s 91(2a)	inserted by 17/2018 s 8	22.10.2018
Ch 7 Pt 4
s 92
s 92(1)	s 92 redesignated as s 92(1) by 17/2018 s 9	22.10.2018
s 92(2)	inserted by 17/2018 s 9	22.10.2018
s 95
s 95(1)	substituted by 17/2018 s 10	22.10.2018
Ch 7 Pt 7
s 103
children's residential facility	amended by 64/2017 s 54(1), (2)	19.12.2017
Ch 7 Pt 7A	inserted by 64/2017 s 55	19.12.2017
Ch 7 Pt 9
s 112A	inserted by 64/2017 s 56	19.12.2017
Ch 10
Ch 10 Pt 1
s 121
s 121(1)
child welfare law	amended by 17/2018 s 11	22.10.2018
Ch 10 Pt 6
s 142	amended by 17/2018 s 12(1)	22.10.2018
s 142(1)	s 142 redesignated as s 142(1) by 17/2018 s 12(2)	22.10.2018
s 142(2)	inserted by 17/2018 s 12(2)	22.10.2018
Ch 11
Ch 11 Pt 3
s 152
s 152(1)	amended by 35/2021 Sch 1 cl 1	21.10.2021
Ch 13
s 161
s 161(2) and (3)	substituted by 17/2018 s 13	22.10.2018
s 161(4)	deleted by 17/2018 s 13	22.10.2018
s 163
s 163(1)	amended by 64/2017 s 57(1), (2)	19.12.2017
s 166A	inserted by 64/2017 s 58	22.10.2018
s 169A	inserted by 55/2021 s 3	9.12.2021
s 170
s 170(3)	amended by 64/2017 s 59	19.12.2017
Sch 1 before omission
Pt 2	substituted by 64/2017 s 60	26.2.2018
cl 2	amended by 17/2018 s 14	22.10.2018
Sch 1	omitted under Legislation Revision and Publication Act 2002	21.10.2021