Children, Young Persons and Their Families Amendment (Interstate Registration of Care and Protection Order) Act 1999
An Act to amend the Children, Young Persons and Their Families Act 1997
[Royal Assent 15 December 1999]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
1Short titleThis Act may be cited as the Children, Young Persons and Their Families Amendment (Interstate Registration of Care and Protection Order) Act 1999 . 2CommencementThis Act commences on the day on which this Act receives the Royal Assent. 3Principal ActIn this Act, the Children, Young Persons and Their Families Act 1997 is referred to as the Principal Act. 4Section 4 amended (Meaning of "at risk")Section 4 of the Principal Act is amended as follows: (a) by omitting "For" and substituting "(1) For"; (b) by adding the following subsection: (2) For the purposes of subsection (1) , it does not matter whether the conduct that puts a child at risk occurred or, as the case requires, is likely to occur wholly or partly outside Tasmania. 5Part 8 substituted Part 8 of the Principal Act is repealed and the following Part is substituted: PART 8Interstate transfers of child protection order, &c. Division 1Preliminary 76Interpretation of Part 8 (1) In this Part, unless the contrary intention appears – child protection order means a final order made under a child welfare law that gives responsibility in relation to the guardianship, custody or supervision of a child (however that responsibility is described) to – (a) a government department or statutory authority; or (b) a person who is the head or chief executive of a government department or statutory authority or otherwise holds an office or position in, or is employed in, a government department or statutory authority; or (c) an organisation or the chief executive, however described, of an organisation; child protection proceeding means any proceeding brought in a court under a child welfare law for – (a) the making of a finding that a child is in need of protection or any other finding, however described, the making of which is under the child welfare law a prerequisite to the exercise by the court of a power to make a child protection order; or (b) the making of a child protection order or an interim order or for the variation or revocation, or the extension of the period, of such an order; child welfare law means – (a) Part 5 of this Act; and (b) a law of another State that, under a notice made under subsection (2) and in force, is a child welfare law for the purposes of this Part; and (c) a law of another State that substantially corresponds to Part 5 ; Children’s Court in relation to – (a) Tasmania means the Court; and (b) a State other than Tasmania, means the court with jurisdiction to hear and determine a child protection proceeding at first instance; home order means a child protection order made, or taken to have been made, under Part 5 ; interim order means – (a) an order made under section 77Q ; and (b) an equivalent order made under an interstate law; interstate law means – (a) a law of another State that, under a notice made under subsection (3) and in force, is an interstate law for the purposes of this Part; and (b) a law of another State that substantially corresponds to this Part; interstate officer, in relation to a State other than Tasmania, means – (a) the holder of an office or position that, under a notice made under subsection (4) and in force, is an office or position the holder of which is the interstate officer in relation to that State for the purposes of this Part; and (b) the person holding the office or position to which there is given by or under the child welfare law of that State principal responsibility for the protection of children in that State; participating State means a State in which an interstate law is in force; sending State means the State from which a child protection order or proceeding is transferred under this Part or an interstate law; State includes a Territory and New Zealand. (2) The Minister, by notice published in the Gazette, may declare a law of another State to be a child welfare law for the purposes of this Part if satisfied that the law substantially corresponds to Part 5 of this Act. (3) The Minister, by notice published in the Gazette, may declare a law of another State to be an interstate law for the purposes of this Part if satisfied that the law substantially corresponds to this Part. (4) The Minister, by notice published in the Gazette, may declare an office or position in another State to be an office or position the holder of which is the interstate officer in relation to that State for the purposes of this Part. Division 2Transfer of child protection orders Subdivision 1Types of transfer 77Types of transfer A child protection order may be transferred by – (a) the Secretary under Subdivision 2 ; or (b) the Court under Subdivision 3 . Subdivision 2Transfer by Secretary 77AWhen Secretary may transfer order (1) The Secretary may transfer a home order to a participating State if – (a) in his or her opinion a child protection order to the same or a similar effect as the home order could be made under the child welfare law of that State; and (b) the home order is not subject to an appeal; and (c) the relevant interstate officer has consented in writing to the transfer and to the terms of the home order to be transferred (the "proposed interstate order"), including terms to be included in that order by the Secretary under this section; and (d) any person whose consent to the transfer is required under section 77B has so consented. (2) The Secretary may include in the proposed interstate order any conditions that could be included in a child protection order of that type made in the relevant participating State. (3) In determining whether a child protection order to the same or a similar effect as the home order could be made under the child welfare law of the participating State, the Secretary must not take into account the period for which it is possible to make such an order in that State. (4) The Secretary must determine, and specify in the proposed interstate order – (a) the type of order under the child welfare law of the participating State that the proposed interstate order is to be; and (b) the period for which it is to remain in force. (5) The period must be – (a) if the same period as that of the home order is possible for the proposed interstate order under the child welfare law of the participating State commencing from the date of the registration of the interstate order in that State, that period; or (b) in any other case, as similar a period as is possible under that law but in no case longer than the period of the home order. 