Untitled document

Children's Legislation Amendment Act 2008

No. 22 of 2008

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

Part 2—Amendment of Children's Services Act 1996

3Definitions

4Non-application of Act

5Exemptions

6Offence to carry on unlicensed children's service

7Offence to advertise unlicensed etc. children's service

8Part 3 substituted

Part 3—Licensing of Children's Services

Division 1—Approval of premises

9Application for approval of premises

10Criteria for grant of approval of premises

11Decision on application

12Certificate of approval of premises

13Term of approval

14Cancellation of approval of premises

Division 2—Application for licence

15Application for licence to operate children's service

16Application for licence to operate family day care service

17Types of licence

18Form of application

19Further information about approval of premises

20Further information about family day care service

21Inspection of premises

Division 3—Determination of fit and proper person

22Secretary to consider whether persons are fit and
proper persons

23Exception for certain nominees

24Secretary may require certain testing

25Matters to be taken into account

25ADetermination of fit and proper person

Division 4—Decision on application

25BGrant or refusal of licence

25CGrounds for refusal

25DLicence to apply to single premises unless for family
day care service

25EConditions on licence

25FNotice of decision

25GGrant of licence

25HTerm of licence

Division 5—Nominees and venues

25INotice of approved nominees and accepted nominees

25JApproved venues

25KApprovals of new nominees

25LApproval of new family day care venues

25MForm of application

Division 6—Renewal and variation of licence

25NApplication for renewal of a licence

25ORenewal of a licence

25PVariation of a licence

25QCriteria for renewal or variation of licence

25RTransfer of licence prohibited

25SVoluntary suspension of a licence

25TCancellation of a licence at request of licensee

25UDeath, bankruptcy or incapacity of licensee

9Protection of children from hazards and harm

10New section 26B inserted

26BEducational or recreational programs

11Inadequate supervision of children

12Discipline of children

13Premises to be kept clean and in good repair

14New sections 29A to 29C inserted

29AChild/staff ratios

29BAuthorisation to administer medication

29CSecretary to be notified of a serious incident

15New section 30 substituted

30Licensee or nominee to be present at children's service

16Offence to contravene condition etc. of licence

17Change of directors etc.

18New sections 32A and 32B inserted

32AFamily day care service to provide Secretary with
certain information

32BEnrolment and other documents

19Section 33 substituted

33Licence must be displayed

20Licensee to notify clients of certain changes

21Monitoring

22Powers of entry

23New section 36A inserted

36APower of authorised officers to obtain information, documents and evidence

24Offence related search and seizure at licensed premises

25Identity card must be shown

26Protection against self-incrimination

27New section 42A inserted

42APower of Secretary to obtain information, documents
and evidence

28Power of Secretary to obtain information, documents and evidence

29Notice to enforce requirements

30New section 43A inserted

43ANotice to take emergency action

31Offences relating to enforcement

32Delegation by Secretary

33New sections 53A and 53B inserted

53ARegister of family day carers

53BPublication of information

53CDisclosure of information to other authorities

34New section 54A inserted

54AInternal review

35Application to VCAT for review

36Regulations

37Transitional and saving provisions

38Statute law revision

39New section 62 inserted

62Transitional and saving provisions—Children's Legislation Amendment Act 2008

40New Schedule inserted

SCHEDULE—Transitional and Saving Provisions

Part 1—Preliminary

1Definitions

2General transitional provisions

3Savings and transitional regulations

Part 2—Licences for existing family day care and outside school hours Care services

Division 1—Application of Act

4Application of Act during application period

Division 2—Full licence

5Application of Act during determination period

Division 3—Provisional licence

6Existing service may apply to Secretary for provisional licence

7Application of Act during determination period

8Secretary may grant provisional licence

9Conditions on provisional licence

Division 4—Application for a full licence by holder of provisional licence

10Approval of premises

11Provisional licence is cancelled on granting full licence

Division 5—Other transitional provisions

12Saving of approvals in principle

Part 3—Amendment of Child Wellbeing and
Safety Act 2005

41Principles for children

Part 4—Repeal of Amending Act

42Repeal of Act

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Endnotes

Children's Legislation Amendment Act 2008

No. 22 of 2008

[Assented to 3 June 2008]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The purposes of this Act are—

(a)to amend the Children's Services Act 1996 to provide further for the licensing and regulation of children's services; and

(b)to amend the Child Wellbeing and Safety Act 2005 to provide for a kindergarten principle for children.

2Commencement

(1)This Part and sections 6, 7(2), 9(1), 9(2), 9(3), 9(4), 11(1), 11(2), 12(1), 12(2), 13(1), 16, 17, 20(2), 20(3), 27, 29(6) and 30 come into operation on the day after the day on which this Act receives the Royal Assent.

(2)Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.

(3)If a provision referred to in subsection (2) does not come into operation before 25 May 2009, it comes into operation on that day.

__________________

Part 2—Amendment of Children's Services Act 1996

3Definitions

(1)In section 3(1) of the Children's Services Act 1996 insert the following definitions—

"approval of premises means an approval under section 11;

family day care service means a children's service providing a network of family day carers each of whom provide care or education for up to 7 children (including the carer's own children) of whom no more than 4 children may be under 6 years of age unless the children who are under 6 years of age are—

(a)students enrolled at preparatory level or above at a school; or

(b)siblings, who are not the carer's own children, in which case no more than 6 siblings may be under 6 years of age;

family day care venue means premises (other than a residence) used by a family day care service to provide care and education to children;

family daycarer, in relation to a family day care service, means a person approved by the family day care service to provide care or education to children primarily—

(a)in the person's residence; or

(b)at a family day care venue;

fit and proper person check means a consideration by the Secretary under this Act as to whether a person is a fit and proper person;

nominee, in relation to a children's service, means a person who is an approved nominee or an accepted nominee under Part 3 for that service;

primary nominee, in relation to a children's service, means—

(a)if there is one nominee for that service, that nominee;

(b)if there is more than one nominee for that service, the nominee who is approved under Part 3 as the primary nominee for that service;

registered medical practitioner has the same meaning as it has in the Health Professions Registration Act 2005;

school means Government school or non-Government school, within the meaning of the Education and Training Reform Act 2006;

sibling, of a child, means—

(a)a brother or sister of the whole blood or half-blood or by adoption or by marriage, including de facto marriage; or

(b)a child to whom foster care is provided by a parent (including an adoptive parent) or guardian of the first-mentioned child;".

