Children's Protection Regulations 2010 (SA)
South Australia
under the
These regulations may be cited as the
Children's Protection Regulations 2010 .
(1) In these regulations—
ACC means the Australian Crime Commission established under theAustralian Crime Commission Act 2002 of the Commonwealth;
Act means theChildren's Protection Act 1993 ;
authorised screening unit means a person or body established as, or declared to be, an authorised screening unit under regulation 7(1);
child‑related employment screening means undertaking an assessment of information about a person for the purpose of determining whether the person may pose a risk to the safety of children if he or she—
(a) is appointed to, or is engaged to act in, a prescribed position; or
(b) were to perform a prescribed function,
both within the meaning of section 8B of the Act;
CrimTrac means the CrimTrac Agency established under thePublic Service Act 1999 of the Commonwealth;
disability has the same meaning as in theDisability Services Act 1993 ;
disability services has the same meaning as in theDisability Services Act 1993 ;
interstate authorised screening unit means a person or body declared to be an interstate authorised screening unit under regulation 7(2);
interstate spent conviction means a conviction that is spent under a corresponding law (within the meaning of theSpent Convictions Act 2009 );
prescribed passenger transport service means a service in which—
(a) passengers are carried for a fare or other consideration (including under a hire or charter arrangement or for consideration provided by a third party) by means of a vehicle; and
(b) the passengers are, or may include, children (whether or not any passengers so carried are, in fact, children);
vehicle means—
(a) a motor vehicle (within the meaning of the
Passenger Transport Act 1994 );(b) a vehicle drawn by an animal,
but does not include a vehicle operated on a railway or tramway, a vessel or an aeroplane.
(2) A term or phrase used in these regulations that is used in section 8B or 8BA of the Act has the same meaning as in that section.
(3) In these regulations, a reference to the Chief Executive includes a reference to a delegate of the Chief Executive.
For the purposes of the definition of
Department in section 6(1) of the Act, the administrative unit that is responsible for assisting a Minister in the administration of the Act is prescribed.
(1) Subject to subregulation (1aa), for the purposes of section 8B of the Act, the responsible authority for an organisation to which that section applies must undertake an assessment of a person's relevant history by either of the following methods:
(a) by—
(i) obtaining—
(A) a criminal history report (such as a National Police Certificate) relating to the person provided by South Australia Police or the ACC or an ACC accredited agency or broker; or
(B) other prescribed evidence of the person's relevant history; and
(ii) undertaking an assessment of that report or evidence, taking into account any information provided by the person for the assessment, for the purpose of determining whether the person may pose a risk to the safety of children;
(b) by having an authorised screening unit assess the relevant history of the person.
(1aa) For the purposes of section 8B of the Act, an assessment of the relevant history of a person who provides a prescribed passenger transport service is to be undertaken by having an authorised screening unit assess the relevant history of the person.
(1a) For the purposes of section 8BA(3)(a) of the Act, an assessment of the relevant history of a person to whom that section applies is to be undertaken by—
(a) having an authorised screening unit assess the relevant history of the person; or
(b) obtaining a criminal history report prepared by the ACC or an ACC accredited agency or broker.
(1b) An assessment under this regulation (other than an assessment under subregulation (1a)(b)) must be conducted in accordance with any relevant standards issued by the Chief Executive under section 8A(j) of the Act or section 145 of the
Children and Young People (Safety) Act 2017 .(2) In this regulation—
prescribed evidence means evidence of a kind specified by the Chief Executive for the purposes of this regulation in standards referred to in subregulation (1b).
(1) The Chief Executive may, as the Chief Executive thinks fit—
(a) establish authorised screening units; or
(b) declare, by notice in the Gazette, that a person or body is an authorised screening unit,
for the purposes of undertaking assessments of a person's relevant history under the Act.
(2) The Chief Executive may, by notice in the Gazette, declare that a person or body is an interstate authorised screening unit for the purposes of these regulations.
(3) An authorised screening unit may undertake an assessment of a person's relevant history (where the assessment relates to the care and protection of children)—
(a) for the purpose of assessing the person's suitability for enrolment as an adult in secondary education; or
(b) if the assessment is required under a contract entered into with a State Government agency or instrumentality; or
(c) where a child is undertaking a workplace learning program in connection with an approved learning program (within the meaning of section 75D of the
Education Act 1972 ).
For the purposes of section 8B(6)(c) of the Act, the following classes of non-government organisation are prescribed:
(a) a non‑government organisation that provides disability services wholly or partly for children;
(b) a non‑government organisation that provides a prescribed passenger transport service.