77BPersons whose consent is required to transfer order (1) For the purposes of section 77A(1)(d) – (a) if the home order gives custody of the child to the Secretary, consent to a transfer under this Subdivision is required from the child’s parents and any other person who is granted access to the child under the order; and (b) if the home order provides for supervision of the child or for supervised custody of the child, consent to a transfer under this Subdivision is required from the child’s parents; and (c) if the child is 15 or more years old, consent to a transfer under this Subdivision is required from the child. (2) Despite subsection (1)(b) , if a parent of the child is residing in, or is intending to reside in, the relevant participating State, consent to the transfer is not required from that parent or from any other parent who consents to the child residing in that State. 77CSecretary to have regard to certain matters In determining whether to transfer a child protection order to a participating State under this Subdivision, the Secretary must have regard to – (a) whether the Secretary or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child; and (b) the desirability of a child protection order being an order under the child welfare law of the State where the child resides. 77DNotification to child and his or her parents (1) If the Secretary has decided to transfer a home order to a participating State under this Subdivision, the Secretary must serve – (a) the parents of the child who is the subject of the order; and (b) if the child is of or above the age of 12 years, the child – with a notice of the decision as soon as practicable but in any event no later than 3 working days after making it. (2) A notice under subsection (1) must also include the information that the child or a parent of the child may apply for a review of the decision on its merits by the Court by lodging the application with the Court and serving a copy of it on the Secretary within 13 working days after the date of the decision. (3) Service of a notice on a person is not required under subsection (1) if it cannot be effected after making all reasonable efforts. 77EReview of decision (1) A proceeding for review of a decision of the Secretary to transfer a home order to a participating State must be commenced by lodging the application for review with the Court, and serving the Secretary with a copy of it, within 13 working days after the date of the decision. (2) The lodging with the Court and service on the Secretary of an application stays the operation of the decision pending the determination of the proceeding. (3) Subject to this Act, a review of a decision of the Secretary to transfer a home order is to be instituted, heard and determined as prescribed in rules of court made under the Magistrates Court (Children’s Division) Act 1998 . 77FDecision of Court on review (1) On receipt of an application under section 77E , the Court may review the decision of the Secretary to transfer a home order to a participating State and may – (a) affirm the decision of the Secretary; or (b) quash the decision of the Secretary; or (c) quash the decision of the Secretary and make an order under Subdivision 3 as if the application under section 77E were an application under section 77G . (2) Section 20 of the Magistrates Court (Children’s Division) Act 1998 does not apply in respect of an order made under subsection (1) . Subdivision 3Transfer by Court 77GSecretary may apply to Court to transfer order The Secretary may apply to the Court for an order transferring a home order to a participating State – (a) if a person whose consent to a transfer of a home order is required under section 77B does not so consent; or (b) if the Secretary considers that the terms of a proposed interstate order, if made under section 77A , would be significantly different to the terms of the home order; or (c) for any other reason the Secretary considers appropriate. 77HWhen Court may make order The Court may make an order transferring a home order to a participating State if – (a) the Secretary applies for the making of the order; and (b) the home order is not subject to an appeal; and (c) the relevant interstate officer has consented to the transfer and to the terms of the home order to be transferred, including terms to be included in that order by the Court under this Subdivision. 77IService of application The Secretary must serve, as soon as possible, a copy of an application for an order transferring a home order to a participating State on each person who would be a party if the application were an application to vary a care and protection order under section 48 . 77JType of order (1) If the Court determines to transfer a home order to a participating State, the terms of the child protection order to be transferred (the "proposed interstate order") must be terms – (a) that could be the terms of a child protection order made under the child welfare law of that State; and (b) that the Court believes to be – (i) to the same or a similar effect as the terms of the home order; or (ii) otherwise in the best interests of the child. (2) The Court may include in the proposed interstate order any conditions that could be included in a child protection order of that type made in the relevant participating State. (3) In determining whether an order to the same or a similar effect as the home order could be made under the child welfare law of a participating State, the Court must not take into account the period for which it is possible to make such an order in that State. (4) The Court must determine, and specify in the proposed interstate order – (a) the type of order under the child welfare law of the participating State that the proposed interstate order is to be; and (b) the period for which it is to remain in force. (5) The period must be a period – (a) for which a child protection order of the type of the proposed interstate order may be made under the child welfare law of the participating State commencing from the date of the registration of the proposed interstate order in that State; and (b) that the Court considers to be appropriate. 