(2)In section 3(1) of the Children's Services Act 1996, in the definition of children's service—

(a)for "5 or more" substitute "4 or more";

(b)for "6 years" substitute "13 years".

(3)In section 3(1) of the Children's Services Act 1996, in the definition of proprietor, after "the service" (where first occurring) insert

", the primary nominee".

4Non-application of Act

(1)Section 5(1)(b) of the Children's Services Act 1996 is repealed.

(2)After section 5(1) of the Children's Services Act 1996 insert—

"(1A)Nothing in this Act applies in circumstances where the education provided to a child is education at a preparatory level or above at a Government school, or non-Government school, within the meaning of the Education and Training Reform Act 2006.

(1B)Nothing in this Act applies—

(a)to a service principally conducted to provide instruction in a particular activity or sport; or

Example

Instruction in a particular activity could be instruction in dance, music or language or religious instruction.

(b)to a playgroup registered with Playgroup Victoria Inc.

(1C)To avoid doubt, it is declared that a service may be a children's service even though it is conducted—

(a)by an entity that also carries on a school; or

(b)at premises at which a school is also carried on.".

(3)For section 5(3) of the Children's Services Act 1996 substitute—

"(3)Nothing in this Act applies in circumstances where—

(a)children are being cared for or educated under an informal arrangement between a parent or guardian of one or more of the children and the individual (the carer) providing the care and education; and

(b)at least one of the children (other than a child of the carer) is being cared for or educated in his or her own home; and

(c)not more than 4 children under the age of 6 who are not students enrolled at a preparatory level or above at a school are being cared for or educated by the carer.

Example

A group of parents arrange for their children to be cared for by a babysitter or nanny in one of the parent's homes.

(4)Nothing in this Act applies in circumstances where children who are 6 years of age or over or who are students enrolled at a preparatory level or above at a school are being cared for or educated outside their own home under an informal arrangement between a parent or guardian of the children and the individual providing the care or education.

Example

A parent arranges for a neighbour or friend to care for his or her children after school.".

5Exemptions

In sections 6(1), 6(4) and 56(2)(c) of the Children's Services Act 1996 omit "class or".

6Offence to carry on unlicensed children's service

For the penalty at the foot of section 7 of the Children's Services Act 1996 substitute—

"Penalty:240 penalty units.".

7Offence to advertise unlicensed etc. children's service

(1)In section 8 of the Children's Services Act 1996, for "approval in principle" (wherever occurring) substitute "approval of premises".

(2)For the penalty at the foot of section 8(1) of the Children's Services Act 1996 substitute—

"Penalty:120 penalty units.".

8Part 3 substituted

For Part 3 of the Children's Services Act 1996 substitute—

"Part 3—Licensing of Children's Services

Division 1—Approval of premises

9Application for approval of premises

(1)A person may apply to the Secretary for approval of—

(a)the use of particular premises for operating a children's service; or

(b)premises proposed to be constructed for use in operating a children's service; or

(c)alterations or extensions to premises used or proposed to be use for operating a children's service.

(2)An application must—

(a)be in writing; and

(b)contain the relevant prescribed information; and

(c)be accompanied by the relevant prescribed fee.

(3)An applicant under this section must give the Secretary any further information relating to the application that the Secretary requests including design sketches, construction drawings, plans or specifications relating to the premises proposed to be used or constructed, altered or extended.

10Criteria for grant of approval of premises

In deciding whether to grant, or to refuse to grant, an approval of premises, the Secretary must consider whether the design and the location of the premises are satisfactory for the operation of a children's service.

11Decision on application

(1)On receiving an application under section 9, the Secretary must decide whether to grant, or to refuse to grant, approval of—

(a)the use of particular premises for operating a children's service; or

(b)premises proposed to be constructed for use in operating a children's service; or

(c)alterations or extensions to premises used or proposed to be used for operating a children's service.

(2)The approval may be granted subject to conditions.

(3)The Secretary must give notice in writing to the applicant of his or her decision within 30 days after receiving the application under section 9 or, if the Secretary requests further information from the applicant, within 30 days after receiving that information.

12Certificate of approval of premises

If the Secretary grants an approval of premises, the Secretary must issue a certificate of approval of premises stating—

(a)the address at which the premises are located; and

(b)any conditions to which the approval is subject.

13Term of approval

An approval of premises remains in force for 5 years unless it is sooner cancelled.

14Cancellation of approval of premises

The Secretary may cancel an approval of premises if—

(a)the premises do not conform to any condition of the approval of premises; or

(b)the premises are otherwise not satisfactory for the operation of a children's service.

Division 2—Application for licence

15Application for licence to operate children's service

(1)A person may apply to the Secretary to obtain a licence of a prescribed type to operate a children's service at premises for which there is a current approval of premises.

(2)This section does not apply to an application for a licence to operate a family day care service.

16Application for licence to operate family day care service

A person may apply to the Secretary to obtain a licence to operate a family day care service.

17Types of licence

The regulations may prescribe other types of licence for the purposes of this Act.

18Form of application

An application under section 15 or 16—

(a)must—

(i)be in writing; and

(ii)specify the type of licence sought; and

(iii)contain the relevant prescribed information; and

(b)must be accompanied by—

(i)the relevant prescribed fee; and

(ii)the name and address of any person nominated by the applicant to manage or control the children's service in the absence of the licensee; and

(iii)a declaration by the applicant that the person nominated is a fit and proper person to manage or control a children's service; and

(iv)if more than one person is nominated, the name of the person who is to have primary responsibility for the management or control of the service in the absence of the licensee; and

(v)if the applicant is a body corporate, the name and address of any director or officer of the body corporate who may exercise control over the operation of the children's service; and

(vi)if the applicant is a body corporate, the name and address of the person appointed to represent the licensee in relation to the application and the operation of the children's service; and

(vii)any other information required by this Division; and

(viii)any other things or information that are prescribed.

19Further information about approval of premises

An application under section 15 must also be accompanied by—

(a)a copy of the current certificate of approval of premises; and

(b)details of any circumstances that have changed with respect to the design or location of the premises where the service is to operate since the approval was granted.