(1) For the purposes of section 8B(7)(bb) of the Act, an authorised screening unit must, on completion of an assessment of a person's relevant history, issue a certificate to the person in accordance with this regulation.
(2) A certificate—
(a) must be in a form approved by the Minister; and
(b) must contain the full name of the person to whom it relates; and
(c) must contain the date of issue of the certificate; and
(d) must contain a statement that "the relevant history of [
full name of person to whom certificate relates ] has been assessed by [name of authorised screening unit ] and indicates/does not indicate [as appropriate ] that [full name of person to whom certificate relates ] poses a risk to the safety of children".(3) A certificate must not indicate that the person to whom the certificate relates is only suitable or authorised to perform specified prescribed functions (however a failure to comply with this subregulation will not invalidate a certificate).
(4) A certificate may be issued to a person—
(a) by giving the certificate to the person personally; or
(b) by posting the certificate in an envelope addressed to the person at the person's last known residential or business address; or
(c) by leaving the certificate for the person at the person's last known residential or business address with someone apparently over the age of 16 years; or
(d) by transmitting a copy of the certificate by fax or email to a fax number or email address.
(5) To avoid doubt, the issue of a certificate under this regulation does not amount to a representation that the person to whom the certificate relates is suitable or competent (however described) to work with children or perform a prescribed function.
(6) No civil or criminal liability attaches to the Crown or any other person in relation to the issue of a certificate under this regulation in good faith and without negligence.
Despite any other Act or law, information forming part of a person's relevant history (other than information under paragraph (a)(v) of the definition of
relevant history in section 8B of the Act) may be provided by the Crown, or an agency or instrumentality of the Crown, to—
(b) an interstate authorised screening unit for the purpose of undertaking child‑related employment screening as authorised or required under a law of another State or Territory, or of the Commonwealth.
For the purposes of paragraph (c) of the definition of
prescribed functions in section 8B(8) of the Act, the following kinds of records are prescribed, where such records relate to a child or children:
(a) records of an educational or child care service;
(b) records of a health service (within the meaning of the
Health Care Act 2008 );(c) records of a disability service (within the meaning of the
Disability Services Act 1993 );(d) records made or kept in connection with the administration of the
Children's Protection Act 1993 , theFamily and Community Services Act 1972 , theYoung Offenders Act 1993 , theYouth Justice Administration Act 2016 or theYouth Court Act 1993 ;(e) records relating to legal proceedings.
(1) For the purposes of paragraph (d) of the definition of
prescribed functions in section 8B(8) of the Act, the following functions are prescribed:
(a) the provision of overnight care;
(b) the provision of a prescribed passenger transport service.
Note— Section 8B or 8BA of the Act may still apply in relation to a particular service involving the transportation of children even though the service is not a prescribed passenger transport service.
(2) In this regulation—
overnight care means care provided to a child overnight and involving sleeping arrangements (whether such care is provided on a short term or ongoing basis).
(1) For the purposes of paragraph (a)(v) of the definition of
relevant history in section 8B(8) of the Act, the following persons and bodies are prescribed:
(a) the Department;
(b) the administrative unit that is, under a Minister, responsible for the administration of the
Carers Recognition Act 2005 ;(c) the administrative unit that is, under a Minister, responsible for the administration of the
Disability Services Act 1993 ;(d) the Courts Administration Authority;
(e) an authorised screening unit.
(2) Information under paragraph (a)(v) of the definition of
relevant history in section 8B(8) of the Act that is lawfully obtained or held by the Department is excluded from the ambit of that definition in respect of a relevant history assessment of a kind determined by the Chief Executive if the Chief Executive is not satisfied that the information relates to a person who has been responsible for harming a child.(3) Information is excluded from the ambit of the definition of
relevant history in section 8B(8) of the Act in respect of a relevant history assessment of a kind determined by the Chief Executive if the Chief Executive determines, for reasons based on the nature and quality of the information or on other reasonable grounds, that the information should be so excluded.
For the purposes of the definition of
responsible authority in section 8B(8) of the Act, each of the following bodies is approved:
(a) the Association of Independent Schools of South Australia Incorporated;
(b) the Catholic Church Endowment Society Incorporated;
(c) the Lutheran Schools Association of South Australia, Northern Territory and Western Australia Incorporated.
(1) For the purposes of section 8BA(2)(b) of the Act, the following persons, or persons of the following classes, are declared to be persons, or classes of persons, to whom that section does not apply:
(a) a person who is not a member of an organisation contemplated by section 8B(6) of the Act;
(b) a person who performs a prescribed function pursuant to a personal arrangement between the person and the parent or guardian of the relevant child or children (whether or not the arrangement involves payment to the person).