77KCourt to have regard to certain matters In determining what order to make on an application under this Subdivision, the Court must have regard to – (a) whether the Secretary or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child; and (b) the desirability of a child protection order being an order under the child welfare law of the State where the child resides; and (c) any information given to the Court by the Secretary under section 77L . 77LDuty of Secretary to inform Court of certain matters If the Secretary is aware that – (a) an order under section 47(1) or (2) of the Youth Justice Act 1997 , or an order imposing a sentence under the Sentencing Act 1997 , other than an order that only imposes a fine, is in force in respect of the child who is the subject of an application under this Subdivision; or (b) a criminal proceeding is pending against that child in any court – the Secretary must, as soon as possible, inform the Court of that fact and of the details of the order or pending criminal proceeding. 77MAppeals (1) An appeal from an order made under this Subdivision – (a) must be instituted, and written notice of it must be served on the Secretary, within 13 working days after the day on which the order complained of was made; and (b) operates as a stay of the order. (2) The Supreme Court cannot extend the time limit fixed by subsection (1)(a) . (3) The Supreme Court may make any interim order pending the hearing of the appeal that the Court has jurisdiction to make. Division 3Transfer of child protection proceedings 77NWhen Court may make order under this Division (1) The Court may make an order under this Division transferring a child protection proceeding pending in the Court to the Children’s Court in a participating State if – (a) the Secretary applies for the making of the order; and (b) the relevant interstate officer has consented in writing to the transfer. (2) The proceeding is discontinued in the Court on the registration in the Children’s Court in the participating State in accordance with the interstate law of an order referred to in subsection (1) . 77OService of application The Secretary must, as soon as possible, cause a copy of an application for an order transferring a child protection proceeding to the Children’s Court in a participating State to be served on – (a) the child’s parents; and (b) any other person with whom the child is living; and (c) if the child is of or above the age of 12 years, the child. 77PCourt to have regard to certain matters (1) In determining whether to make an order transferring a proceeding under this Division, the Court must have regard to – (a) whether any other proceedings relating to the child are pending, or have previously been heard and determined, under the child welfare law in the participating State; and (b) the place where any of the matters giving rise to the proceeding in the Court arose; and (c) the place of residence, or likely place of residence, of the child, his or her parents and any other people who are significant to the child; and (d) whether the Secretary or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child; and (e) the desirability of a child protection order being an order under the child welfare law of the State where the child resides; and (f) any information given to the Court by the Secretary under subsection (2) . (2) If the Secretary is aware that – (a) an order under section 47(1) or (2) of the Youth Justice Act 1997 , or an order imposing a sentence under the Sentencing Act 1997 , other than an order that only imposes a fine, is in force in respect of the child who is the subject of the proceeding to which an application under this Division relates; or (b) a criminal proceeding is pending against that child in any court – the Secretary must, as soon as possible, inform the Court of that fact and of the details of the order or pending criminal proceeding. 77QInterim order (1) If the Court makes an order transferring a proceeding under this Division, the Court may also make an interim order. (2) An interim order – (a) may release the child or place the child into the custody of any person, subject to any conditions that the Court considers to be appropriate; and (b) may give responsibility for the supervision of the child to the interstate officer in the participating State or any other person in that State to whom responsibility for the supervision of a child could be given under the child welfare law of that State; and (c) remains in force for the period, not exceeding 30 days, specified in the order. (3) The Children’s Court in the participating State may vary or revoke, or extend the period of, an interim order. 77RAppeals (1) An appeal from an order under this Division – (a) must be instituted, and written notice of it must be served on the Secretary, within 3 working days after the day on which the order complained of was made; and (b) operates as a stay of the order but not of any interim order made at the same time as the order. (2) The Supreme Court cannot extend the time limit fixed by subsection (1)(a) . (3) In addition to any other order it may make on an appeal under this section, the Supreme Court may – (a) make an order staying the operation of any interim order made at the same time as the order that is the subject of the appeal or may, by order, vary or revoke, or extend the period of, that interim order; and (b) make any interim order pending the hearing of the appeal that the Children’s Court has jurisdiction to make. Division 4Registration 77SFiling and registration of interstate documents (1) The Secretary must, as soon as possible, file in the Court for registration a copy of a child protection order transferred to Tasmania under an interstate law. (2) The Secretary must, as soon as possible, file in the Court for registration a copy of an order under an interstate law to transfer a child protection proceeding to Tasmania, together with a copy of any interim order made at the same time. (3) Despite subsections (1) and (2) , the Secretary must not file in the Court a copy of a child protection order or an order to transfer a child protection proceeding if, under the interstate law – (a) the decision or order to transfer the child protection order or the order to transfer the child protection proceeding is subject to appeal or review or to a stay; or (b) the time for instituting an appeal or seeking a review has not expired. 