20Further information about family day care service

(1)An application under section 16 must include—

(a)the address that is to be the service's principal office; and

(b)the address of any family day care venue proposed to be used by the service; and

(c)a statement of the process proposed to be used by the applicant to approve—

(i)a family day carer; and

(ii)a family day carer's residence.

21Inspection of premises

(1)An applicant for a licence to operate a children's service at premises for which there is a current approval of premises must permit the Secretary or an authorised officer to inspect the premises to determine whether the premises are still satisfactory for the operation of a children's service.

(2)An applicant for a licence to operate a family day care service must permit the Secretary or an authorised officer to inspect any family day care venue proposed to be used by the service to determine whether the premises are satisfactory for the operation of a family day care service.

Division 3—Determination of fit and proper person

22Secretary to consider whether persons are fit and proper persons

In determining an application under section 15 or 16, the Secretary must consider whether—

(a)the applicant for the licence is a fit and proper person to operate a children's service; and

(b)if the applicant is a body corporate, any director or other officer of the body corporate who exercises or may exercise control over the operation of the children's service is a fit and proper person; and

(c)any person nominated by the applicant to manage or control the children's service in the absence of the licensee is a fit and proper person.

23Exception for certain nominees

(1)The Secretary is not required to carry out a fit and proper person check of a person who has been nominated by the applicant and in respect of whom the applicant has made a declaration under section 18(b)(iii) if the Secretary is satisfied that—

(a)the applicant will be attending and managing or controlling the children's service on a daily basis; or

(b)if the applicant is a body corporate, at least one of the directors of the body corporate whom the Secretary has determined is a fit and proper person will be attending and managing or controlling the children's service on a daily basis; or

(c)more than one person has been nominated to manage or control the children's service and the person to whom the declaration relates will not have primary responsibility for managing or controlling the children's service.

(2)A person in respect of whom a fit and proper person check is not carried out because of subsection (1) is an accepted nominee for the purposes of this Act.

(3)The Secretary may revoke a person's acceptance as an accepted nominee under this Part if the Secretary is satisfied that the person has ceased to be a fit and proper person.

24Secretary may require certain testing

The Secretary may require a person in respect of whom a fit and proper person check is being carried out under this Part—

(a)to submit to any tests or provide any references or reports to determine the suitability of the person; and

(b)to submit to any medical or psychiatric examination that the Secretary considers appropriate in order to determine the suitability of the person and, if required by the Secretary, provide any results or reports of the examination.

25Matters to be taken into account

(1)Subject to subsection (2), in carrying out a fit and proper person check on a person, the Secretary may take into account all or any of the following matters—

(a)whether the person has within the 10 years preceding the application been found guilty of an indictable offence against the person or an offence involving dishonesty, fraud or trafficking in drugs of dependence for which the maximum penalty exceeds 3 months imprisonment;

(b)whether the person has been found guilty of an offence against this Act or any corresponding previous Act or regulations;

(c)whether the person is not of sound financial reputation and stable financial background;

(d)whether the person is not of good repute having regard to character, honesty and integrity.

(2)The Secretary may take into account all or any of the matters referred to in subsection (1)(a), (1)(b) or (1)(d) in carrying out a fit and proper person check on a person who is nominated to manage or control a children's service in the absence of the licensee.

(3)Nothing in this section limits the circumstances in which a person may be considered not to be a fit and proper person—

(a)to operate a children's service; or

(b)in the case of a body corporate, to be the director or other officer of the body corporate who exercises or may exercise control over the operation of the children's service; or

(c)to manage or control a children's service in the absence of the licensee.

25ADetermination of fit and proper person

(1)After carrying out a fit and proper person check in respect of a person, the Secretary must determine whether or not the person is a fit and proper person for the purposes of this Part.

Note

A fit and proper person check is not required to be carried out in certain circumstances (see section 23).

(2)A determination under this section that a person is a fit and proper person—

(a)remains in force for a period not exceeding 5 years specified in the determination unless it is sooner revoked; and

(b)may be relied on by the Secretary in relation to any other application under this Act while the determination remains in force.

(3)If a determination under this section that a person is a fit and proper person to manage or control a children's service in the absence of the licensee is in force, that person is an approved nominee for the purposes of this Act.

(4)The Secretary may revoke a determination under this section if the Secretary is satisfied that the person has ceased to be a fit and proper person.

Division 4—Decision on application

25BGrant or refusal of licence

The Secretary may grant or refuse to grant a licence.

25CGrounds for refusal

The Secretary must refuse to grant a licence if—

(a)the Secretary has determined under Division 3 that—

(i)the applicant for the licence is not a fit and proper person to operate a children's service; or

(ii)any person nominated to manage or control the children's service in the absence of the licensee is not a fit and proper person to do so; or

(iii)if the applicant is a body corporate, any director or other officer of the body corporate who exercises or may exercise control over the operation of the children's service is not a fit and proper person to do so; or

(b)except in the case of a family day care service, there is no current approval of premises for the premises proposed to be used for the children's service.

25DLicence to apply to single premises unless for family day care service

The Secretary must not grant a licence to operate a children's service (other than a family day care service) in respect of more than one premises.

25EConditions on licence

(1)A licence is granted subject to the condition that the children's service is operated in a way that—

(a)ensures the safety of the children being cared for or educated; and

(b)ensures that the developmental needs of those children are met; and

(c)supports the health and wellbeing of those children.

(2)A licence is granted subject to the condition that a person must not manage or control the operation of the children's service in the absence of the licensee unless the person is an approved nominee or an accepted nominee under this Part.

(3)A licence for a family day care service is granted subject to the condition that premises must not be used as a family day care venue unless the premises are first approved by the Secretary under this Part.

(4)A licence may be granted subject to any other conditions or restrictions set out in the licence that are prescribed or that the Secretary imposes.

(5)Without limiting the power of the Secretary to impose any other conditions or restrictions on a licence, the Secretary may impose conditions or restrictions about the following matters—

(a)the premises or part of the premises from which the service can be provided;

(b)the maximum number of children that may be cared for or educated by the service;

(c)the ages of the children who may be cared for or educated by the service;

(d)any change to a person having the management or control of the service in the absence of the licensee;

(e)any change in a family day care venue;

(f)the minimum number of staff who must be in attendance at the service;

(g)the qualifications of the staff of the service.