(2) However, a person who provides a prescribed passenger transport service is excluded from the scope of subregulation (1)(a), whether or not he or she is a member of an organisation contemplated by section 8B(6) of the Act.
(1) For the purposes of section 8BA(5)(c) of the Act, a request under that subsection must—
(a) be made in writing; and
(b) set out the name of the person making the request and the name of the child to whom the request relates; and
(c) specify whether the person making the request is the parent, guardian or carer of the child.
(2) For the purposes of section 8BA(5) of the Act, the following kinds of evidence are prescribed:
(a) in the case where the assessment of the person's relevant history is undertaken by an authorised screening unit—a certificate issued to the person under regulation 8A within the 3 years preceding the request under that subsection; or
(b) a criminal history report (such as a National Police Certificate) prepared by any of the following within the 3 years preceding the request under that subsection:
(i) South Australia Police;
(ii) CrimTrac or a CrimTrac accredited agency or broker;
(iii) the ACC or an ACC accredited agency or broker; or
(c) any other evidence of a kind approved by the Chief Executive for the purposes of this subregulation.
12 Authorised screening unit to only undertake child‑related employment screening
(1) An authorised screening unit must not undertake an assessment of prescribed information unless satisfied that the assessment is required for child‑related employment screening or is otherwise authorised or required by law.
Maximum penalty: $10 000.
(2) An authorised screening unit established by the Chief Executive under regulation 7(1)(a) must not undertake any kind of assessment other than assessment of a person's relevant history for the purpose of child‑related employment screening or a purpose authorised under regulation 7(3) unless the authorised screening unit has been granted approval, in writing, by the Chief Executive to undertake assessments of that kind.
Maximum penalty: $10 000.
(3) The Chief Executive must not grant approval to an authorised screening unit to undertake a particular kind of assessment unless the Chief Executive is satisfied that the authorised screening unit has in place appropriate safeguards to ensure that prescribed information will not be used for the purpose of those assessments.
(4) In this regulation—
prescribed information means—
(a) information of a kind specified in subparagraph (ii), (iii), (iv) or (v) of paragraph (a) of the definition of
relevant history in section 8B(8) of the Act; and(b) information relating to an interstate spent conviction.
(1) A person who, in the course of carrying out functions of—
(a) a responsible authority; or
(b) an organisation to which a responsible authority communicates information forming part of a person's relevant history; or
(c) an organisation that prepares a relevant history report for a responsible authority; or
(d) an authorised screening unit,
has, or has had, access to information forming part of a person's relevant history must not disclose such information except—
(e) to, or with the consent of, the person to whom the information relates; or
(f) as may be authorised or required by law.
Maximum penalty: $10 000.
(2) The responsible authority for an organisation to which section 8B of the Act applies must ensure that information forming part of—
(a) a person's relevant history; or
(b) an assessment obtained from an authorised screening unit,
is dealt with in accordance with any standards for dealing with such information published from time to time by the Chief Executive (insofar as such standards are applicable to the organisation).
Maximum penalty: $5 000.
(1) Pursuant to section 8D(1) of the Act, but subject to subregulation (2), the following organisations, persons and positions are exempt from the application of section 8B(1) of the Act:
(a) an organisation that provides equipment, food or venues for children's parties or events and does not provide any other services;
(b) a person who undertakes work on a voluntary basis to provide a service in his or her capacity as a parent or guardian of a child who is ordinarily provided with the service;
(c) a person who undertakes work on a voluntary basis to provide a service and who is under 18 years of age;
(d) a person who undertakes work in the course of, or for the purposes of, an event or activity that takes place over a period of not more than 10 consecutive days or not more than 1 day in any month;
(e) a person appointed as a police officer;
(f) a person who is a registered teacher (within the meaning of the
Teachers Registration and Standards Act 2004 );(g) a person who undertakes, or a position that only involves, work that is not for the exclusive benefit of children and is not provided to any child on an individual basis;
(h) a position that only involves prescribed functions because children are employed or engaged to work as volunteers by the person occupying the position or by that person's employer;
(i) a position in which all work involving children is undertaken in the presence of the children's parents or guardians and in which there is ordinarily no physical contact with the children;
(j) the responsible authority of an organisation exercising a power under section 77 of the
Children and Young People (Safety) Act 2017 (and, to avoid doubt, an assessment of relevant history need not be conducted in relation to a person with whom a child is placed under that section).(2) An organisation, person or position referred to in subregulation (1) (other than subregulation (1)(e), (f) or (j)) is not exempt from the application of section 8B(1) of the Act if the services provided by the organisation or the duties of the person or position—
(a) involve the provision of—
(i) child care or baby sitting services for which an approval (however described) is required under the
Children's Services Act 1985 or theEducation and Early Childhood Services (Registration and Standards) Act 2011 ; or(ii) residential or overnight care for children (other than overnight care by a person who is not ordinarily resident in this State); or
(iii) disability services if provided only to children who have a disability; or
(b) are related to the administration of the juvenile justice system or child protection services; or
(c) involve the provision of a prescribed passenger transport service.