77TNotification by appropriate registrar The appropriate district registrar must immediately notify the appropriate officer of the Children’s Court in the sending State and the interstate officer in that State of – (a) the registration of any document filed under section 77S ; or (b) the revocation under section 77V of the registration of any document so filed. 77UEffect of registration (1) A child protection order registered in the Court under this Division – (a) is taken to be a care and protection order of the relevant type made under section 42 by the Court on the day on which it is registered; and (b) may be varied or revoked, or the period of the order extended, or a contravention of it dealt with, under this Act. (2) An interim order registered in the Court under this Division – (a) is taken to be an interim care and protection order made by the Court under section 46(1) on the day on which it is registered; and (b) may be varied or revoked, or the period of the order extended, or a breach of it dealt with, under this Act. (3) If an order under an interstate law to transfer a child protection proceeding to Tasmania is registered under this Part, the proceeding is taken to have been commenced in the Court on the day on which the order is registered. 77VRevocation of registration (1) An application for the revocation of the registration of any document filed under section 77S may be made to the Court by – (a) the Secretary; or (b) the child concerned; or (c) a parent of the child concerned; or (d) a party to the proceeding in the Children’s Court in the sending State in which the decision to transfer the order or proceeding was made. (2) The district registrar must cause a copy of an application to be served, as soon as possible, on – (a) the relevant interstate officer; and (b) any person by whom such an application could have been made. (3) The Court may only revoke the registration of a document filed under section 77S if satisfied that it was inappropriately registered because, under the interstate law – (a) the decision or order to transfer the child protection order or the order to transfer the child protection proceeding was at the time of registration subject to appeal or review or to a stay; or (b) the time for instituting an appeal or seeking a review had not expired. (4) The district registrar must send each document filed in the Court under section 77S to be sent to the Children’s Court in the sending State if the registration of the document is revoked. (5) The revocation of the registration of a document does not prevent the later re-registration of that document. Division 5Miscellaneous 77WEffect of registration of transferred home order (1) On an order being registered in a participating State under an interstate law, the home order ceases to have effect. (2) A home order that has ceased to have effect under subsection (1) is revived if the registration of the child protection order transferred from Tasmania is revoked in the participating State under the interstate law. (3) The period for which a home order is revived is the balance of the period for which it would have remained in force but for the registration of the transferred order. 77XTransfer of Court file The district registrar must cause all documents filed in the Court in connection with a child protection proceeding, and an extract from any part of a register that relates to a child protection proceeding, to be sent to the Children’s Court in a participating State if, under this Part – (a) the child protection order or proceeding is transferred to the participating State; and (b) the decision or order to transfer the child protection order or the order to transfer the child protection proceeding is not subject to appeal or review or a stay; and (c) the time for instituting an appeal or seeking a review has expired. 77YHearing and determination of transferred proceeding In hearing and determining a child protection proceeding transferred to the Court under an interstate law, the Court – (a) is not bound by any finding of fact made in the proceeding in the Children’s Court in the sending State before its transfer; and (b) may have regard to the transcript of, or any evidence adduced in, the proceeding referred to in paragraph (a) . 77ZDisclosure of information Despite anything to the contrary in this Act, the Secretary may disclose to an interstate officer any information that has come to his or her notice in the performance of duties or exercise of powers under this Act if the Secretary considers that it is necessary to do so to enable the interstate officer to perform duties or exercise powers under a child welfare law or an interstate law. 77ZADiscretion of Secretary to consent to transfer (1) Where, under an interstate law, there is a proposal to transfer a child protection order to Tasmania, the Secretary may consent or refuse to consent to the transfer and the proposed terms of the child protection order to be transferred. (2) Where, under an interstate law, there is a proposal to transfer a child protection proceeding to the Court, the Secretary may consent or refuse to consent to the transfer. 77ZBEvidence of consent of relevant interstate officer A document, or a copy of a document, purporting – (a) to be the written consent of the relevant interstate officer to – (i) the transfer of a child protection order to a participating State and to the proposed terms of the child protection order to be transferred; or (ii) the transfer of a child protection proceeding pending in the Court to the Children’s Court in a participating State; and (b) to be signed by the relevant interstate officer or his or her delegate – is admissible in evidence in any proceeding under this Part and, in the absence of evidence to the contrary, is proof that consent in the terms appearing in the document was duly given by the relevant interstate officer. [Second reading presentation speech made in:
House of Assembly on 17 NOVEMBER 1999
Legislative Council on 23 NOVEMBER 1999]