25FNotice of decision

The Secretary must give notice in writing to the applicant of the Secretary's decision within 30 days after receiving the application or, if the Secretary has required testing, examination or further information, within 30 days after receiving the results or report of the test or examination or that information.

25GGrant of licence

(1)If the Secretary grants a licence under this Division, the Secretary must send a copy of the licence to the licensee stating—

(a)the name of the person to whom it is issued; and

(b)in the case of a licence other than a licence to operate a family day care service, the premises from which the service can operate; and

(c)in the case of a family day care service, the principal office of the family day care service; and

(d)any conditions or restrictions to which it is subject.

(2)The licence to operate a family day care service must not state premises that are the residences of the family day carers or family day care venues.

25HTerm of licence

A licence remains in force for a period not exceeding 5 years determined by the Secretary and specified in the licence unless the licence is sooner cancelled.

Division 5—Nominees and venues

25INotice of approved nominees and accepted nominees

If the Secretary grants a licence to operate a children's service, the Secretary must notify the licensee of the persons who are the approved nominees and the accepted nominees for the purpose of that service.

25JApproved venues

(1)If the Secretary grants a licence to operate a family day care service, the Secretary may approve a venue as a family day care venue for that service.

(2)The Secretary must notify the licensee of any venue that is an approved family day care venue for that service.

25KApprovals of new nominees

(1)A licensee may apply to the Secretary for—

(a)approval of a person who is to have the management or control of the service in the absence of the licensee; or

(b)approval of a person who is to have primary responsibility for the management or control of the service in the absence of the licensee.

(2)Division 3 applies (with any necessary changes) to an application under subsection (1).

(3)The Secretary must notify the licensee of the persons who are approved nominees and accepted nominees for the service as a result of an application under this section.

25LApproval of new family day care venues

(1)The Secretary, on the application of the licensee of a family day care service, may approve a new family day care venue for that service.

(2)Section 21 applies (with any necessary changes) to an application under subsection (1).

(3)The Secretary must notify the licensee of the approval of a venue under this section.

25MForm of application

An application under section 25K or 25L must—

(a)be in writing and contain the relevant prescribed information; and

(b)be accompanied by the relevant prescribed fee.

Division 6—Renewal and variation of licence

25NApplication for renewal of a licence

(1)A licensee may apply to the Secretary for the renewal of the licensee's licence.

(2)An application must—

(a)be in writing and contain the relevant prescribed information; and

(b)be accompanied by the relevant prescribed renewal fee.

(3)A renewal application must be made at least 2 months before the expiry of the licence but not more than 3 months before that expiry.

(4)The Secretary may, on receipt of the prescribed late application fee, consider an application for renewal of a licence that is received within the 2 month period referred to in subsection (3) but before the expiry of the licence.

25ORenewal of a licence

(1)The Secretary may renew a licence or refuse to renew a licence.

(2)On renewing a licence, the Secretary may—

(a)renew the licence as then in force; or

(b)vary or revoke any of the conditions or restrictions to which the licence is subject; or

(c)impose new conditions or restrictions on the licence.

(3)The conditions or restrictions to which a licence is subject must be set out in the licence.

(4)A renewed licence remains in force for a period not exceeding 5 years determined by the Secretary and specified in the licence unless the licence is sooner cancelled.

25PVariation of a licence

(1)The Secretary may at any time—

(a)vary or revoke a condition or restriction of a licence; or

(b)impose a new condition or restriction on a licence; or

(c)vary the period of a licence.

(2)The Secretary must not vary the period of a licence so that it exceeds 5 years.

(3)The Secretary may act under subsection (1)—

(a)on the Secretary's own initiative after consultation with the licensee; or

(b)on the application of the licensee.

(4)An application must—

(a)be in writing and contain the relevant prescribed information; and

(b)be accompanied by the relevant prescribed fee.

(5)The Secretary must send a notice of the variation of the licence and a copy of the varied licence to the licensee within 7 days after determining that the licence should be varied.

(6)A variation of the period of a licence or a condition or restriction of a licence does not take effect until 30 days after the Secretary gives the licensee notice in writing of the variation unless the Secretary, with the consent of the licensee, determines that the variation takes effect earlier.

25QCriteria for renewal or variation of licence

(1)The Secretary must not renew a children's service licence unless the Secretary is satisfied that the licensee continues to be able to satisfy all or any of the requirements of Divisions 3 and 4 to be granted a licence for the children's service that the Secretary considers should be satisfied in the circumstances.

(2)The Secretary must not vary a children's service licence on the application of a licensee unless the Secretary is satisfied that the licensee continues to be able to satisfy all or any of the requirements of Divisions 3 and 4 to be granted a licence for the children's service that the Secretary considers should be satisfied in the circumstances.

(3)For the purposes of this section, the provisions of Divisions 3 and 4 determined by the Secretary under subsection (1) or (2) apply to the licensee as if the licensee were an applicant for a licence under Division 2.

25RTransfer of licence prohibited

A licence is not transferable to another person.

25SVoluntary suspension of a licence

(1)A licensee may apply to the Secretary for a suspension of the licensee's licence.

(2)An application must—

(a)be in writing and contain the relevant prescribed information; and

(b)be accompanied by the prescribed fee.

(3)The Secretary may, by notice in writing, grant an application under subsection (1) if the Secretary is satisfied that—

(a)the applicant proposes to resume the operation of the children's service at the premises at the end of the period of suspension; and

(b)any other prescribed conditions have been met.

(4)A period of suspension under this section remains in force for the period of time specified in the notice.

(5)A period of suspension under this section must be added to the total period for which the licence was granted even if the new period of the licence exceeds 5 years.

(6)A licensee whose licence is suspended under this section is deemed not to be a licensee in respect of the premises to which the licence applies for the period of the suspension.

25TCancellation of a licence at request of licensee

(1)The Secretary may cancel a licence if the Secretary is satisfied that—

(a)the licensee has requested that the licence be cancelled; or

(b)the licensee has ceased operating the service.

(2)If the Secretary cancels a licence, the Secretary must give written notice of the cancellation to the licensee at least 7 days before the cancellation takes effect.