(1) Subject to subclause (3), the fees set out in the table below are payable to an authorised screening unit for conducting a relevant history assessment under these regulations.
(2) The fees set out in the table do not include any GST that may be payable in respect of a particular fee.
(3) An authorised screening unit may determine circumstances in which a fee payable to the unit may be waived or remitted.
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1—Certain documents taken to be certificates under regulation 8A
(1) Subject to this clause, a document issued by an authorised screening unit before the commencement of this clause and relating to an assessment of the criminal or relevant history of a specified person for the purposes of child related employment will be taken to be a certificate issued under regulation 8A and—
(a) will continue in force in accordance with its terms; and
(b) will be taken to have been issued on the date of its original issue.
Note— These documents are commonly referred to as clearance letters.
(2) A document referred to in subclause (1) that indicates that the person specified in the document is only suitable or authorised to perform specified prescribed functions (within the meaning of section 8B of the Act) is, by force of this subclause, void and of no effect.
Note— These documents are commonly referred to as role specific clearance letters.
• 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 these regulations (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 of regulations
These regulations became obsolete on the repeal of the
Children's Protection Act 1993 on 1.7.2019
Legislation revoked by principal regulations The
Children's Protection Regulations 2010 revoked the following:
Children's Protection Regulations 2006
Principal regulations and variations
Year
No
Reference
Commencement
2010
176
Gazette 29.7.2010 p3924 1.1.2011: r 2
2011
280
Gazette 15.12.2011 p5075 Pt 2 (r 4)—1.1.2012: r 2
2012
85
Gazette 31.5.2012 p2367 1.7.2012: r 2
2013
131
Gazette 6.6.2013 p2340 1.7.2013: r 2
2014
61
Gazette 13.2.2014 p965 1.7.2014: r 2
2014
195
Gazette 26.6.2014 p3072 1.7.2014: r 2
2014
283
Gazette 11.12.2014 p6764 11.4.2015: r 2
2015
63
Gazette 18.6.2015 p2559 1.7.2015: r 2
2015
251
Gazette 17.12.2015 p5293 17.12.2015: r 2
2016
61
Gazette 23.6.2016 p2158 1.7.2016: r 2
2016
170
Gazette 30.6.2016 p2788 1.7.2016: r 2
2016
269
Gazette 24.11.2016 p4517 1.12.2016: r 2
2017
116
Gazette 22.6.2017 p2307 1.7.2017: r 2
2018
112
Gazette 21.6.2018 p2306 1.7.2018: r 2
2018
219
Gazette 11.10.2018 p3797 22.10.2018: r 2
2018
232
Gazette 29.11.2018 p4100 29.11.2018: r 2
Provisions varied Entries that relate to provisions that have been deleted appear in italics.
Provision
How varied
Commencement
Pt 1
r 2
omitted under Legislation Revision and Publication Act 2002
1.1.2012 r 3
r 3(1)
r 3 redesignated as r 3(1) by 61/2014 r 4(4)
1.7.2014
ACC
inserted by 170/2016 r 4
1.7.2016
authorised screening unit
varied by 61/2014 r 4(1)
1.7.2014
child-related employment screening
varied by 251/2015 r 4(1)
17.12.2015
disability
inserted by 61/2014 r 4(2)
1.7.2014
disability services
inserted by 61/2014 r 4(2)
1.7.2014
interstate spent conviction
inserted by 61/2014 r 4(3)
1.7.2014
prescribed passenger transport service
inserted by 251/2015 r 4(2)
17.12.2015
responsible authority
deleted by 61/2014 r 4(3)