25UDeath, bankruptcy or incapacity of licensee

(1)This section applies to a children's service in respect of which there is only one licensee and that licensee is a natural person.

(2)If the Secretary is satisfied that the licensee of a children's service to which this section applies has died or has become bankrupt or incapacitated, the Secretary may appoint any person that the Secretary considers appropriate as licensee of the children's service for a period not exceeding 6 months.".

9Protection of children from hazards and harm

(1)In section 26(1) of the Children's Services Act 1996 after "educated by the service" insert

"from harm and".

(2)For the penalty at the foot of section 26(1) of the Children's Services Act 1996 substitute—

"Penalty:120 penalty units.".

(3)In section 26(2) of the Children's Services Act 1996 after "that staff member" insert "from harm and".

(4)For the penalty at the foot of section 26(2) of the Children's Services Act 1996 substitute—

"Penalty:120 penalty units.".

(5)After section 26(2) of the Children's Services Act 1996 insert—

"(3)A family day carer must ensure that every reasonable precaution is taken to protect a child in his or her care as a family day carer from harm and from any hazard likely to cause injury.

Penalty:120 penalty units.".

(6)For the penalty at the foot of section 26A of the Children's Services Act 1996 susbstitute—

"Penalty:60 penalty units.".

10New section 26B inserted

Before section 27 of the Children's Services Act 1996 insert—

"26B   Educational or recreational programs

(1)The proprietor of a children's service must ensure that there is made available to all children cared for or educated by the children's service an educational or recreational program—

(a)that is based on the developmental needs, interests and experiences of each child; and

(b)that is designed to take into account the individual differences of those children; and

(c)that enhances each child's development.

Penalty:60 penalty units.

(2)A family day carer must ensure that there is made available to all children who are being cared for or educated by the carer as a family day carer an educational or recreational program—

(a)that is based on the developmental needs, interests and experiences of each child; and

(b)that is designed to take into account the individual differences of those children; and

(c)that enhances each child's development.

Penalty:60 penalty units.".

11Inadequate supervision of children

(1)For the penalty at the foot of section 27(1) of the Children's Services Act 1996 substitute—

"Penalty:120 penalty units.".

(2)For the penalty at the foot of section 27(2) of the Children's Services Act 1996 substitute—

"Penalty:120 penalty units.".

(3)After section 27(2) of the Children's Services Act 1996 insert—

"(3)A family day carer must ensure that any child in the care of the carer as a family day carer is adequately supervised.

Penalty:120 penalty units.".

12Discipline of children

(1)For the penalty at the foot of section 28(1) of the Children's Services Act 1996 substitute—

"Penalty:120 penalty units.".

(2)For the penalty at the foot of section 28(2) of the Children's Services Act 1996 substitute—

"Penalty:120 penalty units.".

(3)After section 28(2) of the Children's Services Act 1996 insert—

"(3)A family day carer must not subject any child being cared for or educated by the carer as a family day carer to—

(a)any form of corporal punishment; or

(b)any discipline which is unreasonable in the circumstances.

Penalty:120 penalty units.".

13Premises to be kept clean and in good repair

(1)For the penalty at the foot of section 29 of the Children's Services Act 1996 substitute—

"Penalty:120 penalty units.".

(2)At the end of section 29 of the Children's Services Act 1996 insert—

"(2)A family day carer must take reasonable steps to ensure that the building, the grounds and all equipment and furnishings used by the carer, as a family day carer, for the care or education of a child are maintained in a safe, clean and hygienic condition and in good repair.

Penalty:120 penalty units.".

14New sections 29A to 29C inserted

After section 29 of the Children's Services Act 1996 insert—

"29A   Child/staff ratios

(1)A proprietor of a children's service must ensure that, whenever children are being cared for or educated by the children's service, the number of staff members caring for or educating the children is no less than the number prescribed for this purpose.

Penalty:120 penalty units.

(2)Subsection (1) does not apply to any children's service or any type of children's service that the Secretary, by notice published in the Government Gazette, declares to be a children's service or type of children's service to which subsection (1) does not apply.

29BAuthorisation to administer medication

(1)A proprietor of a children's service must ensure that medication is not administered to a child being cared for or educated by the children's service unless—

(a)the prescribed authorisation has first been obtained; and

(b)the medication is administered in the prescribed manner.

Penalty:120 penalty units.

(2)A family day carer must ensure that medication is not administered to a child in his or her care as a family day carer unless—

(a)the prescribed authorisation has first been obtained; and

(b)the medication is administered in the prescribed manner.

Penalty:120 penalty units.

29CSecretary to be notified of a serious incident

A proprietor of a children's service must notify the Secretary in the prescribed manner—

(a)of the death of a child while being cared for or educated by the service; or

(b)of any incident involving injury or trauma to a child while being cared for or educated by the service requiring the attention of a registered medical practitioner or admission to a hospital; or

(c)if a child appears to be missing or otherwise cannot be accounted for or appears to have been taken or removed from the service contrary to the regulations; or

(d)if an incident of a kind that is prescribed as a serious incident occurs in relation to the children's service.

Penalty:120 penalty units.".

15New section 30 substituted

For section 30 of the Children's Services Act 1996 substitute—

"30   Licensee or nominee to be present at children's service

(1)The licensee of a children's service must ensure that the licensee or a nominee is present at the premises where the children's service is operating at all times when any child is being cared for or educated by the service at the premises.

Penalty:120 penalty units.

(2)Subsection (1) does not apply to the licensee of a family day care service.".

16Offence to contravene condition etc. of licence

For the penalty at the foot of section 31 of the Children's Services Act 1996 substitute—

"Penalty:120 penalty units.".

17Change of directors etc.

For the penalty at the foot of section 32 of the Children's Services Act 1996 substitute—

"Penalty:60 penalty units.".

18New sections 32A and 32B inserted

After section 32 of the Children's Services Act 1996 insert—

"32A   Family day care service to provide Secretary with certain information

A proprietor of a family day care service must provide the Secretary with the following information in writing—

(a)the name and address of each family day carer—

(i)who is engaged by the service; or

(ii)who ceases to be engaged by the service—

within 30 days after the day on which the family day carer is engaged, or ceases to be engaged, by the service;

(b)if the family day care service ceases to provide care or education at a family day care venue, within 30 days after that care or education ceases to be provided at that venue.

Penalty:60 penalty units.

Note

The Secretary is required to keep a register of family day carers (see section 53A).

32BEnrolment and other documents

(1)A proprietor of a children's service must keep the relevant prescribed documents available for inspection by an authorised officer in accordance with this section.

Penalty:60 penalty units.

(2)Documents referred to in subsection (1)—

(a)must be kept at the premises from which the children's service operates, if they relate to—

(i)the operation of the service; or

(ii)any staff member employed by the service; or

(iii)any child cared for, or educated at, those premises—

in the previous 12 months; and

(b)in any other case, must be kept at a place, and in a manner, that they are readily accessible by an authorised officer.

(3)A family day carer who cares for a child, as a family day carer, at the carer's residence or a family day care venue must keep the relevant prescribed documents available for inspection by an authorised officer at that residence or venue.

Penalty:60 penalty units.".

19Section 33 substituted

For section 33 of the Children's Services Act 1996 substitute—

"33   Licence must be displayed

A licensee must ensure that a copy of the licence is displayed conspicuously at the entrance to—

(a)the premises where the children's service operates at all times when the service is operating; or

(b)in the case of a family day care service, the service's principal office.

Penalty:60 penalty units.".

20Licensee to notify clients of certain changes

(1)In section 34(1) of the Children's Services Act 1996, for "section 23" substitute "section 25P".

(2)For the penalty at the foot of section 34(1) of the Children's Services Act 1996 substitute—

"Penalty:60 penalty units.".

(3)For the penalty at the foot of section 34(2) of the Children's Services Act 1996 substitute—

"Penalty:60 penalty units.".

21Monitoring

In the heading to Part 5 of the Children's Services Act 1996 before "ENFORCEMENT" insert "MONITORING AND".

22Powers of entry

(1)In section 36(1) of the Children's Services Act 1996, for "ascertaining whether this Act is being complied with" substitute "monitoring whether this Act is being or has been complied with".

(2)For section 36(1)(a) of the Children's Services Act 1996 substitute—

"(a)enter—

(i)subject to subparagraph (ii), any premises where a licensed children's service is operating or where the authorised officer believes on reasonable grounds that a licensed children's service is operating; or

(ii)any part of a family day carer's residence that the authorised officer believes on reasonable grounds is being used to provide care or education to a child on behalf of a family day care service, during the hours that the care or education is being provided;".

(3)In section 36(1)(f) of the Children's Services Act 1996—

(a)after "require a person" insert "at the premises";

(b)in subparagraph (ii), after "information" insert "or produce a document".

(4)In section 36(3) of the Children's Services Act 1996, for "under this section," insert "under this section (except as provided in subsection (1)(a)(ii)),".

23New section 36A inserted

After section 36 of the Children's Services Act 1996 insert—

"36A   Power of authorised officers to obtain information, documents and evidence

For the purpose of monitoring whether this Act is being or has been complied with, an authorised officer may, by notice in writing, require a person who is or has been a licensee, a nominee or a staff member of a children's service or a family day carer—

(a)to provide to the authorised officer, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any relevant information that is specified in the notice; or

(b)to answer a question to the best of that person's knowledge, information or belief; or

(c)to produce to the authorised officer, in accordance with the notice, any relevant document referred to in the notice.".

24Offence related search and seizure at licensed premises

For section 38(1) of the Children's Services Act 1996 substitute—

"(1)If an authorised officer has reasonable grounds for suspecting that there is on any of the following premises a particular thing that may be evidence of a commission of an offence against this Act, the authorised officer may exercise powers under this section—

(a)a licensed premises where a children's service is operating;

(b)premises in respect of which an approval of premises has been granted;

(c)any part of a family day carer's residence that is used to provide care or education to children on behalf of a family day care service;

(d)any other premises approved by the Secretary that is used to provide care or education by a family day carer on behalf of a family day care service;

(e)the principal office of a family day care service.".

25Identity card must be shown

In section 41 of the Children's Services Act 1996, for "the inspection by the occupier of the premises" substitute "inspection".

26Protection against self-incrimination

In section 42 of the Children's Services Act 1996—

(a)for "a person to refuse" substitute "an individual to refuse" and

(b)for "the first-mentioned person" substitute "that individual".

27New section 42A inserted

In Division 2 of Part 5 of the Children's Services Act 1996, before section 43 insert—

"42A   Power of Secretary to obtain information, documents and evidence

(1)If the Secretary believes that a person who is or has been a licensee, a nominee or a staff member of a children's service is capable of providing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of section 26, 27 or 28, the Secretary may, by notice in writing, require that person—

(a)to provide to the Secretary, by writing signed by that person or, in the case of a body corporate, by the person who is or was nominated by the licensee to represent the licensee in relation to the application and the operation of the children's service, within the time and in the manner specified in the notice, that information; or

(b)to produce to the Secretary, or to a person specified in the notice acting on the Secretary's behalf, in accordance with the notice, those documents; or

(c)to appear before the Secretary, or a person specified in the notice acting on the Secretary's behalf, at a time and place specified in the notice to give that evidence, either orally or in writing, and produce those documents.

(2)The Secretary or the person specified in the notice acting on the Secretary's behalf may require the evidence referred to in subsection (1)(c) to be given on oath or affirmation and for that purpose may administer an oath or affirmation.

(3)A person must not—

(a)refuse or fail to comply with a notice under this section to the extent that the person is capable of complying with it; or

(b)in purported compliance with a notice under this section, knowingly provide information or give evidence that is false or misleading; or

(c)obstruct or hinder the Secretary in exercising a power under this section.

Penalty:120 penalty units.

(4)Subject to subsection (5), a person is not excused from answering a question, providing information or producing, or permitting the inspection of, a document on the ground that the answer, information or document may tend to incriminate the person.

(5)Despite subsection (4), the answer by a person to any question asked in a notice under this section or the provision by a person of any information in compliance with a notice under this section, is not admissible in evidence against the person—

(a)in the case of a person not being a body corporate—in any criminal proceedings other than proceedings under this section; or

(b)in the case of a body corporate—in any criminal proceedings other than proceedings under this Act.".

28Power of Secretary to obtain information, documents and evidence

In section 42A(1) of the Children's Services Act 1996, after "staff member of a children's service" insert "or a family day carer".