1.7.2014 vehicle
inserted by 251/2015 r 4(2)
17.12.2015
r 3(2)
inserted by 61/2014 r 4(4)
1.7.2014
varied by 283/2014 r 4
11.4.2015
r 3(3)
inserted by 61/2014 r 4(4)
1.7.2014
Pt 2
r 4 before deletion by 219/2018
r 4(1)
varied by 269/2016 r 4(1)—(3)
1.12.2016
r 4(2)
deleted by 269/2016 r 4(4)
1.12.2016
r 4
deleted by 219/2018 r 4
22.10.2018 r 5
varied by 61/2014 r 5
1.7.2014
varied by 269/2016 r 5
1.12.2016
Pt 3
heading
varied by 61/2014 r 6
1.7.2014
Pt 3 Div 1
heading
varied by 61/2014 r 7
1.7.2014
r 6
r 6(1)
varied by 61/2014 r 8(1)—(5)
1.7.2014
varied by 283/2014 r 5(1), (2)
11.4.2015
varied by 251/2015 r 5(1)
17.12.2015
varied by 170/2016 r 5(1)
1.7.2016
r 6(1aa)
inserted by 251/2015 r 5(2)
17.12.2015
r 6(1a)
inserted by 283/2014 r 5(3)
11.4.2015
substituted by 170/2016 r 5(2)
1.7.2016
r 6(1b)
inserted by 283/2014 r 5(3)
11.4.2015
varied by 170/2016 r 5(3)
1.7.2016
varied by 219/2018 r 5
22.10.2018
r 6(2)
prescribed evidence
varied by 170/2016 r 5(4)
1.7.2016
r 7
r 7(1)
substituted by 61/2014 r 9(1)
1.7.2014
varied by 283/2014 r 6
11.4.2015
r 7(3)
inserted by 61/2014 r 9(2)
1.7.2014
r 8
substituted by 61/2014 r 10
1.7.2014
varied by 251/2015 r 6
17.12.2015
r 8A
inserted by 283/2014 r 7
11.4.2015
r 9
varied by 61/2014 r 11(1)
1.7.2014
(a) deleted by 61/2014 r 11(2)
1.7.2014
r 10
varied by 269/2016 r 6
1.12.2016
r 10A
inserted by 61/2014 r 12
1.7.2014
r 10A(1)
substituted by 251/2015 r 7
17.12.2015
r 10B
inserted by 61/2014 r 12
1.7.2014
r 11A
r 11A(1)
r 11A inserted by 283/2014 r 8
11.4.2015
r 11A redesignated as r 11A(1) by 251/2015 r 8
17.12.2015
r 11A(2)
inserted by 251/2015 r 8
17.12.2015
r 11B
inserted by 283/2014 r 8
11.4.2015
r 11B(2)
varied by 170/2016 r 6
1.7.2016
Pt 3 Div 2
r 12
r 12(1)
varied by 61/2014 r 13(1), (2)
1.7.2014
r 12(2)
substituted by 61/2014 r 13(3)
1.7.2014
r 12(3)
varied by 61/2014 r 13(4)
1.7.2014
r 12(4)
inserted by 61/2014 r 13(5)
1.7.2014
r 13
r 13(1) and (2)
varied by 61/2014 r 14
1.7.2014
Pt 3 Div 3
r 14
r 14(1)
varied by 61/2014 r 15(1)
1.7.2014
varied by 219/2018 r 6(1)
22.10.2018
r 14(2)
varied by 280/2011 r 4
1.1.2012
varied by 61/2014 r 15(1)
1.7.2014
varied by 251/2015 r 9
17.12.2015
varied by 219/2018 r 6(2)
22.10.2018
r 14(3)
deleted by 61/2014 r 15(2)
1.7.2014
Pt 4
deleted by 219/2018 r 7
22.10.2018 Sch 1
substituted by 85/2012 r 4
1.7.2012
substituted by 131/2013 r 4
1.7.2013
cl 1
varied by 195/2014 r 4(1), (2)
1.7.2014
varied by 63/2015 r 4(1), (2)
1.7.2015
varied by 61/2016 r 4(1), (2)
1.7.2016
varied by 116/2017 r 4(1), (2)
1.7.2017
varied by 112/2018 r 4(1), (2)
1.7.2018
varied by 232/2018 r 4
29.11.2018
cl 1(1)
varied by 283/2014 r 9
11.4.2015
Sch 2 before substitution by 283/2014
Pt 1
omitted under Legislation Revision and Publication Act 2002
1.1.2012 Sch 2
substituted by 283/2014 r 10
11.4.2015
Transitional etc provisions associated with regulations or variations
Children's Protection Variation Regulations 2014 (No 61 of 2014), Sch 1
1—Transitional provision An authorised screening unit operating immediately before the commencement of regulation 9(1) will, on that commencement, be taken to have been established under regulation 7(1)(a) of the
Children's Protection Regulations 2010 as inserted by these regulations.
Historical versions
1.1.2012
1.7.2012
1.7.2013
1.7.2014
11.4.2015
1.7.2015
17.12.2015
1.7.2016
1.12.2016
1.7.2017
1.7.2018
22.10.2018
0
0
0