29Notice to enforce requirements

(1)Before section 43(2)(a) of the Children's Services Act 1996 insert—

"(aa)in the case of a licensed children's service, impose on the licence to operate the children's service any condition or restriction of a kind referred to in section 25E(5) or vary any such condition or restriction in the licence; and".

(2)After section 43(2)(a) of the Children's Services Act 1996 insert—

"(ab)in the case of a licensed family day care service, direct the proprietor to suspend the provision of care or education of children by a family day carer; and".

(3)After section 43(2) of the Children's Services Act 1996 insert—

"(2A)If the Secretary, by order under subsection (2)(ab), directs the proprietor of a licensed family day care service to suspend the provision of care or education of children by a family day carer, the Secretary must, as soon as practicable after the giving of the direction, give the family day carer written notice—

(a)of the giving of the direction; and

(b)that he or she may make submissions to the Secretary within 7 days after the giving of the notice.".

(4)For section 43(3)(a) of the Children's Services Act 1996 substitute—

"(a)consider any submissions, whether oral or in writing, made to the Secretary by—

(i)the proprietor of the children's service within 7 days after the service of an order under subsection (2); or

(ii)a family day carer referred to in subsection (2)(ab) within 7 days after the giving of the notice under subsection (2A)—

and may consider any other submissions and any matters the Secretary considers appropriate; and".

(5)For section 43(3)(b) of the Children's Services Act 1996 substitute—

"(b)decide—

(i)in the case of a suspension, whether or not the suspension should be withdrawn or confirmed and, if confirmed, the period for which the suspension should operate; and

(ii)in any other case, whether to confirm or revoke the order; and".

(6)For the penalty at the foot of section 43(4) of the Children's Services Act 1996 substitute—

"Penalty:120 penalty units.".

30New section 43A inserted

After section 43 of the Children's Services Act 1996 insert—

"43A   Notice to take emergency action

(1)If the Secretary is satisfied that a children's service is operating in a manner that poses, or is likely to pose, a risk to the health, welfare or safety of a child being cared for or educated by the service, the Secretary may, by written notice, direct the proprietor of the children's service to take the steps specified in the notice to remove or reduce the risk within the time specified in the notice.

(2)A proprietor of a children's service must comply with a direction given under subsection (1).

Penalty:120 penalty units.".

31Offences relating to enforcement

(1)In section 46(b) of the Children's Services Act 1996 for "or to produce" insert "or to provide information or produce".

(2)In section 46(c) of the Children's Services Act 1996, for "section 54" substitute "section 29C or 54".

(3)For the penalty at the foot of section 46 of the Children's Services Act 1996 substitute—

"Penalty:120 penalty units.".

32Delegation by Secretary

In section 52A of the Children's Services Act 1996, after "delegation" insert "and the power under section 29A(2)".

33New sections 53A and 53B inserted

After section 53 of the Children's Services Act 1996 insert—

"53A   Register of family day carers

(1)The Secretary must keep a register of each family day carer engaged by a family day care service.

(2)The purpose of the register is to assist the Secretary in monitoring and investigating complaints about family day carers.

(3)The register must contain the prescribed information in respect of each family day carer.

(4)The register may only be inspected by the Secretary or an authorised officer.

53BPublication of information

(1)The Secretary may publish on the Department's Internet site the following information about a children's service—

(a)the name of the service;

(b)except in the case of a family day care service, the address of the approved premises;

(c)in the case of a family day care service, the address of the principal office;

(d)the name of the licensee;

(e)information about the performance of the children's service in complying with its obligations under this Act;

(f)actions taken and the results of actions taken under this Act in respect of the children's service.

(2)If the Secretary proposes to publish under subsection (1) any information of a kind referred to in subsection (1)(e) or (1)(f), the Secretary must notify the licensee of the children's service in respect of which the information relates—

(a)of that proposal; and

(b)that the person may seek review of that proposal under section 54A.

(3)Information published under this section must not include information that could identify or lead to the identification of a person other than a licensee.

53CDisclosure of information to other authorities

(1)The Secretary may provide the following information relating to a children's service to a Government Department or public authority or municipal council or equivalent body in another jurisdiction for a purpose relating to the health, safety and wellbeing of children or the operation of children's services—

(a)statistical information in relation to licences;

(b)information about the performance of children's services in complying with their obligations under this Act;

(c)actions taken and the results of actions taken under this Act in respect of children's services.

(2)The Secretary may, for a purpose relating to the health, safety and wellbeing of children, provide any information that the Secretary reasonably believes shows a contravention of any other Act or regulations made under any other Act by a children's service to a Government Department or public authority or municipal council or equivalent body in another jurisdiction.

(3)Information provided under this section must not include information that could identify or lead to the identification of a person other than a licensee.".

34New section 54A inserted

After section 54 of the Children's Services Act 1996 insert—

"54A   Internal review

(1)The licensee of a children's service may apply to the Secretary in writing for review of a proposal by the Secretary to publish information relating to the children's service under section 53B(1).

(2)An application under subsection (1) must be made within 30 days after the day on which the licensee is notified of the proposal, or within such longer period as the Secretary, either before or after the end of that period, allows.

(3)The Secretary may, in relation to an application under subsection (1)—

(a)affirm the decision to publish the information; or

(b)make such other decision as the Secretary thinks appropriate.".

35Application to VCAT for review

In section 55 of the Children's Services Act 1996—

(a)in paragraph (a), for "in principle" substitute "of premises";

(b)in paragraph (b), for "renew, vary or transfer" substitute "renew or vary".

36Regulations

(1)In section 56(1)(d) of the Children's Services Act 1996, after "but not limited to," insert "the recruitment (including the conduct of police or other security checks),".

(2)In section 56(1)(f) of the Children's Services Act 1996 after "services" insert "and family day carers".

(3)After section 56(2)(b) of the Children's Services Act 1996 insert—

"(ba)may differ according to the type of children's service; and".

37Transitional and saving provisions

For the heading to Part 7 of the Children's Services Act 1996 substitute—

"PART 7—TRANSITIONAL AND SAVING PROVISIONS".

38Statute law revision

Sections 57, 58, 59 and 60 of the Children's Services Act 1996 are repealed.

39New section 62 inserted

After section 61 of the Children's Services Act 1996 insert—

"62   Transitional and saving provisions—Children's Legislation Amendment Act 2008

The Schedule has effect.".

40New Schedule inserted

At the end of the Children's Services Act 1996 insert—

"__________________

SCHEDULE

Transitional and Saving Provisions

Part 1—Preliminary

1Definitions

In this Schedule—

application period means the period ending 3 months after the commencement day or such longer period as is prescribed;

commencement day means the day on which section 8 of the Children's Legislation Amendment Act 2008 comes into operation;

determination period, in relation to an application for a full licence or a provisional licence, means the period beginning on the day on which the application is received by the Secretary and ending when the application is finally determined;

family day care service means a children's service that operated as a family day care service immediately before the commencement day;

full licence means a licence granted under Part 3 to operate a children's service that is a family day care service or an outside school hours care service but does not include a provisional licence;

outside school hours care service means a service that, immediately before the commencement day, provided care or education to students under the age of 13 years outside school hours;

provisional licence means a licence granted under Division 3 of Part 2 of this Schedule.

2General transitional provisions

(1)Except where the contrary intention appears, this Schedule does not affect or take away from the Interpretation of Legislation Act 1984.

(2)Without limiting subclause (1), nothing in this Schedule limits the operation of section 13 of the Interpretation of Legislation Act 1984.

3Savings and transitional regulations

(1)The regulations may contain provisions of a savings and transitional nature consequent on the coming into operation of section 8 of the Children's Legislation Amendment Act 2008.

(2)Regulations under this clause may have retrospective effect to a day on or after the day on which the Children's Legislation Amendment Act 2008 receives the Royal Assent.

(3)Regulations under this clause have effect despite anything to the contrary in any Act (other than this Act or the Charter of Human Rights and Responsibilities) or in any subordinate instrument.

Part 2—Licences for existing family day care and outside school hours Care services

Division 1—Application of Act

4Application of Act during application period

This Act (other than Part 1, sections 26, 26A, 27, 28, 29 and 29C and Parts 5 and 6) does not apply during the application period to or in respect of—

(a)a family day care service; or

(b)an outside school hours care service—

that was operating immediately before the commencement day.

Division 2—Full licence

5Application of Act during determination period

(1)This Act (other than Part 1, Divisions 1, 2, 3 and 4 of Part 3 (except section 25F), sections 26, 26A, 27, 28, 29 and 29C and Parts 5 and 6) does not apply during the determination period to or in respect of a family day care service or outside school hours care service if—

(a)an application was made under Part 3 of the Act for a full licence for the service before the end of the application period; and

(b)the service was operating immediately before the commencement day.

(2)The Secretary must give written notice to the applicant of the Secretary's decision within 60 days after receiving the application, or, if the Secretary has required testing, examination or further information on the application, within 30 days after requiring that testing, examination or information.

(3)Despite section 15, an applicant for a full licence may, at the same time, apply for an approval of premises to which the licence is to apply.

Division 3—Provisional licence

6Existing service may apply to Secretary for provisional licence

(1)A person may apply to the Secretary for a provisional licence at any time before the end of the application period if the person was, immediately before the commencement day, operating a family day care service or an outside school hours care service.

(2)An application for a provisional licence must include the prescribed information relating to the children's service.

(3)The Secretary must give written notice to the applicant of the Secretary's decision within 60 days after receiving the application, or, if the Secretary has required testing, examination or further information on the application, within 30 days after requiring that testing, examination or information.

7Application of Act during determination period

This Act (other than Part 1, sections 26, 26A, 27, 28, 29 and 29C and Parts 5 and 6) does not apply during the determination period to or in respect of a family day care service or an outside school hours care service if—

(a)an application was made under this Division for a provisional licence for the service before the end of the application period; and

(b)the service was operating immediately before the commencement day.

8Secretary may grant provisional licence

(1)The Secretary may grant a provisional licence to an applicant if the Secretary is satisfied that the applicant—

(a)immediately before the commencement day, operated a family day care service or an outside school hours care service; and

(b)is otherwise eligible to be granted a full licence.

(2)Despite subclause (1)(a), the Secretary may grant a provisional licence to an applicant who did not, immediately before the commencement day, operate a family day care service or an outside school hours care service, if the Secretary is satisfied that the applicant—

(a)operated a family day care service or outside school hours care service at some time before the commencement day; and

(b)is otherwise eligible to be granted a full licence.

(3)A provisional licence expires 12 months after the day it is granted.

(4)The Secretary must ensure that a provisional licence bears the words "Provisional Licence".

(5)Part 1, Division 4 of Part 3, sections 26, 26A, 27, 28, 29 and 29C and Parts 5 and 6 apply in respect of a family day care service or an outside school hours care service for which a provisional licence is granted under this clause, as if it were a full licence.

9Conditions on provisional licence

The power of the Secretary under section 25E to impose any condition or restriction on a licence applies to a provisional licence.

Division 4—Application for a full licence by holder of provisional licence

10Approval of premises

Despite section 15, the holder of a provisional licence may apply for a full licence during the period of operation of the provisional licence, and may, at the same time, apply for an approval of premises to which the licence is to apply.

11Provisional licence is cancelled on granting full licence

Without limiting the operation of any other provision of this Act relating to the cancellation of licences, a provisional licence is cancelled on the grant of a full licence to the licensee.

Division 5—Other transitional provisions

12Saving of approvals in principle

An approval in principle existing under this Act immediately before the commencement day in respect of premises is deemed to be an approval of premises for the purposes of this Act.".

__________________

Part 3—Amendment of Child Wellbeing and Safety Act 2005

41Principles for children

In section 5(1) of the Child Wellbeing and Safety Act 2005—

(a)in paragraph (d), for "protection." substitute "protection;";

(b)after paragraph (d) insert—

"(e)every child should be able to enrol in a kindergarten program at an early childhood education and care centre.".

__________________

Part 4—Repeal of Amending Act

42Repeal of Act

This Act is repealed on 25 May 2010.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

═══════════════

Endnotes

Minister's second reading speech—

Legislative Assembly: 10 April 2008

Legislative Council: 9 May 2008

The long title for the Bill for this Act was "A Bill for an Act to amend the Children's Services Act 1996 and the Child Wellbeing and Safety Act 2005 and for other purposes."